Why Your Client’s Therapist Is The Worst Expert Witness for
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Sometimes an attorney may be tempted to call his/her client’s
psychotherapist to the stand, perhaps as a character witness or in an
attempt to “prove” the client’s mental health. Such a strategy can blwo
up, often with disastrous consequences! To understand why, one must
understand something called the “therapeutic alliance.” It is the very
bedrock of successful psychotherapy: the therapist, in essence, becomes
the client’s ally, the one who can always see things from the client’s
perspective and is never judgmental about what the client does or says,
no matter what it is. Over the weeks of treatment, the client gradually
comes to trust the therapist as someone upon whom s/he can always
depend. With the trust established, the client becomes freer to
critically examine those parts of his/her life that are not working,
that likely brought the client to treatment in the first place.
The most obvious reasons for not calling a therapist to the
stand (as other than a fact witness) are based in the concept of the
therapeutic alliance. Not only will it be disrupted (if not destroyed)
by hearing the therapist testify, but the therapist is by definition
a biased reporter, and one who has accepted as true everything s/he
has been told by the client.
The roles of the treating therapist/psychologist and the psycholo-gist/expert
witness are quite different and completely incompatible. Stuart
Greenberg, Ph.D., and Daniel Shuman, J.D., wrote a seminal article on
this issue in 1997 titled “Irreconcilable Conflict Between Therapeutic
and Forensic Roles.” Their key points are summarized below:
two potential witness roles for the psychologist: as an expert witness
and as a fact witness. Not having been trained in legal concepts (e.g.
rules of evidence, standard of proof, etc.), the treating clinician
cannot evaluate the subject in a manner suitable for expert testimony.
latter is due to the inherent differences between the roles of the
therapist and the forensic evaluator. While the therapist seeks to
forge a clinical alliance with his patient in order to facilitate
treatment, the evaluator must maintain objectivity and always consider
potential manipulation (e.g. malingering) on the part of the client who
is involved in a legal proceeding.
therapist maintains a confidential relationship with his patient,
whereas the forensic psychologist is hired specifically to disclose
his/her findings to the Court or the client’s attorney.
client therefore has none of the protection that a traditional clinical
psychologist’s patient is different in clinical vs. forensic roles. In
the former, of course, it is the subject him/herself, but in the latter,
it is the Court or the attorney. To whom the duty is owed thus also
clinician must be supportive and empathic, the forensic evaluator must,
at all costs, maintain a impartial stance. The clinician’s job is to
help his patient; the forensic evaluator’s job is to ferret out the
objective truth as much as possible.
nature of the expertise of the two roles is different as well. The
clinician is skilled in treatment, while the forensic evaluator has
specific training in psycholegal questions.
tests different hypotheses as well, the former seeking information that
will lead to a diagnosis and then correct treatment, the latter
attending to psycholegal criteria related to adjudication.
clinician depends on information from the client to determine “reality”
the forensic practitioner seeks data from multiple data points,
including information from collateral sources (with whose perspective
the client may or may not agree). The evaluator does not accept the
client’s perspective uncritically, an unheard-of perspective for the
an increased level of structure in the forensic evaluation and the
evaluator maintains more control over the relationship than does the
clinician works hard to be seen as positive and helpful by the client,
the forensic evaluator’s stance must be more distant and may become
evaluator is only concerned with presenting as accurate a picture of the
client as possible to the Court. The clinician, on the other hand, is
only concerned with benefiting the patient.
to maintain the therapeutic alliance, the clinician strives to be as
judgment-free as possible. The evaluator’s entire relationship with the
client, on the other hand, is directed towards judgment (evaluation).
Thus, using a treating therapist as an expert
witness is fraught with peril. The treating doctor’s testimony can
easily be challenged on several fronts, most importantly, the
treating clinician’s unquestioning acceptance of whatever his/her
patient told him/her, rather than the objective, fact-finding stance
of the forensic psychologist.