The Role of the Psychologist or Other Scientists in Expert Witnesses

Falsifiability: a Paradigm Shift in What is Admissible


Paschal Baute. Ed.D., ACFE

ABSTRACT. In the Daubert v. Merrell-Dow Pharmaceutical case decided by the Supreme Court unanimously on 28 June 1993, falsifiability replaced the Frye test as the arbiter of what kind of scientific evidence will be admissible. This decision dramatically changes the expectations and roles of scientists who are called to provide testimony as expert witnesses. This test of falsifiability means that expert witness using hypnosis, theories of repression, recovered memories, dissociation and multiple personality disorder, and even testimony of psychologists or psychiatrists relying upon Freudian concepts is, in fact, no longer acceptable. Even the use of the American Psychiatric Association nosology, DSM-III-R (American Psychiatric Association, 1987, or its revisions) can now be questioned on the grounds of its lack of reliability and testability.

Many of us have been aware that in hundreds of court cases involving controversial issues both the plaintiff and the defense have summoned supposedly "expert witnesses" to bolster their claims. The result has two so-called "experts" arguing with one saying YES and the other NO, with no one else having any idea as to what is the truth of the matter. Until just recently the ultimate test of truth was what has been known as the Frye test. The Frye test states that expert opinion must be based on a theory or  methodology that has received general acceptance within the particular field of that discipline. 

In the Daubert v. Merrell-Dow Pharmaceutical case decided by the Supreme Court unanimously on 28 June 1993, falsifiability replaced the Frye test as the arbiter of what kind of scientific evidence will be admissible. This decision dramatically changes the expectations and roles of scientists who are called to provide testimony as expert witnesses. The falsifiability criterion says "that the theory or concept in question must be capable of being falsified, i.e., it must be precise and specific enough to have something count against it." In the second meaning, falsifiable is used in the sense that the theory of concept in question can be "definitively or conclusively or demonstrably falsified, (i.e., demonstrably falsifiable)."
The new criterion of the scientific status of any expert testimony is its refutability or testability (Daubert, pp. 12-13).

This reasoning is based on the scientific reasoning of Karl Popper (1962) and his arguments that no theory is scientifically plausible unless it can be shown that it can be proven false, i.e., it must include a persuasive practical demonstration using scientific procedures to produce a proof of falsity. Said another way, do credible research studies exist that show that the theory cannot be maintained?

The principle of falsification provides two basic ways in which a judge may determine if the proffered expert testimony does not meet the criterion of falsifiability. The first is whether or not it is, in principle, falsifiable, and the second, whether or not it has been falsified.

After applying Rule 402 and 702 in establishing the baseline for what constitutes admissible evidence, and determining the admissibility of scientific evident in the resolution of a dispute issue, the trial judge must initially determine that an expert is proposing to testify regarding "...scientific knowledge that will assist the trier of fact to understand or determine a fact in issue (Daubert, p. 12) . Underwager and Wakefield (1993) suggest that: 

    Judges will neither readily understand this principle nor consistently  apply it without training and education. Neither judges nor attorneys can  acquire an adequate understanding of this paradigm shift  in a few hours at a  conference seminar...Proper and effective assimilation of this  revolutionizing construct into the justice system will require a major  educational and training effort for all the players involved--scientists,  attorneys and judges.
A clarifying example suggested by Underwager and Wakefield is the old medical procedure of blood letting. In the 19th century almost all doctors assumed that bloodletting would cure many different diseases. Therefore, sick people were bled. If the patient survived the doctors concluded the treatment did it. If the patient died, the doctors concluded the patient was already so sick that the treatment could not have saved him. Ergo: it was impossible to falsify bleeding as a treatment for disease! Advances in medicine showed bloodletting to be demonstrably falsifiable as a treatment for disease. Freudian psychoanalytic concepts are another example. They are clearly unscientific because nothing can count against them. Post hoc explanations are offered for every possible event but their ability to predict any future event is nil. What this means nowadays in a court of law is that psychiatric testimony based on Freudian psychanalytic concepts is now inadmissible as scientific evidence. 

What this also means is that everyone going into a court of law and bringing "scientific evidence" must now meet the criterion of falsifiability.  In the Daubert decision, Chief Justice Rehquist said: "I am at a loss to know what is meant when it is said that the scientific status of a theory depends upon its falsifiability and I suspect that some of them (federal judges) will be too."  Unfortunately, many psychologists themselves have little or no understanding of falsifiability and this may be even more true of psychiatrists and social workers.  What it means in courts of law is that from now on a major role of scientific testimony will be to offer an opinion as to the lack of credible scientific data to support a specific claim. This is a major paradigm shift in the courtroom use of expert witness.

What this also means is that an analysis of nearly every single charge that has been made in court cases involving alleged sexual abuse and mistreatment of children would be unable to meet the test of falsifiability. Most expert testimony in cases of alleged child sexual abuse did not and will not pass the falsifiability criterion. This also suggests that if this test has been in place in years past, many of gross injustices such as in the case of Kelly Michaels, the McMartin case in California, and the Robert Kelly case in Edentown, North Carolina, would never have come about. 

Recovered memory therapy has become a new industry in the past few years, all based upon falsifiable theory. According to practitioners, many thousands of adults, primarily women, suffer from the debilitating consequences of sexual abuse endured in childhood. Some mental health practitioners have insisted that the only logical reason for the client's current problems had to be childhood sexual abuse.  Clients have been told they have no knowledge of the abuse because their memories have been repressed. The magic key to return to mental health is full awareness of the unrecognized abuse. Methods are used which encourage fantasy development, with authoritative endorsement of these 
confabulationis as "true."  (Ofshe and Watters, p. 5).

Survey data indicates that a significant number of psychotherapists erroneously believe, for example, that memories obtained through hypnosis are more likely to be accurate than those simply recalled, and that hypnosis can be used to recover accurate memories even from as far back as birth. (Yapko, 1994). Yet, many studies by Laurence and Perry (`983) Orne (1979)m Sheehan, Statham, and Jamieson (1991), Lynn, Milano, and Weekes (1992) and Loftus (1993) all lend support to the recognition that memory is reconstructive, not reproductive. When the veracity of recovered memories was examined, it was 
found that many of the memories were not only false but even outright fabrications. Baker has demonstrated that confabulation is the norm rather than the exception (Baker, 1990)

Studies of the reliability and the predictability of the clinical material itself, as well as studies of the decision making processes of experts in child abuse, both demonstrate the courtroom need for the test of falsiability and the questionable role of experts. Horner and Guyer in an extensive study of clinical expertise in child custody cases in which allegations of child sexual abuse have been made conclude:

    On the basis of th accumulated data, then, and no longer simply or solely upon theoretical principles of predictable clinical decision-making accuracy alone, we aver that experts quite routinely err in their classifications of alleged sexual molesters. . Moreover, granted that across any array of experts some small portion will indeed be correct in their conclusions, there is no dependable basis on which the courts may rely to determine who these experts actually are. ..the divergent opinions and selections of facts we have consistently observed in clinician-expert groups make it likely that as opinion formers clinicians simply use facts as bases for expounding and rationalizing preconceptions and intuitions arise from particular Gestalten of the clinical material that is unique to them as individuals..The total rate of judicial error is minimized when one conforms to the assumption of innocence when faced with ambiguous or conflicting evidence. (Horner, Guyer & Kalter, 1993)

    ...when it comes to making predictions or interpreting what really lies  behind the circumstances and events of ambiguous situations, we believe that  experts have no special insights to offer beyond those of the ordinary  person. ..This makes it extremely difficult to defend privileged predictive  or preventive statements concerning children's interests.(Horner, & Guyer,  1991)
    Courts need to recognize, therefore, that the thought processes of most clinicians, whose modes and manners of discourse may in their aplomb and tones of unflinching conviction, appear to be authoritative, are by dint of training and practice historically rooted in the traditionally divergent, intuitive, and speculative thought processes of the clinical case conference, and not in the traditionally systematic, fact weighing thought processes of legal discourse. Caveat curia! (Horner & Guyer, 1992)
    Experts who cannot or will not convincingly specify the population with which the targeted individual is being compared and who cannot provide clearly reasoned and documented prevalence rates with which to calculate the likelihood of classificatory errors, are highly likely to make errors of classification. In our opinion, such experts should be precluded from testifying in sexual abuse cases. (Horner & Guyer, 1991, italics added)

This test of falsifiability also means that expert witness using hypnosis, theories of repression, recovered memories, dissociation and multiple personality disorder, post traumatic stress disorder, these in particular, as well as others, and even testimony of psychiatrists relying upon Freudian concepts is, in fact,  no longer acceptable. Even the use of the American Psychiatric Association nosology, DSM-III-R (American Psychiatric Association, 1987, or its revisions) can now be questioned on the grounds of its lack of reliability and testability. This new criterion of what is science is a major paradigm shift in admissible evidence. 

The only brief that contained reference to the principle of falsiability, testability and replication was, according to Underwager and Wakefield, the Amicus Curia in Support of Neither Party, submitted by the Carnegie commission on Science, technology, and Government (Berger, Gallagher, & Esty, 1992). This brief also suggested the inclusion of the degree of error as a factor for judges to consider when evaluating the scientific quality of claims for admission as testimony. The brief advises the court that a judge may have to consider study design, data collection, or error rate to determine whether the methodology uses were so skewed as to justify exclusion. The decision calls for the court to consider the "known or potential rate of error..and the existence and maintenance of standards controlling the technique's operation." This opens the door to scientific analyses of the error rates of the entire system of child protection, law enforcement and the system of justice in dealing with allegations of child sexual abuse. 

The first step for any judge or advocate is to understand the nature of the criterion of falsiability. This means understanding the philosophy of science. Since this is a revolutionary change that shifts the entire focus of proof into new ground, understanding the implications of the Daubert decision will likely require significant effort and training.  For those psychologists who have testified in the past concerning the lack of scientific validity (see footnote 1) and, therefore, the unreliability of these methods and theories, this is a welcome new test that can save much court time, eliminate the need for competing expert witnesses and greatly enhance the fair and impartial administration of justice. Underwager and Wakefield further 
conclude that scientists who offer expert testimony in the courtroom need to be knowledgeable and skilled in dealing with the philosophy of science and the issues raised by the establishment of the riterion of falsiability as the determinant of science."  (p. 165)

The next logical step in the application of this principle of falsiability is to cases where testimony concerning the impaired ability to act is offered by expert witness. The expert must also explain how his own testimony is falsifiable. Thus he may be now required to state explicitly how the opposite can be true and can also be proven. Therefore the psychologist and the psychiatrist can be required to show that the testimony from psychiatric examination and psychological tests can be falsified, that the plaintiff or the defendant could fabricate his or her presentation to the doctor and that there is no sure and certain way the examining doctor, other than clinical judgment, can determine whether fabrication exists. They can also be required to state the documented prevalence rates of error in classification. Clinical judgment in child sexual abuse has been shown to be largely unreliable. The Daubert decision will greatly affect courtroom practice.

Allow me to say this in still another way. Any testimony regarding insanity by expert witness must also show that the evidence being used can be falsified, that the plaintiff or the defendant can fabricate, and that there is no certain method for determining fabrication. This raises the issue that clinical judgment in insanity defense is itself forensically challengeable, and that the clinician can be required to present the current prevalence of error in the clinical judgment at issue. .

I want to conclude by suggesting that it is unlikely that we will soon have practitioners who are knowledgeable and sufficiently skilled in dealing with the philosophy of science and the issues raised by the new criterion of falsiability as determining what is acceptable science in the courtroom (Underwager and Wakefield). However, that scientist / practitioner who undertakes to do this is likely to have the prevailing weight of the evidence and the favor of the court.

1. Commonwealth of Kentucky vs Joseph Lee Rowland. KY 902.S.W.2d. 871. Court of Appeals. Joseph Lee Rowland vs Commonwealth of Kentucky. 94 S.C. 387 DG, now referred to the Supreme Court of Kentucky. This was my testimony on the unreliability of hypnosis for forensic purposes, no matter how professionally done or qualified the experts. 

References

Baker, R. They Call It Hypnosis. New York: Promotheus, 1990.

Berger, M.A. Gallagher, S.G., and Esty, E.H. (December 2, 19992) no. 92-102 In the Supreme Court of the United States, October term, 1992. Daubert et. al. v. Merrell Dow Pharmaceuticals.  Brief of the Carnegie Commission on Science, Technology, and Government as Amicus Curiae In Support of Neither Party.

Bowers, K.S. "Dissociation in Hypnosis and Multiple Personality Disorder." The International Journal of Clinical and Experimental Hypnosis. 1990, 39:1, 155-176.

Horner, T.M., & Guyer, M. J. Prediction, preventing and clinical expertise in child custody cases in which allegations of child sexual abuse have been made. I. Predictable rates of diagnostic error in relation to various clinical decision making strategies. Fam L. Q. 25:217-52, 1991.

Horner, T.M., & Guyer, M. J. Prediction, preventing and clinical expertise in child custody cases in which allegations of child sexual abuse have been made. II. Prevalence rates of child sexual abuse and the precision of procedures designed to diagnose it. Fam L. Q. 25: 31-409, 1991 

Horner, T.M., & Guyer, M. J. Prediction, preventing and clinical expertise in child custody cases in which allegations of child sexual abuse have been made. III. Studies of expert opinion formation.  Fam L. Q. 26:141-170, 1992. 

Horner, T.M., Guyer, M. J. & Kalter, N.M., The Biases of Child sexual Abuse Experts: Believing is Seeing. Bull. Am Acad Psychiatry Law, 21: 3, 281-292.

Laurence, J. R. & Perry, C. (1983). Hypnotically created memory among highly hypnotizable subjects. Science, 222, 523-524.

Loftus, E. & Yapko, M. (In press) Psychotherapy and the recovery of repressed memories. In T. Ney (Ed.), Handbook of Allegations of Child Sexual Abuse. New York: Brunnel/Mazel. 

Lynn, S., Milano, M., & Weeks, J. (1992). Pseudomemory and age regression: an exploratory study. Amer. J. Of Clin Hyp. 35, 2, 129-137.

Ofshe, Richard and Watters, Ethan. "Making Monsters."  Society, Mar/Apr 1993.

Orne, M.T. (1979) The use and misuse of hypnosis in court. International J. of Clin and Exper. Hyp. 27, 311-341.

Popper, Karl R. The Open Society and Its Enemies. volume I and II. Harper, New York, 1962.

Sheehan, P., Statham, D., & Jamieson, G. (1991). Pseudomemory effects over time in the hypnotic setting. J. of Abnorm Psych.100, 39-44.

Underwager, Ralph and Hollida Wakefield. A Paradigm Shirt for Expert Witness, in Issues in Child Abuse Accusations (5:3) Northfield MN, 1993: Institute for Psychological Therapies, pp. 156-169.

Yapko, Michael D. "Suggestibility and Repressed Memories of Abuse: A Survey of Psychotherapists' Beliefs. Amer. J Clin Hypn 36:3, Jan 1994, 163-171


Paschal Baute, Ed.D. is a licensed psychologist who has been an expert witness in hypnosis (1 above) and personnel issues . He is a member of the American College of Forensic Examiners. He specializes in organizational psychology, workplace problems, personnel issues, and leadership development. He does psychological screening for hiring and promotion, for fire, police, bus drivers, business, and industry. He lives and works at  6200 Winchester Rd. Lexington, KY 40509-9520, Tel 606-293-5302, Fax 606-293-5300, Email: paschal@paschalbaute.com. His web site is http://www.paschalbaute.com/

He has been in independent practice in Lexington Kentucky since 1970, director of the Institute for Human Responsiveness, Inc. for organizational consulting since 1972.