Prof. Gérard Labuschagne and Bronwynn Stollarz
“Notwithstanding the comprehensive reports filed by both… psychologists and the detailed evidence given by them, I did not find their evidence to be very helpful. They both seemed quite happy to change their views depending on which way they perceived the wind to be blowing.”
MacWilliam AJ in Marais v Road Accident Fund (2000) 5 QOD C3-12 (C)
When psychology rears its ugly head in the courtroom, we are never quite sure if the horrible state of psychology in this forum is because we tend to be bad at court work specifically, or if it is that the profession in general is in a terrible state, but when it’s behind the closed door of the psychologist’s practice, nobody sees it? It’s a terrible choice to make, but we hope it’s the former and not the latter.
We have spent hours assisting prosecutors in understanding reports submitted by psychologists as expert evidence. On the odd occasion we see a competent one, we usually see terrible ones. We have probably spent just as many hours trying to understand why this is the case. Who is to blame? Is it because we don’t have a ‘Forensic Psychologist’ registration category? (something we are wholly against by the way), or do we blame universities, the HPCSA, or the individual psychologist?
While we believe it is a shared responsibility, the simplest answer is that in the end you, as a psychologist, are responsible for what you do, and the HPCSA will see it that way too if you ever have a disciplinary hearing against you.
Few, if any, universities in South Africa have any training that relates to equipping psychologists for the field of expert witness or forensic work. Yet this seems to be one of the areas where many complaints against psychologists are made at the HPCSA. While this can be an extremely rewarding area to work in, both in terms of work satisfaction and financially, the stakes are high. Not only does expert witness work impact upon the person who was assessed with potential harm or benefits, for the expert, possible reputational, financial and professional harm can be on the cards. There are no do-overs, no second chances, no “hmmm that didn’t work, let’s try something else” when it comes to expert witness work. With more and more trials being live-streamed and broadcasted, our mistakes are being broadcasted (literally) into people’s lounges.
Let’s go through some of the common areas of where psychologists tend to get themselves into trouble. Firstly, being approached to do expert witness work. The most problematic way is when the person you have to assess, approaches you and asks you to write a report for some or other legal matter they are facing (criminal, family law, RAF). Sometimes this is a bombshell dropped on you half way through what you thought was a therapy session. The problem is that as an expert, you are there to assist the court with a legal issue it is struggling with, the person you have to assess cannot define that legal issue for you and give you a mandate. You need to be contracted and briefed by the lawyer, and everything (including your fee) is negotiated with the lawyer, they are your client. And believe you me, you want ALL of this in writing.
While you aren’t expected to be a lawyer, you can’t get away from the fact that you are in a legal environment. Most trials in South Africa start and finish without a psychologist being called as a witness, so why are you there? If you aren’t useful then you aren’t relevant, and if evidence isn’t relevant it’s not admissible (the basic test for admissibility of evidence). A recent example of this gone bad was in the trial of Jason Rhode in Cape Town where the psychiatrist was stopped during her evidence and excused because the court felt her evidence was not relevant and she was stepping into the role of the court.
You need to know the effect of every word you put in a report, you need to know what people are going to do, or what they could do, with your report. You cannot later say “I didn’t know that my report was going to be used to remove the children from the mother’s care” or “it was only a preliminary report”. It doesn’t matter if X wasn’t your intention, the milk has been spilt, the horse has bolted from the stable, and the consequences devastating at times.
In the true context of an expert, your report would come to the same conclusions no matter who approached you to write it, as your mandate is to assist the court. So, in the end, your findings may not assist the side that approached you, but that’s how the cookie crumbles in court work. In the therapeutic world you are there to act in the best interests of your patient, this is not the case in the legal world. You have to be able to stand up to the lawyer contracting you, who may want you to massage certain aspects in your report, or maybe make certain parts ‘disappear’.
Another problematic area is conflicting roles. According to the ethical rules for psychologists (Form 223, HPCSA) under section 71(1), a psychologist shall avoid performing multiple and conflicting roles. Never is this highlighted more than in the forensic/expert witness setting where persons who initially had a therapeutic role later engaged a forensic role with the same person or vice versa. The rule of thumb is that the first contact defines future contact. If that contact is therapeutic (i.e. non-forensic in nature), even if it was one session, the psychologist can never engage in another role in relation to the client.
There are a number of other serious errors committed by psychologists in the forensic settings. Frequently psychologists make inappropriate use of psychometric tests in relation to the legal question at hand or copy and paste from computer generated reports into their report. Psychologists also lack knowledge of courtroom etiquette regarding an understanding of court proceedings, as well as inappropriate referencing of Judges and Magistrates as your “Honour” instead of “My Lord / My Lady / Your Worship”. We also see psychologists commenting on the guilt or innocence of an accused or commenting on a legal question at the inappropriate time in a trial, such as querying criminal capacity during the sentencing phase. These could have chapters dedicated to them, and we haven’t even touched on those pesky ‘custody assessments’ or those sudden sexual-abuse-allegations-during-a-divorce scenario, a minefield if there ever was one…. give me a serial killer any day.
Allan, A. & Louw, D.A.P. (2001). Lawyer’s perceptions of psychologists who do forensic work. South African Journal of Psychology, 31 (2), 12-20.