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URI professor gives lawyers tools to get into minds of witnesses

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Faust updates classic courtroom reference on psychological testimony

KINGSTON, R.I. — – February 9, 2012 – Psychologists and mental health professionals spend years, decades even, decoding the human mind to find the root causes of abnormal behavior, predicting future conduct and diagnosing mental disorders.

Try explaining all that to a jury in a day.

Debunking poorly founded expert testimony can be a daunting task for even the most skilled lawyer. But it’s one made easier by University of Rhode Island professor David Faust’s “Coping with Psychiatric and Psychological Testimony,” the sixth edition of the classic guide originally written by Jay Ziskin, a psychologist and lawyer known for his skeptical views on the value of mental health testimony without science to support it.

“The idea was to summarize the negative literature and translate the academic articles into guides and strategies lawyers could use,” Faust said. “Lawyers who wanted to attack the science behind expert testimony used that book to do it. And those who needed to rely on expert testimony needed to be aware of the book to see what was going to come at them.”

Oxford University Press recently released Faust’s edition, the first update of the reference book since 1995. Ziskin’s first edition was published in 1970.

Ziskin’s original edition was unpopular among quite a few mental health professionals because it called into question many of their methods, results and conclusions. But in part because of the questions raised by that first edition, and the subsequent editions, psychologists have made great advancements in expanding their knowledge in legally relevant areas, such as the ability to detect feigned disorders, which might be needed to challenge an insanity defense.

Many areas of testimony that may have failed under scrutiny in a courtroom in 1970 are now based on firmer scientific foundations and hold up better when challenged during cross-examination.

“The criticisms resulted in a great expansion of psychological literature as it intersects with law,” Faust said. “As the literature has expanded, there are more areas where experts can contribute in very constructive ways.

“By the time we got to this edition, there were quite a few areas where the literature wasn’t very extensive that are tremendously vibrant areas now,” Faust said.

Faust, who worked with Ziskin on the fourth edition, said he was once able to read much of the scholarly literature on faking psychological disorders in an afternoon. Now, he said, there are “hundreds or even thousands of articles.”

Faking a psychological disorder to mount an insanity defense is rare in a courtroom, but Faust said it is not uncommon for people to fake disorders in other types of cases.

Lawyers often face other psychological issues as well, such as whether to charge a juvenile offender as an adult, the effects of child abuse or sexual abuse, the reliability of eyewitness testimony and the effects of post-traumatic stress disorder.

The book gives lawyers who handle cases involving such issues extensive practical guidance. It helps familiarize them with the science in a specific area and describes numerous approaches for defending or attacking testimony based on the merits of the work. It also provides tips and guides for deposing witnesses and creating visual aids to break down complex psychological methods into easy to digest tools to show a jury.

Faust was careful to include not just the results and methods that have been debunked by science, but also those that have been affirmed as reliable.
“You want to separate the work that is meritorious from the work that is not and serve justice,” Faust said. “You don’t want a case decided by garbage science. Science works best when it placed under scrutiny.”

A lack of scrutiny is what led to Ziskin’s initial idea for the book. As a lawyer who later turned to psychology for his career, Ziskin found himself called on to testify as an expert witness in a child custody case. He entered the courtroom realizing that the science on the subject matter provided little assistance, and he was dismayed by how lax the lawyer was in examining his opinions.

With that, Ziskin set out to summarize the limits of the scientific literature and the ways in which lawyers cross-examining experts in the mental health field could show that their conclusions were often not fully supported by adequate scientific research.

The book made Ziskin one of the preeminent authorities on psychological testimony in the courtroom.

Faust, who had finished his postdoctoral fellowship at the University of Minnesota in 1981, sent a couple of his articles a few years later to Ziskin “almost on a lark.”

The articles never got to Ziskin – they were returned to sender – but Ziskin found them anyway in his research for the fourth edition of the book. Faust said Ziskin called him out of the blue.

“I had never heard his voice before, so I thought it was someone pulling a prank,” Faust said.

It was no prank and, before he knew it, Faust was in Los Angeles helping to write the fourth edition and working under the tutelage of Ziskin himself.

After Ziskin’s death in 1997, Faust said Ziskin’s widow Mae sold the rights to the book to Oxford University Press. Faust agreed to serve on the board overseeing the latest publication, but not long after was asked to take over as lead author and editor for the project.

Years later, with the help of some of the top minds in the mental health field contributing chapters, Faust finally handed in a 4,000-page manuscript, of which he contributed about 2,000 pages. Among those contributing to the book were former University of Rhode Island students Kyle Faust, Faust’s son and a graduate student in Clinical Psychology, and David Ahern, who is a neuropsychology postdoctoral fellow at Brown University.

For more information on the book, call David Faust at (401) 874-4237 or contact him via email at faust@uri.edu.