The Neuropsychologist as Expert Witness: Testimony in Civil and Criminal Settings
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The Neuropsychologist as Expert Witness: Testimony in Civil and Criminal Settings Paul M. Richards & Chriscelyn M. Tussey
Received: 17 January 2013 / Accepted: 22 January 2013 / Published online: 14 February 2013 # Springer Science+Business Media New York 2013
Abstract The niche of forensic neuropsychology and use of neuropsychologists as expert witnesses has proliferated over the past two decades. Neuropsychologists conduct evaluations or provide consultation to assist triers of fact in both civil and criminal arenas. This article delivers a succinct overview of an array of factors that warrant consideration from the time of referral for a neuropsychological evaluation through the delivery of a verdict or settlement and receipt of payment for services. Readers are offered a primer on relevant legal criteria, distinctions between court settings, and applicable ethical standards and guidelines. Suggestions are made regarding the expert witness retention agreement and strategies for direct and cross examination are reviewed. Logistical and liability considerations are also explored. Real world examples are included to illustrate some of the obstacles that neuropsychologist expert witnesses may encounter. Keywords Expert witness . Testimony . Personal injury litigation . Criminal forensic . Neuropsychological assessment . Civil neuropsychology . Criminal neuropsychology
Introduction Neuropsychologists have a unique opportunity to assist triers of fact as a result of Jenkins v. United States (1962). This landmark decision set the precedent for psychologists
P. M. Richards (*) Louisville, CO, USA e-mail: [email protected] P. M. Richards Denver, CO, USA C. M. Tussey New York University School of Medicine/Bellevue Hospital Center, New York, NY, USA
serving as expert witnesses on the question of mental disease as it relates to legal issues. Since Jenkins (1962), neuropsychologists have been increasingly asked to provide expert witness services regarding brain–behavior relationships after compensable injuries (e.g., traumatic brain injury, carbon monoxide poisoning and exposure to other neurotoxins, malpractice) in civil actions and within the criminal context (e.g., criminal responsibility, capital mitigation, competence to waive Miranda rights). Personal injury attorneys, criminal defense, and prosecuting attorneys, as well as triers of fact, have recognized the important role neuropsychologists serve in various legal settings, resulting in a burgeoning need for their highly specialized expertise. The latter point is exemplified by Kaufmann (2009) who conducted a ‘Lexis’ search of the root term “neuropsycholo-” over the previous 70 years. He identified 4,385 cases and, interestingly, found that a majority (71 %) of these cases were adjudicated just in the last decade. Using polynomial regression statistical techniques to project for the next 15 years, Kaufmann (2009) predicted a significant increase in the legal system’s reliance on neuropsychology. Sweet, Meyer, Nelson, and Moberg (2011) published a follow up surv
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