An evidence-based outline of how to both deliver effective mental health evidence for the courts and sustain your own career as an expert. In this hour-long presentation I draw on my 25 years of experience as a forensic psychiatrist and on relevant literature to summarise the key elements of effective and sustainable forensic practice.

1. HOW TO BE
AN EFFECTIVE
EXPERT
WITNESS
•Andrew Carroll
• Forensic Psychiatrist
• ‘Our Curious Minds’ (Training & Consultancy)
• Centre for Forensic Behavioural Science, Swinburne
University of Technology
• Forensicare
• Private Practice

2. 1 6
2 5
3 4
EVIDENCE:
Clinical knowledge
Agenda
EVIDENCE:
Case specificity
EVIDENCE:
Clarity
EVIDENCE:
Constrained Certainty
THE EXPERT:
Sustainability
Deliberative Practice
THE EXPERT:
Self Care

3. 1 6
2 5
3 4
EVIDENCE:
Clinical knowledge
Agenda

4. 1 6
2 5
3 4
EVIDENCE:
Clinical knowledge:
Staying in mentaland
Agenda

5. MENTALAND LEGALAND
BASIS OF OUR SPECIAL ‘EXPERTISE’:
Clinical knowledge

6. What is clinical knowledge ?
• Derived from your professional ‘training’ and ‘experience’
• CAN cite own clinical experience (within reason) – law is NOT ‘EBM’
• Use citations sparingly but can help in specialist areas e.g.:
• Sleepwalking
• Neuropsychiatric conditions
• Pharmacological issues e.g. idiosyncratic reactions (case reports)
• Sex offending / arson / stalking

7. Mentaland
Psychopathology/
phenomenology
Psychodynamics/
cognitive-behavioural
theory
Psychopharmacology
Neuropsychology
Neuroscience
Criminological
psychology/
behavioural science
Mental health service
pragmatics e.g. prison
More.....
MENTALAND

8. Staying in Mentaland
Issues outside of
mental health
Issues on which
you have special
expertise as a
mental health
professional

9. Setting the limits - a landmark UK case: R v Turner [1975] 1 All ER 70
Cites Lord Mansfied CJ in Folkes v Chadd (1782):
“The opinion of scientific men (sic) upon proven facts may be
given by men of science within their own science”.

10. R v Turner [1975] 1 All ER 70
“A person’s personality does have a bearing on
his conduct. A quick tempered person may react
more quickly than a placid one. A person with a
florid imagination or tendency to exaggerate is less
likely to be reliable…Jurors do not need psychiatrists
to tell them how ordinary folk who are not suffering
from any mental illness are likely to react to the
stresses and strains of life.”

11. Staying in Mentaland
Morality
Culpability
Blameworthiness
Impaired moral
reasoning due to
mental disorder

12. Staying in Mentaland
Applicability of
Verdins
precedent to this
case
Opinion on
‘Verdins effects’
e.g. impaired
judgement,
disinhibition…

13. Wright v The Queen [2015] VSCA 333
Appeal Court (Victoria)
“…the considerations discussed in Verdins are sentencing
considerations. Whether one or more of those considerations is
applicable is a question for the sentencing court alone.
Sentencing courts depend upon the evidence of psychiatrists and
psychologists in relation to the mental functioning of offenders at
relevant times, but it is wholly outside their expertise to express
views on whether one or other of the Verdins principles is
applicable.”

14. Staying in Mentaland
Truthfulness of
subject
Consistency of
subject’s account
with:
- Collateral
information
- Known
psychopathological
phenomena

15. R v Turner [1975] 1 All ER 70
“The jury had to decide what reliance they could place
upon T’s evidence…This is what juries are empanelled to
do. The law assumes they can perform their duties
properly. The jury in this case did not need and should not
have been offered the evidence of a psychiatrist to help
them decide if T was being truthful.”

16. Staying in Mentaland
Whether person
formed intent to
do the criminal act
Whether mental
disorder likely
impaired capacity
to form intent at
the time

17. Implications: BE HUMBLE - AND stay
in mentaland !
MENTALAND

18. 1 6
2 5
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EVIDENCE:
Clinical knowledge:
The Ultimate Issue issue
Agenda

19. Opinions on the ‘ultimate issue’ issue…
•Victoria:
• Courts expect it for:
• Fitness to stand trial
• Mental Impairment defence
MENTALAND

20. Opinions on the ‘ultimate issue’ issue…
•Victoria:
• Court forbid it for:
• Applicability of Verdins
• moral culpability
MENTALAND

21. 1 6
2 5
3 4
EVIDENCE:
Clinical knowledge:
The Smart Alec Effect
Agenda

22. • Boccaccini & Brodsky 2002:
• 488 mock jurors
• 82% “most likely to believe
an expert who spends most
of his/her time seeing
patients as opposed to
experts who focused on
teaching or other scholarly
work”

23. Implications in
Court
• Excessive emphasis on
publications/academic
prowess can backfire
• Make sure Trier of Fact
aware of your clinical
experience / ongoing
role(s) in directly seeing
patients

24. 1 6
2 5
3 4
Agenda
EVIDENCE:
Case specificity

25. MENTALAND LEGALAND
THE PSYCHOLEGAL BRIDGE
ALWAYS UNIQUE AND CASE SPECIFIC

26. Case specificity
• Apply research (group data: ‘framework
evidence’) to clinical findings (individual case)
to answer psycholegal question for this case
• Each case unique
• Loss of this habit  boredom and ‘burnout’

27. The dilemma of risk assessment
Mullen, P. E. and J. R. P. Ogloff (2009).
Assessing and managing the risks of violence towards others.
New Oxford Textbook of Psychiatry.

28. Implications for practice

29. 1 6
2 5
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Agenda
EVIDENCE:
Clarity

30. CLARITY =
CREDIBILITY
• Shuman et al (1994):
• Survey of 167 former
jurors in 3 States of USA
• “the ability to convey
information in a non-
technical fashion was the
characteristic jurors most
frequently associated with
expert credibility”

31. Clarity on the witness stand
starts with clear referrals
• Decline until referring lawyer
gives a clear question
• “A forensic psychiatry
assessment” is NOT a clear
question!
• Request letter
• Phone calls
• Be clear about collateral :
• What sought
• What to obtain and when
• Subpoena v FoI

32. Clear factual ‘body’ of
report
• Clarity of source (subject or
collateral?)
• The clinically informed clear
chronology 
• ‘motivation’ , ‘psychopathology’ and
‘diagnosis’ often simply emerge if
this is done well (make use of typist)

33. Example: Queen v Liao [2015] VSC 730
• Multiple sources
• >4000 page Brief inc. many
WhatsApp exchanges
• Challenge to integrate multiple
sources of data and unreliable
subject’s account
• Chronology of texts:
• Relationship fluctuations
• Dependent and Borderline
PD features

34. • Relevance:
• often, less is more;
• irrelevant stuff can
cause problems…
• cf composing
photographs

35. Clear basis for
opinion
• The ‘path of reasoning’
• The ‘psycholegal
bridge’
• ‘bullet point’ approach
can help
• Include why contrary
data not persuasive

36. Causal relationships / explanations linking
mental disorder to offence or specific event(s)
to a psychological injury
None
Significant
material
contribution
Necessary
but not
sufficient
(substantial)
Sufficient
and
necessary
Whydunnit?: Causal
explanations in sentencing
offenders with mental
health problems (In Press
for 2023)
Jamie Walvisch,
Andrew Carroll,
Tim Marsh and
Jay Sarkar

37. Clear language
• Single clause, shorter sentences
• First person
• Layperson audience: explain any jargon
• Minimise ‘hedge words’:
• ‘perhaps’
• ‘somewhat’

38. Clear court evidence
• Disinterested in outcome but
engaged with your opinion and
engaged with the Judge +/- Jury
• Layperson audience
• Eye contact
• Cross-examination and becoming
cross: don’t take the bait!

39. 1 6
2 5
3 4
Agenda
EVIDENCE:
Constrained Certainty

40. A careful balance…
Mock juror study
• “An expert who was 80%
confident in his sanity opinion
exerted significantly more
influence on juror perceptions of
insanity than experts who were
60% or 100% confident in their
opinions” Rogers et al (1992)
Survey of lawyers (USA):
• “identified being tentative
as the most problematic
expert-witness
characteristic”
Champagne et al (1991)

42. Striking the balance
• Beware limits of own expertise when accept any work
• Humility
• Defer to Trier of Fact re: ‘ultimate issues’
• Assert realistic confidence in your stated opinions
• Accept that psychiatric opinions are rarely/never
absolutely certain – e.g. “much more likely than not”
not “definite”: ‘Balance of probabilities’ is akin to
everyday clinical thinking

43. On the witness stand
• Confident not arrogant
• Know when to concede/ hold your
ground
• Cannot ‘cram’---quality in court
rests on the prior hard work on
report

44. • The most useful word in your vocabulary on the witness stand….

45. • The most useful word in your vocabulary on the witness stand….
ALTHOUGH

46. 1 6
2 5
3 4
Agenda
THE EXPERT:
Sustainability
Deliberative Practice

47. THE PATH TO
EXCELLENCE ???

48. “The danger of practicing the
same thing again and again is that
progress becomes assumed. Too
often, we assume we are getting
better simply because we are
gaining experience. In reality, we
are merely reinforcing our current
habits — not improving them.”
James Clear

49. “The danger of practicing the
same thing again and again is that
progress becomes assumed. Too
often, we assume we are getting
better simply because we are
gaining experience. In reality, we
are merely reinforcing our current
habits — not improving them.”
James Clear
Are your reports
this year better
than last year’s ? If
not, why not ?

50. Continual
improvement
“Deliberate practice refers to a
special type of practice that is
purposeful and systematic. While
regular practice might include
mindless repetitions, deliberate
practice requires focused attention
and is conducted with the specific
goal of improving performance.”
James Clear
Practice vs. ‘deliberate practice’

51. DELIBERATE PRACTICE: A Lifeloing
learning mindset
• Deal with referral
• Read and process
documentation
• Interview
• Synthesise
information into
written opinion
• Present opinion
Break
process
into parts
•Feedback
from peers
• Reflective
work
• Austlii
Identify
weaknesses
Test new
strategies
Integrate
your
learnings

52. 1 6
2 5
3 4
Agenda
THE EXPERT:
Self Care

53. “Vicarious trauma occurs
from exposure to the
trauma of others.”
Isobel, S & Angus-Leppan, G. 2018
• Forensic work:
• Interviews
• Witness statements
• Videos
• Photographs

54. VT symptoms
(often below
level of
awareness)
Isobel, S & Angus-
Leppan, G. 2018
Apathy
Exhaustion
Irritability
Cynicism
Disillusionment
Altered
cognitive
schemas of
safety, trust,
power and
intimacy

55. Best defence : optimise awareness of
effects as they occur
• Experts are not simply passive recipients but must also be
actively aware of their own state.
• Recognition of automatic responses  higher cortical
centres recruited  integrate and contextualize
responses to trauma  provide basis for its resolution.
• Supervision or peer support  processing, further
understanding of responses.
Isobel, S & Angus-Leppan, G. 2018

56. 1 6
2 5
3 4
EVIDENCE:
Clinical knowledge
Agenda
EVIDENCE:
Case specificity
EVIDENCE:
Clarity
EVIDENCE:
Constrained Certainty
THE EXPERT:
Sustainability
Deliberative Practice
THE EXPERT:
Self Care

57. There are no shortcuts to high-quality evidence…
indicating
The most public aspect: you
on the stand dealing with the
tricks of cross-examination
The ‘truth’ as you see it….
Reading the
documents; what key
questions ? Consult the
literature if needed
The end product: your
thinking encapsulated
in your report
Using your clinical and
forensic skills
Phone calls, emails,
being prepared to be
‘difficult’…
PUBLIC
PRIVATE
The referral: accept or not ? Insistence on clarity
Preparing for interview: processing the collateral
Interview(s)
Synthesis into YOUR opinion
Your report
Court

58. A FINAL Caveat
• Your desire to be “effective” should
never trump your :
• honesty
• duty to Court (not side paying you)
Sometimes therefore you might have to
be:
• Honest about the lack of clarity in
the clinical science
• A bit tentative !

59. For access to our online training course on medicolegal risk
management for psychiatrists, go to: bit.ly/tickboxcourse
(50% discount for for Trainees)
For more information on training and consultancy in the fields
of risk assessment and risk management, go to:
www.ourcuriousminds.com
For referrals for medicolegal reports, feel free to contact me
on: carrollforensic@gmail.com or go to:
thepsychiatryexpert.com