This column’s first installment, some four years ago, commented on the importance of “deciphering the opinions of mental health experts.” This can involve trying to boil down lengthy, jargon-laden passages to their manageable essence. Sometimes, however, it can also involve seeing through the potentially misleading nature of just one or two words. Let’s examine how defense counsel might consult with a reputable forensic psychologist about labels that may or may not mean something truly problematic.
July 20, 2021 Mental Health
Read the Label: What Are the Doctors Really Calling Your Client?
Eric Y. Drogin
Counsel: Are you available to take on an incredibly complicated and time-sensitive forensic case for us?
Doctor: You bet … and for all the right reasons.
Counsel: Professionalism? The pursuit of the truth? Dedication to one’s craft?
Doctor: Mortgage. Braces. Alimony.
Counsel: I hear you. Here’s the situation. I’m supposed to take my client to trial in three weeks, and I just got a state forensic hospital report that says he has an Antisocial Personality Disorder. Thanks for nothing. The jury’s going to hate my client almost as much as I hate the state forensic hospital.
Doctor: I love the state forensic hospital.
Counsel: How’s that?
Doctor: Every time they write a report, you call me a few days later, all hot and bothered and hurling taxpayer money in every direction. What did they say to justify that diagnosis?
Counsel: Let me look here … “the defendant, no stranger to the criminal justice system, has been arrested on multiple occasions.”
Doctor: How many times has he been convicted?
Counsel: Actually, none. He’s always been well-represented.
Doctor: Why isn’t he using that lawyer now?
Counsel: Is this your way of saying, “don’t call me in the evening any more”?
Doctor: Not at all. What else did they say to prove your client has an Antisocial Personality Disorder?
Counsel: “He repeatedly fails to plan ahead.”
Doctor: Did they provide any examples?
Counsel: “This was most recently manifested by his taking the bus to a rural bank branch, allegedly committing a robbery, and then having to wait for another approximately half an hour before the next bus was scheduled to arrive.”
Doctor: You made that one up.
Counsel: If only.
Doctor: So, what else? Those are both technically symptoms of Antisocial Personality Disorder.
Counsel: For this particular diagnosis, that’s all they came up with.
Doctor: But there are seven basic symptoms of Antisocial Personality Disorder, and you’d need at least three of them. Anything about lying, irritability, reckless disregard for safety, irresponsibility, or lack of remorse?
Counsel: Nothing.
Doctor: Was there any evidence of Conduct Disorder when he was a teenager?
Counsel: That’s one of the more puzzling aspects of this case—my client has never received any kind of psychiatric or social services and was never disciplined in school. Those prior arrests of his were all in the last couple of years, and he’s 33 years old.
Doctor: Then I don’t see how they can say he has an Antisocial Personality Disorder.
Counsel: But they do! Page seven, paragraph two, “Antisocial Personality Traits.”
Doctor: Oh, “Traits.”
Counsel: Is that something different?
Doctor: Traits essentially contribute to a diagnosis.
Counsel: Are traits the same thing as symptoms?
Doctor: In a way. You could say that traits are ways of being that you possess, and symptoms are when you actually display those ways of being.
Counsel: I think it would be a lot more helpful if you were the one to say it. Is this well-settled, or is it one of those things like a “syndrome” or a “designer defense”?
Doctor: This is Psychology 101 stuff. If it were in your field, it would be “blackletter law,” and you could get the bench to take “judicial notice” of it.
Counsel: You’ve been hanging out with lawyers for way too long. This is good news, though! They can’t call my client “antisocial.” I want that word out of there. It’s misleading and potentially very harmful.
Doctor: Well … at least they can’t say it’s his diagnosis … and I agree, with just the two things they claim to have on him, using the adjective “antisocial” would be kind of a stretch.
Counsel: But it’s in the part of the report with a header that says “Diagnosis.”
Doctor: On cross-examination, you’ll want to get them to admit, in effect, that they didn’t have enough to give him this diagnosis. In a very general way, this is kind of like the elements of crime. For instance, in this case, if the prosecutor charges your client with “robbery” …
Counsel: Oh, I get it. They could say he took the victim’s property, in the presence of the victim, by intimidation, but then if he gives that property right back to them, then it’s not “robbery.”
Doctor: Wow.
Counsel: I know—maybe I’m the one who’s been hanging out with lawyers for way too long.
Doctor: No … it’s just that I’ve never heard you use the word “victim” before.
Counsel: If this is what “traits” involves, then what about this other line under “Diagnosis”? It says, “Borderline Personality Features.” Are “features” like “traits”?
Doctor: Sort of. The notion of “features” is much broader then “traits.” It refers quite generally to all of the different things that go into making up a diagnosis, or that are associated with a diagnosis, or that sometimes accompany a diagnosis.
Counsel: I got another report last week that said, “Major Depressive Disorder with Psychotic Features.”
Doctor: That’s a good example. You don’t have to have hallucinations along with a legitimate depressive diagnosis, but sometimes that’s what happens.
Counsel: Another good thing about that report, though, was that at least they were able to rule out a diagnosis of “Pedophilia.”
Doctor: Uh-oh.
Counsel: Isn’t that what I want?
Doctor: Do you remember exactly what that report said about Pedophilia?
Counsel: Wait … I’ve got it right here. “Rule Out Pedophilia.”
Doctor: That doesn’t mean they ruled it out. It means they think he may be a pedophile, but they can’t rule it out yet.
Counsel: Psychiatry giveth, and psychiatry taketh away. I think I’d better send you this case, too.
Our readers were also promised a “balanced approach,” so here goes: Prosecutors can’t do much about potentially useful diagnoses that just barely fail to find their mark, but they’re free to assert that defendants have been accused of a crime, not a diagnosis, and that what really matter are the bad behaviors that make up a diagnosis as opposed to whether or not a fancy label winds up being attached to those behaviors. It may also be worth mentioning in this regard that diagnostic criteria have changed many times over the years—DSM, DSM-II, DSM-III, DSM-III-R, DSM-IV, DSM-IV-TR, and now DSM-5—with the eternal promise of many more changes to come.
Please feel encouraged to contact Dr. Drogin at [email protected] with any questions about the role of potentially misleading diagnostic labeling, or with any suggestions for future topics.