Whose Exam Is It, Anyway? When Defendants Seek to Repurpose Your Expert’s Findings

Prosecutor: Were you able to see the defendant in this latest misdemeanor matter?

Doctor: Yes, in my own office this time. The judge was actually willing to furlough this person for a half day so we didn’t have to wait for the jail to open up again.

Prosecutor: Don’t I know it. I had to spend more than half a day writing up a brief and waiting my turn in district court in order to argue against this notion.

Doctor: Over a defendant with a public intoxication case? I doubt the transporters had time to stop at a bar on the way over.

Prosecutor: Over the next defendant, whoever that might be. I appreciate that my judge wants to get everyone evaluated, but I’m hoping the court will at least think twice about furloughing just anyone. How did this examination go?

Doctor: It was different. This was one of those defendants who didn’t seem to grasp the real reason you had me seeing them.

Prosecutor: That would make two of us. Do you realize that you found each of the last four defendants I sent you incompetent to stand trial?

Doctor: Make that five. Look, we both know who the doctors are who would find every one of these people competent without batting an eye.

Prosecutor: The problem is that my judge knows who those doctors are, too, and would catch on in no time! Seriously, though, I know you have to call them like you see them. If defendants are incompetent, then they’re incompetent. Then I can focus on other things.

Doctor: This defendant was focused on other things before the exam even started.

Prosecutor: Other things like flying saucers—or like cats that can pick winning lottery numbers, like in that case last month?

Doctor: Other things, like family court.

Prosecutor: How so?

Doctor: I could barely introduce myself before this defendant was off to the races about some dreadful child custody matter . . .

Prosecutor: As opposed to the usual warm and fuzzy, stroll-in-the-park child custody matter?

Doctor: . . . in which the other side was making all sorts of ghastly allegations about being delusional, drinking, philandering, paranoid ideation, borderline personality, and “parental alienation syndrome.”

Prosecutor: Isn’t that just a fancy term for filing for custody?

Doctor: No. It describes a situation where one parent tries to get the kids to hate the other parent. It’s not really a “syndrome,” which makes it sound like some sort of mental disease. It’s just something certain parents do.

Prosecutor: Wow. People think criminal practice is scary. So, I’m guessing this defendant was afraid your results were going to wind up in family court somehow and contribute to an even more sinister picture?

Doctor: That’s what I was guessing, too. Instead, this defendant produces a signed release and insists that these results go directly to the family court judge! “I don’t have fifty thousand dollars for a child custody expert, so I need you to explain that I’m none of these things they say I am.”

Prosecutor: Except “being delusional.” Whatever gave this defendant the idea that this information would go anywhere outside of this criminal matter?

Doctor: For starters, my national guild’s ethics code and the licensing regulations that incorporate it by reference. As you know, this jurisdiction is very deferential to the access rights of mental health patients, and I’ve yet to find any language anywhere that says in so many words “except for forensic psychological evaluations.”

Prosecutor: I’m confident that my judge would say it in so many words . . . with a few choice words added for no extra charge.

Doctor: That might actually be helpful in this instance. An explanation from the bench might carry more weight than my own insistence that what happens in criminal court stays in criminal court.

Prosecutor: Does this sort of thing happen often?

Doctor: The family court angle happens every great once in a while, but I’d say once every other month or so this arises in the context of an application for disability benefits.

Prosecutor: How do you handle that?

Doctor: Up front, if at all possible. I’ve wound up building it into my informed consent process at the outset of any forensic workup. What makes all of this more complicated is really a question of timing.

Prosecutor: With record requests right up front, like this most recent case?

Doctor: That’s relatively uncommon. It’s far more likely to occur after an initial examination is completed and the defendant realizes that, say, a defense-requested competency evaluation is making a lot of the same points that would be helpful for SSI.

Prosecutor: In what way is this a timing issue?

Doctor: When benefits are being sought after the competency determination has been made, it’s fairly easy. I check with retaining counsel to make sure it’s okay, and then I can generate a report for the requesting party—typically the Social Security Administration—that describes the test results, the defendant’s functional abilities, and so forth.

Prosecutor: Aren’t defendants skittish about a report that starts with “I saw this person pursuant to 17 counts of capital murder”?

Doctor: There’s nothing wrong with leaving the referral context out of these writeups. What agencies want are IQ scores, diagnoses, corroborating medical histories, and the like.

Prosecutor: When is it not “fairly easy”?

Doctor: When—similar to this last case—defendants come in loaded for bear and want results shipped around when there’s yet to be any criminal adjudication, and sometimes when the competency or criminal responsibility opinion hasn’t even been finalized yet. Defense counsel in particular are leery of incomplete results being bandied about, and perhaps being obtained from Social Security and injected back into the current matter or some subsequent criminal case.

Prosecutor: Do you get to charge for the time you spend navigating these issues and repurposing forensic assessment data for other purposes?

Doctor: I suppose I could, but that’s just asking for trouble. Social Security has a provision, for example, where I could bill for reproducing things by the page, and I could always ask examinees to contribute something for the time and effort, but the safest, easiest, and also kindest thing to do is simply to make sure the rules are being followed and to forward the information—with all due permission—to where it will do the most good.

Prosecutor: Once it can no longer derail my case!

Doctor: Again, not asking for trouble.

Our readers were also promised a “balanced approach,” so here goes: Defense counsel, don’t hesitate to bring distribution concerns directly to your mental health experts before issues like these have a chance to arise, and consider building such matters into your retention contracts.

Please feel encouraged to contact Dr. Drogin at [email protected] with any questions about repurposing forensic assessment data, or with any suggestions for future topics.