Forensic Lab Notes (May - June 2001)
Dr. Steve Wormith

1. Memory and Eyewitness Testimony

There has been a recent flurry of activity on the longstanding issue of eyewitness testimony that has been bubbling up both in research and in law. Anyone interested in this topic should see the latest issue (May) of Psychological Assessment (2001), 56, 405-416. and the article by Kassin, S. M., Tubb, V. A., Hosch, H. M., & Memon, A. entitled ‘On the “general acceptance” of eyewitness testimony research: A new survey of the experts.’ Their survey of experts revealed that there is sufficient agreement in their opinion (at least 80%) about the reliability of 16 of 30 possible eyewitness phenomena that these phenomena might be presented in court.

This review comes at a timely point. Coincidently, or perhaps not, a recent ruling on expert testimony in the state of New York has caused quite a stir across the US justice community, particularly in District Attorney offices, where there is significant concern about its impact on the outcome of trials. This is because eyewitness testimony plays such a pivotal role in so many of the prosecution’s cases and expert testimony about the fragility of such accounts has often been disallowed.

Court Lets Experts Challenge Witnesses' Accuracy in Trials

ALBANY, May 8. New York State's highest court ruled today that experts' testimony on the reliability of eyewitnesses could be admitted at a trial, a decision that legal scholars said could have a major impact on criminal prosecutions in the state. 

For years, defense lawyers in New York have been trying to call as witnesses experts who could tell juries about a large body of scientific evidence, suggesting eyewitnesses often get things wrong. Defense lawyers would like to use such witnesses to introduce psychological studies showing, for instance, that misidentifications in lineups are commonplace, that people tend to replace the memory of the criminal at the scene with the memory of a face in a lineup, that witnesses under stress at gunpoint tend to focus on the weapon instead of the attacker's face, and that mistakes occur more often when a witness is trying to identify someone of another race.

By and large, however, most trial judges in New York have kept psychologists who study these phenomena off the stand, under a longstanding legal tradition that jurors have enough experience and common sense to consider a witness's reliability, defense lawyers say. 

Until today, the trial judges had little guidance, because appellate courts avoided taking a position. But this morning, the Court of Appeals unanimously ruled such testimony "is not inadmissible, per se" and warned judges not to exclude it solely on the grounds that jurors are already equipped to make an informed judgment.

"It may be the most important ruling the Court of Appeals has come down with in a couple of years," said William E. Hellerstein, a professor at Brooklyn Law School. "The court has finally recognized that laypeople, and indeed even lawyers, do not necessarily understand what we have come to know scientifically about the fallibility of eyewitness testimony." The Manhattan district attorney's office, however, minimized its significance. 

Eyewitness testimony has also come under increasing scrutiny in recent years as advances in DNA evidence have exonerated scores of people convicted of crimes on the strength of witnesses' testimony. A 1996 study by the United States Department of Justice, for instance, found 28 men who were convicted of sexual assault after witnesses identified them, but who later were exonerated through DNA testing.

The admissibility of expert testimony to challenge the accuracy of a prosecution witness varies across the country. For example, California and Wisconsin have allowed such testimony under certain circumstances for many years. But several other states leave it up to an individual trial judge's discretion. In federal cases, testimony from psychologists against eyewitnesses is generally permitted. 

"Classically, the eyewitness is the king of the trial process," said Paul G. Chevigny, a professor of evidentiary law at New York University Law School. "It was very hard for the courts to say scientific inquiry could call into question a person who has direct evidence to give." 

 The opinion, issued today, and written by the newly appointed Judge Victoria A. Graffeo, left it up to trial judges to decide when experts on eyewitnesses should be allowed to testify, but said judges must carefully consider whether the testimony would help the jury. But the ruling also rejected the notion that jurors do not need an expert's help to make a decision, admonishing judges to "be wary not to exclude such testimony merely because, to some degree, it invades the jury's province. 

"Despite the fact that jurors may be familiar from their own experience with factors relevant to the reliability of eyewitness observation and identification, it cannot be said that psychological studies regarding the accuracy of an identification are within the ken of the typical juror," Judge Graffeo wrote. 

Still, the court upheld the conviction in the case before it. The appeal sought a new trial for Anthony Lee, a black man who was convicted of robbing Michael Perani of his car at gunpoint just before 2 a.m. on June 30, 1994. Mr. Perani, who is white, confronted the robber, who got into his car when he went into a delicatessen. The man pointed a gun at Mr. Perani, told him to back off and drove away.

Nine months later, Mr. Lee was arrested driving Mr. Perani's car in the Bronx. Mr. Perani, though he had said to the police the night of the robbery that he could not identify the gunman, picked Mr. Lee out as the carjacker from an array of photos. Mr. Lee was convicted and sentenced to 4 to 12 years in prison.

 At a pretrial hearing, a judge summarily denied Mr. Lee's request to call an expert witness to testify about the difficulty in identifying someone under those stressful and fleeting conditions, especially someone of another race. The trial judge, Frederic S. Berman of State Supreme Court in Manhattan, later denied the request again after more deliberation, in part because Mr. Perani's testimony was not the only evidence against Mr. Lee. The Court of Appeals agreed with Justice Berman's decision, but took the opportunity to say that such expert testimony should not always be excluded.

 Richard M. Greenberg, the lawyer in charge of the Office of the Appellate Defender, which represents many poor defendants in New York City, and which argued Mr. Lee's case, said he was disappointed the court had not gone further. Had the court overturned the conviction, it would have set a strong precedent that testimony from experts on eyewitnesses must be allowed, he said.

“I am heartened that the court recognizes the importance of this kind of testimony and that it is not in the normal understanding of the jury," he said. "There is some good language in here and arguably we can use this in future cases." 

Mark Dwyer, the chief of the appeals bureau in the Manhattan district attorney's office, who played down the importance of the decision, pointed out that judges still had the discretion to reject expert witnesses. The decision did not change a longstanding precedent, he said, that holds that expert witnesses should be allowed only when the subject matter is beyond the knowledge of most jurors.

"I don't see it as having a big impact," he said. "We had understood this to be the rule all along."

But some legal scholars and defense lawyers said the decision did open the door for more psychologists to testify about the fragility of memory. Burt Neuborne, a professor at New York University Law School, said the ruling could have a potentially dramatic effect if it led to more testimony about the difficulty witnesses have in identifying people of other races.

FYI, for an illustration of the ongoing research in the field, see the attached presentation made recently in Toronto at the American Psychological Society (APS) and taken from

False Memories Easily Created, Researchers Discover

About one-third of the people who were exposed to a fake print ad describing a visit to Disneyland and how they met and shook hands with Bugs Bunny said later they remembered or knew the event happened to them.

The scenario described in the ad never occurred because Bugs Bunny is a Warner Bros. cartoon character and wouldn't be featured in any Walt Disney Co. property, according to University of Washington memory researchers Jacquie Pickrell and Elizabeth Loftus. 

Pickrell will make two presentations on the topic at the annual meeting of the American Psychological Society (APS) on Sunday (June 17) in Toronto and at a satellite session of the Society for Applied Research in Memory and Cognition in Kingston, Ontario, on Wednesday.

"The frightening thing about this study is that it suggests how easily a false memory can be created," said Pickrell, UW psychology doctoral student. "It's not only people who go to a therapist who might implant a false memory or those who witness an accident and whose memory can be distorted who can have a false memory. Memory is very vulnerable and malleable. People are not always aware of the choices they make. This study shows the power of subtle association changes on memory."

The research is a follow-up to an unpublished study by Loftus, a UW psychology professor who is being honored by the APS this week with its William James Fellow Award for psychological research; Kathryn Braun, a visiting scholar at the Harvard Business School; and Rhiannon Ellis, a former UW undergraduate who is now a doctoral student at the University of Pittsburgh. 

In the original study, 16 percent of the people exposed to a Disneyland ad featuring Bugs Bunny later thought they had really seen and met the cartoon rabbit.

In the new research, Pickrell and Loftus divided 120 subjects into four groups. The subjects were told they were going to evaluate advertising copy, fill out several questionnaires and answer questions about a trip to Disneyland.

* The first group read a generic Disneyland ad that mentioned no cartoon characters. 

* The second group read the same copy and was exposed to a 4-foot-tall cardboard figure of Bugs Bunny that was casually placed in the interview room. No mention was made of Bugs Bunny. 

* The third, or Bugs group, read the fake Disneyland ad featuring Bugs Bunny. 

* The fourth, or double exposure group, read the fake ad and also saw the cardboard rabbit.

 This time, 30 percent of the people in the Bugs group later said they remembered or knew they had met Bugs Bunny when they visited Disneyland and 40 percent of the people in the double exposure group reported the same thing.

"'Remember' means the people actually recall meeting and shaking hands with Bugs," explained Pickrell. "'Knowing' is they have no real memory, but are sure that it happened, just as they have no memory of having their umbilical cord being cut when they were born but know it happened.

"Creating a false memory is a process. Someone saying, 'I know it could have happened,' is taking the first step of actually creating a memory. If you clearly believe you walked up to Bugs Bunny, you have a memory."

In addition, Pickrell said there is the issue of the consequence of false memories, or the ripple effects. People in the experiment who were exposed to the false advertising were more likely to relate Bugs Bunny to other things at Disneyland not suggested in the ad, such as seeing Bugs and Mickey Mouse together or seeing Bugs in the Main Street Electrical Parade.

"We are interested in how people create their autobiographical references, or memory. Through this process they might be altering their own memories," Pickrell said. "Nostalgic advertising works in a similar manner.

“Hallmark, McDonald's and Disney have very effective nostalgic advertising that can change people's buying habits. You may not have had a great experience the last time you visited Disneyland or McDonald's, but the ads may inadvertently be creating the impression that they had a wonderful time and leaving viewers with that memory. If ads can get people to believe they had an experience they never had, that is pretty powerful.

"The bottom line of our study is that the phony ad is making the difference. Just casually reading a Bugs Bunny cartoon or some other incidental exposure doesn't mean you believe you met Bugs. 

"The ad does." 
[Contact: Jacquie Pickrell, Elizabeth Loftus, Joel Schwarz]

1. Recent American Psychiatric Association Conference

(i) Death Row Research as an Antidote to the ‘McVeigh circus’

A recent presentation at the American Psychiatric Association Annual Conference that focuses on the staff who work with death row inmates in an infamous US prison provides a sobering picture, in some ways an encouraging one, and very possibly an antidote for those who were upset or concerned about the nature and extent of media coverage on the recent McVeigh execution. This item is taken from the latest issue of Psychiatric News June 15, 2001, vol. 36, no. 12.

Researcher Enters Minds Of Death-Row Officers 
Ken Hausman 

From the moment condemned prisoners enter the door of death row until they take their last breath, they will spend years interacting with prison staffers. Research has suggested that these workers’ grim jobs and the vicious criminals they look after leave them hardened and dehumanized. A revealing new study challenges that perception.

It’s sad to watch a man walk into the room alive and leave dead," but part of his job, J.B. noted, requires him to lead human beings to their death. Unlike oncologists or other physicians who deal with death on a regular basis, however, J.B. has a job that few people are lining up for. He is a security officer assigned to death row at Louisiana’s Angola prison, infamous as the sinister setting for the award-winning film "Dead Man Walking." 

And several studies have shown that as a consequence of the job J.B. and his colleagues perform—making sure that there are no hitches as those "dead men" walk to their executions—they have likely become hardened and dehumanized. Or have they? 

It turns out that J.B. and dozens of other staff assigned to Angola’s death row do not appear to fit that mold. In fact, they view themselves as professionals doing a job that society requires someone to do, and they take pride in the way they conduct
themselves as they carry out the law. 

While several researchers have documented the dehumanization that overtakes the staff who work on a prison’s death row, a teenaged researcher who has spent months interviewing all categories of staff at Angola has turned up a very different picture. 

Michael Osofsky, a Stanford University sophomore from New Orleans, began journeying inside Angola’s forbidding barbed wire when he was a 16-year-old high school student who decided to do volunteer work at the prison. His interest in helping at the prison, he pointed out, was spurred by his father Howard’s involvement at Angola. 

Howard Osofsky, M.D., is the prison’s senior mental health consultant, as well as chair of the psychiatry department at Louisiana State University School of Medicine in New Orleans. 

During the last two years Michael Osofsky interviewed 50 death-row staffers ranging from the classification officers who process newly arriving inmates, to the guards, mental health personnel, and the emergency medical technicians who insert the IVs that will send three fatal drugs coursing through the condemned prisoner’s veins. 

Osofsky described his findings at APA’s 2001 annual meeting in New Orleans in May in a presentation titled "Along the Death Trail: Inside the Mind of an Execution Team." The session was chaired by his father. He said he was interested in discovering how these individuals, most of whom work on death row by choice, cope with the psychological and moral stresses of "one of society’s most demanding jobs." He conducted often hours-long interviews with the 50 staff (only two staffers declined to participate), including the prison’s warden, Burl Cain, and also administered a scale that assesses PTSD symptomatology known as the CAPS. 

"My results challenge those of previous research," Osofsky said, "which argued that security officers became ‘dehumanized’ or ‘strange’ after working on the death team for so many years." One of his interviewees had spent 20 years working on death
row. Many of the staff at the prison lived on the grounds, and the rest lived in the rural region surrounding the small town of Angola, where the prison is one of the only employment options. Many are the sons and daughters of prison staff. 

Not Out for Revenge

One theme that ran prominently through all categories of staff, Osofsky emphasized, was that they did not see themselves as being on a mission or out to take part in society’s revenge against its most horrendous criminals. "They describe themselves instead as ‘soldiers of the court,’ " who are responsible for carrying out what judges and juries have decided is just punishment. 

In addition, they "place a high value on treating their charges as people," not monsters, despite the horrific crimes that landed these inmates on death row, he said. 

"The vast majority of staff are very religious," he noted, and most of the "death team" takes advantage of a Christian prayer session that the warden holds about a half hour before each execution. Several of the officers admitted that their role in killing
another person causes them considerable anxiety, Osofsky said, and many "convey a sense of guilt through concerns about their own salvation, and they look for redemption in teachings from scripture and words from their clergy." 

Among the categories of death-row staffers Osofsky interviewed, the officers get to know the condemned inmates better than anyone else in the prison, since they talk to them several times a day. 

One such officer told Osofsky, "If anybody says executions don’t impact themselves, there’s something wrong with them." He explained that he and his colleagues don’t downplay the inmates’ crimes, but that they come to see them as "people," some of
whom change considerably for the better during their time on death row. He noted that he never sleeps on the night after an execution and wonders how society will judge him and his coworkers in 500 years. He said as well that he has to believe that executions are serving as a deterrent to crime, but admitted that facts point to the contrary. 

Staff who are present in the "death house," the series of rooms where prisoners are executed, guard the building, are responsible for scrutinizing inmates’ last visitors, and escort the victim’s family to the separate room where they stay during the execution. One echoed what a number of his colleagues think about the events. "After it is over, you get to thinking about [the inmate]. You try to block out what happened, but you can’t—his death is there." Another described how he looks forward to the gathering of the "death team" after the execution, where a huge amount of food is available, and they can decompress by talking about topics other than the execution. 

‘Time to Move On’

"These officers," Osofsky said, "noted that they stopped thinking about the execution when they left the prison gates. They had done their part, and it was time to move on." 
He suggested, however, that they do not "move on" to the extent they think they do. "A majority of the officers," he pointed out, "seem to suppress their feelings and do not have any cathartic outlets for talk. Instead, members of the death team generally do not talk about the prison, and especially the execution process, once returning home, putting on their ‘tough-guy’ façade. They do not volunteer their feelings, and their spouses or partners rarely question them," he learned. 

Three of the mental health professionals who work with death-row inmates were also interviewed, and not surprisingly, Osofosky found that their education did not train them to deal with this unique population. "The goals of their profession—to improve and to instill a better quality of life in one’s clients—can’t be realized in a world in which their client is precariously skirting death," he said. He quoted R.D., who explained his dilemma by noting he is in a helping profession, "but there isn’t a damn thing I can do for these guys. I hate it, but I do it. I am required to do it . . . . Even though they aren’t patients, it is difficult." 

One social worker described a process in which new counselors are "too compassionate" and end up being taken in by prisoners’ sad stories, which often turn out to be lies. 

"Eventually, some workers realize that they have begun to tune out and literally do not hear parts of what is being told to them, especially around the time of an execution," he said, "they find that such disassociation can be helpful." He explained that he just tries to "provide humanity and dignity as they go" to their executions. 

Then there is the strapdown team, a six-person group of senior officers who escort the condemned the 25 feet to the execution room and secure him to the table. Each is assigned responsibility for one body part, such as the left arm. The participants
indicated that this practice prevents them from having to focus on what they’re preparing a human being for and diffuses responsibility. A worker who has been on strapdown teams for 15 years told Osofsky, "We each have a small role to play. . ..We have a duty to do it as efficiently as we can. The day is important enough that we want it to go without a hitch." 

The stresses they hide do, of course, become manifest in other areas of their lives, Osofsky said, noting that "there is an unusually high incidence of divorce among the execution team—about 75 percent compared with 50 percent for the rest of the
U.S. population." Many of the staff appear to find more of a familial feeling among their colleagues than at home, Osofsky noted. Seeking help from psychiatrists or mental health professionals is "rare," he said, and they have no opportunity for "post-execution catharsis. 

So has what they witness and participate in affected their views of the death penalty? Osofsky noted that about 67 percent said they approved of it, 25 percent were opposed, and the remainder did not want to comment or said their job forced them to be impartial. As for Osofsky, he remains somewhat ambivalent about it, but said he is probably "slightly for it." 

In the future, he said in response to a question from the audience, he would like to develop programs that "will keep children from ever meeting the execution team." 

(ii) A definition of ‘Evil’ as Depravity from the American Psychiatric Association

On the other hand, we have the following, also from the US psychiatric community. A great deal of interest was generated at the recent APA meetings among the forensic psychiatric community in efforts to develop a consensus, or operational definition, of evil. When all else fails, of course, one develops a scale, in this case the ‘Depravity Scale.’ It seems there has been quite a bit of buzz on this one.

Psychiatrist Helps Court Define ‘Evil Behavior’ 
Joan Arehart-Treichel 

A forensic psychiatrist has developed the Depravity Scale to help courts decide what represents heinous, atrocious, and cruel behavior. Whether other forensic psychiatrists will sign on, however, remains to be seen.

It was one of the last sessions at APA’s 2001 annual meeting in New Orleans last month, yet the room was packed with forensic psychiatrists and members of the press. They had come to hear about a subject that fascinates—and terrifies—most people. The subject was evil. 

Indeed, they sat entranced as Michael Stone, M.D., a professor of clinical psychiatry at Columbia University who totes the biographies of over 100 serial killers around in his laptop computer, described some of the most horrific deeds that people have performed over the years. 

 For instance, there was the Hungarian countess who killed 600 virgins, then bathed in their blood to recapture her youth. There was the woman who burned her daughters with cigarettes and locked one in a freezer. There was the man who recorded the sounds of children as he tortured them and who played the recordings back later as a sexual turn-on. There was another man who was good to his own children, yet who killed and ate three others. 

 Hearing about such dark and grisly deeds appeared to prepare the audience for what was really the highlight of the session: the unveiling of a new psychiatric instrument that its developer claimed would help the courts distinguish which crimes are truly heinous. The instrument is called the Depravity Scale. 

The scale was unveiled by its inventor—Michael Welner, M.D., a forensic psychiatrist and director of a national consulting firm called the Forensic Panel, a private company made up of about 20 individuals, including several psychiatrists. He is also an associate professor of psychiatry at New York University and an adjunct professor of law at Duquesne University. Welner explained how he came to design the scale and what it constitutes. 

During his forensic work for both the prosecution and the defense he often noted how criminal and civil codes use words such as "atrocious," "outrageous," and "vile" and how such words have different meanings in various states and courts. 

The use of such words, Welner observed, becomes a part of jury decisions about whether
there are aggravating factors in a case. Having committed a "vile" crime, for instance, can be considered an aggravating factor. And such factors in turn can influence a jury in deciding not just whether the defendant should be given more severe punishment, but whether the accused should receive the death penalty. 

The employment of such words can also influence cases in civil courts and family courts, Welner noted. The word "outrageous" is especially bandied about in divorce cases and child custody battles; it may result in higher financial damages or loss of parental rights. 

Consensus Definition Needed

Thus, what U.S. courts needed, Welner decided, was some consensus definition of such words, or more specifically, some consistent way to assess crimes and other events and determine whether proven actions represent "evil behavior." 

In developing the Depravity Scale, Welner first reviewed criminal case law—that is, more than 100 higher court decisions on capital cases—to probe examples where courts supported the designation of crimes as evil as well as the different reasons given by the judges for doing so. 

Then he reviewed the psychiatric literature to glean diagnostic correlates for the sentences courts were already issuing. 

Welner used this information to flesh out a 26-item working research model that would reflect depraved intentions before an offense, depraved actions contributing to an offense, and depraved reactions to an offense—sort of a yardstick against which a defendant’s mental state, actions, and reactions might be compared. For instance, "intent to emotionally traumatize a victim," "intent to permanently disfigure a victim," "prolonging a victim’s suffering," and "indifference or satisfaction after inflicting suffering on a victim" are four of the proposed items. 

Welner also pointed out at the symposium that he had been assisted in his research by a group of some 20 colleagues, notably Robert Sadoff, M.D., Lewis Opler, M.D., Ann Burgess, R.N., and Robert Hare, Ph.D. 

Validation Research

At the end of his talk, he invited the psychiatrists in the audience to participate in validation research currently being conducted on a Web site devoted to that purpose. For a month or so now, he pointed out, forensic psychiatrists, forensic psychologists, attorneys, judges, and theologians have been sampled from around the United States to gain consistent perspective about what intents, actions, and reactions constitute depravity. So far, about 1,500 responses have been obtained. Items that prosecutors, judges, and defense attorneys agree are especially representative of depraved intent, actions, and attitudes will form the core of the final version. 

But will forensic psychiatrists sign onto the project, or at least give it their tacit approval? Questions posed at the session suggested that there will be some resistance, or at least some reservations. 

For instance, would the Depravity Scale reveal whether the accused had been sexually abused as a child? "No," Welner answered. "It is not meant to encompass such evaluations, simply to hold words such as ‘depraved’ to some accountability." 

Would the Depravity Scale make life worse for criminals who are mentally ill? "No," Welner countered. "It is colorblind and socioeconomic blind. It does not reflect whether a person is suffering from depression or psychosis. So if a person has a psychiatric disorder, that has to be determined independently, as is already the case." 

Might the Depravity Scale lead not only to the conviction of people who had engaged in "evil" crimes, but on occasion to the conviction of people who had not? "No," Welner replied. "In fact, standardization of what constitutes evil behavior would be especially valuable in preventing a miscarriage of justice in death penalty cases. I also believe that the scale would be an antidote to defense lawyers or prosecutors manipulating the emotions of juries. The scale forces courts to gather evidence before using such words." 

On the other hand, one forensic psychiatrist in the audience, John L. Young, M.D., an associate clinical professor of psychiatry at Yale University, lauded Welner’s efforts to catalog depraved acts and to try to arrange them in some hierarchy so that if someone were convicted of a particular act, he would be treated the same way for it in one jurisdiction as in another. "I think it is going to take a great deal of professional expertise to make a scale that is valid and reliable, that speaks to something that is real," he said. "But it is a worthy undertaking." 

Yet Young, who is a Catholic priest as well as a forensic psychiatrist, did argue that the scale should not be referred to as a scale of "evil behavior," but rather as a scale of "depravity," "wantonness," "inhumanity," or some comparable term. "I feel goose bumps when people talk about evil," he confessed. 

Later Psychiatric News asked Young exactly what he had meant by that statement. He explained, "I have great respect for the power of evil, whether you want to personify it as Lucifer, Satan, the Devil, or even not at all. I think that defining evil is outside our competence, professionally and spiritually." 

FYI, you can check out the specifics of the scale and even participate in the survey development of the Depravity Scale at:

(iii) A Lawyer’s Warning about Confidentiality

Apparently, another very popular item was a lawyer’s perspective on numerous confidentiality issues. Although this topic is one of those favorite old chestnuts in the forensic field, it continues to evolve and reveal variations on a theme. This is taken from:

Lawyer Offers Warnings About Confidentiality Pitfalls 
Eve Kupersanin 

APA members get targeted information and find out where their practices intersect with new medical privacy rules. New medical privacy regulations will forever change the way psychiatrists keep patient records, and attorney Daniel Willick, J.D., Ph.D., explained how during APA’s 2001 annual meeting in New Orleans in May. Willick, legal counsel to the California Psychiatric Association and an expert in legal aspects of psychotherapist-patient confidentiality, also addressed typical legal imbroglios that psychiatrists in private practice sometimes face—from boundary issues to medicating a child in the face of parental conflict. 

"The biggest problem psychiatrists in private practice face relates to confidentiality," said Willick. "My advice is to do what you learned in medical school and in advanced psychiatric training—maintain strict confidentiality [of patient records]." 

Protecting the Patient 

In 1996 the U.S. Supreme Court established a federal-level psychotherapist-patient privilege in Jaffee v. Redmond, which stated that effective psychotherapy depends on an atmosphere of trust in which the patient is willing to disclose emotions, memories, and fears freely to his or her therapist. 

The Department of Health and Human Services issued more comprehensive medical privacy regulations in April that will require that physicians keep two types of patient records, said Willick. The regulations will go into effect in April 2003. 

Psychiatrists will need to keep regular medical records and a separate set of psychotherapy notes, which the regulations define as notes analyzing or documenting the contents of conversation during a private counseling session. 

The reason for the separation of the psychotherapy notes is their enhanced protection under the new federal rules, said Willick. "If psychiatrists start keeping medical records and psychotherapy notes together, there is a heightened chance that the notes from therapy sessions will be disclosed to a third party," he cautioned his audience. The third party might be a managed care or health insurance company, for example. "Health plans and insurers cannot require the disclosure of psychotherapy notes as a condition of enrollment or treatment, but they can require disclosure of a patient’s medical records," he said. 

But that’s not all. Under the new regulations, patients have the right to see both types of records and identify parts they believe are wrong and want corrected. 

In California, according to Willick, when a patient demands to see his or her records and the psychiatrist refuses to comply with the request, "that refusal can result in an ugly complaint to the psychiatrist’s medical licensing board." 

Exceptions to Confidentiality 

Sometimes, however, disclosure of psychotherapy notes is not protected, he stressed. For example, if a patient makes a threat against a third party during a psychotherapy session, the psychotherapist is permitted, and in some states required, to disclose the threat. 
For example, Willick filed an amicus brief on behalf of the California Psychiatric Association to protect the confidentiality of psychotherapy sessions in the high-profile murder case of Lyle and Eric Menendez, who confessed during a session with a psychologist to shooting and killing their parents. He explained that in two other counseling sessions the brothers threatened their therapist with violence if he disclosed the confession. 

At that point, said Willick, the psychologist was required to testify in court about the threat to his safety and thus about the content of the session that produced the threat—the murders. The Menendez brothers were convicted in large part due to this testimony. 
Willick warned psychiatrists not to disclose psychotherapy notes in more typical forensic situations, such as personal injury cases. If a patient of a psychiatrist is in an auto accident, for example, and sues the other driver claiming to be suffering emotional distress, the patient’s lawyer will likely ask the psychiatrist for the patient’s records to use in the lawsuit. "Never hand those records over unless the patient signs a release form permitting the disclosure," advised Willick. 

If an attorney does subpoena a patient’s records, to what extent should the therapist fight to keep those records private? Should the therapist necessarily hire an attorney to protect this information? "No," said Willick. "After you inform the patient that someone is trying to subpoena those records, it is the patient’s obligation to try to quash, or stop, the subpoena." 

Protecting the Practitioner 

"Get malpractice insurance" to protect yourself, Willick also urged. "A claims adjuster from your malpractice insurance company will often provide you with a swift and accurate answer to your legal questions, and may even provide you with an attorney at no cost to walk you through a legal problem you may be having." 

Common situations that could lead to a malpractice claim are boundary violations such as those involving sex, business relations, or social relations between therapist and patient. 

Willich said, "Some of the warning signs of boundary violations are that [the psychiatrist] may not keep records of the patient’s treatment, is not billing the patient for services, or is exchanging gifts with the patient in a social context." 
However, psychiatrists should know that malpractice insurance doesn’t necessarily cover every legal problem, he emphasized. Some policies have exclusions for certain types of claims or limitations for coverage of those claims. This is typically the case with sexual relations between therapist and patient, he said. 

Real Cases Discussed

A number of psychiatrists came to the session with legal dilemmas of their own. One psychiatrist had been treating a patient in psychotherapy, and the patient bought the office space where the two met. "Should I terminate the therapy or move my practice?," asked the psychiatrist. 

"It’s your choice," said Willick, but he acknowledged that it would be a bad idea for the therapy sessions to continue between the psychiatrist and his new landlord. "You are in a situation where the patient may want to start bartering rent for treatment, or the therapy sessions may spill over into the business relationship," he said. 

Another psychiatrist decided that a child she was treating needed psychopharmacological intervention. One parent approved of this type of treatment, and the other objected. "How do I proceed?," she asked. 

"You might want to find out if the child’s custody order mentions medical treatment," Willick advised, noting that if both parents can’t reach an agreement, the parents’ divorce lawyers may be able to seek a resolution to the impasse. "It becomes more difficult if the child is in immediate need of treatment," he acknowledged and urged the psychiatrist to consult an attorney expert in such matters. 
Another psychiatrist was treating an adolescent patient whose parent demanded to see the psychiatrist’s records from the therapy sessions. "Do I need to disclose the records to the parent?," she asked. 

Willick acknowledged that state law would determine whether the parent had this right, and those laws vary considerably. He advised the psychiatrist to talk to her malpractice insurer about the law in her state. 

"In general," he pointed out, "the best way to stay out of trouble is to recognize the important issues and get legal help when you need it."

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