Previous Cases

I don't even remember Sturgeon.  Either that means he was completely useless or I'm getting old.  I do feel old. <cracks knees>

Can't it be both, Laura? 

I don't even remember Sturgeon.  Either that means he was completely useless or I'm getting old.  I do feel old. <cracks knees>

From one of your other posts, I thought you might have been Dick Lesicko. Were it not for FunPre, I would have said, "Dude, aren't you getting old?"

*shudder* if RadicallyLiberal was in fact Dick Lesicko I am positive there would be a lot less posts about naked dialing around here...

I was always surprised that so much of what Ash had to say ended up in evidence. Seems to me that Stauble v State is pretty clear: Mitigation specialists can testify to the life background of the defendant. I've seen Ash's that have been able to sit and talk about the effect that the background had on BC, or how BC reacted on Nov 30. Way goofy.

That being said, I'm surprised we saw so many Ash, [other witness], Rubenstein lineups. I always loved it. Highlighting the contradictions between the two "experts" and then reiterating that just about all of their "conclusions" come from things they learned from a defendant who told them everything after being incarcerated with the knowledge that they'd be testifying on his/her behalf was one of my favorite parts of this case.

I was always surprised that so much of what Ash had to say ended up in evidence. Seems to me that Stauble v State is pretty clear: Mitigation specialists can testify to the life background of the defendant. I've seen Ash's that have been able to sit and talk about the effect that the background had on BC, or how BC reacted on Nov 30. Way goofy.

That being said, I'm surprised we saw so many Ash, [other witness], Rubenstein lineups. I always loved it. Highlighting the contradictions between the two "experts" and then reiterating that just about all of their "conclusions" come from things they learned from a defendant who told them everything after being incarcerated with the knowledge that they'd be testifying on his/her behalf was one of my favorite parts of this case.

Yea whenever we went against that line-up we would try to start both crosses with the same exact questions.

Also Ash provided lots of facts  with which the prosecution could then prove that BC was a psychopath.  Juries tend to lock up psychopaths for a long long time -- even if they've haven't done anything very bad.

What is amazing is the number of prosecution teams who ignored all the horrible stuff Ash had to say about BC.  In reality very few juries give light sentences when the defense hires experts to explain WHY the defendant is a horribly violent person.  In real life calling either Ash or Rubenstein would have been legal malpractice.  Lawyers are not supposed to put on evidence that damns their clients to a maximum sentence.

It turned out to be relatively easy to get Dr. R to admit that BC was a psychopath.  How?  On direct, the prosecution objected and objected and objected that Dr. R could not offer any testimony because he has not testified that he used reliable principles and methods (R 702(2)).  Rather than risk the judge precluding all the testimony, they always said that they used the DSM.

Then on cross examination, the facts from Ash were presented to Dr. R and the DSM diagnostic criteria for Antisocial Personality Disorder were checked off.  Then the crossing prosecution said something like, 'It is truuuue isn't it Dr. Rubenstein that according to the DSM, which you admitted using, says that psychopath is another name of antisocial personality disorder?"  After admitting that they had used the DSM, all judges allowed the atty to impeach using it.  It got to the point that during one trial, the prosecuting atty just had to motion towards the DSM for Dr. R to change his testimony.

wait - so you didn't call Ash or Rubenstein? I played R at Mac, Wake, Columbia, Milwaukee and Golds, and the DSM never came up. Rubenstein's a psychologist - talking to patients is pretty much what psychologists do. No one you saw ever just pointed that out?

Any attorney who cannot get around a 702 expert objection is a fool mike, and I hope you crushed them.

Ah, the west coast and its methods...

I have a friend who is a forensic psychologist.  Forensic clinical psychologists do not just talk to people.  Their primarily role is diagnosis by the giving of tests. Of course, personal interviews are also used in making their assessment.  You will note that Dr. R gave a number of tests, although Dr. R skipped some of the most important tests such as the MMPI II with the malingering scale.  That test would be extremely important in a legal setting.  I gather that no one ever pointed out to you the vastly different roles between a forensic clinical psychologist and a talk therapist -- Dr. R was not the latter.

Rule 702 (2) requires that the clinical psychologist use "reliable principles and methods" and Rule 702 (3) requires that the expert applied the principles and methods reliably.  Rule 703 requires the expert to use information "of the type reasonably relied upon by experts in the particular field."  Thus, any expert opinion about BC by Dr R could not be idiosyncratic, but would have to be based upon the type information reasonably relied upon.  In forensic psychology that requires the use of the DSM-IV or DSM-IV-TR.  For Cluster B personality Disorders, there is no substantial difference between the IV and the IV-TR.  Of course, for the prosecution, the 2 Cluster B disorders were most fruitful.

Almost all real attorneys know that experts can always be cross-examined on leading treatises in their area and that the DSM is the clinical psychologist's Bible. Since Dr. R's report used the DSM diagnostic codes and the multi-axial diagnostic format, it was clear that Dr. R was following the DSM.  Thus, if a Dr. R were to testify that he did not use the DSM, the team was prepared to prevent Dr. R from offering any expert testimony.  The only way to get around Rules 702 and 703 was to admit to the obvious; Dr. R used the DSM.

One team did occasionally call a Dr. R but she knew the DSM so deeply that trying to cross examine her on it always gained her points for her.  Actually trying to cross examine her on anything was like herding cats.

Felixfuissem:  You were fortunate that no one raised the DSM.  Unless you were prepared, admitting to use of the DSM generally put Dr. R on the slippery slope of admitting that BC was a psychopath.  I do hope, however, that you realize that 90% of what Dr. R had to say was forensic trash.  Any defense attorney who called Dr. R in real life would have committed legal malpractice, and any forensic psychologist who wrote a report like Dr. R's for the defense would probably never work again. I trust you won't rely on anything you learned for your Dr. R role as anything more than psychological gibberish.

I do not know whether it is a West Coast thing to be well prepared and to do research so that we understand the nature of the expert's field.  I am certain all schools have psych departments so I do not think any school was disadvantaged by the substandard nature of the Dr. R materials.  East Cost West Coat and in between -- being well prepared should not be a geographical phenomenon.  Maybe I misunderstand No Time's comment.

My comment is that you cannot get them to admit that the DSM states what you say it states.  You cannot impeach with it.  Thus, unless you get a judge who is very knowledgeable in psychology, you end up with the witness' word versus yours.  As long as the witness' answer seems defensible and reasonable, you lose.

My comment is that you cannot get them to admit that the DSM states what you say it states.  You cannot impeach with it.  Thus, unless you get a judge who is very knowledgeable in psychology, you end up with the witness' word versus yours.  As long as the witness' answer seems defensible and reasonable, you lose.

lawyered!!!

Was Sturgeon the one who worked with Reynolds?

Lawyered indeed. Anytime you would propose a DSM based question, I'd just continue to tell you that you were wrong. You'd look horrible, and I'd look a lot smarter than you.

West Coast? I'll lobby my team to go out there if that's your master plan.