A court may also issue a court order requiring a party to provide testimony or produce documents. Unless the issuing attorney or court excuses the psychologist, the psychologist must respond to a subpoena — that is, to be at a particular place at a particular time.
Recognize ethical challenges psychologists should consider when responding to subpoenas that request disclosure of client records or test data. Understand the factors that determine whether a subpoena's request for information carries the force of law.
The clinical record, any separately kept psychotherapy notes, client information forms, billing records and other such information usually may be turned over to the court with appropriate authorization by the client or with a court order.
The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:
Federal courts have found mental instability relevant to credibility only when the witness exhibited a pronounced disposition to lie or hallucinate or had a severe illness such as schizophrenia that dramatically impaired the witness's ability to tell the truth.
United States, 160 U.S. 469 (1895), which required the government, once some evidence of insanity had been introduced by the defendant, to prove the defendant's sanity beyond a reasonable doubt.
The four versions of the insanity defense are M'Naghten, irresistible impulse, substantial capacity, and Durham. The two elements of the M'Naghten insanity defense are the following: The defendant must be suffering from a mental defect or disease at the time of the crime.
The status of a mentally ill individual who witnessed an incident is the same as that of any other witness; however, there is concern that his or her mental state may cause the witness to testify to something that never happened and may thus incriminate an innocent person, or that the supposedly true testimony will ...
What types of evidence must always be turned over by the prosecutor to the defense in virtually all jurisdictions? Exculpatory evidence is any evidence that may be favorable to the defendant.
Under this test, the defendant will be found not guilty by reason of insanity if they can show that as a result of mental disease or defect, they could not resist the impulse to commit the crime of which they are accused, due to an inability to control their actions.
The irresistible impulse testThe irresistible impulse test is used to determine whether, as a result of a mental disease or defect, a defendant was unable to control or resist his or her own impulses, thus leading to a criminal act. If so, the defendant is not guilty by reason of insanity.
The federal insanity defense now requires the defendant to prove, by "clear and convincing evidence," that "at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts ...
the Irresistible Impulse TestThere are several legal tests used by State courts to determine whether someone was insane at the time of the incident. These insanity defenses include the M'Naghten Rule; the Irresistible Impulse Test; the Durham Rule; and the Model Penal Code test.
Under the new law, a person who is assessed in a mental health facility and determined to be mentally ill or mentally disordered will have the charges against them dismissed after 6 months. This means there is no criminal record and no finding of guilt.
Court of Appeals of Georgia Finds Victim w/Bipolar Disorder Was Competent to Testify. Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision.
Pattern 5 offenders are those who become mentally disordered or feign mental disorder as a result of their crimes, such as those who dissociate upon seeing what they have done, those who become depressed in prison, those who become psychotic on death row, and those who malinger mental illness.
The defense is entitled to know about the prosecution’s case before trial.
The police report is sometimes the first item of discovery that a defense attorney receives. records—for instance, police personnel records, medical records relating to injuries, and witnesses’ criminal records.
The Constitution requires that the prosecution disclose to the defense exculpatory evidence within its possession or control.
“Exculpatory” generally means evidence that tends to contradict the defendant’s supposed guilt or that supports lesser punishment. The evidence doesn’t have to strongly indicate innocence in the way that an alibi, for example, would. It’s generally enough that the evidence provides significant aid to the defendant’s case. So, information that affects the credibility of a critical prosecution witness—like the fact that the prosecution offered its witness leniency in exchange for testimony—is among the kinds of evidence prosecutors have disclose. ( Giglio v. United States, 405 U.S. 150 (1972).)
“Exculpatory” generally means evidence that tends to contradict the defendant’s supposed guilt or that supports lesser punishment.
Federal and State Discovery Statutes. Brady and the cases related to it provide what’s essentially a baseline for what prosecutors have to turn over to the defense. The federal system and many states have statutes that entitle the defense to more material. (Sometimes the defense must request this material.)
The prosecuting attorney shall disclose to the defendant or his or her attorney all of the following materials and information, if it is in the possession of the prosecuting attorney or if the prosecuting attorney knows it to be in the possession of the investigating agencies:
Psychologists who receive a subpoena or other legal process that requires or is likely to require production of client/patient records or test data, manuals, protocols, or other test information are encouraged to consult legal counsel who can review the pertinent law and facts and provide appropriate legal assistance.
When talking with the client, the psychologist should explain which information has been demanded, the purpose of the demand, the entities or individuals to whom the information is to be provided, and the possible scope of further disclosure by those entities or individuals.
In general, the psychologist has a responsibility to maintain confidentiality and to assert the psychotherapist–patient privilege on behalf of the client unless the client has explicitly waived privilege or signed a valid release, a legally recognized exception to privilege exists, or the court orders the psychologist to turn over the client's information.
Weigh options for opposing or limiting production of client records or test data in response to a subpoena requesting production of those materials.
A request for psychological test data and test materials present other concerns. Although a client's test data (including raw and scaled scores and client responses to test questions or stimuli) may be released in response to a proper subpoena, the disclosure of test materials (including manuals, instruments, protocols and test questions) may require the safeguard of a protective order from the court. The APA Ethics Code requires psychologists to "make reasonable efforts to maintain the integrity and security of test materials and other assessment techniques consistent with law . . ." in order to not threaten the validity of psychological tests and their value as a measurement tools (APA Ethics Code, Standards 9.04, 9.11).
To obtain this material, the court may issue subpoenas (legal commands to appear to provide testimony) or subpoenas duces tecum (legal commands to appear and bring along specific documents). A court may also issue a court order requiring a party to provide testimony or produce documents.
Psychologists are also ethically obligated to take reasonable steps to prevent others from misusing such information.
The warrant was reportedly for evidence of possible bank and wire fraud and campaign finance violations, as well as documents related to Cohen’s dealings with Stormy Daniels and records relating to the Access Hollywood tape. The warrant was obtained following a referral by the special counsel’s investigation to the southern district of New York. The interim U.S. Attorney for SDNY, Geoffrey Berman—whom Trump interviewed when considering him for the Senate-confirmed position— recused himself from the Cohen investigation and was not involved in the decision to conduct the searches.
Prosecutors first indicted Stevens, the former vice president and associate general counsel of pharmaceutical company GlaxoSmithKline, in November 2010, charging her with obstructing a proceeding and falsifying and concealing documents in connection with an FDA inquiry into whether GlaxoSmithKline had illegally marketed certain drugs for off-label use . The government alleged that Stevens misleadingly denied wrongdoing while withholding the results of an internal investigation, including various slide presentations that purportedly confirmed the company’s off-label marketing, that she had promised to produce. The government later learned about these presentations when a company whistleblower sent them directly to the FDA, leading the government to conclude that Stevens had obstructed the FDA’s inquiry. This evidently also helped the government convince a magistrate judge to allow production of ordinarily privileged materials, such as a pro-con list prepared by outside counsel on the benefits and risks of sharing the slide presentations Stevens ultimately withheld, quoted at page 8 of the indictment. The district judge dismissed the charges against Stevens without prejudice, reasoning that the grand jury had been misinformed on whether Stevens’ good-faith reliance on advice of counsel would negate the intent requirements of the statutes she was charged with violating.
In 2017, James Michael Farrell was convicted of money laundering, witness tampering, and obstruction of official proceedings , all related to his activities on behalf of his clients—participants in a drug-trafficking operation. Farrell conspired with his clients to conceal proceeds of their operation, using the money to pay the legal fees of grand jury witnesses and other individuals under investigation. He also filed affidavits with the Drug Enforcement Administration containing forged signatures and directed a witness to withhold information. The government’s case against Farrell was built on the testimony of various cooperating witnesses, who had met with Farrell at government’s instructions and sometimes had worn recording equipment.
They are among the toughest witnesses to challenge because their testimony can have elements of hearsay as well as subjectivity.
They are among the toughest witnesses to challenge because their testimony can have elements of hearsay as well as subjectivity. That’s because patients’ medical complaints to mental health professionals are subjective, and the diagnosis built on those complaints often is similar ly subjective . Even if the testimony is based on data ...
Another part of every psychiatrist’s and psychologist’s evaluation is the mental status exam, in which an expert sits face to face with a patient and asks standard questions that elicit relatively observable responses, Leckart says. This tests memory, attention, concentration, insight, judgment and verbal skills.
Sims says psychiatrists’ and psychologists’ processes can be deeply flawed and vulnerable to attack. Your goal, she says, should be to hit early at the deposition stage, so your opponent is forced to withdraw the mental health expert—ideally after it’s permissible to name a replacement.
“From what I’ve seen, most psychiatrists don’t have any training in psychological testing at all,” Leckart says.
How lawyers can effectively cross-examine psychiatrists and psychologists. Lawyers often find themselves facing off against psychiatrists or psychologists during litigation. Whether it’s a personal injury or medical malpractice case, a hearing to determine fitness to stand trial or part of a sentencing hearing, ...
But Sims says certain types of mistakes are common with each. In her experience, psychiatrists often administer psychological tests without the proper training. Psychologists, while trained to administer psychological tests, can misadminister them, misinterpret them or misrepresent the results, Sims says.
If the subpoena is for records only and not the practitioner’s testimony, the therapist can delay, if not avoid providing them altogether, simply by serving written objections to disclosing the records on the attorney who served the subpoena. However, there is a limited time within which to do so, which means that the therapist must be prompt in communicating with the attorney. The objections to disclosing the records must be in writing and must clearly state the basis. Once written objections are served, disclosure cannot be had until the court considers the objections and rules on them. In effect, this stays (i.e., suspends) the subpoena until the issuing attorney makes a motion to the court, with notice to the provider, asking the court to compel production and the court considers the objections and makes a ruling. Upon receiving notice, the provider will want to make sure the court sees the provider’s written objections and is fully advised of the provider’s concerns. If a court considers the therapist’s objections and orders that the records be disclosed anyway, the therapist has discharged his or her duties and can safely provide them.
It is essential that the therapist handle a subpoena correctly to minimize the possibility of a complaint or an adverse outcome should one be made. There is a maze of pertinent law and court rules that must be considered.
Was adequate notice given that a subpoena would be served? Before a subpoena seeking health care information can even be served in Washington State, the party issuing the subpoena must give at least two weeks prior written notice to the practitioner and to the client or the client’s attorney. The purpose of the requirement for advance notice is to give the client or the client’s representative adequate time to seek a protective order from the court. The written notice must identify the health care provider from whom the information is sought, what health care information is sought, and the date by which a protective order must be requested (by motion to the court) before the practitioner must comply. Only after that date may the subpoena be served. A therapist may not provide records or testify at deposition, even if served with a subpoena unless the issuing attorney has complied fully with this notice provision.
Never to be taken lightly, subpoenas in high-conflict family law cases warrant special attention . A subpoena in these cases is a red flag and the practitioner should proceed cautiously. The danger lies in the nature of the conflict itself, the mental health and personalities of the parties to the dispute, and the fact that the parties are demonstrably litigious.
The subpoena usually means that one side wants to obtain the records to use against the other. Or perhaps the guardian ad litem or child custody evaluator seeks them for insight into the family dynamics. Although the therapist might have strong feelings about which parent should prevail in court, it is not the therapist’s fight and he or she should stay out of the fray. Preserving proper boundaries is the best way to do this.
Often, one parent is better bonded with the therapist and the other parent resents it. Or the child therapist has a strong bond with the child, and one of the parents feels threatened by it.
Preserving proper boundaries is the best way to do this. Complaints to the Department of Health (DOH) from already unhappy parents are commonplace, and usually include allegations that the therapist crossed the line by taking sides. This can create a huge problem for the clinician.