Use and misuse of psychological testimony

By Charles Patrick Ewing, PhD, JD
State University of New York at Buffalo

A ruling by a federal appeals court has raised important ethical and legal questions about the responsibility of psychologists for their testimony, and the uses to which that testimony may be put by lawyers and judges. The case involves a former police officer, Grant Snowden, who in 1983 was recognized as South Miami?s police officer of the year. Three years later he was convicted of sexually abusing two young children?four-year-old, L.B., and her six-month-old brother. The allegations leading to Snowden?s conviction emerged when L.B.?s mother read newspaper accounts of previous accusations of child sexual abuse against Snowden and asked the four-year-old whether anything bad happened to her at Snowden?s home. The child said no. In response to further questioning, she denied that Snowden had ever touched her private parts. Later that day, L.B. was questioned by her mother and her father, and again denied that anything had happened. Unsatisfied with this response, the parents contacted the States Attorney?s Office.

For two years thereafter, L.B. was interviewed repeatedly, perhaps as many as 10 times, by an Assistant States Attorney. The child was also interviewed by a psychologist, who referred to herself as the 'yucky secrets doctor.' Initially L.B. insisted that nothing happened with Snowden, but when pressed by the psychologist and told that other children had spoken of a grown-up doing something to them with his penis, L.B. reportedly said that on one occasion Snowden had removed her clothes and then his own, touched his penis to her 'pee-pee' and 'butt,' placed his hand on her 'pee-pee' and inserted his penis into the mouths of her and her brother. Prior to trial, L.B. was deposed and testified, among other things, that she had told her parents immediately that Snowden had done something to her. She also testified that Snowden had touched her 'pee-pee' with only his hand, and that he had only patted her 'butt.'

When the case went to trial, prosecutors found that L.B. (then six years old) could no longer identify Snowden as the man who allegedly molested her. To strengthen its case, the prosecution presented the testimony of another psychologist to bolster the credibility of the child witnesses.

In 1998, after Snowden had served more than twelve years of a life sentence, a federal appeals court reversed his conviction because of the prosecution?s use of the child witnesses against him. In Snowden v. Singletary (135 F. 3d 732, 1998), the Court held that Snowden had been denied a fair trial because of the testimony of one of the psychologists that 'Ninety-five percent of children tell the truth and that?in his own experience with children, [he] had not personally encountered an instance where a child had invented a lie about abuse.'

In fairness to the psychologist, the transcript reveals he actually testified that while he did not consider children?s fabrication of sexual abuse complaints 'impossible,' he had encountered false reports in only about five out of the 1,000 cases he had evaluated. However, as the Court correctly observed, in his closing statement, the prosecutor repeatedly referred to the psychologist?s testimony, telling jurors: 'He told you that out of those 1,000 kids, 995 of them told the truth?That?s 99.5 percent of those cases it has been his experience that the children have been telling the truth?That?s the opinion...99.5 percent of the kids tell the truth? [If] you don?t remember anything else...just remember two things: That he was qualified as an expert in child sexual abuse 250 times, and that it is his experience that 99.5 percent of the children who report an incident of sexual abuse are telling the truth.'

After the conviction was overturned, the psychologist said his testimony had been misinterpreted and misused by the prosecutor. Although the psychologist was testifying truthfully with regard to his own clinical experience, it seems apparent from the context of the questions that the prosecutor?s intent was to generalize from that experience to the veracity of all children who allege child sexual abuse. In any event, that was certainly the prosecutor?s intent when he made repeated reference to the testimony in his closing argument.

Does a psychologist have an ethical duty to understand and anticipate the use to which his or her testimony will/might be put by counsel, and to make reasonable efforts to ensure that such testimony is not misused or misinterpreted? If a psychologist learns that his or her testimony has been misused or misinterpreted by counsel, does the psychologist have an ethical duty to take reasonable steps to correct such misinterpretation or misuse? Finally, as a legal matter, how would a psychologist go about it and how would courts respond?

Unfortunately, as things stand now, most psychologists never learn their testimony has been misinterpreted or misused until a trial is over, even if then. Moreover, courts not only provide few if any avenues of redress but, as Grant Snowden?s 12 years of unsuccessful state court appeals at a cost of more than $250,000 demonstrates, the legal system generally has little if any interest in correcting such misinterpretations or misuse.

'Judicial notebook' is an effort by the Courtwatch Committee of APA?s Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.