The Admissibility of Expert Testimony in Washington on Post Traumatic Stress Disorder and Related Trauma Syndromes: Avoiding the Battle of the Experts by Restoring the Use of Objective Psychological Testimony in the Courtroom

• Publication year: 2003

SEATTLE UNIVERSITY LAW REVIEWVolume 27, No. 2FALL 2003

The Admissibility of Expert Testimony in Washington on Post Traumatic Stress Disorder and Related Trauma Syndromes: Avoiding the Battle of the Experts by Restoring the Use of Objective Psychological Testimony in the Courtroom

Brett C. Trowbridge, Ph.D., J.D.(fn*)

I. Introduction

There is considerable controversy regarding the use of syndrome testimony in Washington and other state courts. Consider an expert witness's testimony during a criminal case, in which an expert asserted that it appeared likely that the alleged victim had truly been raped because she showed symptoms of "rape trauma syndrome." Specifically, the expert testified: "[I]n every rape victim I have seen they exhibit consistent symptoms .... For example, body soreness, guilt, shame, feelings about the trial, nightmares, and flashbacks are all common symptoms that rape victims experience. There is a profile for rape victims and [she] fits it."(fn1) Suppose this testimony was allowed despite an objection from defense counsel.

Should an appellate court uphold the testimony about rape trauma syndrome? In the actual case, the Washington Supreme Court determined that a literature review of the scientific evidence was necessary in order to empirically determine whether rape trauma syndrome is a "scientifically reliable method admissible in evidence and probative of the issue of whether an alleged rape victim was raped."(fn2) The Court concluded that "[t]he literature on the subject demonstrates that it is not."(fn3)

The court's analysis of the scientific reliability and legal admissibility of rape trauma syndrome testimony illustrates how psychology and law intersect. In such cases, the court evaluates psychological science to determine whether a given syndrome is generally accepted in its field. The court, in effect, conducts its own meta-analysis of the literature by reviewing relevant studies to determine which syndromes will be considered admissible as expert evidence. The result of such an analysis influences the admissibility of the syndrome evidence.

Several factors are important in determining whether a scientific study would be relevant in evaluating syndrome evidence. First, it would be important to determine whether studies show universal or near universal symptoms for each type of trauma, and whether studies show a wide divergence of symptom patterns, including true victims who reported no symptoms at all. Also, it would be significant if the studies demonstrate that less traumatized individuals only rarely exhibit the same symptoms as traumatized individuals. Second, it would matter whether the symptoms described fit a diagnosis listed in the manual utilized by clinicians when diagnosing mental disorders, the DSM-IV-TR.(fn4) If the factors listed in the DSM-IV-TR are not present, then the syndrome evidence should not be deemed admissible by the court.

This article will explore the legal and scientific validity of some syndromes that purport to show that abuse and/or battering likely occurred, and the validity of some syndromes that purport to show that abuse and/or battering probably did not occur. Although the syndromes in question may be useful in the clinical context, this article argues that none of these syndromes are forensically useful because they do not have diagnostic utility in differentiating between those who have been traumatized by rape, child abuse, or battering, and those who have not. Indeed, research evidence indicates that traumatized individuals may exhibit any of a broad range of psychological reactions-there are no universal symptoms of rape, child abuse, or battering.(fn5)

Courts that allow mental health professionals to personally evaluate a person who may have been traumatized and allow such experts to make diagnostic statements in court that the person they have evaluated suffers or does not suffer from such syndromes have reached incorrect conclusions about the scientific acceptability and validity of these syndrome concepts. Furthermore, courts that allow such testimony from "experts" on one side in a criminal case will usually have to allow the opposing side to present "experts" of their own. This battle of the experts can launch an unnecessary investigation into all areas of the person's life in a search for possible other traumas which might explain the observed symptoms.

The better approach is for courts to not allow experts to personally evaluate the allegedly abused person, and for courts to allow only general mental health testimony about the symptoms that traumatized individuals commonly exhibit. This general mental health testimony should only be introduced when the other side has "opened the door" by claiming that the alleged victim's post-trauma behavior was not normal or common for victimized persons. Even in those instances, such testimony should not be allowed unless the expert can support his testimony with published research. In other words, experts should not be allowed to testify about what is "common" post-trauma behavior based merely on their own clinical experience.

This article focuses on three types of syndrome evidence-rape trauma syndrome, child abuse syndromes, and battered person syndrome-all of which seem to be closely related to the diagnosis of post traumatic stress disorder (PTSD). Part II provides background regarding the Frye test, explains how mental disorders are defined in the manual clinicians use, DSM-IV-TR, and outlines PTSD and associated syndromes. Parts III, IV, V, and VI address both legal and psychological concerns regarding specific syndromes and identify what types of testimony Washington law allows in each of these three areas. Part VII discusses the concerns regarding the scientific validity of such diagnoses. Finally, Part VIII concludes this article by calling for a standard of admissibility for syndrome testimony based on reliable science, rather than less reliable testimony based on an individual clinician's experiences.

II. Background

A. The Frye Test

Jurisdictions use different legal tests to determine whether a particular mental diagnosis or syndrome will be admissible as evidence.(fn6) Washington uses the test expounded in Frye.(fn7) The Frye test requires that the trial judge find that the expert testimony be based on scientific evidence that is "sufficiently established to have general acceptance in the field to which it belongs."(fn8) In other words, the scientific techniques upon which the expert is basing his or her testimony must be viewed as accepted in the relevant scientific community. The primary diagnostic manual used by psychologists and psychiatrists, the DSM-IV-TR, discussed below, contains only those diagnoses which are considered to be generally accepted by psychologists and psychiatrists; therefore, restricting one's diagnostic statements to those contained in DSM-IV-TR would make particular sense in Washington.

B. Mental Disorders as Defined in the DSM-IV-TR

The Diagnostic and Statistical Manual of Mental Disorders IV-Text Revision (DSM-IV-TR), which was published in 2000 by the American Psychiatric Association, is the latest in a series of diagnostic manuals that is updated every few years. Each DSM version purports to list all of the currently accepted diagnoses in the fields of psychiatry and psychology. DSM-IV-TR reflects a consensus within the mental health community regarding the classification and diagnosis of mental disorders. Although there has been some criticism of DSM-IV-TR diagnoses,(fn9) the disorders listed are thought to be the most reliable and valid diagnoses, and they are considered to be the most defensible scientifically.(fn10) Expert testimony by mental health professionals often includes the rendering of a diagnosis, and an argument can be made that only diagnoses included in DSM-IV-TR should be utilized, as it "reflects a consensus about the classification and diagnosis of mental disorders derived at the time of its initial publication."(fn11)

Despite the general acceptance of DSM-IV-TR in the fields of psychiatry and psychology, the rendering of a DSM-IV-TR diagnosis does not equate with any specific legal standard. DSM-IV-TR explicitly recognizes that "dangers arise because of the imperfect fit between the questions of ultimate concern to the law and the information contained in clinical diagnosis."(fn12) Furthermore, "a diagnosis does not carry any necessary implications regarding the causes of the individual's mental disorder."(fn13)

Almost all accepted DSM-IV-TR diagnoses are listed as "mental disorders," and none are described as a "syndrome." DSM IV-TR defines a mental disorder as follows:[E]ach of the mental disorders is conceptualized as a clinically significant behavioral or psychological syndrome or pattern that occurs in an individual and is associated with present distress (e.g., a painful symptom) or disability (i.e. impairment in one or more important areas of functioning) or with a significantly increased risk of suffering death, pain, or disability, or an important loss of freedom. In addition, this syndrome or pattern must not be merely an expectable and culturally sanctioned response to a particular event, for example, the death of a loved one."(fn14)

DSM-IV-TR defines syndrome as "[a] grouping of signs or symptoms, based on their frequent co-occurrence, that...