History of Expert Testimony

It is generally believed that American psychologists have served as expert witnesses since the early 1920s (Comment, 1979), but, like their European counterparts, they consulted with lawyers and the courts, perhaps particularly the civil courts, before that time. Included in this latter category are the juvenile courts, which were a hybrid of the civil and the criminal, dealing with matters of both child protection and delinquency. Psychological consultation with juvenile courts was common from their inception in 1899 (Brigham & Grisso, 2003). Consultation with and testimony in criminal courts was much less common, as we discuss shortly.

History of Expert TestimonyAccording to Rogers (1910, 1918), the results of experimental research on visual perception were routinely accepted in trademark infringement cases. In Coca-Cola Company v. Chero-Cola Company (1921), for example, an experimental psychologist was asked whether the trademarks used by the two companies were so similar as to be likely to cause confusion in the public mind and ultimately deceive the consumer. This was apparently considered a “safe” undertaking, as the psychologists were not infringing on the territory of the “medical experts”—physicians and psychiatrists—who routinely testified on matters of criminal responsibility. As Louisell (1955) noted, however, because trial court records are generally unavailable and only appellate decisions are published, the testimony of psychologists, particularly in civil cases, may have been less rare than the paucity of documentation would indicate. We do know that psychological testimony was almost inevitably rejected in criminal cases involving the defendant’s mental state. “As a general rule, only medical men—that is, persons licensed by law to practice the profession of medicine—can testify as experts on the question of insanity; and the propriety of this general limitation is too patent to permit discussion” (Odom v. State, 1911; cited in Comment, 1979, fn. 14).

The first published case in which an American psychologist qualified as an expert appears to be State v. Driver in 1921. The occasion was only a partial victory for forensic psychology, however. A West Virginia trial court accepted the chief psychologist of the State Bureau of Juvenile Research as an expert on the matter of juvenile delinquency. However, it rejected his testimony, based on psychological test data, that a 12-year-old alleged victim of an attempted rape was a “moron” (in retrospect, an unfortunate term coined by Henry H. Goddard, who is discussed later) and could not be presumptively believed. In agreeing with the trial court, the West Virginia Supreme Court noted, “It is yet to be demonstrated that psychological and medical tests are practical, and will detect the lie on the witness stand” (State v. Driver, p. 488). Although some commentators interpreted Driver as a major loss for psychologists wishing to achieve status as expert witnesses, Louisell (1955) noted that the decision was not a rejection of psychologists per se, only of the particular evidence offered by one psychologist.

Nevertheless, it was not until much later, in the 1940s and 1950s, that psychologists testified in courts of law on a regular basis, at least in some jurisdictions. They offered opinions and presented data relevant to subjects as diverse as the influence of pretrial publicity on potential witnesses and juries, the effects of pornography on adolescents, the effect of certain educational practices on children, and the likely influence of advertisements on consumers (Greenberg, 1956; Loh, 1981; Louisell, 1955). This is not to say that there was widespread acceptance of the idea that psychologists deserved a niche in the courtroom. Resistance to the idea, or at best a cautious approach, consistently characterized much of the legal literature (Comment, 1979).

In the early 1940s and the post-World War II era, appellate courts also began to hand down rulings that allowed psychologists to offer expert testimony in trial courts on the issue of mental responsibility for criminal and tortious conduct. Loh (1981) attributed this eventual acceptance to an increase in professionalization, “the rapid growth of mental health professions during this period, and the formulation of legal doctrines of insanity consistent with modern psychiatry” (p. 323).

One important decision, perhaps the first influential decision, was People v. Hawthorne (1940), a Michigan case. Hawthorne had been tried for the murder of his wife’s lover and had pleaded not guilty by reason of insanity. The trial court refused to qualify as an expert witness a professor of psychology from Michigan State Normal College who had a doctoral degree and an impressive list of credentials. In finding that the trial court had erred in not accepting the psychologist as an expert, the Michigan Supreme Court ruled that the standard for determining expert status was not a medical degree but the extent of the witness’s knowledge. It advised trial courts to evaluate carefully the merits of a potential witness’s claim to expertise, noting that a psychologist’s ability to detect insanity could not be presumed inferior to that of a “medical man.” The dissenters, however, believed that insanity is a disease and therefore only a person with medical training should qualify as an expert.

Later, in Hidden v. Mutual Life Insurance Co. (1954), the Fourth Circuit Court of Appeals allowed psychological expertise to be applied to a civil case relating to mental status. The plaintiff argued that a disabling nervous condition prevented him from engaging in any gainful occupation and entitled him to disability benefits. A clinical psychologist with a doctoral degree administered a battery of projective tests and testified on his behalf. Not only did he report on the test results, but he also gave the opinion that the plaintiff deserved the benefits. When the lawyer for the insurance company objected, the trial judge instructed the jury to disregard the entire opinion testimony on the grounds that the psychologist did not qualify as an expert. The circuit court of appeals ruled that the psychologist should have been qualified as an expert to express his opinion about the plaintiff’s mental condition.

While some psychologists were struggling to be accepted as experts on questions of mental status, competence, and criminal responsibility, others during this era were joining the crucial legal battle against school segregation by testifying and consulting with attorneys in the state cases that would ultimately culminate in the 1954 landmark ruling Brown v. Board of Education (Kluger, 1975). David Krech and Helen Trager, social psychologists who had published articles on racial attitude tests, and Horace B. English, an expert on child psychology, were among many who testified for the plaintiffs at some of the school segregation trials. Psychologist Henry Garrett, a former president of the APA, testified on behalf of the state (Jackson, 2000). Perhaps the most widely publicized—and since then highly critiqued—contribution on behalf of the plaintiffs was that of Kenneth Clark and Mamie Clark, who conducted the now-famous “doll research” to gauge the effects of segregation. Kenneth Clark then gave social framework testimony reporting the results of this research (Kluger, 1975). When the National Association for the Advancement of Colored People (NAACP) appealed Brown and three other segregation cases to the U.S. Supreme Court, Kenneth Clark, Isidor Chein, and Stuart W. Cook wrote the Social Science Statement that included signatures of 32 eminent social scientists (Jackson, 2000).

This was not, however, the first social science brief to be submitted to an appellate court. According to Brigham and Grisso (2003), that distinction belongs to the brief submitted to the Oregon Supreme Court in Muller v. Oregon (1908). In that case, Louis Brandeis—who later became a prominent justice of the U.S. Supreme Court—argued in support of the state that work hours of women should be limited because social science data demonstrated their inherent weakness.

History has not been kind to the scientists in either case. Brandeis’s patriarchal argument in the Muller case would be deplored and roundly denounced today, both for its tenor and for its lack of empirical support and rigor. Social scientists in the Brown case were criticized for their naive methodology, lack of objectivity, and faulty conclusions based on insufficient scientific evidence (Jackson, 2000). In his his-toriographical inquiry, however, Jackson noted that the doll experiments were but one prong of many studies that psychologists and other social scientists referenced in their trial testimony and in the brief submitted to the Supreme Court. He also argued convincingly that critiques of these social scientists reflected a misreading of their testimony, their research, and their evaluation of relevant evidence. (See also Brigham & Grisso, 2003, for an enlightening discussion of psychology’s involvement in both of these cases.)

During the same era, psychologists were continuing to make enough inroads testifying on the issue of criminal responsibility that psychiatrists felt the need to protect their turf. In 1954, the Council of the American Psychiatric Association, the Executive Council of the American Psychoanalytical Association, and the American Medical Association joined in a resolution stating that only physicians were legit­imate experts in the field of mental illness for purposes of courtroom testimony. Other individuals could participate only if their testimony was coordinated by medical authority. The resolution greatly influenced trial courts (Miller, Lower, & Bleechmore, 1978), which became reluctant to accept independent psychological testimony.

Finally, in Jenkins v. United States (1962), the Court of Appeals for the District of Columbia gave its own direct, although conditional, support to the use of psychol­ogists as experts on the issue of mental illness. Although the court was sharply divided, its decision remains the predominant authority for the use of psychologists in the area of criminal responsibility. Following that opinion, federal courts and increasingly more state courts certified psychologists as expert witnesses in both criminal and civil cases.

Return to overview of the History of Forensic Psychology.