Title: Jurors' evaluation and utilization of expert psychiatric testimony
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Title: Jurors' evaluation and utilization of expert psychiatric testimony
Physical Description: vi, 130 leaves : ill. ; 28 cm.
Language: English
Creator: Slutzky, Gary Norman, 1946-
Copyright Date: 1975
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Subject: Evidence, Expert   ( lcsh )
Examination of witnesses   ( lcsh )
Witnesses   ( lcsh )
Psychology thesis Ph. D   ( lcsh )
Dissertations, Academic -- Psychology -- UF   ( lcsh )
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Statement of Responsibility: by Gary N. Slutzky.
Thesis: Thesis--University of Florida.
Bibliography: Bibliography: leaves 125-129.
General Note: Typescript.
General Note: Vita.
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Source Institution: University of Florida
Holding Location: University of Florida
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Resource Identifier: alephbibnum - 000171388
oclc - 02960440
notis - AAT7815

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JURORS' EVALUATION AND UTILIZATION
OF EXPERT PSYCHIATRIC TESTIMONY










By

GARY N. SLUTZKY


















A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF
THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE
DEGREE OF DOCTOR OF PHILOSOPHY












UNIVERSITY OF FLORIDA

1975














ACKNOWLEDGEMENTS


Many people were involved with this research both directly and

indirectly, and I thank them for their contributions. However, I am

especially grateful to my doctoral committee, Drs. Audrey Schumacher,

Richard McGee, Merle Meyer, Paul Schauble and Norman Markel for their

cooperation and assistance. Particularly, I should like to thank my

Chairman, Dr. Hugh Davis, for his support from the very beginning, his

counsel and his helpful suggestions throughout this research effort.

I should like to express my sincere appreciation to the following

individuals, without whose cooperation, assistance, and dedication to

their work, this study would not have been possible: Judge Gerald Ragan

and Judge Lyle Edson Jr. of the Superior Court of San Mateo County;

Judge William Ingram of the Superior Court of Santa Clara County; and

Judge Edward Cragin of the Superior Court of San Francisco County. I

am also indebted to the following people for their aid: Mr. Robert

Courshon, Supervisor of Superior Court Deputies for San Mateo County;

Mr. Jack Macanearnery,Assistant Administrator of Private Defenders for

San Mateo County; Mr. Jack Cardinale, Supervisor of Superior Court

Deputies for Santa Clara County; Mr. Jack Marshall, District Attorney

for Santa Clara County; and Mr. John O'Brian, Supervisor of Superior

Court Deputies for San Francisco County. I reserve special thanks for

the jurors who participated in this study.

I should like to thank Dr. Leonard Fisk of Stanford University for

his concern and his suggestions regarding the statistical design of








this project. I am sincerely indebted to Verley O'Neal, a graduate

student in educational psychology at Stanford University, for his

patience, support and his tireless efforts and invaluable consultation

on the statistical aspects of this research.

Ultimately, I am deeply grateful to my parents, Louise and William

Goodman, for their sacrifices on my behalf and for their inspiring

confidence in my ability.


















TABLE OF CONTENTS


ACKNOWLEDGEMENTS . . . . . . . . . . .

LIST OF TABLES . . . . . . . . . . . .

ABSTRACT . . . . . . . . . . . . .

CHAPTER

1 INTRODUCTION . . . . . . . . . .

2 HISTORICAL AND BACKGROUND INFORMATION . . . .

3 RECENT EMPIRICAL AND THEORETICAL INVESTIGATIONS . .

4 PROBLEM DESCRIPTION AND HYPOTHESES . . . .

5 METHODS SECTION . . . . . . . . . .

6 DATA ANALYSIS AND RESULTS . . . . . . .

7 DISCUSSION . . ... . . . . . .

APPENDICES

ONE OPEN-ENDED QUESTIONNAIRE AND RESPONSES BY TRIAL . .

TWO TRIAL COMPONENT FORM FOR SELF-ADMINISTERED RANK


ORDERING . . . . . . . . . . .

THREE JURORS' EVALUATION OF EXPERT WITNESSES' CHARACTERIS-
TICS AND COURTROOM BEHAVIOR QUESTIONNAIRE . . .

FOUR DESCRIPTIVE STATISTICS OF DEMOGRAPHIC VARIABLES . .

FIVE DESCRIPTIVE STATISTICS FOR PRINCIPAL COMPONENTS OF
TRIAL . . . . . . . . . . . ...

SIX PHI COEFFICIENT COMPUTATION TABLES . . . . .

BIBLIOGRAPHY . . . . . . . . . . . . .

BIOGRAPHICAL SKETCH . . . . . . . . . .


Page

ii

v





1

4

22

29

34

39

67



89


104


106

118


120

122

125

130

















LIST OF TABLES


TABLE Page

1 DESCRIPTION OF TRIALS SAMPLED. . . . . . ... 35

2 SUMMARY TABLE OF QUANTIFIED JURORS' RESPONSES TO OPEN-
ENDED QUESTIONS ASSESSING THE INFLUENCE OF PSYCHIATRIC
TESTIMONY ON EACH JUROR'S DECISION FOR ALL TRIALS. . 49

3 MEDIAN RANKING OF PRINCIPAL TRIAL COMPONENTS BY JURORS
ACROSS ALL TRIALS. . . . . . . . . ... 51

4 MEDIAN TESTS ON DIFFERENCES AMONG MEDIAN RANKS OF
PRINCIPAL TRIAL COMPONENTS ACROSS ALL TRIALS .... 53

5 COMPARISON OF JURORS' RESPONSES TO YES-NO QUESTIONS ON
THE INFLUENCE OF PSYCHIATRIC TESTIMONY BY HIGH RANKING
AND LOW RANKING JURORS FOR ALL TRIALS. . . . ... 55

6 JURORS WHO VOTED GUILTY AND NOT GUILTY AND HOW EACH
RESPONDED TO OPEN-ENDED QUESTIONS. . . . . ... 57

7 FREQUENCY OF JURORS' RESPONSES TO TRIAL COMPONENTS
USED IN FORMING THEIR VERDICTS OBTAINED FROM INTER-
VIEWS. . . . . . . . ... ...... 59

8 MEDIAN RANK VALUES OF TRIAL COMPONENTS BY JURORS WHO
RANKED PSYCHIATRIC TESTIMONY HIGH AND LOW. . . ... 61

9 MEDIAN RANK VALUES OF TRIAL COMPONENTS BY JURORS WHO
VOTED GUILTY AND NOT GUILTY ACROSS ALL TRIALS. ... 62

10 PHI COEFFICIENTS CORRELATING EACH JUROR'S VERDICT
WITH TRIAL COMPONENTS AND DEMOGRAPHIC VARIABLES. . 64








Abstract of Dissertation Presented to the Graduate Council
of the University of Florida in Partial Fulfillment of the Requirements
for the Degree of Doctor of Philosophy



JURORS' EVALUATION AND UTILIZATION
OF EXPERT PSYCHIATRIC TESTIMONY

By

Gary N. Slutzky

December, 1975

Chairman: Hugh Davis, Jr.
Major Department: Psychology

This study empirically and statistically analyzed jurors' evalu-

ation and utilization of expert psychiatric testimony in trials

involving an insanity defense. The subjects were thirty-four jurors

who served in live jury trials in three counties in northern California.

Jurors' evaluation and utilization of psychiatric testimony was

assessed by a three-part questionnaire: (1) an open-ended question-

naire procedure conducted with each juror in an interview with the

researcher; (2) a self-administered form for each juror to rank order

components of the trial with the set to indicate the degree of impor-

tance they attached to each in reaching their verdicts; and (3) a

seventy-two item self-administered questionnaire to evoke jurors'

ratings of expert witnesses' characteristics and courtroom behavior.

Nonparametric statistical procedures were utilized throughout the

study. Although no definitive conclusions can be drawn concerning

the role psychiatric testimony plays in jurors' reaching their ver-

dicts, certain trends emerge which warrant and stimulate future

investigation.




/ Chairman














CHAPTER 1

INTRODUCTION


The legal structure of American society is founded on the premise

that an individual is responsible for his actions---free to obey the law

or not---with one exception. "Insanity," a legal term, relieves a human

being of legal responsibility for his behavior. An individual is not

legally responsible for his actions if he was "insane" at the time of

the illegal act. In criminal cases involving a plea of not guilty by

reason of insanity or diminished responsibility, the mental health pro-

fessional often serves as an expert witness whose function is to offer

technical testimony about the defendant's mental condition at the time

of the alleged crime. In theory, the expert psychiatric witness is not

expected to render a decision on the issue of responsibility, because

that is a legal matter to be determined by the jury in accordance with

rules of law. The law distinguishes between individuals who are

mentally ill and those individuals who are both mentally ill and not

responsible for their actions. It does this by instructing jurors that

it is their duty to determine whether the defendant was of sound or

unsound mind at the time of the crime, and if the unsoundness was of a

nature to cause lack of responsibility in the eyes of the law. The

sanity question thus represents an intimate interaction between psychology,

psychiatry and law.

The practice of expert psychiatric witnesses testifying in court

has given rise to two widely recognized problems: (1) How much






2

authority should be delegated to the experts? and (2) How much should

the trial procedures be changed in order to render more professionally

responsible the courts' utilization of expert psychiatric testimony?

(James, 1960). Much has been written concerning the insanity defense

and the role of the expert psychiatric witness in the present legal

system. In fact, Allen (1973) pointedly describes the current state of

the literature with this appraisal:

The defense of insanity is perhaps the most overwritten
area in the law. It is really difficult to say anything
new about it. As has been indicated, the proposal for
abolition---novel as it may sould---has been around for
a hundred years, and the arguments for and against have
been so often stated that one has a feeling of deja vu
in discussing contemporary writings on the subject.(p. 82)

Despite a plethora of literature involving convincing arguments,

criticisms and suggestions about the present system, the problems con-

tinue to exist, and attempts at modification remain at the level of

academic debate. What is needed to break this impasse is empirical

analysis of the role of psychiatric testimony in the courtroom before

any realistic consideration and implementation of modifications will

occur. It is the aim of this study to empirically analyze jurors'

reactions to expert psychiatric testimony. Specifically, how does the

jury perceive, evaluate and utilize expert psychiatric testimony in

ultimately rendering a verdict?

This paper will systematically proceed as follows: Chapter 2

relates historical and background information to facilitate under-

standing of the nature of this study; Chapter 3 reviews the recent

empirical and theoretical investigations of jurors' reactions to

expert psychiatric testimony; Chapter 4 presents a description of the

problem to be studied and hypotheses; Chapter 5 consists of the methods

section; Chapter 6 reports the data analysis and results; and the






3

concluding chapter, Chapter 7, discusses the findings and their

implications.














CHAPTER 2

HISTORICAL AND BACKGROUND INFORMATION


2.1 The Expert Psychiatric Witness

The practice of the courts of calling in experts to advise them on

matters not generally known to the average layman has been followed in

the English system for more than four centuries. Initially, the experts

were used as technical assistants to the court, rather than as

witnesses. The judge summoned experts to inform him about technical

matters and then decided whether or not such information should be

passed on to the jury. By the middle of the seventeenth century the

practice of the court-appointed expert reporting to the judge was

abandoned when the finding of the facts became the exclusive province

of the jury. The expert then came to be called as a witness by the

parties involved in the legal dispute, which evoked the precedent that

is still the expert's fundamental role in our present legal system.

In one of the more famous of the early cases, Sir Thomas Brown,

generally reputed to be the most eminent physician of his time,

testified before an English court in a witchcraft trial. He stated

that there were such things as witches, and that in his opinion the

three persons pointed out to him in court "were bewitched" (Simon, 1967).

A concise definition of an expert witness is offered by Liebenson

and Wepman (1964):

An expert witness is one who possesses special knowledge
and experience on matters in issue in a lawsuit. This
would include all issues involving scientific or other








special knowledge. His function in court is to assist
the jurors in arriving at a correct conclusion upon
matters that are not familiar to their everyday
experiences, so that they may arrive at an intelligent
understanding of the issues that must be decided.(p. 113)

In essence, two requirements must be met before one can qualify as an

expert witness: (1) the subject matter involved must be distinctively

related to a profession beyond the ordinary knowledge of the average

person; and (2) the witness must be shown to be qualified in that

profession (Louisell, 1955).

The trial judge, whose role is to supervise the rules of evidence,

procedure and law of each trial, determines whether or not expert

testimony should be admitted to clarify an issue. He decides if the

expert witness possesses the knowledge and experience to testify on the

particular issues involved in the trial and whether or not the opinion

is relevant and material to the issues in the case. To convince the

court that the witness qualifies as an expert by reason of his

specialized knowledge and experience in a particular field, a procedure

of qualifying the expert on the witness stand is undertaken. During

this time the witness furnishes testimony to the court and jury on his

full educational and professional background.

According to Gaines (1973), the judiciary has indicated an in-

creasing recognition of the importance of expert testimony in a variety

of cases. He reports that the courts, however, have restricted the role

of expert testimony solely to its original purpose, i.e., to inform the

jury of facts which are not within the knowledge of the ordinary person.

When the expert goes beyond this and tells the jury nothing that they

could not deduce for themselves, most judges will reject the testimony.

The question of whether certain testimony will be excluded or accepted is

a matter of judicial discretion, and adds Gaines, appellate courts

rarely disturb the rulings at the trial level.






6

It is also the judge's role to give instructions to the jury re-

garding expert testimony. Samples of approved jury instructions

include:

A witness who has special knowledge, skill, experience,
training or education in a particular science, profession,
or occupation may give his opinion as an expert as to any
matter in which he is skilled. In determining the weight
to be given such opinion you should consider the qualifications
and credibility of the expert and the reasons given for
his opinion. You are not bound by such opinion. Give it
the weight, if any, to which you deem it entitled.
California B.A.J.I. Number 33. (Supp. 1967).

In resolving any conflict that may exist in the testimony
of expert witnesses, you should weigh the opinion of one
expert against that of another. In doing this, you should
consider the relative qualifications and credibility of
the expert witnesses, as well as the reasons for each
opinion and the facts and other matters upon which it was based.
California B.A.J.I. Number 33A (Supp. 1967)

With regard to the expert witness' role in the adversary system, the

attorney, who is oriented to the advocacy process, views the expert

psychiatric witness as either for or against him. To the psychologist

or psychiatrist, the ideal expert witness' role is that of a detached,

neutral individual who presents the information as he sees it. Con-

versely, the undesirable role of the expert is that of a partisan, actively

involved in the advocacy process, seeking to undermine his opponent, and

acting deceptively and unethically in order to present his case more

favorably (Brodsky and Robey, 1972). These authors summarize the typical

position of the mental health professional as follows:

The medical witness should never take sides in a case,
but should endeavor to be fair, impartial, and free from
prejudice. He should regard himself as an independent
witness for the court and should not act as an auxiliary
advocate for the prosecution or defense. (p. 173)

While, theoretically speaking, the role of the expert psychiatric

witness as an impartial and neutral individual in the adversary process

is desirable, the reality of testifying in an adversary proceeding






7

renders such a role implausible and unwise. Slovenko (1973) supports

this position:

... partisan experts called by the contesting parties
remain the familiar source of expert testimony. Under
the adversary system, if one's expert takes an impartial
or middle position, and the other side goes to its ex-
treme, then where is one expert except up the proverbial
creek? In a battle, it is necessary to take account of
the adversary. An expert who takes a neutral role does
his party a disservice, for the opposing party's expert
will undoubtedly assume his role as advocate and his
advocacy would go without challenge. Hence, when a
witness chooses to testify as an expert for a party,
he is expected to do so under the terms of the adversary
system or he should not participate. It is only in
recognizing his role as partisan advocate that an expert
can testify responsibly in the courtroom. (p. 26)

Similarly, Diamond (1973) asserts that, although the law presumes that

the expert witness is detached, impartial, objective and unconcerned with

the outcome of the case, such detachment is more appropriate for the

forensic pathologist than for the expert psychiatric witness. He adds

that most psychiatrists conceive their primary role as therapist, and

their loyalty is to their patients.

Although the term "expert psychiatric witness" is generally

recognized today as indicating either a psychiatrist or psychologist,

such has not always been the case. Objections to the qualifications of

the psychologist to give expert opinion evidence concerning "mental

disease or defect" have focused primarily on the psychologist's lack of

medical training. As stated previously in this paper, two requirements

must be met before one can qualify as an expert witness: (1) the

subject matter in question must be distinctively related to a pro-

fession beyond the ordinary knowledge of the average layman; and

(2) the witness must be shown to be qualified in that profession.

In the initial decisions, most courts held that the professional

psychologist failed to meet one or the other of these requirements.






8

In some cases it was argued that psychology as a profession was not a

subject matter beyond the knowledge of the average layman. In contrast,

psychiatry was believed to possess a body of knowledge sufficiently

unfamiliar to the layman, so therefore opinions and testimony by a

psychiatrist would aid the jury. In other cases it was held that while

psychology was a proper subject matter for expert testimony, only

medical training could give one the requisite understanding and skill in

the subject matter to insure that the opinions would have reasonable

validity (Pacht et al., 1973).

The trend toward acceptance of testimony by psychologists began in

1940. In People v. Hawthorne (1940) the Michigan court rejected the

argument that insanity is a medical matter to which only a licensed

physician can testify as an expert. The leading criminal case involving

the issue of the psychologist as an expert witness was Jenkins v.

United States (1962), which has been cited repeatedly by other reviewing

courts. In that case the defendant relied on an insanity defense in

an unsuccessful attempt to avoid conviction on several counts including

assault with intent to rape. One of the grounds for appeal was that

the trial judge had instructed the jury to disregard the testimony of

three psychologists concerning the defendant's mental disease on the

ground that the psychologists were not "competent to give a medical

opinion as to a mental disease or defect." The reviewing court reversed

the conviction and ordered a new trial. In arriving at its ultimate

conclusion that a properly trained clinical psychologist is competent

to testify on the subject of a defendant's sanity, the appellate court

pointed out other areas in which non-medical practitioners have been

permitted to testify on medical matters. The court concluded that a

psychologist's testimony will be received if his experience or training






9

is such as to permit him to form and express an opinion that would aid

the jury, and that lack of the medical degree would not be an automatic

disqualification (Gaines, 1973).



2.2 Rules of Criminal Responsibility

Historically, society has held the notion that fault is essential

to criminal responsibility, and that a person who commits a crime under

certain mental states is not responsible for his act. Implementation

of this social concession has centered primarily on the selection of

criteria for determining these particular mental states.

The first rule that became the prevailing test of legal insanity in

this country, and which is still the test in most states today, was the

M'Naghten Rule. It originated in England, when in 1843 a psychotic

named Daniel M'Naghten attempted to assinate the Prime Minister of England,

Sir Robert Peel, but instead shot and killed his private secretary, whom

he mistook for Peel. There had been a series of attempted assinations of

the Queen's ministers and members of the Royal Family, so when

M'Naghten was found not guilty by reason of insanity, Queen Victoria

ordered the judges of England to tighten up the insanity rules. Fourteen

of the fifteen judges concurred in what has come to be known as the

N'Naghten Rule. Essentially, it states that defendant is to be held

criminally responsible for his acts, unless it is proved that by reason

of mental disease or defect he did not know they were wrong.

The M'Naghten Rule has been criticized on a number of points:

(1) it focuses only on the cognitive sphere and ignores the emotional

and volitional impairments that frequently characterize mental illness;

(2) it is preoccupied with moral blame (knowledge of "right" and "wrong")

rather than with scientific diagnosis and prognosis; (3) it is phrased






10

in absolute terms--yes or no, black or white--without recognizing shades

of gray; (4) it is too restrictive, requiring a degree of disorientation

found in only a very small percentage of severely mentally ill persons;

and (5) it unduly restricts the scope of psychiatric and psychological

testimony (Allen, 1974).

As time went on, states began to supplement the M'Naghten language

with the "irrestible impulse" test. This test includes the M'Naghten

Rule plus instructions to the jury to acquit by reason of insanity if

they find that the defendant had a mental disease which kept him from

controlling his conduct. The jury is to acquit even if they conclude the

defendant knew what he was doing and that it was wrong. For a time this

test muted psychiatric criticism where it was adopted, but by the 1950s,

psychiatric criticism of the impulse control test was as harsh as that

of M'Naghten (Becker, 1973).

In 1954 Judge David Bazelon, Chief Judge of the U.S. Court of

Appeals for the District of Columbia, announced in United States v.

Monte Durham a new rule under which expert testimony would no longer be

confined to the parameters of the M'Naghten Rule. Under the Durham

rule the jury would be presented with a "simple" causation test: Was

the defendant's unlawful act the product of mental disease or defect?

Through the Durham decision Judge Bazelon was hopeful of revitalizing

the cooperative, understanding and progressive relationship between

psychiatry and the law. Instead of attempting to restrict psychiatric

testimony before it was heard, it encouraged the fullest possible range

of psychiatric testimony on the question of responsibility in criminal

trials. It allowed the expert psychiatric witness to present the court

and jury with all the information that he could provide that would

illuminate the question of why the defendant acted as he did. For






11

bringing the law into accord with modern scientific concepts of the human

personality, Judge Bazelon was hailed as a great reformer (Allen, 1974).

It was soon realized that the Durham decision created as many

problems as it appeared to resolve. These problems centered around the

definition and interpretation of the language in Durham: (1) What is

meant by "mental disease or defect?" Does it include only psychoses?

Does it include only what is defined as a "mental disorder" in the

Diagnostic and Statistical Manual of the American Psychiatric Association?

If so, has the legal system abdicated its authority and decision-making

role in the determination of criminal responsibility to the mental health

professions? Are sociopaths included in the definition of "mental dis-

ease or defect", and if so, is repeated criminality an automatic defense?

(2) What does "product of" mean? How can any act committed by one

suffering from a diagnosable disorder be anything other than causally

related to his mental illness? (Allen, 1974),

The Durham decision was also criticized for opening the door to

evasion of criminal penalties by malingering defendants. As a result,

pressures mounted to tighten up the Durham rule and for the law to

provide a legal definition of "mental disease or defect" independent of

the vagaries of the individual expert witness or the classification

systems. In McDonald v. United States (1962) the court attempted a

legal definition of "mental disease or defect":

A mental disease or defect includes any abnormal
condition of the mind which substantially affects
mental or emotional processes and substantially
impairs behavior controls. 312 F.2d 851 (D.C. Cir. 1962).

However, the McDonald decision not only failed to alleviate the problem

but apparently made it worse by creating a "screen" that further ob-

scured the issue. Although it did define "mental disease or defect",






12

the definition was an addition, not a substitution, in the instructions

given to the jury (Becker, 1973).

Similarly, the concept of "productivity" in the Durham decision,

i.e., whether the alleged crime was a "product of" his mental disease or

defect, has no conceptual analogue in psychiatry. According to Becker

(1973) it was often used in testimony as the witness' own moral judgment

whether the defendant should be punished or blamed. Consequently, in

Washington v. United States (1967), Judge Bazelon wrote:

The term 'product' has no clinical significance for
psychiatrists. Thus there is no justification for
permitting psychiatrists to testify on the ultimate
issue. Psychiatrists should explain how Cthe] defendant's
disease or defect relates to his alleged offense, that is,
how the development, adaptation and functioning of Cthe3
defendant's behavioral processes may have influenced his
conduct. But psychiatrists should not speak directly in
terms of 'product,' or even 'result' or 'cause.'
129 U.S. App. D.C. 29, 390 F.2d 444 (1967).

Although the Washington decision failed in its objective to prohibit

expert testimony in terms of "productivity", it forced fuller ex-

plication of the reasons underlying an expert witness' conclusion on

"productivity" and subsequently brought out a myriad of other problems.

In 1972 in United States v. Brawner, the United States Court of

Appeals for the District of Columbia finally abandoned the Durham

experiment and adopted the American Law Institute (ALI) insanity rule

augmented by a rule of "partial responsibility". The ALI Rule essentially

states that defendants should be exculpated only if "substantially

deprived of capacity" to appreciate the criminality of their conduct or

to conform their conduct to the requirements of the law. The Brawner

decision included the second paragraph of the ALI rule, which held that

the term "mental disease or defect" does not include an abnormality

manifested solely by repeated criminal or antisocial behavior. The






13

doctrine of "partial or diminished responsibility" holds that the degree

of a crime may be reduced (such as from first degree to second degree

murder) if the defendant was suffering from a mental illness that

impaired his ability to form the criminal intent required of the higher

degree of the crime charged. Also in Brawner, the expert psychiatric

witness is permitted to testify as to whether or not there is a causal

relationship between the defendant's mental disease or defect and his

capacity to "appreciate the wrongfulness of his conduct or to conform

his conduct to the requirements of the law" United States v. _rawner, 471

F2d 969 (D.C. Cir. 1972).

The Brawner decision, with the incorporation of the ALI rule, met

one of the objections to M'Naghten--failure to recognize gradations of

impairment--by its use of the phrase "substantially deprived of capacity".

It met one of the criticisms in the administration of the Durham decision--

the ambiguous "product of" term--by providing both a cognitive

(appreciation of criminality) and a volitional (conform one's conduct)

standard (Allen, 1974).

The Brawner decision has been widely criticized for producing

merely indecisive and equivocal changes which will not have any

practical consequences and will only add to the general confusion

surrounding the insanity defense (Diamond, 1973). This appraisal is

shared by the presiding judge in the Brawner decision, Chief Judge

Bazelon, in his concurring opinion:

I fear that it can fairly be said of Brawner, just as it
should be said of Durham, that while the generals are
designing an inspiring new insignia for the standard,
the battle is being lost in the trenches. United States v.
Brawner, 471 F.2d 1012 n.79 (D.C. Cir. 1972).

In his article, "From Durham to Brawner, A Futile Journey",

Diamond (1973) concludes that the real problems of the criminal law






14

are not solvable by reformulations of the rules of criminal responsibility.

They fail to address the ultimate issues: how to combine compassionate

attitudes towards the mentally ill with the necessity and urgency of

societal protection; how to respect and enhance the rights of the

individual, protect him from the unrestricted authority of the state and

the desire for vengeance by the public, yet still maintain a system of

fairness and justice.

Diamond's assessment and criticism of the state of affairs regarding

the insanity defense and the rules of criminal responsibility were

ostensibly expressed by Chief Judge Bazelon in his concurring opinion in

United States v. Brawner (1972):

On the whole I fear that the change made by the Court today
is primarily one of form rather than of substance.... What
should by now be clear is that the problem of the re-
sponsibility defense cannot be resolved by adopting for the
standard or for the jury instruction any new formulation
of words. 471 F.2d 1010, 1039 n.79 (D.C. Cir. 1972)



2.3 Role of the Expert Psychiatric Witness in Court: Problems

The present system of the expert psychiatric witness testifying

in court on the issue of the defendant's criminal responsibility is

perhaps criticized most severely by the experts themselves. Hence, it

is not surprising that a major problem is the reluctance of the competent,

well-trained psychiatrist or psychologist to involve himself in the legal

system (Diamond, 1973). There are a number of reasons why the com-

petent mental health professional often willingly leaves the legal arena

to his more dubious colleagues. Slovenko (1973) feels that many

psychiatrists wonder if their testimony makes any difference anyway in

the legal process, or if they are simply being used as a ploy. They

tend to see themselves as mere pawns in the complex "game", to be








manipulated by the use of arbitrary concepts and semantic nuances.

Service as an expert witness is often damaging to one's self-esteem as

a result of confrontation and humiliation at the hands of the lawyers

during cross-examination. It is often poor public relations, as the

expert psychiatric witness is many times identified in the mind of the

public as someone hired to cheat justice by testifying that the defen-

dant is not guilty by reason of insanity. To be minimally prepared in

the courtroom, an expert witness' role entails learning a whole new set

of concepts and values, for he is outside the hospital or other clinical

setting to which he is accustomed. Many psychiatrists and psychologists

are reluctant to openly oppose another colleague's testimony. The role

of the psychiatric expert in court often harms the intimate therapist-

patient relationship (Diamond, 1973).

In his article, "Psychiatric Testimony, Trial Gamesmanship and

the Defense of Insanity", Willis (1968) stresses the limitations placed

on the expert psychiatric witness in the legal arena. When the expert

attempts to play the "game" according to the trial rules, he is forced to

generalize and oversimplify. In addition, extrinsic factors often pre-

clude his drawing reasonable inferences and predictions. Such barriers

include the absence of available time in which to overcome the defen-

dant's resistance to candid and uninhibited discussion and the partisan

nature of those disclosures which do become available. These factors

may tend to make the psychiatric testimony either a mere ritual to be

performed for the sake of avoiding reversal by the appellate courts, or

a part of the armament in the "gamesmanship" of the opposing advocates.

Suarez (1967) states that, theoretically, the expert psychiatric

witness is expected to provide data and opinions in court which will help

the trier-of-fact in reaching his decision. However, in practice, his








role has been expanded, and says Suarez, he has been forced or seduced

to become involved with legal issues and occasionally even judicial ones.

Suarez (1967) cites the area of criminal responsibility as an example:

Psychiatrically speaking, an examination of the defendant
can yield a picture of his current functioning as well as
some comment about his previous adjustment in a general
way. But the law, in trying to come to grips with the
issue of responsibility, has been interested only minimally
in either of these. Instead, the existing criteria focus
is on the mental state of the offender at the time of the
crime. It is not possible, nor is it likely in the near
future, for a psychiatrist who first sees the patient
some time, often months, after an offense, to give specific
information about the mental state of the defendant at the
time of the offense. Further, it is believed by some that
aside from the time element, the psychiatrist is not
particularly qualified to answer unequivocally questions
about the knowledge of right from wrong, or questions
about the capacity to control his behavior. (p. 174)

Suarez continues his criticism of the legal system's procedure with

regard to its handing the legal issue of criminal responsibility over

to the expert psychiatric witness:

The criteria used in determining responsibility are the
sole business of the criminal law, but the psychiatrist
should not be asked the ultimate question, i.e., respon-
sibility, or the immediate antecedents: that is, "yes
or no" questions to each of the criteria. The simple
reason is because he cannot have scientific answers.
Besides, involved in his determination are legal,
philosophical and moral convictions clearly outside
his scope. The ultimate question, as well as the
existence or absence of specific criteria are matters
of fact for the jury. However, the moment that the
psychiatrist is pressed to give his opinion, which is
no more than his personal guess or his moral conviction,
there suddenly appears something interpreted as "tangible"
and "scientific." Under the guise of science, part or all
of the responsibility for the difficult issue of criminal
responsibility is thus handed over to the psychiatrist.
(p. 174)

Suarez insists that the issue is not simply the presentation of data and

psychiatric opinion by the expert, but rather, the next step beyond,

i.e., the juxtaposition of such testimony on the existing law.






17

James (1960) suggests that perhaps the chief complaint of the expert

psychiatric witnesses lie in the adversary nature of the proceedings. In

addition to being exposed to cross-examination, the expert witness may be

asked to give categorical replies on matters he believes are heavily shaded

by special circumstances or unique events. He may be asked to state his

opinion on hypothetical questions which he believes have no bearing on

the particular proceeding, or which in fact may illustrate a point that

is contradictory to the case at hand. He may find that his attempts to

present a full clinical account of the nature of the defendant's

symptoms are objected to as irrelevant. Instead, he may be asked to

state his views on matters he believes are not related both to his own

area of expertise and to the nature of the case. As previously stated,

questions concerning the defendant's sense of responsibility and his

understanding of right from wrong are directed to the expert psychiatric

witness.

Among others, Dr. Karl Menninger suggests that psychiatrists be

excluded entirely from the courtroom. In The Crime of Punishment,

Menninger (1968) wrote:

We psychiatrists don't belong in the courtroom. We
cannot function effectively there. It is not our proper
sphere of action. We do not understand the language
addressed to us nor convey what we intend to and
think we do, using the language we employ. Our perfor-
mance in the courtroom ritual is a continuation of
what is really a fraudulent, discriminatory, undemocratic
procedure--that of trying to manipulate psychiatric
categories and legal sanctions for the special benefits
of selected individuals. (p. 138)

According to Dr. Lawrence Kolb, Director of the New York State

Psychiatric Institute, psychiatrists contribute to the erosion of the

law by the "unwitting continuance" of the practice of testifying in

court on the defendant's mental state at the time he committed a criminal






18

act. He claims that criticism of psychiatry by judges and lawyers stems

from psychiatrists accepting the role of expert witness thereby

attempting to answer questions largely unanswerable by their special

knowledge. He concludes that growing numbers of young psychiatrists do

not wish to take part in a process which forces them into adversary

positions or close to the point of professional perjury (Kolb, 1972).

Others have pointed out that the experts also must share in the

responsibility for the problems plaguing the present system of determining

criminal responsibility. Schulman (1973) feels that the expert is

guilty of overselling his product. This overselling of skills, which are

imperfect and geared to the clinical imperfection which is tolerable in

a clinical setting, contributes to the court's unrealistic expectations

of and disappointment in the expert's performance. In concurrence with

this view, Woodruff (1971) asserts that it should be recognized that

those psychiatrists who take part in the present adversary system are

as much responsible for such state of affairs as is the legal system.

Diamond (1973) observes that while the psychiatry of the 1970s is

well advanced over that of the 1950s, it nevertheless is less usable by

the law. He predicts that the evidentiary value of expert psychiatric

testimony will become less, rather than more, credible in the coming

decades, as further gains in knowledge adds to the confusion.

Articulate statements in favor of retaining psychiatric testimony

within the adversary system have been made by such renowned forensic

psychiatrists as Henry Davidson, Bernard Diamond and Alan Stone. Their

arguments contend that the psychiatrist or expert who shrinks from

testifying may be failing an individual precisely at the moment he is

most needed. The expert's testimony will be criticized, but no one

expects his performance to be flawless. Moreover, avoiding the courtroom






19

is to close a very important door on the study of disturbed behavior and

on the application of current knowledge to the legal and social insti-

tutions. Finally, the courtroom provides an arena to inform the public,

to initiate legal reforms, and to influence public attitudes (Slovenko,

1973).

From the lawyers' perspective the role of the expert psychiatric

witness in the courtroom provides a source of concern. Even before the

expert takes the witness stand, the lawyer may be fearful that the

expert's orientation, his view of human nature, and his knowledge of

conforming behavior in contrast to criminal behavior, may be so far re-

moved from the legal orientation that his opinion will have no relevance

for the trial. The lawyer may be fearful of the potential influence and

power of the expert witness, while simultaneously remaining skeptical of

the "scientific" nature of the discipline he represents. A frequently

cited concern for the lawyer is the belief that unless the function of

the expert psychiatric witness is carefully delineated, he could, as a

result of his prestige and knowledge, virtually dictate to the jury the

outcome of the case. He may be dismayed by the open and sometimes bitter

conflicts between expert witnesses of different schools of thought or

orientation (Simon, 1967).

For the jury, it is always a complicated process when sanity

questions are raised in a trial. The jurors are bombarded with complex

instructions and detailed evidence which they are expected to under-

stand logically rather than emotionally. They are exposed to conflicting

expert psychiatric testimony from which they must determine the facts

and apply the law. Willis (1968) contends that even if a medical or

psychiatric "truth" is asserted, a jury may feel suspicious and fear that

they are being manipulated with a trial tactic, or they may simply be








hostile to the expert who propounds the explanation and subsequently

reject it.

Needless to say, several alternatives to the present system of

using expert psychiatric testimony in the trial proceedings have been

proposed. Several representatives from the psychiatric, psychological

and legal professions believe that the insanity defense should be

abolished, and that no distinction should be made between the mentally

ill or defective and the normal individual with regard to responsibility.

All individuals should be held to the same standard of responsibility.

The effect of this would be to leave the question of determination of

criminal responsibility completely to the jury and to totally remove the

expert psychiatric witness from the litigation phase. The psychiatric

expert could then enter the system at the sentencing or disposition

phase. Willis (1968) elaborates on this alternative:

If the criminal defendant is unable to conform his behavior
within the range of acceptable variation, i.e., if he is
dangerous to the security of significant social institutions,
to persons, or to the property of others, our next concern should
be what course of action is best to deter him from future
repetitions of the offense charged. It is at this point--
only after careful and conscientious study--that psychiatry
makes a useful and legitimate entry into criminal pro-
ceedings. The psychiatrist's fifteen minute "look-in" before
trial is never sufficient to justify an answer to the
following germane questions. Is there sufficient capacity
for emotional growth, for relearning and reconditioning, as
to make the person treatable? If treatable, in what setting
is the treatment best effected? These are questions to be
considered at sentencing, and are of such serious significance
that they should not be entwined in the trial "game." They
should be decided as dispassionately and carefully as
possible with a view to the best ultimate result for the
individual and society. (p. 55)

Because the jury is exposed to conflicting psychiatric testimony,

there have been proposals to abolish jury trials in sanity cases. One

suggestion as an alternative has been to leave the judicial determination








of insanity to a panel of experts appointed amicus curiae. This

alternative has been criticized on the grounds that, since experts too

are subject to error and power may corrupt, the jury may constitute a

check and balance against an inappropriate concentration of power in

the hands of court-appointed experts (Klein and Temerlin, 1969).

Diamond (1973) suggests that perhaps expert psychiatric testimony

should be reserved exclusively for the defense in criminal trials. The

prosecution would attempt to prove sanity by the use of non-expert

witnesses or by the circumstances of the crime. Such a procedure would

eliminate the troublesome battle of the experts in addition to being

more compatible with the psychiatrist's role as therapitst.

Other ideas include the expert witnesses examining the defendant

outside the courtroom and submitting their report to the court. The

court would then decide if the experts have been persuasive and order

the most promising recommendations. A relatively novel possibility

would be to broaden the use of the diminished responsibility defense,

which would reduce the degree of the charge (i.e., such as from first

to second degree murder). The defense would not just supplement the

insanity defense, but rather, it would supercede it, since it appears

to offer a more rational solution to the problem of criminal re-

sponsibility of the mentally ill offender (Diamond, 1973).














CHAPTER 3

RECENT EMPIRICAL AND THEORETICAL INVESTIGATIONS


In his review article on jury research during the last forty-five

years, Erlanger (1970) found that two major themes were most often dis-

cussed in the empirical literature: competence and representation.

Research efforts on the issue of the jury's competence have centered

on: (1) the typical juror's ability to understand court testimony;

(2) the psychological elements which influence a jury's decision;

(3) whether juries understand the judge's instructions, and if they do,

whether they follow them; and (4) jurors' understanding of the law.

Research in the area of representation has included: (1) status

of jurors and its influence on the deliberation process; (2) social

characteristics of jurors and their effects on the jury decision-making

process; and (3) the relationship between the relevant universe

defined by statute and the composition of the jury venier (Erlanger,

1970).

Research efforts involving the jury and its role in and reaction to

insanity defense trials have been scarce. A review of the literature

of jurors' reactions to and utilization of expert psychiatric testimony

in insanity defense trials yields two sources of information:

(1) articles written by experienced expert witnesses which recommend

behavioral guidelines and courtroom etiquette in order to most effectively

communicate testimony to the jury; (2) experimental studies based on

the "mock trial" method originating in 1953 as part of the large scale






23

study of the American jury system undertaken at the University of Chicago

Law School.

In their article, "On Becoming An Expert Witness: Issues of

Orientation and Effectiveness", Brodsky and Robey (1972) present a schema

for conceptualizing the attitudes, roles and behavior of the expert

psychiatric witness in the pre-trial, witness stand and post-trial

phases of his involvement in court. They illustrate these attitudes

and behaviors in terms of the courtroom-oriented versus the courtroom-

unfamiliar expert witness and relate the two orientations to likely impact

and effectiveness on the jury. For example, on the witness stand the

courtroom-oriented expert witness speaks in language that is free of

psychological jargon; he instructs while explaining, speaking directly

to the jury; he is composed, courteous and consistent during cross-

examination; he readily admits areas of uncertainty and ignorance that

exist for himself and his profession and is equivocal where necessary;

and he reflects a mild advocacy of his findings. Conversely, the

courtroom-unfamiliar witness uses technical terms and often stubbornly

clings to small points or overstates findings when cross-examined; he

often becomes resentful, confused or brusque during cross-examination

and thus amenable to manipulations through semantic or hypothetical

questions; and he yields an "objective" presentation of clinical

information. The authors conclude that the results of the judicial

process are greatly influenced by these contrasting modes of presentation.

They claim that the courtroom-oriented witness is more likely to elicit

decisions consonant with his opinion.

Other experts are more specific in their behavioral prescriptions,

such as Beeman (1970) in his article entitled: "Nine Easy Ways to Look






24

Bad In Court". According to Beeman, some of the principal blunders on

the witness stand include: quoting textbooks (they are often outdated);

dressing as you please (suit and tie mandatory); addressing answers to

the judge or questioning attorney (should address answers to jury);

volunteering more information than is requested (opens the door for

possibly disastrous cross-examination); trying to conceal the fact that

a witness fee is being received (taints effectiveness of testimony by

intimation that it was "bought"); and treating the opposing lawyer as

an enemy (destroys witness' objectivity).

There are some articles that take a slightly different slant by in-

forming the expert witness of the legal techniques and procedures he will

encounter on the witness stand. These articles are written both by lawyers

and experienced expert witnesses. For example, Horsley's article, "How

To Prepare Yourself For Cross-Examination", emphasizes the fact that in

the courtroom, the lawyer is in his element, and the expert witness is-

out of his. Unless the expert is aware of the pitfalls he may encounter

when examined by an adroit trial lawyer, he may end up "humiliated,

useless to the jury in evaluating the case, and perhaps under severe

emotional distress and tension that will leave a permanent mark upon

your self-confidence." (1974, p. 18). Other examples are Willis' (1968)

"Psychiatric Testimony, Trial Gamesmanship and the Defense of Insanity",

"Preparing To Testify" (Sellers, 1965), "What the Medical Expert Can

Expect From the Trial Lawyer" (Wecht, 1974), "How To Witness Expertly"

(Nopto, 1973), and The Psychologist As a Witness (Liebenson and Wepman,

1964).

In surveying the number of empirical studies in the area of jurors'

evaluation and utilization of expert psychiatric testimony, only three








were found. The poineer study by Simon in 1967 (initially reported in

preliminary form under her maiden name, James in 1960) was part of a

larger study of the American jury system begun in 1953 at the University

of Chicago Law School. It was out of this Chicago Project that the

"mock trial" experimental method was developed. Since then, studies by

Klein and Temerlin (1969), and McMahon (1974) have utilized the Chicago

mock trial technique or slight variations thereof. Before summarizing

the findings of these studies, it will be useful to summarize the steps

followed in the mock trial experimental procedure (Simon, 1967):

1. A transcript of an actual case that has been decided
by the court is obtained. The transcript is edited
and condensed from a trial that lasted, generally,
two or three days to one that can be heard in about sixty
to ninety minutes. The experimental transcript con-
tains the lawyers' opening and closing statements
and the judge's instructions to the jury, as well as
the testimony of all witnesses.

2. The experimental trial is tape recorded, and the
parts of the attorneys and the principals in the
case are acted out by members of the law school
staff, or in other studies, by professional actors.
The recorded trial attempts to reflect the slowness
and tedium of a day in court.

3. With the cooperation of the judges of the court and
the local bar associations regular jurors are drawn
from the jury pools. Jurors are assigned to the
recorded trials by the court as part of their regular
period of jury duty. A judge instructs them as to
their duties by explaining the court's interest in the com-
prehensive study of the judicial process. He also tells
them that while their verdicts in the case could have
no immediate practical consequences, the judges of this
court are very much interested in the results of the
study.

4. Before listening to the trial, each juror fills out
a questionnaire, which elicits much the same kind of
information that the trial lawyer seeks during an
extensive voir dire or pre-trial examination of
prospective jurors. This is used.to decide which
jurors to challenge and which to accept on the jury.

5. The jurors then listen to a recorded trial, which is








interrupted once for lunch. Before leaving the court-
room, the jurors are instructed not to discuss the
case among themselves.

6. After the trial, but before the deliberation, each
juror is asked to fill out a brief questionnaire in
which he is asked to state how he would decide the
case at this time.

7. The jury begins its deliberation, which is tape
recorded.

8. When the jury reaches a verdict, the foreman reports
it to the experimenter. The jurors are given a final
questionnaire in which they are asked about their
reactions to the trial and to the deliberation.
Each juror is also asked to state if his own verdict
differs or agrees with that of the group. Thus, on
three different occasions: before the deliberation,
as part of the group verdict, and again after the
deliberation, the individual verdicts are obtained.

Simon (1967) states that the basic idea underlying the use of

experimental juries is that it permits exactly the same stimulus, i.e.,

a recorded trial, to be played over and over again before many different

juries. Thus, it lends itself to a substantial amount of control over

the phenomena under study. It also allows for changes in the trial and

analysis of the effect of the changes on the jury's decision. The mock

trial method legitimately opens the doors to the inner sanctum of the

jury room for systematic observation and analysis of the jury's de-

liberations. Simon acknowledges certain weaknesses and difficulties in

the mock trial procedure, such as, the jurors do not actually see a

trial enacted before them, but concludes that the results are valid,

because all of the conditions were real except for the trial itself.

In reviewing the results of Simon's (1967) study of jurors'

reactions to and evaluation of expert psychiatric testimony, certain

conclusions can be drawn. The jurors distinguished between the con-

tributions made by the defense and government psychiatrists, i.e., they








acknowledge that an expert's testimony not based on first-hand in-

formation and knowledge of the defendant may not be worth as much as

testimony derived from direct contact with the defendant. Most jurors

generally granted to the experts the recognition appropriate to their

credentials, training and superior knowledge in the field. Jurors did not

indicate any differences in their evaluation of the "model" version of

psychiatric testimony, in contrast to the "typical" version of psychiatric

testimony. That is, the longer, more detailed, straightforward "model"

account was not significantly more helpful or influential than the

shorter and more technical "typical" version. Approximately seventy-

five per cent of the jurors indicated that the psychiatric testimony

was helpful, and sixty-six per cent did not believe the language employed

by the experts was too technical or that more information was needed.

However, with regard to the expert psychiatric testimony in-

fluencing the jurors' verdicts of finding the defendant guilty or insane,

the conclusion is that it did not, as evidenced by the finding that of

the sixty-eight juries who heard and deliberated the case, only nine or

thirteen per cent found the defendant not guilty by reason of insanity.

Thus, seventy-one per cent of the juries in finding the defendant guilty

voted against the experts, and sixteen per cent of the sixty-eight

juries were unable to arrive at a unanimous verdict.

Simon also discovered something about how jurors perceive the

division of labor between themselves and the expert witnesses in relation

to who should make the final decision in insanity defense trials. She

found that jurors are much more concerned about exercising their re-

sponsibility when a defendant has committed a heinous crime and is not

patently insane, than they are when the defendant has committed a

relatively mild offense and is patently insane. She concludes:








It is clear that the jury recognizes the importance
of the information that the psychiatrists supply,
but is equally clear that the jury is not
willing to relinquish its responsibility for deciding
the case to the psychiatrist. (1967, p. 89)

In their experimental study, using the mock trial method, of the

effect of expert psychiatric testimony upon jurors' verdicts, Klein and

Temerlin (1969) set up four conditions of expert psychiatric testimony

for each defendant: the experts agreed that the defendant was sane;

the experts agreed that the defendant was insane; the experts disagreed

as to the defendant's sanity; and no expert testimony about the defendant.

They found that the jurors' verdicts wereprofoundly influenced by expert

psychiatric testimony when the experts agreed that the defendant was sane.

or insane. But when expert testimony was conflicting or absent, jurors

exhibited an overwhelming tendency to vote sane, even though the defen-

dant was clearly psychotic according to clinical criteria.

In her doctoral dissertation using the mock trial method, McMahon

(1974) found that twenty-two per cent of her subjects changed their

verdicts from guilty to not guilty by reason of insanity after hearing

the psychiatric testimony. The psychiatric testimony in her study was

associated with a shift in the guilty/not guilty ratio from four to three

in favor of guilty to nine to five in favor of not guilty. She concluded

that, contrary to the presumed importance of subject variables in her

study, the psychiatric testimony had more of an influence on the decisions

of the jurors than did the intrinsic subject variables which were

assessed.














CHAPTER 4

PROBLEM DESCRIPTION AND HYPOTHESES


As presented in chapter three, a review of the literature on jurors'

evaluation and utilization of expert psychiatric testimony yielded several

articles and only three research studies to date. From this survey one

conclusion is inescapable--there is a dearth of research in this area.

This is especially significant in light of Slovenko's (1973) assessment

of the interface of psychiatry, psychology and the law:

...the experts who are called upon to give opinions
are dissatisfied with lawyers, the law, and the
conditions under which they must assist in the
administration of justice. The lawyers and the
courts are equally dissatisfied with the experts.
(p.xii)

Unfortunately, the problem is not only the lack of research in

this area but the inadequacy of the research as well. The articles

written by expert witnesses are their impressions of what jurors attend

to when evaluating psychiatric testimony. At best, their guidelines

to appropriate witness stand behavior and effective communication of

testimony represent untested hypotheses and unverified conclusions. The

logical question then arises: Why doesn't someone ask the jurors them-

selves for their reactions to expert psychiatric testimony? The mock

trial experimental studies have attempted to do this and to assess the

role that expert psychiatric testimony plays in a juror's reaching his

verdict. However, the critical question must be raised as to whether

the conclusions derived from mock jury trials are valid for live jury trials.






30

The researchers who have utilized the mock trial method have opted for

experimental rigor at the expense of questionable validity of the results.

Simon (1967) and Klein and Temerlin (1969) defend the validity of

their results on the grounds that all conditions in their studies were

real except the trial itself. They cite as indirect evidence of their

studies' realism certain aspects of the recorded jury deliberations, i.e.,

the relative length of the deliberations and statements from some of the

jurors indicating they seemed to forget that their verdicts would have no

practical significance.

Critical examination of the mock trial method used in the three

studies (Simon, Klein and Temerlin, and McMahon) reveal enough major

differences between mock trial conditions and real jury trials to warrant

the conclusion that mock trial study results do not necessarily generalize

and apply to live jury trials. Some of the basic differences between

mock and real trial procedures include:

1. In all three mock jury trials the jurors did not
go through the formal voir dire or pre-trial
examination by both prosecuting attorney and
defense attorney, as they would have in a real
jury trial. Questionnaires designed to simulate
the screening process of the voir dire lack the
self-serving directedness and the give and take
aspect of the voir dire itself. The voir dire
is an important part of a lawyer's case prepara-
tion and cannot be realistically simulated by a
questionnaire "asking much the same kind of
information a trial lawyer seeks."

2. In the mock trial procedure the jurors do not
actually see and experience a trial before them;
they only listen to a recorded version. Certainly,
there can be no valid comparison between a live trial and
a tape-recorded one with regard to the nature and
quality of the cognitive, emotional and perceptual ex-
periences of the jurors and the differential impact
on the jurors' decision-making processes. For
example, recorded trials do not permit jurors the
benefit of observing and reacting to the non-verbal
behaviors of all participants involved in the trial.
As stated by the researchers, the main reason for
use of recorded trials in the mock trial procedure
was for methodological and financial purposes and








not because of its close simulation to the
experience of a live trial.

3. Similarly, jurors in the mock trial situation were
exposed to a complete "trial" for sixty to ninety
minutes. It is difficult to assess, and impractical
to enumerate here, the many quantitative and quali-
tative variables that may be operating to influence
a juror's decision-making process when he experiences
a real jury trial for days and perhaps weeks on end,
as opposed to just sixty or ninety minutes.

4. The fact that in the mock trials the jurors' verdicts
will not affect the defendant's fate and have no
real or practical implications is a striking
discrepancy between the mock trial and the live
jury trial. The mock trial jurors are freed from
any responsibility for their verdicts and, unlike
jurors in a real jury trial, they don't have to
"live" with their decisions.

5. In Klein and Temerlin's (1969) study the jurors heard
a tape recording of the actual psychiatric interviews
with each "defendant" and then were asked to render
an opinion as to the mental status of the defendant.
In real trials, or even sanity hearings, jurors do
not hear or have access to the expert's psychiatric
interview with the defendant. In real cases jurors
also hear the "facts" of the case, i.e., other
witnesses' testimony with regard to a crime the
defendant allegedly committed. In other words,
jurors in live insanity trials are not exposed to
only psychiatric testimony, but to other testimony
as well. Similarly, in this study there were no
adversary proceedings or cross-examinations of
experts as there are in real jury trials or sanity
hearings.

6. In Simon's (1967) study, there was no conflicting
expert testimony in one of the two cases she used,
because the prosecution did not present an expert
psychiatric witness. In reality, insanity defense
trials usually involve conflicting expert
psychiatric testimony, or they do not come to trial.

To date, no one has yet conducted research on jurors' evaluation and

utilization of expert psychiatric testimony using live trials and real

jurors. The reasons for the absence of such research are varied. Some

researchers prefer not to conduct research unless they can control and

manipulate variables in the fashion of the traditional experimental method,






32

and legal restrictions prevent such research methodology in live

jury trials. Perhaps others have encountered difficulties in

eliciting the cooperation of skeptical judges and district attorneys,

which is essential in carrying out research of this nature. Further-

more, there is no guarantee that, even if granted permission from

the judge, the jurors will cooperate in the research, as they are

under no legal or moral obligation to do so. To invest time and

money in research projects in which the subjects may opt not to

participate is a risky venture. There is also the problem of the

frequency and availability of trials utilizing an insanity defense.

For whatever the reason, live jury research has not been attempted

in insanity trials, and it is urgently needed.

This study will evaluate jurors' reactions to expert

psychiatric testimony using live trials and real jurors. It is,

therefore, essentially a pilot study in this virgin area of re-

search. Jurors' evaluation and utilization of expert psychiatric

testimony will be analyzed to provide empirical data on the role of

psychiatric testimony in the formulation of their verdicts.

This researcher hypothesizes that the role of psychiatric

testimony in jurors' formulation of their verdicts is not a major

one; it is not an important factor in influencing their verdicts.

Rather, the primary role of expert psychiatric testimony is that

of an accessory to the trial; the jurors find it interesting,

educational, sometimes irrational, and helpful in understanding the

dynamics of the defendant's behavior. Jurors will use psychiatric

testimony retrospectively and selectively to substantiate their

initial impressions, based on the "facts" of the case. When the

main thrust of the psychiatric testimony conflicts greatly with






33

their initial conclusions, the jurors will either selectively

attend to parts of the testimony out of context, while ignoring

the gist of it, or dismiss it completely.
















CHAPTER 5

METHODS SECTION


5.1 Subjects

The subjects in this study were real jurors who served in live

jury trials in San Francisco, San Mateo and Santa Clara counties

in northern California. Three trials were used in the study, and

out of a possible total of thirty-six subjects, thirty-four partici-

pated; only two jurors declined.



5.2 Trials

Three live jury trials were used in this study with one from

each county. Each trial contained conflicting expert psychiatric

testimony and involved the question of the defendant's sanity. In

the three cases the sanity question was reflected in three differ-

ent, yet related, pleas: not guilty by reason of insanity (NGI),

diminished capacity or responsibility, and restoration of sanity.

Each trial involved a specific alleged offense: assault with a

deadly weapon and second degree murder for the other two cases.

Table 1 summarizes these data.

In Trial One, the defendant was charged with assaulting a girl

with a knife, and he pleaded not guilty by reason of insanity. The

peculiar characteristics of the case were that the defendant identi-

fied with the habits of a werewolf and attacked the girl with






35













TABLE 1

DESCRIPTION OF TRIALS SAMPLED

NO. OF
LOCATION OFFENSE EXPERTS DEF'S PLEA VERDICT

Trial 1 San Mateo Assault Four NGI Guilty

* Trial 2 San Francisco Murder Seven rest. of sanity Insane

Trial 3 Santa Clara Murder Two dim. capacity Guilty











uncontrollable rage. In physical appearance the defendant

strikingly resembled a werewolf, including two large protruding

teeth and a fully bearded face. There were four expert psychiatric

witnesses: two were court-appointed psychiatrists; one was a psy-

chiatrist hired by the defense; and one was a clinical psychologist

hired by the defense. The two court-appointed experts found the

defendant legally sane at the time of his alleged crime; the two

defense experts found the defendant legally insane at the time of

his alleged act. The jury unanimously found the defendant sane,

and consequently guilty of assault with a deadly weapon.

In Trial Two, the defendant had previously been found not guilty

by reason of insanity one year ago by a judge in the shooting murder

of his two children and his unsuccessful subsequent suicide attempt,

which left him partially paralyzed in both legs with partial brain

damage. He was sent to a state mental hospital, and in the trial

sampled, he was asking that his sanity be legally restored. There

were seven expert psychiatric witnesses: two psychiatrists from

the state hospital; two psychiatrists from a city hospital, two

psychiatrists in private practice; and a clinical psychologist from

the state hospital. Three experts were called by the court, and

four were called by the defense. Five of the six psychiatrists

found the defendant presently sane with one psychiatrist finding

the defendant still a danger to others. The clinical psychologist

rendered no opinion as to the defendant's mental status at the time

of the trial, since he had not regularly observed him for the










previous two months. There were no other witnesses called to the

stand, except a brief appearance by the defendant. The jury denied

the defendant's plea for restoration of sanity, and the defendant

was returned to the state hospital. At the defense's request, each

juror was polled for his "true verdict," i.e., how each one voted

separately, as opposed to the agreed upon single verdict presented

by the jury as a whole. Eight jurors voted "insane," and four

jurors voted "sane."

In Trial Three, the defendant was charged with second degree

murder in the fatal stabbing of his wife. The defendant claimed

self-defense and entered a plea of diminished capacity, i.e., due

to the effects of alcohol, his state of mind was such that his

ability to form criminal intent or malice was impaired. Consequently,

the defense was trying to get the charge reduced from second degree

murder to manslaughter. There were two expert psychiatric witnesses:

one was a court-appointed psychiatrist; and one was a psychiatrist

hired by the defense. The court expert testified that the defendant

was aware of his behavior at the time of the act, and that his

capacity to adhere to alternative behaviors was not impaired. The

defense expert stated that the defendant was sufficiently intoxicated

so as to be unable to form the criminal intent necessary to be con-

victed of second degree murder. The jury unanimously found the

defendant guilty of second degree murder.










5.3 Instruments

The instruments used to assess jurors' evaluation and utiliza-

tion of expert psychiatric testimony consist of (1) an open-ended

questionnaire procedure conducted with each juror in an interview

with the researcher (see Appendix One); (2) a self-administered form

for each juror to rank order six trial components in order of im-

portance (see Appendix Two); and (3) a seventy-two item self-

administered questionnaire (see Appendix Three). These instruments

were designed by this researcher, and the subject matter was derived

from anecdotal experience of expert witnesses in mock and real jury

trials and a review of the literature.

The open-ended questionnaire elicits (a) the general role that

psychiatric testimony played in jurors' verdicts; (b) the perceived

aspects and elements of each trial that influenced the jurors to

reach the decisions they did (such as other witnesses' testimony,

the defendant's behavior and appearance, etc.); and (c) jurors'

evaluations of each expert witness and his testimony.

The self-administered form is made up of six composite cate-

gories (or factors) that are seen to operate in the trial, excluding

the jury deliberation. The jurors rank ordered these categories

with the set to indicate the degree of importance they attached to

each in reaching their verdicts.

The seventy-two item self-administered questionnaire evokes

jurors' ratings of expert witnesses' characteristics and courtroom

behavior for the trial in which they were involved.

















CHAPTER 6


DATA ANALYSIS AND RESULTS


Introduction

This chapter presents the data collected and the analyses

performed. An overview of the chapter is presented first which

shows in a step-wise fashion the type of data collated and the

manner in which it is treated:

1. Descriptive statistics of the demographic characteristics
of the jurors were collated.

2. Jurors' responses to the open-ended questionnaire were
categorized and summed for each trial.

3. Jurors' responses to the first part of the open-ended
questionnaire were quantified in yes-no form and total
across all three trials.

4. Jurors' responses to the self-administered form for rank
ordering of trial categories were summed for all three
trials and a median value for each trial component was
calculated.

5. Median tests were performed to determine if the differences
among the median ranks of the trial categories were sta-
tistically significant.

6. Jurors were divided into those who ranked psychiatric
testimony high in importance and those who ranked it low
in importance, and their responses to the yes-no questions
were compared across all three trials.

7. Jurors were then divided into those who rendered a guilty
verdict and those who voted not guilty, and their responses
to the yes-no questions were then compared for all three
trials.

8. The six trial categories were used to group jurors'
responses to open-ended question one. Comparisons for











inspection are shown between the jurors' rank orderings
and the frequency of mention of each trial category.

9. Jurors were divided into those who ranked psychiatric
testimony high and those who ranked it low in importance,
and their rankings of the other trial categories were
compared by median tests.

10. Jurors were then grouped into those who voted guilty and
those who voted not guilty across all trials, and their
rankings of the six trial components were compared by
median tests.

11. Phi coefficients were calculated to determine the relation-
ship between each juror's verdict and the trial components
and demographic variables.

12. Jurors' responses to each item of the seventy-two item
questionnaire were totaled across all three trials and
tested for differences in frequency of agreement of the
jurors. Jurors were also divided according to guilty and
not guilty verdicts, and their responses to the seventy-
two items were tested with the Fisher Exact Probability
Test.



6.1 Descriptive Statistics of
Demographic Variables

Descriptive statistics were calculated for the demographic

characteristics of the thirty-four jurors in this study. The demo-

graphic variables in the sample studied were sex, race, age,

religion, occupation, income, education and marital status (see

Appendix Four). The results may be best summarized int he form of

a juror demographic profile. A juror in this study is more likely

to be male than female, white, in his middle forties and more


1. See Nie et al., 1975, p. 194.










often is Protestant than any other religion. His education level

approximates two years of college. He is apt to have a skilled

blue collar job and to earn slightly less than fifteen thousand

dollars a year. He is most probably married.



6.2 Jurors' Responses to the
Open-ended Questionnaire

Jurors' responses to the open-ended questionnaire were categor-

ized and summed for each trial. The frequency of jurors' responses

for each category appears in parentheses (see Appendix One). This

section presents some of the jurors' responses to the open-ended

questions for each trial.

In Trial One the defendant's own testimony, i.e., his recollection

of his behavior during the crime, was perceived most frequently by

jurors (seven out of a possible eleven) as the factor that influenced

them to reach the decisions they did. The second most frequently

mentioned factor affecting jurors' decisions was the defendant's

behavior in court, specifically, his alertness and outburst on the

stand. The defendant's testimony and his behavior in court were

followed by the prosecuting attorney's summation and testimony by

other witnesses according to the jurors' responses. Psychiatric

testimony was cited by two of the eleven jurors as influencing their

decisions.

In response to how they resolved in their own minds the con-

flicting conclusions drawn by the psychiatric experts, three

jurors in Trial One relied on the defendant's behavior during the










crime as reported by the defendant himself. Three more jurors

found the court appointed experts' opinions consistent with their

own perceptions of the trial proceedings. Two jurors adhered

to the prosecuting attorney's interpretation of the case to resolve

the conflicting psychiatric testimony, and no other factor was

reported more than once by the jurors in Trial One.

The jurors in Trial One named the same court appointed expert

most often as the expert witness they liked the best and whose

testimony they found most helpful in reaching their decisions.

From Appendix One the reasons the jurors presented for their favor-

able evaluations of this particular expert witness and the number

of jurors expressing each response in parentheses are as follows:

defined, explained, simplified things consistent with
facts (7); explained things clearly, logically; con-
sistent and positive in his answers (5); answered all
questions, didn't grope for words, skillfully handled
questions of opposing attorney (5); gave testimony in
his terms, then put into layman's terms (3); very sharp,
smooth, honest, straightforward, agreed defendant was
sick (3); defense attorney couldn't rattle him (2).

Similarly, in selecting the experts they liked the least and

whose testimony they found the least helpful in reaching their

verdicts, the jurors in Trial One offered these explanations:

too psychiatrically oriented, overly speculative and
interpretative, illogical (4); snotty, arrogant didn't
project warmth, not explicit when testifying (3); "typi-
cal psychiatrist," shaggy looking (3); attitude harsh and
defensive, should have been leery of defendant and wasn't
(3); wild speculations, i.e., "Defendant probably didn't
do this," rather than looking at facts and seeing for
sure if he did (4).

The jurors in Trial One were asked to describe the qualities

and characteristics of a good expert psychiatric witness. From

Appendix One the most prevalent responses included:










explain things in terms jury can understand, use examples
but don't talk down to jurors (7); logical, consistent,
common sense testimony (5); does not get personally in-
volved, maintains some degree of detachment, but con-
cerned (3); dynamic, interesting, good speaker (2);
experienced, good credentials (2); can't be intimidated,
comes right out with answers, control over what he's doing
(2).

Conversely, when requested to enumerate the qualities and

characteristics of a poor expert psychiatric witness, the jurors

cited these liabilities:

lack of confidence, unsure of self, indecisive (6);
speaking in flat tone, rambling, meandering (4); arrogant,
superior air (3); overspeculative, overinterpreting facts
of case (3); use of primarily psychiatric terms, explana-
tions (2).

The name of each psychiatric witness was presented verbally to

the jurors one at a time. Each juror was instructed to respond as

quickly as possible with the impression of that expert that stood

out most in his mind. The most popular responses included:

positive in opinions, knew what he was talking about,
smart (6); old country type doctor (5); nervous, ill
at ease, defensive, unsure of self (5); nondescript,
quiet, not dynamic (5); presented examples in layman's
terms to explain facts (4); very explicit in testimony
(3); dynamic, forceful, good speaker, eloquent (3);
experienced (3); practical approach, down to earth,
straightforward (3); nasty, arrogant (3).

In Trial Two the psychiatric testimony was perceived most fre-

quently by jurors (eight out of a possible eleven) as the element

that influenced them to render the verdicts they did. The second

most frequently mentioned factor (six of the eleven jurors) was

the jurors' feeling that the defendant needed more psychiatric treat-

ment and, subsequently, more time in the hospital to insure his










reception of this treatment. The defendant's own testimony was

mentioned by three jurors as influencing their decisions. No other

factor was reported more than once by the jurors in Trial Two.

In response to how they resolved in their own mind the con-

flicting conclusions drawn by the expert witnesses, eight jurors in

Trial Two stated that they perceived the conflict as a moral one

rather than a psychiatric or legal one, i.e., the need to protect

society from the potentiality of the defendant's going out and

harming someone. Similarly, six jurors felt that, irrespective of

the psychiatric testimony, the defendant needed more supervised

treatment and time in the hospital. Four of the jurors openly dis-

regarded the psychiatric testimony, dismissing it as simply other

opinions. Three of the jurors did not perceive the psychiatric

testimony to be in conflict.

The jurors in Trial Two were divided in their rationale for

their differential selections of the expert witnesses they liked the

best and whose testimony they considered most helpful in reaching

their decisions. From Appendix One the jurors' differential re-

sponses and the frequency of each response are summarized below:

most direct, objective, agreed defendant had problems,
pointed out troublesome areas (4); objective, not
defendant's advocate (3); expressed self well (2);
made most sense, wasn't biased toward defendant (2);
good credentials, impressive, no axe to grind one way or
the other (2) clear, precise testimony, put it in under-
standable terms (2); all experts were about the same (4).

The jurors were also asked which expert witnesses they liked

the least and whose testimony they found least helpful in reaching

their verdicts. Reasons offered in support of their selections

included:











nervous, couldn't express self on stand, seemed in a
daze (5); testimony looked rehearsed, press agent for
defendant (4); tried to persuade jury (3); too
much of an advocate (2); didn't explain things (2);
spent 30 hours with defendant so had to say defendant
was sane, self-interest cancelled out his testimony (2);
biased presentation for the defendant (2).

The jurors in Trial Two indicated the following qualities as

characteristic of a good expert psychiatric witness:

explain and define things in clear, simple terms (3);
can never present enough information to jury (3); nice
appearance, well-groomed, relaxed (2); state opinion in
positive, definite manner, avoid vageness (2); don't
preach to jury (2); no suggestions (3).

On the other hand, a poor expert psychiatric witness, according

to some of the jurors, possessed these characteristics:

nervous on stand (2); too much of an advocate for
defendant (2); does not explain testimony, vague
testimony (2); can be too sure of himself, presents
opinion as fact (1); no suggestions (6).

As in Trial One, the jurors in Trial Two gave their impressions

of each psychiatric witness as rapidly as possible when presented

verbally with the expert's name. The most frequent responses are

presented below:

got flustered, confused, too nervous (7); painted too
rosy a picture, unfair, one-sided (3); don't remember
him (3); embarrassment to his profession (2); eloquent
(2); quiet, effective (2); well qualified, intelligent
(2); didn't like his mannerisms, constantly blinking
eyes, funny facial expressions (1); very fair, honest,
limited himself to what he could support, I liked this
(2).

In Trial Three the actual physical evidence and facts of the

case, such as bloody sheets, lack of blood on the defendant, etc.,

were mentioned most frequently by the jurors (ten out of a possible











twelve) as the factor that influenced them to reach the decision they

did. Accordingly, the defendant's own testimony and the expert

psychiatric testimony were each cited twice by jurors and placed a

distant second in the frequency of jurors' responses. No other

factors were reported more than once by the jurors in Trial Three.

In response to how they resolved in their own minds the con-

flicting conclusions presented by the expert psychiatric witnesses,

eightof the twelve jurors in Trial Three stated they depended on the

physical evidence and facts of the case (see Appendix One). Four

jurors viewed both psychiatric experts as biased in their testimony

and consequently the experts were perceived as cancelling each other

out. Three jurors handled the conflict between the psychiatric

experts by relying on the defendant's behavior directly before the

crime, i.e., they felt he was too alert and aware of what he was

doing to render a plea of diminished capacity.

The jurors in Trial Three presented the following characteristics

as reasons supporting their selections of the expert witnesses

they liked the best and whose testimony they found most helpful in

reaching their decisions:

concrete testimony, impartial (5); straightforward,
methodical, stuck to the point (5); integrated opinion
with facts of case (4); smooth, articulate (4); clinical,
left decision up to jury (4); shed light on defendant's
mind during crime (2).

In responding to the questions of which expert witnesses they

liked the least and which experts they found least helpful in reach-

ing their verdicts, the jurors in Trial Three enumerated certain











negative behaviors and qualities exhibited by the expert wit-

nesses which influenced their choices. The jurors' responses are

presented below:

too much of an advocate for defendant which hurt
credibility, biased (8); rambled on and on, over-
interpreted things (5); hard to understand (2).

The jurors in Trial Three were requested to describe the quali-

ties of a good expert psychiatric witness. From Appendix One the

most frequent responses were:

objective, factual, unbiased testimony (6); make answers
simple, to the point, don't equivocate (4); present as
much data as possible, give alternative explanations
(4); tell how arrived at opinion (3); use layman's language
(3); should not argue case (2).

Jurors described a poor expert psychiatric witness as one who

possesses the following characteristics:

evasive, wishy-washy, indirect in testimony (6); biased,
advocate for defendant (6); try to sway or persuade
jury, preaching (2); speak down to jury (2).

As in Trials One and Two, the name of each expert psychiatric

witness was presented verbally to the jurors one at a time. Each

juror was told to respond as quickly as possible with the image of

that expert which stood out most in his mind. The most prevalent

responses were:

advocate for defendant (6); factual, straightforward (6);
impartial (4); articulate (3); smooth (2); young (1).



6.3 Quantification in Yes-No Form of Jurors'
Responses to Open-ended Questionnaire

Jurors' responses to the first section of the open-ended ques-

tionnaire were quantified in yes-no form and totaled for all three










trials. This was done to facilitate presentation and explanation

of how psychiatric testimony influenced the jurors' decisions. The

open-ended questions from Appendix One were:

2. Did the psychiatric testimony play any part in reaching
your verdict? If so, how? If not, why not?

3. Did the psychiatric testimony help contribute to your
understanding of the case? If so, how? If not, why not?

4. Did the psychiatric testimony make it easier or more
difficult for you in reaching your verdict? In what way?

5. Did the psychiatric testimony make you feel more certain
about or comfortable with your final verdict? In what
way? If not, why not?

6. Without the psychiatric testimony would your verdict have
been the same as it was or different? Why?

The quantified results are indicated in Table 2.

The data in Table 2 show that the jurors responded that

psychiatric testimony did play a role in formulating their individual

verdicts, that it helped contribute to their understanding of the

case, that it facilitated their reaching the verdicts they did, and

that it made them feel more certain or comfortable with their indi-

vidual verdicts. There was solid agreement that if there had been

no psychiatric testimony presented in each trial, the jurors'

individual verdicts would not have been different.

The chi square test for goodness-of-fit was used to determine

whether the differences observed in jurors' yes-no responses were

statistically significant or merely chance variations. Table 2

shows that the differences in jurors' responses to four of the five

yes-no questions were statistically significantly at the .05 level

or less. The differences in jurors' responses to question five, which





















TABLE 2

SUMMARY TABLE OF QUANTIFIED JURORS' RESPONSES TO
OPEN-ENDED QUESTIONS ASSESSING THE INFLUENCE OF
PSYCHIATRIC TESTIMONY ON EACH JURORS' DECISION FOR ALL TRIALS


QUESTION


YES NO TABLE X2 CALCULATED X2


2 Helped Reach Verdict 26 7 6.64 10.94

3 Helped Understand Case 27 6 6.64 13.36

4 Verdict Easier 25 8 6.64 8.76

5 Verdict More Certain 20 13 6.64 1.48

6 Different Verdict 5 23 6.64 11.57



*significant at alpha = .05 or less

*five jurors responded "undecided"








asks the jurors if the psychiatric testimony made them feel more

certain or comfortable with their individual verdicts, were not

statistically significant.



6.4 Jurors' Rank Ordering of
Principal Trial Components

Jurors' responses to the self-administered form for rank order-

ing of trial categories were summed for all three trials, and a median

value for each trial component was calculated. The trial components

(or elements) are judge's instructions on the legal definition of

sanity/insanity, expert psychiatric testimony, lawyers' presentations,

defendant's behavior and appearance in court, witnesses' testimony

and defendant's testimony.

The median values were numerically ranked to determine how im-

portant to the jurors was psychiatric testimony in forming their

verdicts compared to other elements of the trial. The median was

selected as the measure of central tendency, because the data were

ordinal in nature (Roscoe, 1969).

The results are presented in Table 3. The median values indi-

cate that the judge's instructions on the legal definition of sanity/

insanity and other witnesses' testimony were ranked respectively

first and second in importance to jurors in reaching their decisions.

Psychiatric testimony was ranked third in importance followed by the

lawyers' presentations, the defendant's testimony and the defendant's

behavior and appearance in court. Descriptive statistics for the

principal trial components can be found in Appendix Five.























TABLE 3

MEDIAN RANKING OF PRINCIPAL TRIAL COMPONENTS
BY JURORS ACROSS ALL TRIALS


COMPONENT MEDIAN RANK

Legal Def of Insanity 2.083 1

Witnesses' Testimony 2.750 2

Psychiatric Testimony 3.063 3

Lawyers' Presentations 3.445 4

Defendant's Testimony 3.800 5

Defendant's Beh-Appr 5.154 6











6.5 Median Tests on Differences Among
Median Ranks of Principal Trial
Components Across all Trials

Median tests were performed to determine if the differences

among the median ranks of the trial categories in Table 3 were

statistically significant. The results of the median tests are

indicated in Table 4. The findings show that the differences among

the medians of the first five trial components in Table 3, i.e.,

the legal definition of sanity/insanity, witnesses' testimony,

psychiatric testimony, lawyers' presentations and defendant's

testimony were not statistically significant. However, the differ-

ences between the medians of each of the first five trial components

and the sixth component, defendant's behavior and appearance,

were statistically significant.



6.6 Comparison of Jurors' Responses to
Yes-No Questions by Jurors Who
Ranked Psychiatric Testimony High
and Low in Importance

Jurors were divided into those who ranked psychiatric testimony

high in importance and those who ranked it low in importance.and

their responses to the yes-no questions were compared across all

three trials. Jurors were considered high rankers or low rankers

of psychiatric testimony based on how they rank ordered the six

principal trial components in Table 3. A high ranking of psychiatric

testimony was arbitrarily considered to be a ranking of one or two;

a low ranking consisted of three, four, five or six. A numerical

ranking of three out of a possible six was considered low rather

than high, because the concept of a high ranking to the researcher

connotes a value greater than the upper one half of a sample.









TABLE 4

MEDIAN TESTS ON DIFFERENCES AMONG
MEDIAN RANKS OF PRINCIPAL TRIAL
COMPONENTS ACROSS ALL TRIALS

COMPONENTS MEDIAN COMPUTED X2
Legal Def of Insanity 2.083
Psychiatric Testimony 3.063

Legal Def of Insanity 2.083 0.262
Lawyers' Presentations 3.445

Legal Def of Insanity 2.083 11.006*
Defendat's Beh-Appr 5.154

Legal Def of Insanity 2.083
Witnesses' Testimony 2.750

Legal Def of Insanity 2.083 1.036
Defendant's Testimony 3.800

Psychiatric Testimony 3.063 0.262
Lawyers' Presentations 3.445

Psychiatric Testimony 3.063 29.211*
Defendant's Beh-Appr 5.154

Psychiatric Testimony 3.063 0.268
Witnesses' Testimony 2.750

Psychiatric Testimony 3.063 1.036
Defendant's Testimony 3.800

Lawyers' Presentations 3.445 16.516*
Defendant's Beh-Appr 5.154

Lawyers' Presentations 3.445 0.596
Witnesses' Testimony 2.750

Lawyers' Presentations 3.445 0.064
Defendant's Testimony 3.800

Defendant's Beh-Appr 5.154 16
Witnesses' Testimony 2.750

Defendant's Beh-Appr 5.154 8.015*
Defendant's Testimony 3.800

Witnesses' Testimony 2.750 1.628
Defendant's Testimony 3.800
*significant at alpha = .05 or less











The Fisher exact probability test with Tocher's modification

was employed to determine whether the differences in responses by

jurors who ranked psychiatric testimony high and low were statis-

tically significant. The Fisher test with Tocher's modification is

a useful and powerful nonparametric test for analyzing discrete

nominal or ordinal data when the sample is not large enough to

warrant use of a chi square test (Siegel, 1956).

The results are summarized in Table 5. There were no statis-

tically significant differences in responses between the jurors

who ranked psychiatric testimony high in importance and those who

ranked it low in importance. Looking at the responses to question

four in Table 5, the data show that, unlike the high ranking jurors,

the low ranking jurors were evenly divided in their opinions of whether

or not the psychiatric testimony made them feel more certain or com-

fortable with their individual verdicts. Essentially, both high

ranking and low ranking jurors reflected the view that psychiatric

testimony was helpful to them in reaching their verdicts. They

also agreed that without the presence of psychiatric testimony in

each trial, their verdicts would not have been different. The total

number of responses for each question in Table 5 was different,

because some of the jurors' responses were not amenable to a yes-no

quantification. In a few instances jurors misunderstood the direc-

tions in rank ordering the trial components.



















TABLE 5

COMPARISON OF JURORS' RESPONSES TO YES-NO QUESTIONS ON
THE INFLUENCE OF PSYCHIATRIC TESTIMONY BY HIGH
RANKING AND LOW RANKING JURORS
FOR ALL TRIALS


H. RANKERS L. RANKERS FISHER EXACT
QUESTION Yes No Yes No PROBABILITY

2 Helped Verdict 9 2 16 5 p = .5443

3 Helped Understand 10 1 15 6 p = .2118

4 Verdict Easier 9 2 14 5 p = .4854

5 Verdict Certain 8 2 10 10 p = .1169

6 Different Verdict 2 6 3 16 p = .8641










6.7 Comparison of Jurors' Responses to
Yes-No Questions by Jurors Who
Voted Guilty and Not Guilty in
All Trials

Jurors were divided into those who rendered a guilty verdict

and those who voted not guilty, and their responses to the yes-no

questions were compared across all three trials. The Fisher exact

probability test with Tocher's modification was performed to deter-

mine whether the differences in responses were statistically signifi-

cant.

From Table 6 the data show that jurors who voted guilty versus

not guilty differed significantly in their responses to two of the

yes-no questions. Jurors who voted not guilty unanimously responded

that the psychiatric testimony made them feel more certain or com-

fortable with their decisions, while jurors who voted guilty were

equally divided in their yes-no responses to this question. Jurors

who rendered a not guilty verdict essentially responded that without

the psychiatric testimony their verdicts would have been different.

Conversely, jurors who rendered a guilty verdict responded that if

the psychiatric testimony were omitted, their verdicts would not

have been different. These differences in jurors' responses to

questions five and six were statistically significant at the .05

level or less. The jurors who voted guilty or not guilty responded

similarly to the other questions in Table 6, i.e., that psychiatric

testimony played a role in their decision making, helped them under-

stand the cases, and made it easier to reach their verdicts.





















TABLE 6

JURORS WHO VOTED GUILTY AND NOT GUILTY
AND HOW EACH RESPONDED TO OPEN-ENDED QUESTIONS


NOT GUILTY
Yes No


GUILTY FISHER EXACT
Yes No PROBABILITY


Helped Verdict

Helped Understand

Verdict Easier

Verdict Certain

Different Verdict


7 0 19 7

6 1 21 S

6 1 19 7

7 0 13 13

4 1 2 22


*significant at .05 level or less
**two "undecided" responses


QUESTION


.154

.624

.444

.018*

.003*











6.8 Frequency of Jurors' Responses to Trial
Components Used in Forming Their Verdicts
Obtained from Interviews

The six trial categories rank ordered in Table 3 were used to

group jurors' responses to open-ended question one for each trial.

The frequency of mention of each trial category was compared for

inspection with the jurors' rank orderings of the categories from

Table 3.

The data in Table 7 show jurors most frequently responded that

they used other witnesses' testimony, defendant's testimony, and

psychiatric testimony in reaching their decisions. Jurors' personal

biases, gleaned from their interview responses, were most prevalent

in Trial Two. In the open-ended interviews the jurors cited the

judge's legal definition of sanity/insanity a total of two times,

yet ranked ordered it first when asked to rank the trial components.

according to the degree of importance they attached to each in

reaching their verdicts. Similarly, during the interviews jurors

responded that they utilized lawyers' presentations in reaching their

verdicts a total of three times, yet rank ordered it higher than

defendant's testimony, which they cited fourteen times in the

interviews.



6.9 Comparison of Jurors' Rank Ordering of Trial
Categories hy Jurors Who Ranked Psychiatric
Testimony High Versus Low in Importance for
Reaching Their Verdicts

The jurors were divided into those who ranked psychiatric testi-

mony high in importance and those who ranked it low in importance


















TABLE 7

FREQUENCY OF JURORS' RESPONSES TO TRIAL COMPONENTS
USED IN FORMING THEIR VERDICTS OBTAINED FROM INTERVIEWS


COMPONENT

Other Witnesses (facts
of case)

Psychiatric Testimony

Defendant's Testimony

Personal Bias**

Defendant's Beh-Appr

Lawyers' Presentations

Judge's Instructions

Other Jury Members**


TRIAL 1 TRIAL 2 TRIAL 3 TOTAL RANK*

3 1 10 14 2


*From Table 3

**Not included in ranked trial components










for reaching their verdicts. This was done to determine if differ-

ences existed in how each group ranked the other trial components.

Median tests were used to determine if the differences in ranking

were statistically significant. The Fisher exact probability test

with Tocher's modification was employed rather than a chi square

because of the limited sample sizes.

Table 8 shows that the only significant difference between high

ranking and low ranking jurors was in their rank ordering of other

witnesses' testimony. Low ranking jurors valued other witnesses'

testimony more than high ranking jurors.



6.10 Comparison of Jurors' Rank Ordering of
Trial Categories by Jurors Who Voted
Guilty and Not Guilty for All Trials

Jurors were then grouped into those who voted guilty and those

who voted not guilty across all trials, and their rankings of the

six trial components were compared across all trials by median

tests.

The results, summarized in Table 9, indicate there were no

significant differences in the rank ordering of principal trial com-

ponents by jurors who rendered a guilty or not guilty verdict.



6.11 Phi Coefficients Correlating Each Jurors
Verdict with Principal Trial Components
and Demographic Variables

The phi coefficient was used to determine the relationship

between each juror's verdict and the trial components and demographic

















TABLE 8

MEDIAN RANK VALUES OF TRIAL COMPONENTS BY JURORS
WHO RANKED PSYCHIATRIC TESTIMONY HIGH AND LOW


HIGH


LOW


FISHER EXACT


COMPONENT RANKERS RANKERS PROBABILITY

Legal Def of Insanity 2.333 1.833 p = .706

Witnesses' Testimony 3.750 2.000 p = .000*

Lawyers' Presentations 3.667 3.300 p = .258

Defendant's Testimony 5.000 3.250 p = .159

Defendant's Beh-Appr 4.625 5.389 p = .135



*significant at .05 level or less
















TABLE 9

MEDIAN RANK VALUES OF TRIAL COMPONENTS BY JURORS WHO
VOTED GUILTY AND NOT GUILTY ACROSS ALL TRIALS


FISHER EXACT
COMPONENT NOT GUILTY GUILTY PROBABILITY

Legal Def of Insanity 1.75 2.25 p = .368

Psychiatric Testimony 2.25 3.12 p = .759

Lawyers' Presentations 3.33 3.50 p = .539

Defendant's Testimony 5.00 3.50 p = .287

Defendant's Beh-Appr 4.25 5.32 p = .191

Witnesses' Testimony 3.25 2.50 p = .287












variables. Use of the phi coefficient necessitated collapsing

the data into two dichotomous categories. For example, the

rank order values of each trial component were grouped into a

dichotomous rank of high or low (see Appendix Five). The

rankings were applied in the same fashion as they were to

psychiatric testimony in previous sections. A rank of one or

two was considered a high ranking; a rank of three through six

was considered a low ranking.

The results are summarized in Table 10, which shows that

the only statistically significant factors correlated with jurors'

verdicts are marital status and income. After these two variables

there is a sharp decrease in correlation between jurors' verdicts

and all other factors including psychiatric testimony. However,

defendant's plea and age approach statistical significance at the

.05 level.





6.12 Jurors' Evaluation of Expert Witnesses'
Characteristics and Courtroom Behavior

Jurors' responses to each item of the seventy-two item self-

administered questionnaire were totaled across all three trials

and tested for differences in frequency of agreement of the jurors by

use of chi square analysis. Jurors were also divided according to

their guilty and not guilty verdicts, and their responses to the











TABLE 10

PHI COEFFICIENTS CORRELATING EACH JUROR'S VERDICT
WITH TRIAL COMPONENTS AND DEMOGRAPHIC VARIABLES


PHI
FACTORS COEFFICIENT X2

Marital Status 0.575 11.241*

Income 0.396 5.332*

Defendant's Plea 0.270 2.479

Age 0.266 2.406

Psychiatric Testimony 0.2445 1.846

Race 0.199 1.346

Witnesses' Testimony 0.180 1.004

Defendant's Testimony 0.175 0.949

Education 0.159 0.859

Legal Def of Insanity 0.146 0.661

Lawyers' Presentations 0.107 0.355

Defendant's Beh-Appr 0.084 0.219

Sex 0.080 0.218

Religion 0.072 0.176

Occupation 0.043 0.063

Nature of Offense 0.041 0.057



*significant at alpha = .05









seventy-two items were tested with the Fisher exact probability

test.

The jurors were instructed to circle one of five possible

reactions to each statement: strongly agree, agree, undecided,

disagree and strongly disagree. The questions were informally

grouped into categories characteristic of the experts themselves

and their behavior while testifying (such as physical appearance,

style of presentation, etc.). The five response categories were

collapsed into three: agree, undecided and disagree to facilitate

analysis and interpretation of the data. A chi square test for

goodness-of-fit was performed on each question. Initially, all

three collapsed categories, i.e., agree, undecided and disagree,

were included in the chi square analysis. The researcher expected

the frequency of jurors' responses to the undecided category to be

much lower than those of the agree and disagree categories. In

reality, the frequency of undecided responses was considerably lower

than those of the agree and disagree categories, so inclusion of the

undecided category in the chi square analysis would inflate the

chi square values. Therefore, the chi square value for each

question in Appendix Three includes the agree and disagree responses;

the undecided responses were omitted.

The categories, questions and results can be found in Appendix

Three. A few of the more interesting findings will be cited here.

There was solid agreement among the jurors that:

1. How an expert witness handles stress during cross exami-
nation influences a juror's opinion of him.










2. Jurors respond favorably to an expert psychiatric witness
who does not hesitate to actively defend his opinion.

3. The expert witness who expresses a degree of uncertainty
about his opinion is viewed in an unfavorable manner.

4. When testifying, the expert psychiatric witness should
use plain language and layman's terms as much as possible.

5. It is important for the expert witness to cite examples to
explain and clarify his testimony,

6. The expert psychiatric witness who is firm and forceful
in presenting his opinion gives a favorable impression.

7. The expert psychiatric witness can be more effective by
explaining how he arrived at his opinion.

8. The more smoothly and quickly the expert psychiatric
witness answers questions, the more impressive he is.

9. The sex of the expert psychiatric witness has no influence
on the juror.

10. The length of time the expert psychiatric witness is on
the witness stand has no influence on the juror's opinion
of his testimony.

When the jurors were divided according to their guilty or not

guilty verdicts, and their responses to each of the seventy-two items

compared, their responses differed significantly to only two ques-

tions. On question fourteen jurors who voted guilty tended to

agree with the statement that the longer the expert psychiatric

testimony, the more difficult it is for the juror to remember and

evaluate it; jurors who voted not guilty disagreed with the state-

ment. On question thirty-one jurors who voted not guilty were inclined

to agree with the statement that it helps in understanding the testi-

mony for the expert witness to freely use psychiatric terms and

descriptions; jurors who voted guilty disagreed with the statement.

















CHAPTER 7

DISCUSSION


Introduction

This study was designed to investigate two major questions:

(a) the role that psychiatric testimony plays in jurors' reaching

their verdicts compared to other elements of insanity defense

trials; and (b) jurors' evaluation of characteristics of expert

psychiatric witnesses themselves and their testimony. This chapter

will discuss the results of this study that bear on these two ques-

tions. It will also consider the influence of methodological and

instrumental limitations on the results and the implications of

this research on these two questions.

It was hypothesized that the role of psychiatric testimony

in jurors' verdict formation is not a major one in influencing

their verdicts. Rather, it was postulated that psychiatric testi-

mony serves as an accessory to the trial; jurors find it interesting

and use it retrospectively and selectively to substantiate impres-

sions based on the facts of the case. When the thrust of the

psychiatric testimony conflicts greatly with their conclusions









based on other data, jurors will selectively attend to parts of

the testimony out of context to support their initial impressions

or else dismiss it completely.

The stepwise analyses performed in the preceding chapter and

the trends emanating from those analyses will be discussed in relation

to the above hypotheses.



A. Role of Psychiatric Testimony in Jurors' Reaching Their Verdicts


7.1 Jurors' Responses to the
Open-Ended Questionnaire

The jurors' responses to why they decided the way they did in

each trial were presented in section 6.2 of the previous chapter.

Although responses varied across the trials, there were some notable

similarities. A discernible trend in jurors' responses is that jurors

most frequently utilized the physical evidence and the facts of the

case presented through other witnesses' testimony or the defendant's

own testimony in reaching their verdicts. Psychiatric testimony

did not play an active role in their decision-making processes in

Trials One and Three, as jurors cited it only twice in each trial.

Psychiatric testimony was mentioned eight times in Trial Two, but

this finding is misleading and will be delineated subsequently.

The trend of utilizing physical evidence to decide the cases

is supported by jurors' responses to how they resolved the conflicting

psychiatric conclusions. The jurors generally mentioned the same

elements they originally used to reach their verdicts: physical

evidence and the facts of the case reflected through other wit-

nesses' testimony and defendant's testimony. The jurors in Trial









Two who had previously responded that they utilized psychiatric

testimony in reaching their decisions stated that they resolved the

conflicting psychiatric conclusions primarily on moral grounds.

Eight of the jurors in Trial Two felt that society needed protection

from the defendant, and that the defendant needed more institution-

alized treatment, despite the fact that five of the six expert

psychiatric witnesses concluded the defendant should be released

from the hospital. In each of the three trials several jurors

stated that they disregarded the psychiatric testimony because it

was biased on both sides, cancelled itself out, merely represented

other opinions, or conflicted with the facts of the cases.

A corollary trend reflected by jurors' responses to the open-

ended questionnaire is that psychiatric testimony played a minor

role in reaching their verdicts. As previously stated, jurors

indicated that the physical evidence, facts of the cases, witnesses'

testimony, defendant's testimony and their own personal philosophies

were the primary influences in forming their verdicts.

Similarly, jurors' responses to the quantified yes-no questions

in Table 2 of the previous chapter suggest that jurors do utilize

psychiatric testimony in reaching their decisions, but that it is

not the primary influence in their decisions, i.e., without the

presence of psychiatric testimony in the trials, the jurors' verdicts

would not have changed. These findings continue to substantiate the

trend that psychiatric testimony played a minor role in jurors'

reaching their verdicts.










7.2 Jurors' Rank Ordering of
Principal Trial Components

The jurors rank ordered the principal trial components, and

the data were presented in Table 3. This ranking was done to sta-

tistically assess the relative importance of psychiatric testimony

in jurors' reaching their verdicts compared with other elements of

the trials. Psychiatric testimony was ranked third in relative

importance behind the judge's legal definition of sanity/insanity

and witnesses' testimony. This ranking of psychiatric testimony

is consistent with jurors' responses to the yes-no questions

regarding the role of psychiatric testimony in jurors' verdicts.

Based on jurors' responses to the open-ended questions, one

would have expected psychiatric testimony to be rank ordered below

defendant's testimony in importance to jurors' reaching their

verdicts, but it was not. This discrepancy is a minor one, because

the differences in jurors' rank ordering of the first five trial

components were not statistically significant (see Tables 3 and 4).

However, the differences between the medians of each of the first

five trial components and the sixth component, defendant's behavior

and appearance, were statistically significant. Therefore, it

appears that the defendant's behavior and appearance played a lesser

role than the other trial components in jurors' reaching their

verdicts.



7.3 Comparison of Jurors' Responses to Yes-No
Questions by Jurors Who Ranked Psychiatric
Testimony High and Low in Importance

The jurors were divided into two groups: those who ranked










psychiatric testimony high in importance and those who ranked it

low in importance in reaching their verdicts. This was done to

ascertain if in fact they responded differentially to the yes-no

questions regarding the role that psychiatric testimony played in

jurors' verdicts. As stated in the previous chapter a high ranking

of psychiatric testimony included a numerical ranking of one or

two; a low ranking consisted of a three, four, five or six. In

effect, this is a conservative approach, because in insanity defense

trials psychiatric testimony is frequently the primary source of

evidence presented. For a juror, then, to rank psychiatric testimony

third in importance out of six trial components would indicate

that comparatively little attention and importance was given to it

in reaching a verdict.

In Table 5 the data showed no statistically significant dif-

ferences between the high and low ranking jurors in their responses

to yes-no questions. This finding is seemingly contradictory,

i.e., one would expect to find different responses from those who

ranked psychiatric testimony high in importance and those who

ranked it low, especially to the same set of yes-no questions

assessing the role of psychiatric testimony in reaching verdicts.

This discrepancy among jurors' differential evaluations of

the role expert psychiatric testimony plays in reaching their

verdicts may be attributed in part to the demand characteristics

of the questionnaire or the interviewing situation. This will be

discussed later in this chapter.

An alternative explanation of this discrepancy, i.e., why










jurors ranked psychiatric testimony low and yet responded to the

yes-no questions in a highly favorable manner characteristic of

high ranking jurors, is that hypothesized in the beginning of this

chapter. The psychiatric testimony is not an important factor in

influencing jurors' verdicts; rather, the trend is for jurors to use

it retrospectively and selectively to substantiate their initial

impressions based on other considerations in the case. In other

words, the jurors who ranked psychiatric testimony low, yet responded

favorably to the yes-no questions about psychiatric testimony, did

not view their behavior as contradictory or inconsistent. Psychiatric

testimony was not an important factor in their decision making as

evidenced by their ranking it low in importance. These jurors did,

however, select aspects of the psychiatric testimony to verify their

own impressions, hence their favorable responses to the yes-no ques-

tions. That these jurors used the psychiatric testimony retrospec-

tively and selectively cannot be validated statistically here, but

it can be empirically by examining the cases used in this study.

The most striking illustration of selective use of psychiatric

testimony out of context came from the second case used in this

study (see Chapter 5, section 5.2). In this case five psychiatrists

testified that the defendant was presently restored to sanity and

was not dangerous to himself or others, which satisfied the legal

criteria for his release from the state hospital for the criminally

insane. One psychiatrist testified to the contrary. After the

case and during interviews with these jurors, each juror commented

that the psychiatrist who testified the defendant was still presently










insane was a poor expert witness: he got confused easily, contra-

dicted himself on the stand and had great difficulty in expressing

his opinion clearly. They stated that they were embarrassed for

him and largely dismissed his testimony. The clinical psychologist

who testified had no impact per se on the case, because he felt he

could not present an opinion on the question at hand, since he had

not examined the defendant recently.

The jurors found the defendant not restored to sanity, thus

overriding the five psychiatrists. The only other witness besides

the experts was the defendant, who made a brief appearance on the

stand. In explaining how they arrived at their verdicts, the jurors

who found him insane stated that they felt that the defendant had

not spent enough time in the hospital commensurate to his crime,

i.e., murdering his two children and then attempting unsuccessfully

to kill himself. They were concerned that he may hurt someone else,

and that they, as a jury, would be held morally, if not legally,

responsible.

In response to how they resolved the conflict between their

opinions and that of the five experts, the jurors stated that they

perceived no conflict. They cited a part of the five experts'

testimony that recommended the defendant continue to receive psycho-

therapy as an outpatient after his release from the hospital. The

jurors took this as evidence that the defendant needed further

treatment and therefore was not ready to leave the hospital, thus

justifying their verdicts. They ignored the thrust of the five

psychiatrists' opinions that the defendant was ready to leave the

hospital and attended to the portion of the testimony, out of









context, that substantiated their initial impressions.

These initial impressions were based on other external con-

siderations, such as the need for continued punishment, the sordid

nature of the crime, and the fear of being held morally responsible

for the consequences of their decisions. Some of the jurors merely

stated they felt that the defendant needed to spend more time in

the hospital and dismissed the expert psychiatric testimony com-

pletely. Others resented the fact that the defendant's family had

the finances to hire several psychiatrists on his behalf, although

three of the experts were court appointed from the state hospital.

The few jurors who felt that the defendant was restored to sanity

and should be released stated that they based their decisions on

the psychiatric testimony. However, these jurors represent a

trend receiving increased attention in the literature in recent

years: although their individual verdicts differed from the majority

of the other jurors, they rescinded and were willing to have the

jury's final verdict reported unanimously.

In the second degree murder case involving the plea of diminished

capacity the jurors stated that they based their decisions primarily,

and in most cases totally, on the evidence or facts of the case.

Such evidence included the fact that the defendant had no blood on

himself, while his wife was covered with blood, yet he pleaded self-

defense, etc. In this case, too, the jurors viewed the psychiatric

testimony as an accessory to the facts. They were also greatly

influenced by the nature of the crime, or more specifically, by

the presentation of pictures of the bloody nude victim by the










prosecution.

In the first case involving assault with a deadly weapon the

jurors verbalized that they used the psychiatric testimony in formu-

lating their verdicts but repeatedly referred to the defendant's

own testimony when explaining how they reached their decisions.



7.4 Comparison of Jurors' Responses to Yes-No
Questions by Jurors Who Voted Guilty and
Not Guilty in All Trials

Comparing jurors who voted guilty versus not guilty is an

attempt to assess jurors' evaluation of psychiatric testimony on

a behavioral level. Both groups of jurors responded favorably to

yes-no questions on the role that psychiatric testimony played in

their verdicts, but on question six ninety-one per cent (22 of 24)

of the jurors who registered a guilty verdict responded that their

verdicts would remain unchanged with no psychiatric testimony.

Eighty per cent (4 of 5) of the jurors voting not guilty responded

their verdict would change with no psychiatric testimony.

The history and development of the conflict and controversy

over the role of psychiatric testimony in insanity cases has been

discussed in previous chapters in this study. It may be argued

that there is nothing wrong with psychiatric testimony playing an

accessory role in insanity cases, and in fact, that should be its

role in such trials. The jurors' responses to question six, i.e.,

that their verdicts would have been the same regardless of the

presence or absence of psychiatric testimony, again raises the

question of why have psychiatric testimony in a trial at all?











Does it really help the juror to reach his verdict, or does he use

the psychiatric testimony inappropriately in a selective and/or

purely retrospective manner? These data do not answer in any defin-

itive fashion these arguments. The data seem to suggest a relative

perspective and perhaps weight to assign to such testimony.



7.5 Frequency of Jurors' Responses to Trial
Components Used in Forming Their Verdicts
Obtained From Interviews

The six trial categories rank ordered in Table 3 were used to

group jurors' responses to the first open-ended question for each

trial. Most of the jurors' responses to the open-ended question were

subsumed under the six trial categories. Only two classes of jurors'

responses were not accounted for under the six trial categories:

(1) other jury members, which one juror mentioned, and (2) personal

bias, which represents nine jurors' responses. In this instance

personal bias is defined as a juror's predisposed conclusion or

personal philosophy irrespective of the presentation of data, as

opposed to a selective perception of the data presented.

The defendant's testimony, other witnesses' testimony and

psychiatric testimony were most often mentioned by jurors as influ-

encing their verdicts. This finding is consistent with the

categorizations reported in section 6.2 in the previous chapter.

However, a discrepancy appears between the frequency of mention for

judge's instructions and defendant's testimony. Judge's instructions

were only mentioned twice by jurors as a factor in forming their

verdicts, yet jurors ranked it first in importance for reaching a











verdict among the six trial categories. Similarly, defendant's

testimony was mentioned a total of fourteen times by jurors, yet

they ranked it fifth in importance for reaching a verdict.

The discrepancy between the number one ranking of judge's

instructions and its low frequency of mention by jurors may have

resulted from jurors' using it in reaching their verdicts and

considering it as part of the trial process rather than as a

tangible trial component. Consequently, when presented as a

concrete trial component, the judge's instructions was ranked

first in importance by the jurors. Conversely, the demand

characteristics of the questionnaire itself may have sanctioned

jurors' responses to the judge's instructions.

The discrepancy in ranking between defendant's testimony and

lawyers' presentations may reflect overlapping between these

categories as perceived by jurors. Jurors may have confounded the

lawyers' reporting of the defendant's testimony with the defendant's

own presentation of his testimony.



7.6 Comparison of Jurors' Rank Ordering of
Trial Categories by Jurors Who Ranked
Psychiatric Testimony High Versus Low
in Importance for Reaching Their Verdicts

Jurors were divided into high and low rankers of psychiatric

testimony to see if differences existed in how each group rank

ordered the other trial categories. Those jurors who ranked psychi-

atric testimony high in importance to reaching their verdicts gave

witnesses' testimony a low ranking. This is consistent with their

high ranking of psychiatric testimony. They attached more weight











to the expert psychiatric witnesses than to any other witnesses,

including the defendant himself, whose testimony they ranked low.

On the other hand, those jurors who ranked psychiatric testimony

low in importance gave more weight to other witnesses' testimony

and the defendant's testimony as reflected in their higher rankings

of these categories.

Taken at face value this finding would suggest that a favorable

attitude set toward psychiatric testimony would unduly weight the

juror's decision and conversely for an unfavorable set. Unfortunately,

the retrospective nature of the study and the other trends which

suggest a somewhat accessory status to psychiatric testimony confound

any clear conclusions being drawn about the degree of influence of

the attitude set of the juror. Furthermore, the literature findings

by McMahon (1974) fail to support an attitudinal influence on mental

health issues in insanity defense mock trials. McMahon's findings

do not give by extrapolation support to the operation of favorable-

unfavorable attributes.



7.7 Phi Coefficients Correlating Each Juror's
Verdict with Principal Trial Components
and Demographic Variables

The phi coefficient was employed to ascertain the relationship

between each juror's verdict and the trial components and demographic

variables. The results, reported in Table 10, were somewhat unex-

pected. No factor correlated highly with jurors' verdicts, and

only two, marital status and income, were found to be statistically










significant. Based on the results from previous sections indicating

the relative importance of the judge's legal definition of sanity/

insanity, defendant's testimony and other witnesses' testimony,

one would expect to find these factors more highly correlated with

jurors' verdicts than they were. One might also expect, based on

results from previous sections, that other trial categories would

be more highly correlated with jurors' verdicts than was psychiatric

testimony, but they were not. In fact, while psychiatric testimony

was not very highly correlated with jurors' verdicts, its correlation

coefficient was among the highest relative to the other categories.

In examining the raw data in Appendix Six it can be been that

a relationship may exist between jurors who render a guilty verdict

and those who rank psychiatric testimony low in importance for

reaching their verdicts. These findings remain inconclusive at

this point. They suggest further exploration, however.

In considering the statistically significant correlations

between jurors' verdicts and both marital status and income,

caution must be exercised not to over-interpret them. There

appears to be a relationship between marital status and jurors'

verdicts. Married jurors tend to be associated more with a guilty

verdict than single jurors. With regard to marital status it may

be that age is a confounding factor, and that the younger jurors

are also single and tend to be more permissive, hence more receptive

to an insanity plea. The factor of age had a low correlation with

jurors' verdicts, although its coefficient approached statistical

significance at the .05 level.











Similarly, there seems to be a relationship between jurors'

incomes and their verdicts, i.e., a higher income being associated

with a guilty verdict. It could be that the higher the income the

more conservative one tends to be and the more inclined to return

a guilty verdict. Age may also be confounding the variable of

income, that is, the older the juror the higher his income.

In discussion of the findings relative to the role psychiatric

testimony plays in jurors' verdicts certain trends are suggestive

which point to substantive questions for future discussion and study.

Such questions must be tentatively posed as a result of certain

methodological and instrumental limitations. The questions seen to

emerge are: (1) jurors' use of physical evidence and facts of the

cases to reach their verdicts; (2) psychiatric testimony playing a

minor role in jurors' reaching their verdicts; (3) jurors' tendency

to be influenced by other jurors and conforming their individual

verdicts to the majority verdict; and (4) jurors' use of psychiatric

testimony retrospectively and selectively to substantiate their

initial impressions based on other considerations in the case.



B. Jurors' Evaluation of Expert Witnesses Themselves and
Their Testimony


7.8 Jurors' Evaluation of Expert Witnesses'
Characteristics and Courtroom Behavior

Jurors were requested to describe the expert witnesses' char-

acteristics they liked best and found most helpful in reaching verdicts

for each trial. To summarize briefly for all trials they generally











agreed that a good expert psychiatric witness: (1) is straight-

forward, impartial and makes his testimony simple and to the point;

(2) presents his testimony in medical, then layman's terms; (3) uses

examples to explain his testimony; and (4) presents as much information

as possible and gives alternative explanations.

Conversely, jurors were asked to describe the qualities of the

expert witnesses they liked least and found least helpful in reaching

their verdicts for each trial. To summarize across all trials jurors

agreed that a poor expert psychiatric witness: (1) is biased and

takes an advocacy role; (2) presents his testimony in an evasive,

speculative and indecisive manner; (3) over-interprets and uses

primarily psychiatric jargon; and (4) appears arrogant, harsh and

defensive.

The summaries above present a global view of jurors' evaluations

of the expert witnesses and their testimony. The reader can get a

closer glimpse into jurors' perceptual and evaluative processes by

examining their individual responses to the open-ended questionnaire

in Appendix One.

No attempt will be made here to discuss at length the data in

section 6.12 or Appendix Three. However, a few of the more inter-

esting findings from Appendix Three will be cited and compared to

the behavioral guidelines suggested by expert psychiatric witnesses

in journal articles.

Most of the articles written by expert psychiatric witnesses

suggest as a guideline for effective testimony that the expert

witness address his testimony directly to the jury and look at the











jury, as opposed to the questioning attorney or judge. In this

study the jurors indicated that this was not an important factor

to them.

The jurors overwhelmingly supported recommendations in the

literature that the expert psychiatric witness expresses his testimony

in layman's terms as frequently as possible. Similarly, he should

freely use examples to communicate his testimony to the jury.

Contrary to suggestions from journal articles jurors support

an expert witness' efforts to actively defend his opinion during

cross examination and do not think less of an expert witness who

argues with an opposing attorney. Jurors also favored a forceful

and firm style when presenting testimony.

As evidenced in the literature jurors seemed to pay attention

to an expert witness' credentials; however, the jurors did not tend

to perceive an expert more favorably solely because his professional

credentials were more numerous than another expert's credentials.

Jurors definitely indicated that the sex of the expert witness

was unimportant in their evaluation of the expert's testimony. Of

course, one could logically question the validity of this finding

by suggesting that the jurors felt constrained to give a socially

acceptable response rather than a candid one. In this study only

one of the expert witnesses was female (Dr. N), and she consistently

received negative evaluations from the jurors. It is impossible to

ascertain if anti-female biases were operating in this instance.

This question should not be overlooked in assessing relative credence

to be given to the psychiatric experts.










Jurors considered the age of the expert psychiatric witness

unimportant in their assessment of his performance. Possibly related

to the age factor, the amount of courtroom or trial experience an

expert had was not particularly important to the jurors.

These findings represent the first attempt known to the

researcher to solicit feedback directly from real jurors about

what aspects of psychiatric testimony facilitated or hindered their

understanding and utilization of expert psychiatric testimony. There

is a need for subsequent research of this nature to help achieve

greater effectiveness in communicating psychiatric testimony to

the jury.



7.9 Methodological and
Instrumental Limitations

During the course of this study it was realized that for

subsequent research efforts changes will be necessary in the

questionnaire itself and in its administration. The questions can

be improved through refinement of the wording and by making them

more specific and amenable to quantification and scaling techniques.

There is probably confounding among the trial components and the

demographic variables with several factors tapping the same concept.

The small sample size inhibits the formation of firm conclusions

and prohibits extrapolation of the results to a larger population.

The small sample size is probably also responsible for the absence

of more significant correlative results, as the phi coefficient

is sensitive to and limited by the marginal totals. There may also

be some elements associated with jurors' verdicts that are not being










tapped by the factors in Table 10. There needs to be a sample more

equally balanced between guilty and not guilty verdicts. Clearly,

a much larger sample and more sophisticated data gathering instruments

are needed for future research. These improvements would permit the

use of more sophisticated analyses.

Greater attention should be paid not only to administration of

the questionnaire but to experimenter bias as well. Administration

of the questionnaire should be uniform, that is, both parts presented

orally or in written form rather than one of each. The jurors may

have felt pressured or obligated to respond positively to the yes-

no questions. The questions were asked face to face in an interview

session with the researcher, whom the jurors knew to be a psychologist.

In contrast, the form for rank ordering of trial components was self-

administered. It may have been easier or more comfortable for the

jurors to express stable judgments somewhat anonymously on paper

than verbally and face to face with a member of the profession they

are evaluating. Clearer and better control of the demand character-

istics of the interview and data gathering is indicated.

While the relating of retrospective verbal report may always

be called into question on its reliability, a check was performed

on two of the three trials for reliability of jurors' responses.

In two trials the defense attorneys requested that each juror

verbally report his individual verdict to the court after the jury

as a whole presented its verdict. Each juror's verdict as reported

in court was compared to his verdict reported to the researcher

for a reliability check. There was complete agreement for each










juror, and it is assumed that jurors' verbal reporting in the third

trial reflects similar reliability.

There were differences among the individual trials which may

raise the question of the appropriateness of combining them for

unified study. However, the trials contained essential common

elements, such as the violent nature of the offenses and random

distribution of jurors for all three trials, which render them

amenable to analysis as a group. It cannot be concluded that the

same questions which emerge from this study would hold for less

violent or non-violent cases.

In retrospect it would have been appropriate to have obtained

anecdotal descriptive data on the defendant himself, independent

of jurors' perceptions and expert witnesses' testimony about him.

This data might have provided additional insight into jurors'

decision-making processes, thus further clarifying the role of

psychiatric testimony in reaching their verdicts.

The researcher feels that it is important to meet with the jurors

individually, because they will be more receptive to participation

in the study and will tend to be more cooperative. Furthermore,

it is extremely difficult to meet with them as a group, because

judges and court officials are reticent to permit such a meeting

in or near the courtroom for fear of connoting sanction or coercion

of juror participation in the research. Many of the jurors reported

feeling threatened initially by participating in this study. They

were concerned about having to defend their verdicts to the researcher

and about the subsequent use of the information. However, once











rapport was established with them, the jurors were generally

cooperative and welcomed an opportunity to move toward emotional

closure on the trials. Therefore, the researcher is advised to

approach the interview with the set to establish rapport and to get

information that may be emotionally charged.

The most difficult aspect of conducting this study was the lack

of control the researcher had over important factors such as how

long each trial would last, when the jurors were ready to report

their verdict, scheduling and rescheduling of trials, availability

of trials involving the insanity pleas, and making the contacts to

be privy to necessary information, i.e., data on the jurors and the

details of the cases. It is evident that this research cannot be

conducted without the cooperation of judges, district attorneys, and

other court officials.

Given the requirement of larger numbers of subjects for such

research as this, conducting juror interviews will necessarily involve

altered methods which permit data gathering within reasonable time

periods. More researchers, interviewers and perhaps juror travel

to a central place might all be required.



7.10 Implications

This research is a preliminary investigative attempt to ascertain

the role that expert psychiatric testimony plays in jurors' formation

of their verdicts. Unlike previous studies, this effort used real

jury trials and real jurors, the reasons for which have been enumerated

in Chapter 4. It is hoped that future research will follow this lead










and go into the courtroom rather than remaining at the mock trial

stage of investigation. The researcher feels that empirical data

collected from actual trials reflect the true state of the problem

and are more likely to generate change in the present system of

utilizing expert psychiatric witnesses than results collected under

conditions simulating real trials.

This study is a step in the direction of providing an impetus

for change in the present trial system of utilizing psychiatric

testimony. The methodological weaknesses and limitations of this

investigation necessitate caution and conservatism in interpreting

the results. Subsequent research in this area must surmount these

limitations.

This study does not warrant a conclusion that the insanity

defense as now conducted in trials utilizing psychiatric testimony

be dropped. However, this researcher's personal view is that to

continue use of the expert psychiatric witness in his present capacity

in the courtroom is a waste of valuable effort for all parties

involved.

Others have expressed arguments in favor of abolishing the

present system and its use of expert psychiatric witnesses in the

trial itself, and yet the situation that exists today is as confusing

and frustrating as ever for its participants. This researcher agrees

with the abolishment arguments.



































APPENDICES




































APPENDIX ONE

OPEN-ENDED QUESTIONNAIRE AND
RESPONSES BY TRIAL









TRIAL I OFFENSE # OF EXPERTS # OF JURORS DEF'S PLEA VERDICT
2 court appt
Assault 4: 2 defense 11 NGI Guilty


A. Role of Psychiatric Testimony In General

1. What are some of the things that made you decide the way you did
in this trial?

Defendant admitted aware of actions during crime, remembered
actions (7); defendant's alertness, outburst on stand (4);
prosecuting attorney's summation (3); testimony by others:
police, victim, etc. (3); defendant regretful and sorry about
act (2); psychiatric testimony (2); other jury members (1);
McNaughten Rule (1).


2. Did the psychiatric testimony play any part in reaching your
verdict? If so, how? If not, why not?

Helped explain case (3); made it easier to render verdict (2);
no (2); yes (2); made complete picture (1); helped familiarize
with defense of insanity (1); supported impression that defendant
knew what he was doing (1).


3. Did the psychiatric testimony help contribute to your under-
standing of the case? If so, how? If not, why not?

Taught difference between neuroses and psychoses (3); indicated
defendant was smart, which was helpful (2); can't say it does,
though was interesting (2); showed jurors what experts considered
normal (1); gave useful definitions and examples (1); could
determine defendant's mental level (1); yes (1).


4. Did the psychiatric testimony make it easier or more difficult
for you in reaching your verdict? In what way?

Easier (4); easier because brought out information in trial,
put it in perspective (2); easier because of definition of
schizophrenia and neurosis (1); easier, reasons they agreed
were the same, built up weight of testimony (1); more difficult
because of conflict between experts (2); more difficult (1);
helped understand workings of the mind (1).


5. Did the psychiatric testimony make you feel more certain about
or comfortable with your final verdict? In what way? If not,
why not?

Yes, supported and substantiated my original impressions (5);









no, when saw defendant on stand concluded he was sick, didn't
need reassurance (2); established degree of sickness of
defendant (1); details of crime and defendant's actions fell
into category described by expert (1); yes, more comfortable
and certain (2); not necessarily, conflict between experts
confusing (2); more comfortable, shot werewolf theory down (1).


6. Without the psychiatric testimony would your verdict have been
the same as it was or different? Why?

Would have been the same (5); don't know, can't tell (2);
same because asked to determine sanity or insanity at time of
the act (1); same, defense didn't have much to work with; no
one denied fact he would kill her if victim didn't comply (1);
don't think it would have been different, have to consider all
the data (1); would be different if decision just based on
defendant's testimony (1).


7. In this case there were psychiatric experts whose opinions
and conclusions conflicted. How did you resolve this conflict
in your own mind?

Defendant's behavior, said he knew what he was doing, able to
continue normal actions after the act (3); court appointed ,
experts' opinions were consistent with what I saw in court
and heard from other witnesses (3); prosecuting attorney's
description and interpretation of the law (2); how experts
presented the data made the difference (1); whatever supported
my own opinion (1); two defense witnesses didn't say the right
things (1); judge's instructions (1).


B. Factors of the expert himself and the expert testimony

1. Which expert witness or witnesses did you like the best? Why?

Dr. K: explained things clearly, logically; consistent and
Court positive in his answers (5); answered all questions,
appt. didn't grope for words, skillfully handled questions
of opposing attorney (5); gave testimony in his terms,
then put into layman's terms (3); very sharp, smooth,
honest, straightforward, agreed defendant was sick (3);
spoke to all people involved, police, etc. (1); didn't
speculate, dwelled solely on facts (1); described
things thoroughly (1); spoke flatteringly about
opposing experts (2); angry at judicial system because
it is inappropriate for sick defendant (1).

Dr. Pf: dedicated to what he was doing (1); was first expert
Defense and interesting (1); didn't feel he was talking down
to jury (1).

Don't know, didn't like any of them the best (1).









2. Which expert witness or witnesses did you find most helpful in
reaching your verdict? Why?

Dr. K: defined, explained, simplified things consistent with
facts; analogies from medical to layman's terms (7);
defense attorney couldn't rattle him (2).

Dr. Ph: much experience with psychotics in state hospital gave
Court opinion added weight (1).
appt.

Dr. N: her tests were helpful (1).
Defense

All experts were about the same (2); none were
helpful (2).


3. Which expert witness or witnesses did you like the least? Why?

Dr. N: attitude harsh and defensive; should have been leery
of defendant and wasn't; "You'll have to accept the
fact that I don't have the Rorschach with me." (3);
came from same office as Dr. Pf., seemed to collaborate
with him (1).

Dr. Pf: snotty, arrogant, didn't project warmth, not explicit
when testifying (3); "typical psychiatrist" shaggy
looking (3); too psychiatrically oriented, overly
speculative and interpretative, illogical (4); didn't
tap all sources of information, i.e., police, etc. (2);
only saw defendant for an hour and a half (1).

Can't say which I liked the least (2).


4. Which expert witness or witnesses did you find least helpful
in reaching your verdict? Why?

Dr. Pf: wild speculations, ie., "Defendant probably didn't do
this," rather than looking at facts and seeing for sure
if he did (4); simply stated defendant was schizophrenic
and didn't explain well (2).

Dr. N: no papers to show she was involved in case, seemed she
could care less, selectively showed tests she wanted
presented (3); interpretations were illogical (2);
seemed uncomfortable, unsure of herself, difficulty
answering questions (2).

Can't say which were least helpful (2).









5. Please rank the expert witnesses according to the value of
their testimony in helping you to understand the case; 1 most
valuable, 2 next valuable, etc. Please give reasons for your
rankings.

Dr. K: rank 1 (8) rank 2 (0) rank 3 (1) rank 4 (0)
got more information from him than from others; his
explanations contained examples and were repeated
often, which was helpful; used medical and layman's
terms.

Dr. Ph: rank 1 (1) rank 2 (7) rank 3 (1) rank 4 (0)
professional in manner, sorted out both pros and
cons of testimony and was very logical; quiet,
stayed with facts; didn't let defense attorney
throw him.

Dr. Pf: rank 1 (0) rank 2 (2) rank 3 (6) rank 4 (1)
rambled, overly interpretative, biased, could be
influenced, didn't explain things well.

Dr. N: rank 1 (0) rank 2 (0) rank 3 (1) rank 4 (7)
polished report; defendant gave her what she wanted
to hear; refused to give evidence to support her
opinion; out of her class because she was young,
inexperienced.


6. What are the qualities and characteristics of a good expert
psychiatric witness?

Explain things in terms jury can understand, use examples but
don't talk down to jurors (7); logical, consistent, common
sense testimony (5); does not get personally involved, main-
tains some degree of detachment, but concerned (3); dynamic,
interesting, good speaker (2); experienced, good credentials (2);
can't be intimidated, comes right out with answers, control
over what he's doing (2); soft-spoken (1); straightforward,
direct, i.e., "Defendant is sick but we aren't here to address
that, but to determine if he is sane or insane legally" (1);
spend more than an hour with defendant, get to know him (1);
weigh both sides of case (1); conservative in dress, physical
appearance (1).


7. What are the qualities and characteristics of a poor expert
psychiatric witness?

Lack of confidence, unsure of self, indecisive (6); speaking
in flat tone, rambling, meandering (4); arrogant, superior
air (3); use of primarily psychiatric terms, explanations (2);
arguing with attorneys, taking questions personally (1); does
not consider both sides of story (1); overspeculative, over-
interpreting facts of case (3); lack of experience, "A young
psychiatrist can't match experience of an older expert" (1).









8. The name of each expert psychiatric witness will be presented
to you one at a time. Please respond as quickly as possible
with the impression or characteristic of that expert or his/her
testimony that stands out most in your mind.

Dr. K: positive in opinions, knew what he was talking about,
Court smart (6); presented examples in layman's terms to
appt explain facts (4); dynamic, forceful, good speaker,
eloquent (3); practical approach, down to earth,
straightforward (3); reacted well to harassment (1);
didn't speculate (1); experienced (1); mad at
judicial system, used stand as soap box to voice
personal opinions (1).

Dr. Ph: old country type doctor (5); nondescript, quiet,
Court not dynamic (5); learned man (5); very explicit
appt in testimony (3); experienced (3); got impatient,
uptight at times (2); professional, here to do what
he has to do then will go on about his business (1);
used big words, hard to understand (1).

Dr. Pf: didn't convert medical terms to layman's terms (4);
Defense illogical, far out explanations (2); absent-minded
professor type (2); explained, handled questions
well (2); well educated (1); theoretician, text-
book doctor (2); experienced (1); not too positive
in opinion (1); nasty, arrogant (1).

Dr. N: nervous, ill at ease, defensive, unsure of self (5);
sincere, honest (3); unaccustomed to role of expert
witness (2); unshakable testimony (2); smug, arrogant,
snotty (2); sloppily dressed (1); female (1);
personalized the case (2); highly qualified (1);
put defendant at ease (1); well-spoken (1).




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