July/August 2004 VOICE FOR THE DEFENSE 1

wherein the Association acknowledged psychiatric opinion and
evaluations could not be used to predict dangerousness. As
stated by Jay Ziskin, Ph.D., L.L.B.:
The larger implications of the Tarasoff Brief
may now be illuminated. Is not the admission
of psychiatric opinion and evaluation as
“expertise” in areas other than dangerousness
equally predicated upon the assumption
by the courts that psychiatrists possess the
requisite skills and that their evaluations
possess the requisite validity? * * * Where
is the empirical support and the objective
data which demonstrate that psychiatrists
can relate any diagnosis of mental condition
to any legal issue? * * * Such empirical
supports or objective data are lacking, and
because they are lacking, in virtually all, if
not all cases where psychiatrists are permitted
to testify, the courts are committing the
same error they have committed according to
the statement of the APA with regard to the
prediction of dangerousness, to wit: They are
according a status of expertise on the basis of
sheer assumption.
Coping With Psychiatric and Psychological Testimony, Fifth
Edition, Vol. I, p. 16 (Law and Psychology Press, 1995) (Emphasis
in original). 5
Lee Coleman, M.D. is a psychiatrist from Berkeley, California,
and goes far beyond Dr. Ziskin in condemning the mis-use and
abuse of and by mental health professionals. Throughout his
book, Reign of Error, he details why psychiatrists and psychologists
cannot do what they claim they can. And one of the things
that Dr. Coleman professes cannot be done by any psychiatrist
or psychologist is to tell a jury what a person’s state of mind was
or will be at any given time. Given the American Psychiatric
Association’s official position, as set forth in their Amicus briefs,
Dr. Coleman is right.
Current State of the Law
In Nenno, the Court of Criminal Appeals held that Dr. Death
could testify on the basis of his experience. 6 In so doing, they
ignored Judge Teague’s dissents in Lackey v. State, 819 S.W.2d
111 (Tex. Crim. App. 1989)(en banc) and in Bennett v. State,
766 S.W.2d 227 (Tex. Crim. App. 1989)(en banc), wherein Judge
Teague noted Faust and Ziskin’s paper “The Expert Witness in
Psychology and Psychiatry,” Science, July, 1988. 7 The Court
of Criminal Appeals also made no mention of the Amicus
briefs the American Psychiatric Association filed in Tarasoff v.
Regents of the University of California, 17 Cal.3d 425, 551 P.2d
334 (1975), Barefoot v. Estelle, 463 U.S. 880 (1983) or Kansas v.
Hendricks, 521 U.S. 346 (1997), APA Amicus brief at 1996 WL
469200, all of which support Faust and Ziskin’s conclusions in
their paper. 8
When the Court of Criminal Appeals revisited Nenno in
Weatherred v. State, 15 S.W.3d 540 (Tex.Crim.App. 2000), it engaged
in a discussion of the so-called “soft sciences” to support
admissibility of psychological/mental health testimony. Such a
discussion erroneously assumes that psychology and psychiatry
are sciences; and it also ignores the fact that nowadays, it seems
everyone claims they are doing “science.” Even creationists claim
they are doing “creation science.” The reasoning employed by
the Court of Criminal Appeals to allow psychologists to testify
as “soft science” ignored the question of what the boundaries
of science are before one slops over into pseudoscience or
nonscience.
Part of the problem may well be that the public is largely
unaware of the difference between people trained to do therapy
and those trained to do research. The word “psychotherapist” is
largely unregulated in many states. 9 You can’t become a lawyer
by taking a weekend course on courtroom etiquette and paying
$300 for it; but in many places you can take a weekend course
on “symptoms of sexual abuse,” or addiction, or hypnosis, and
call yourself a specialist in childhood sexual abuse, or a substance-abuse
counselor or a “hypnotherapist. 10 11 Ten-year-old
Candace Newmaker died two years ago, smothered to death in a
session of “rebirthing” therapy in Colorado. One of the members
of the Colorado Mental Health Grievance Board noted that
her hairdresser’s training took 1,500 hours, whereas anyone
could take a two-week training course and became “certified”
in “rebirthing” — a form of “attachment” therapy that has no
empirical basis whatsoever and is in fact contradicted by decades
of research in child development.
But, unless and until defense counsel learn to educate the
courts on the difference between science and pseudoscience and
junk science, and mount proper challenges to mental health
testimony, the Nenno and Weatherred decisions will continue
to be used to allow psychologists to testify as experts, to convict
our clients, or to enhance the sentences they receive, or lock
them up in mental health facilities after they have fully served
their criminal sentences.
How To Mount A Proper Rule 702 Challenge
As of the writing of this paper, there are three cases in Texas
upholding the exclusion of mental health testimony: S.V. v. R.V.,
933 S.W.2d 1 (Tex. 1996) (false/recovered memory syndrome);
In the Interest of J.B., ___ S.W.3d ____ , 2002 WL 31686754
(Tex. App. - Waco 2002, slip opinion); and America West Airlines,
Inc. v. Tope, 935 S.W.2d 908 (Tex. App. – El Paso 1996, no
writ) (PTSD). 12
To mount a Rule 702, Tex. R. Evid., challenge, counsel should
July/August 2004 VOICE FOR THE DEFENSE 19