Questioning Courts' Use Of Psychiatric Witnesses

Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice

By Margaret A. Hagen

ReganBooks

338 pp., $23

As her book's tendentious title suggests, Margaret Hagen has some strong opinions about the value of psychiatric testimony in court cases. In a word, that value is "zero." As in zip, nada.

"The fictional 'facts' and endlessly inventive 'theories' of clinical psychology are no more science than the artful constructs of astrology," she writes in "Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice."

Hagen, a developmental psychologist who teaches at Boston University, is on a relentless crusade to show that the "emperor" of psychiatric opinion truly "has no clothes."

Her book is timely given the decisive recent role expert testimony played in such controversial, high-profile cases as Erik and Lyle Menendez's trial for murdering their parents; Lorena Bobbitt's maiming of her husband while he slept; and the O.J. Simpson criminal and civil trials. She includes some advice on how to defend yourself should you be subjected to such testimony in court - which may mean hiring your own psychiatric "expert" at great cost.

But her real mission is to end what she sees as a terrible burden on the judicial system.

No comprehensive figures are available, but Hagen estimates that litigants spend more than $93 million each year for expert psychological testimony in child-custody cases alone.

While the costs can prove tragic, even more tragic, she says, is the way judges and juries have turned over their powers to "experts."

"Today, the courts seem not only to accept psychological expert testimony on complex family issues but to demand it...," she writes. "Today, a psychological professional - even one who has never met you or the children who are the subject of the dispute - may in fact hold the fate of children's residence and familial well-being in his or her hands."

By rejecting psychiatric testimony, Hagen also rejects the popular late 20th-century notion that people are not responsible for their own actions, that they are somehow controlled by outside forces - the "I'm not to blame" line of defense.

Defendants now can plead that they are the real victims, she says: "My mind has fallen and it can't get up."

Her skepticism extends to court evidence based on experiences from years in the past that are suddenly "remembered" through the use of hypnosis or other techniques. "Memory is selective, destructive, reconstructive, alterable, distortable, dissolvable," she says. It is not a videotape or a film, "not even a hand-written diary."

Hagen pumps out a variety of clever one-liners to make her point. ("Describing clinical psychology as 'soft science' is flattering the field; it is as soft as a grape.") Her writing can get a little overheated, and it should be noted that she describes some graphic examples of child and sexual abuse.

Where would she start to reform the system?

Hagen suggests forcing psychiatric "experts" to attach exact probabilities to their diagnoses and show scientifically why their judgments are more likely to be right than those of laymen. Let insurance companies and health-care organizations stop reimbursing for "crazy diagnoses and ineffective treatments," she says. Prosecutors should look into bringing charges against psychiatrists for fraud. Families might sue them for malpractice.

These are harsh words suggesting harsh actions. Yet, at the very least society needs to recognize the arguments Hagen makes, and then, in a more even-tempered way, consider court reforms that leave the primacy for such decisions where it belongs - with judges and juries.

* Gregory M. Lamb is on the Monitor staff.