Kindle Notes & Highlights
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October 30 - December 27, 2019
mental health professionals ordinarily should refrain from giving opinions as to ultimate legal issues.
When experts give such opinions, they usurp the role of the factfinder and may mislead the factfinder by suggesting that the opinions are based on specialized knowledge specific to the profession.
Rule 702 prohibits admission of any opinion not based on specialized knowledge—a prohibition which presumably can include ultimate-issue opinions. Indeed, Rule 704(b) (an amendment to the original Rule 704 that was inspired by John Hinckley’s acquittal on insanity grounds) makes this point concretely with respect to mental state testimony in criminal cases. The position we take is that the same evidentiary prohibition should apply to all types of cases.
Under this reasoning, there are virtually no circumstances where a clinician should offer an opinion at level 7 in the hierarchy set out earlier. Testifying that a person is “sane,” “dangerous,” “competent,” “parentally fit,” or “disabled” (for workers’ compensation or Social Security purposes) trenches on both legal and ethical domains. Testimony at level 6 should also generally be avoided because the clinician will be using legally defined language. Admittedly,
(both aspects of the M’Naghten test), even if banned, can easily be replaced with testimony about whether defendants were “aware” they were breaking the law (consider, in this regard, the testimony in Case Study 1.1).
Morse, who has argued that only two types of testimony by mental health professionals (when testifying in that capacity) should be permitted.72 First, Morse would permit presentation of “hard actuarial data,” when relevant and available. Second, because mental health professionals usually have much more experience with “crazy” persons than do laypersons, and thus are likely to be better observers of the kinds of behavior that may be legally relevant, he would allow them to present their observations of behavior. For example,
[F]irst, professionals have considerably less to contribute than is commonly supposed; second, for legal purposes, lay persons are quite competent to make judgments
third, all mental health law cases involve primarily moral and social issues and decisions, not scientific ones;
overreliance on experts promotes the mistaken and responsibility abdicating view that these hard moral questions (i.e., whether and in what way to treat mentally ill persons differently) are scientific ones; and fifth, professionals should recognize this difference and refrain from drawing social and...
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Sixth Amendment, which guarantees criminal defendants the rights to effective counsel, confront their accusers, and present evidence.
An assault, for example, may be punished by the state in criminal court and may also lead to damages for the victim in a tort action. In the first instance the state will be the “complainant”; in the second, it merely provides the forum for resolution of a dispute between private parties [see § 2.04]. Given the differing objectives of the two systems, the standards of proof differ, and seemingly
King’s peace; this payment became known as the wite. Eventually, the functions of appeasing the
early 20th century, largely because the various defenses available to employers in tort suits left employees injured on the job grossly undercompensated. This system has been described as “a form of strict liability requiring employers, regardless of fault, to compensate employees for injuries arising out of and in the course of employment.”7 The basic test of workers’ compensation liability is simply whether there is a connection between work activities and the injury; “liability is imposed as an incident of the employment relationship, a cost to be borne by the business enterprise.”8 Both
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are discrimination claims based on the American with Disabilities Act and the Fair Housing Act [see Chapter 13]. Sexual harassment complaints under Title VII of the Civil Rights Act, and other work-related litigation, may also involve claims of psychological injury.10 Some of the general points made here, particularly with respect to causation and proof of injury, are relevant in these regimes as well.
In such situations, the patient—physician privilege is considered inapplicable [see § 4.04(c)].24
that the employment caused the injury.27
ultimate issue as to the percentage of loss of earning power suffered by the claimant.28 The hearing officer decides both law and fact questions and is often required to produce written findings of fact. Thus the hearing officer determines whether an injury has occurred, its extent, and its compensability. Compensation can be for permanent total disability (paid out for the worker’s life or for some large number of weeks, such as 500); permanent partial disability (often paid out as a percentage of total impairment); or temporary total or temporary partial disability (paid weekly for the
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Although workers’ compensation laws vary in some respects, they have common features. Typically the worker—or in the case of death, the beneficiary30—must demonstrate (1) an injury or disability, (2) arising out of and in the course of employment, which is (3) “accidental,” as that term has come to be used in workers’
compensation laws. We discuss these elements of a claim in more detail before describing how workers’ compensation law treats mental injury.
Examples include facial disfigurement, loss of sexual potency, and pain and suffering.32 Despite this substantive limitation, the types of injuries and disabilities found compensable are legion and encompass nearly every other type of disability imaginable—including, as discussed later, various types of mental injury.33
Under this test, an injury is compensable if it occurred simply because the conditions or obligations of employment placed the claimant in the situation (or “position”) in which the injury occurred.37 These changes have made more types of injuries compensable.38 The second causal requirement—that the injury arise “in the course of employment”—focuses on the time, place, and circumstances of
is the legal relevance of a preexisting condition [see, e.g., the Cates report, § 19.08(a)]. As a general rule, employers are said to take employees as they find them; a history of either physical or mental problems or a preexisting sensitivity to them will not in itself result in a denial of compensation.40 Thus, if a workplace injury aggravates an existing disease or infirmity or accelerates its course, compensation is due.41 “Aggravation” of a disease might include situations in which a preexisting cancer spread as a result of the
Some of this difference was due to technical legal findings. For instance, courts often upheld findings that the mental disorder could not have been caused by an “accident,” or that the mental disorder was not an “injury” within the statutory meaning. But at bottom the hostility to compensation for mental injury reflected inherent distrust of such claims, including a fear of malingering,47 and concern over problems associated with objectively linking employment with mental injuries whose etiology and course is uncertain or unknown.48 In more recent times, compensation for mental injury has
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slandered
a belief that emotional injury was “too removed” from the claimed source of an injury, and a fear that compensation would “open the floodgates” to
American Psychological Association’s recommendation
“cancer of the mind.”
