The PANY Bulletin

Psychoanalytic Association of New York
Volume 41, #3 Fall 2003

Psychoanalytic Notebook
Comments on the Role of the Analyst as Forensic Expert
by Alberto Goldwaser, M.D., F.A.P.A.

"There is no appeal to a court above that of reason." (Sigmund Freud, "The Future of an Illusion", S.E. 21 p. 28)

The first recorded example of psychiatric testimony in a criminal trial took place in Bethlehem, England in 1760. Dr. John Monro testified (and educated the jury) about "lunacy" in the Earl Ferrers trial.
Building the bridge that connects legal and mental health interests, or more properly to understand the "what" and "how", and if we become ambitious, the "when, why and how" human actions take place, is the realm of the expert familiar with dynamic patterns.
We are slected to describe and explain the functioning of unhealthy minds. Being able to determine and demonstrate patterns of behavior according to basically inflexible personal characteristics is the task that separates ours (psychoanalytic) from what has become known as "junk science."

To be an expert is to be both versed in, and qualified to converse about matters that the lay person-including the judge-cannot grasp using "common sense." The expert in court, objectively, pursuasively and dispassionately provides the intellectual tools for jurors and judges to reason and try the facts presented to them.
The forensic psychiatric expert is called upon to participate in the establishment of legal decisions, using scientifically/medically proven models concerning psychic function and dysfunction.
The "cases" we study connect character and its pathological forms. This blurs the view of the outer world, while weakening the control of the impuses according to the different (transferred) perception of the particulars. The meta-psychological approaches provide explanatory
tools, enriching the descriptive/phenomenological features that are the only ones available to all other mental health professionals.

Freud warned us, "Precisely because it is always present, the Oedipus complex is not suited to provide the decision of the question of guilt." (the expert opinion in the Halsman case, S.E. 21 p. 252) The admissibility of psychiatric testimony has been well established, the credibility of psychiatric (psychoanalytic) testimony is still an open question. The psychoanalytic influence appears more straightforward in civil proceedings and in particular in cases concerning children and concerning trauma.

The role of the treating psychiatrist is opposite to the one of the examining (forensic) psychiatrist. As psychoanalysts we apply a meticulous methodology to the analysis of all psychic events and their projections into actions. The framework is different in the forensic and therapeutic fields. We can appreciate the different approaches of these two psychoanalytic settings. The forensic approach uses an analytic "research" perspective. In the course of a psychoanalytic process a therapeutic aim is pursued. The principle of confidentiality that rules the analytic treatment is notoriously absent in the forensic setting. Yet both practices rely on objectivity in pursuing the drive and meaning behind actions and reactions.