September 24, 2018
Expert opinions must meet the Daubert Standard of admissibility in Texas courtrooms. As such, opinions must be scientifically valid and relevant to the facts of the case. When considering whether expert opinion meets the Daubert standard, a judge must consider whether the technique or method presented has been tested and subjected to peer review, the rate of error involved in the scientific methodology, and the general acceptance among the scientific community. The “Daubert Standard” stems from the 1993 case of Daubert v. Merrell Dow Pharmaceuticals. In that case, it was argued that an anti-nausea drug, Bendectin, caused birth defects and limb deformities in the infants of women who consumed the drug while pregnant. Various experts, both scientists and doctors, testified about the science behind these limb abnormalities secondary to Bendectin exposure.
Judges have wide discretion in the admissibility of expert testimony, particularly in family law. Prior to the Daubert Standard was the Frye Standard. Many states still use Frye as the standard for admissibility. Frye focused on science that was generally accepted by the scientific community. However, Daubert refines Frye and raises the standard by requiring evidence of reliability, validity, and error rate – important concepts in scientific research.
Most therapeutic interventions do not meet the Daubert Standard. That does not mean that such therapy approaches are not effective for therapy patients. What it does mean is that therapy is a process oriented-exercise, but not prediction-oriented. The nature of admissible, forensic social science evidence suggests that the method of scientific analysis can predict human behavior on some level. It is inappropriate for therapists engaged in treatment with a client to opine about custody, visitation, or proximate cause of injury (as examples) for those clients. If an attorney suspects a therapist may be called to give such opinions without having conducted a forensic assessment, the attorney should consider a Daubert challenge. During a Daubert challenge, the attorney should press an expert witness to provide the court with the information needed to satisfy the prongs of the Daubert Standard (peer review, error rate, and general acceptance). This does not mean that therapists cannot provide valuable evidence. If an attorney wishes to call a therapist as an expert, it is important to keep in mind that therapists are technically “fact” witnesses, not expert witnesses. They can testify to diagnosis, prognosis, treatment plans, treatment compliance, and what was discussed in sessions. What is inappropriate with regards to the Daubert Standard is any predictions that a therapist might make from this information.
In family law, judges often err on the side of hearing as much information as possible in order to assess the best interest of a child, who are some of our most vulnerable citizens. However, as an attorney, being clear about what constitutes scientific admissibility can help you know what witnesses to call, what to ask them, and how to prepare for therapist testimony that might go beyond what the law intended.
July 27, 2018
What Cognitive Science Can Tell Us about Jury Decision Making
July 20, 2018, Live Webcast
Texas MCLE Course Number: 174021850 (up to 1.00 hr)
Presented by: UT Law CLE
A studio webcast that I did earlier this month discussed how jury decision-making may be impacted by both unconscious biases and cognitive science.
What makes a bigger impression on a jury—your opening statement or closing argument? What causes jurors to conform to the pressures of others and can voir dire mitigate these effects? How do leading questions affect jury verdicts?
The 1-hour recording will be available here with the opportunity to earn CLE credit in TX and CA!
Cognitive Science is the interdisciplinary study of the mind. In psychology, it is the study of attention, language use, memory, perception, problem solving, reasoning and thinking. A major area of Cognitive Science is the area of bias. We are naturally drawn to details that confirm our own existing beliefs and, similar to that, we tend to not notice the flaws in ourselves as easily as we notice the flaws in other people.
We will also fill in the gaps of our understanding if we don’t feel like we have enough information or meaning to make a decision. This is where relying on stereotypes comes in to play – an easy, but inaccurate way, to understand a group you may otherwise be unfamiliar with. We can unintentionally think favorable towards groups and people we are familiar with versus those we might not understand or know. Both of these tendencies have a great deal to do with the underlying biases around racism, sexism, homophobia, and similar biases against other groups.
Our memory has limits. It is changeable over time because we edit and reinforce some memories after the fact. We tend to
discard specific information in order to form generalities. Knowing that everyone’s brain operates this way, it is up to the litigator to do some of this work for the jury and frame your case in ways they will digest. Knowing jury members will edit and
reinforce memories after they have heard them, the power of repetition of certain key facts is important.
For more on the effects of Cognitive Science, stay tuned for our published recording on this discussion.
July 9, 2018
With the #MeToo movement still at the forefront of today’s conversation, psychology can help further the movement and inspire change, especially with the topic of victim blaming and who is more likely to take part in this.
Victim blaming as defined here is “a devaluing act where the victim of a crime, an accident, or any type of abusive maltreatment is held as wholly or partially responsible for the wrongful conduct committed against them.”
Many women and men speaking out about their rape experience face the backlash of victim blaming, which can deter others from speaking their own truths. Psychologists have done a variety of experiments testing victim blaming and the situations and people who are most likely to conform to this belief.
One fairly recent study conducted by Amy Rose Grubb and Julie Harrower found that the gender of the observer, the type of rape, and perceived similarity to the victim play major roles in victim blaming in relation to rape cases.
In this particular study, it found that males are much more likely to victim blame in relation to their female counterpart. Making men more aware of the detriments of rape on victims and the abundance of problems it causes, which can include self-harm, STI’s, substance abuse, dissociation, eating disorders, unwanted pregnancy, sleep disorders, suicide, depression, flash blacks, and PTSD, can shed light on the aftermath of rape and minimize victim blaming from occurring.
Rape is categorized into acquaintance rape and stranger rape, in which victim blaming is much more prevalent in one than the other. It is much more likely that a victim will be blamed if they know their attacker, which is considered date rape, rather than a stranger being the attacker where the attacker is almost always to blame.
To change this major problem, society as a whole needs to know that many victims do not speak out if they were raped by someone they know because of victim blaming, which leads to the majority of unknown rape cases and leaves attackers unpunished.
Rape is rape no matter if the attacker is known by the victim or not. No means no. These victims should not have to hide in fear of society judging or blaming them. The last factor that determines victim blaming is perceived similarity to the victim. This means that a person who sees many similarities, not just gender, is less likely to blame the victim because they want to minimize their chances of something like that happening to them. They defer the blame as a way of protecting themselves rather than actually thinking that the victim is not to blame. It’s a harmful way to think and should be noted.
Even though the victim is not being blamed by people similar to oneself, others may not feel the same and still blame the victim. People should think more about the victim as an individual person who has been harmed through a traumatic event therefore shouldn’t carry any blame rather than trying to calm one’s own conscience by deflecting the blame.
Overall, this shows that psychology can help to benefit the #MeToo movement and spread valuable information to society, which hopefully mitigates victim blaming by significantly reducing rape as a whole.
Intern and guest writer
September 1, 2017
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August 23, 2017
The NPR show All Things Considered interviewed Dr. Jean Twenge on August 7, 2017, on how smart phones are making kids unhappy. Dr. Twenge noted that the iGen generation (a term she has coined), those born between 1995 and 2012, are unhappy in part due to smartphones. According to Dr. Twenge, the iGen are on the brink of a major mental health crisis. At first glance, this seems to be confined to the iGen, but it can be applied to all generations that use smartphones and social media in general. People do not spend as much time face to face. There is a lack of interpersonal communication. The iGen may not know how to interact interpersonally and when confronted with the opportunity to do so, some fail miserably. Going to college for the first time for an iGen may be a prime example of how interpersonal skills are necessary for forming lasting friendships and combating loneliness. Moving into the dorm, having a roommate for the first time, joining a fraternity/sorority or club, interacting in the dining hall, going to class where discussion is necessary, all of these things require social skills.
It feels counterintuitive that social media would increase loneliness. But after considering it and reading Dr. Twenge’s interview, it makes complete sense. Social media only seems to be either self-aggrandizing or negative towards others. Social media posts seem either narcissistic or bullying. Things are said on social media that would never be stated face to face. Things are said through texts that are misinterpreted. Relationships are assumed because you are “friends” on Facebook. It’s like a constant high school reunion online.
Dr. Twenge said, “Given that using social media for more hours is linked to more loneliness, and that smartphones were used by the majority of Americans around 2012, and that’s the same time loneliness increases, that’s very suspicious. You can’t absolutely prove causation, but by a bunch of different studies, there’s this connection between spending a lot of time on social media and feeling lonely.”
It’s the classic chicken or egg scenario: are people lonely because of social media use or are they lonely and turn to social media? Either way, the end result is the same, loneliness.
June 28, 2017
A recent article from CNN speaks to hand held screen time and speech delays. Many of us are guilty of using iPads and iPhones as distractors for children. Many of us use them as a distractor for ourselves. How many times have you been out at a restaurant, having a lovely meal, and your spouse (or you) spend a significant amount of time on your phone? Guilty as charged.
Now it seems that the devices are causing harm to young children in the form of speech delays. A new study found “that the more time children between the ages of six months and two years spent using handheld screens such as smartphones, tablets and electronic games, the more likely they were to experience speech delays.” This is the first study of its kind.
Parents may be versed in screen time as it pertains to computers, video games, and television. It is of note that now handheld devices are included in this group for screen time. It seems obvious, but nevertheless, is worth contemplating. It may be hard to quantify handheld device screen time because it has become such a reflexive response to use them.
Perhaps we all could learn from this study and track how much time is spent on our devices. It could be very eye opening and perhaps a bit dismaying.
June 26, 2017
By now, everyone has heard about the shooting of Philando Castile on July 6, 2016, by a police officer in St. Paul. By now, everyone knows the outcome of the trial: Officer Yanez was acquitted of all charges on June 16, 2017. He was also fired the same day of the acquittal.
But this blog post isn’t about that. It is about a mother who witnessed and video taped the event. It is about the child who was in the back seat of the car. It is about the child who was silent during the entire incident. It about a child, Dae’Anna, who was in survival mode at the age of four.
Diamond Reynold’s, Dae’Anna’s mother, said that she had taught her daughter to remain calm. In a September 10, 2016 article in the Washington Post, Eli Saslow wrote, “Diamond had taught her daughter to react that way. They had been practicing what Diamond called “survival skills” since before her daughter turned 2. Duck at the sound of gunfire. Make yourself small whenever you feel threatened. Never touch guns or needles. The more scared you are, the less noise you should make. These were some of the lessons Diamond had passed along from one generation to the next, and her daughter had learned them well.”
When I was 4, in 1968, the lessons being taught to me were something akin to: say please and thank you, don’t talk to strangers, wash your hands, be nice to your friends, respect your elders. The biggest risk that I remember was possible razor blades in apples at Halloween. There was no talk of ducking to the sound of gunfire and making yourself small. There was no talk about guns or needles.
No one should have to endure what DaeAnna and her mother, Diamond, did on that day in July. No one should witness a loved one being shot and killed, especially a child. I wonder what the long term effects of witnessing such a brutal shooting will have on DaeAnna? Only time will tell.
June 24, 2017
It’s all too common to associate mass shooters with the disenfranchised individual or a terroristic act. While these are true associations, another association is that shooters have a history of aggression and violence toward women. A Washington Post article written by Nancy Leong about the shooting of Republicans while they practiced baseball discusses this issue and points out a number of mass shooters that had a history of violence against women. Ms. Leong analyzes mass shootings from 2009-2016 and, “concluded that at least 54 percent of mass shootings — or 85 out of 156 incidents — involved a current or former intimate partner or family member as a victim. Other research has found that those who abuse their domestic partners are also more likely to abuse children and animals, and that 68 percent of men in a sample of batterers exhibited other “problem behaviors,” such as fights, previous arrests or drunken driving.”
Domestic violence is not taken seriously. It is not seen as a predictor of future violent behavior. Leong writes, “A mass shooting tends to trigger passionate arguments about gun control and mental health services; discussion of how to respond to domestic violence often doesn’t even come up.”
Until the issue of domestic violence is discussed openly and honestly without stigmatization, positive changes cannot be expected to occur.
June 22, 2017
There have been many myths regarding fatherhood throughout time. In an Washington Post article written by Paul Raeburn, he speaks about a Supreme Court decision that , “struck down a law that treated unwed mothers and fathers differently when granting citizenship to their children born outside the United States — the requirements for fathers were stiffer. Justice Ruth Bader Ginsburg, authoring a majority opinion joined by five other justices, wrote that the law was based on gender stereotypes that violated the notion of equal protection. The law implied “that unwed fathers care little about, indeed are strangers to, their children.”
In light of this Supreme Court decision, Raeburn writes about the myths of fatherhood that seem to endure. Until we can get past the myths, fathers will never gain ground on being treated as equals when it comes to parenting.
June 20, 2017
Dr. Alissa Sherry recently testified in the Alex Jones and Kelly Jones custody case. Her testimony was highlighted on a number of national and local news media sites including the Huffington Post, The Daily Beast , and the Austin American Statesman . High profile custody cases can be particularly difficult and expensive cases to litigate. They tend to draw a lot of media attention as has been seen in the custody battle of celebrities like Brad Pitt and Angelina Jolie, Alec Baldwin and Kim Basinger, and Charlie Sheen and Brooke Mueller/Denise Richards.