New York's High Court Rules That Testimony by a Forensic Psychiatrist That Recounts Third-Party Statements Where the Third Parties Are Not Available for Cross-Examination Violates the Federal Constitution and Is Not Admissible

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In recent years forensic evaluators have been encouraged when forming their opinions to expand the information on which they rely beyond just their examination of the defendant and the clinical record to include third-party data from sources such as family and acquaintances of the defendant. A ruling by the high court of New York has placed limits on testimony based on these third-party sources in the state and raised issues that may reverberate in other states.

The ruling focuses on the trial and conviction of Andrew Goldstein. Goldstein gained national notoriety in 1999 when he pushed Kendra Webdale, a woman he did not know, into the path of an approaching subway train in New York City. Goldstein had been diagnosed as having schizophrenia some ten years earlier, had been treated in a number of mental health facilities in the interim, and was reported to have failed to take prescribed anti-psychotic medication. His actions served as the impetus for New York's enactment of Kendra's Law, which created a procedure for obtaining a court order to mandate outpatient treatment for individuals with a mental illness.

Goldstein was charged with murder in the second degree and his principal defense was insanity. His first trial ended in a hung jury. At his second trial, the two main witnesses were forensic psychiatrists, one called by the defense and one called by the prosecution. Both agreed that the defendant was mentally ill. Both supported their opinions by describing their own examinations of the defendant and by reviewing voluminous clinical records. However, the prosecution's expert also relied on facts she had obtained from interviews of third parties and her trial testimony described what she had heard during these interviews. On the stand, she distinguished forensic psychiatry from traditional clinical psychiatry by noting that the latter largely confines itself to what the client says and to the clinical record. She testified that the purpose of forensic psychiatry is "to get to the truth" and she believed that interviews of people with firsthand knowledge are an important way of accomplishing this goal.

Ultimately, the jury in this second trial rejected the defendant's insanity defense and found him guilty. Because the third-party individuals referenced by the prosecution's forensic psychiatrist were not called as witnesses and were not made available for cross-examination, the defense appealed the conviction.

The New York Court of Appeals began by rejecting the defendant's argument that the testimony by the prosecution's forensic psychiatrist recounting statements of the individuals interviewed was inadmissible hearsay under New York law. The court determined that previous cases had established that a psychiatrist's opinion may be received in evidence even though some of the information on which it is based is inadmissible hearsay, provided the out-of-court information "is of a kind accepted in the profession as reliable in forming a professional opinion." The court added that testifying experts can personally establish the acceptance of this practice by their profession with their own testimony.

Here the prosecution's psychiatric expert testified that the interviewing of third parties by forensic psychiatrists is "becoming more and more the practice," even though "many good forensic psychiatrists might ... disagree." The court noted the defense could have challenged this depiction of accepted professional practice on cross-examination or by introducing evidence to the contrary, but had failed to do so. The court determined this testimony was sufficient to show the approach has gained "widespread acceptance by professionals of good reputation" and it was not necessary to demonstrate universal acceptance of the practice.

As a result, the court concluded that New York state law permitted the prosecution's forensic psychiatrist to base her opinion on third-party statements made out of court. …