Ever notice how psychologists in child welfare cases testify?  Their opinions are usually stated within a reasonable degree of psychological certainty.  But are they?  Do the psychologists’ opinion critically examine alternative theories or hypotheses?  Do they confirm that the diagnoses rendered and their consequential alleged impact upon parenting are generally accepted in the psychological community?  In short, do psychologists’ testimony meet the Frye standard?  See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

The Frye case established the standard to be met for a Court to accept and rely upon an expert opinion.  In essence, trial Courts must decide whether scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, and if so, a witness qualified as an expert by knowledge, skill, experience, training or education may give opinion testimony regarding the issues in dispute.  This requirement is now contained within New Jersey Evidence Rule 702. 

The New Jersey Supreme Court established the following guidelines for the trial judge to assess at an evidentiary hearing whether the theory and methodology are reliable and relevant to the issue before the Court:

1) whether the evidence is scientific knowledge;

2) whether the expert’s hypothesis can be tested;

3) whether the methodology is subject to peer review and publication;

4) whether there is a known or potential rate of error for the methodology;

5) whether standards exist and are maintained for controlling the technique’s operation; and

6) whether the methodology has been accepted in the scientific community.

Much psychological opinion testimony in DCPP cases fails to meet this standard.  For instance, how often do psychologists testify as to the potential rate of error for their methodology of assessing bonding between children with their parents on the heels of bonding evaluations with their foster parents?  What, pray tell, is the standard for determining whether a particular child has been harmed by witnesses domestic violence between her parents?  And, have studies conducted ruled out other life stressors in evaluating the susceptibility of a particular child to distress from such experiences?

How “scientific” is the premise that a baby with a subdural hematoma and retinal hemorrhages, with no other medical findings, no external bruising, no fractures, etc., has been shaken aggressively by a parent?  Is that determination based on science?  Or conjecture/folklore/common assumption, etc.?  Assuming that the medical evidence is “scientific”, can we make the same claims of findings about parental capacity resulting from the shaking?  Or do we just accept the psychologist’s assumption that a parent who shakes a child in frustration is currently, will be in the future and forever shall remain incapable of safely parenting that child?

When issues are published in Learned Treatises, do we accept out of hand that the articles relied upon by the expert are pertinent to the issue before the Court?  How analogous must the studies’ findings be in order for the expert to rely upon them to support a finding to a reasonable degree of psychological certainty?  For instance, if one published study concludes that a young child’s disclosure of child sexual abuse are most reliable when made spontaneously, while another published study concludes that a young child is highly suggestible, is a psychologist’s finding that a child has been sexually abused ever anything more than a guess between the findings of these two peer-reviewed, published premises?

These questions, and many more, should be the subject of an evidentiary hearing pursuant to N.J.R.E. 104.  In a “104 hearing”, the Court can test the reliability of the alleged scientific evidence.  The inordinate frequency of psychological testimony in DCPP cases makes it unlikely that a Court will strike a psychologist’s opinion for lack of scientific reliability.  But, that does not mean that attorneys should not requests these hearings. 

Demonstrating the guesswork nature of the psychologist’s opinion may not render that opinion inadmissible, but it may attenuate the opinion’s worth in the eyes of the Court to such an extent that the parent’s defense may prevail.  Conducting 104 hearings ensures that defense counsel takes every opportunity to persuade the trier of fact of the parent’s position.