1 In civil proceedings, for example, psychiatrists are used to determine whether a defendant poses a sufficient risk of harm to himself or others to warrant involuntary commitment. See, e.g., Lake v. Cameron, $64 F.2d 657 (D.C. Cir. 1966), rev'd and remanded, 267 F.Supp. 155 (D.D.C. 1967) (case was remanded to search for a less restrictive alternative because psychiatrists testified that the elderly indigent defendant needed "attention . . . whether in or out of a hospital"). 364 F.2d at 660. Psychiatrists are also used when a court is considering mandatory medical procedures on an incompetent. See, e.g., In re Grady, 170 N.J. Super. 98, 405 A.2d 851 (1979) (psychiatrists testified that plaintiff was incapable of understanding the problems of sexuality and pregnancy, and that sterilization was in plaintiff's "best interests"). Psychiatrists are also used to question the competency of a party to manage property, see, e.g.. In re Guardianship of Eleanor Frank, 137 N.W.2d 218 (N.D. 1965) (senile party's sale of property was questioned because a psychiatrist testified that her I.Q. was approximately 67 due to age); to execute wills, see, e.g., In re Estate of Coffin, 103 N.J. Super. 1, 246 A.2d 489 (1968) (son challenged his'father's sanity in leaving him out of will and employed a psychiatrist to testify that the father had paranoid delusions of grandeur); or make contracts, see, e.g., Faber v. Sweet Style Manu-' facturing Corp., 19 A.D. 2d 776, 242 N.Y.S.2d 763 (1963) (contract was voided on testimony of psychiatrists that plaintiff was a manic depressive). Psychiatrists are also used in the' family law context to establish grounds for divorce, see, e.g.;, Firestone v. Firestone, 263 So.2d 223 (Fla. App. 1972) (psychiatrists helped determine the cause and source of extreme cruelty that presented grounds for a divorce); grounds for granting custody of children, see, e.g., Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152 (1966) (psychiatrist's and psychologist's testimony were relied on to deny father custody of a child he had previ ously left with maternal grandparents for several years); and to determine the propriety of granting adoption privileges, see, e.g., Geller v. Los Angeles County Dep't of Adoptions, 261 Cal. App. 2d 365, 67 Cal. Rptr. 819 (1968) (adoption was revoked because psychiatrist found that Mrs. Geller was prone to recurrent depression). Psychiatrists are also used in the personal injury context to establish psychiatric damage as a result of emotional stress on the job, Carter v. General Motors Corp., 361 Mich. 577, 106 N.W.2d 105 (1960) (psy chiatrist testified that the plaintiff's schizophrenia did not exist before employment), and to determine infliction of emotional harm, Tobin v. Grossman, 24 N.Y.2d 609, 249 N.E.2d 419, 301 N.Y.S.2d 609 (1969) (liability denied even though psychiatric testimony established the. onset of psychotic depression because of defendant's negligent manslaughter of her two-year-old child). , , ,,··.

Although psychologists have not been specifically addressed in this Note, sometimes they serve the same functions as psychiatrists. In those situations the conclusions of this Note should extend to their testimony. See, e.g., Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152(1966).

2 In criminal proceedings psychiatrists have been used to determine whether a de fendant is competent to stand trial. Pate v. Robinson, 383 U.S. 375 (1966) (conviction was reversed because defendant was denied due process by not being allowed to introduce psychiatric testimony to show incompetence), and to, determine whether to try a defendant as a child or as an adult, Kent v. United States, 383 U.S. 541 (1966) (psychiatrist testified that defendant was capable of understanding trial procedures). During trial, psychiatrists may evaluate a defendant's plea of insanity, Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (court ruled that if defendant's act was the product of mental disease, he was not criminally responsible). After trial, psychiatrists may give testimony at pre-sentencing hearings. See Comment, Crystal-Balling DeathŒ, 30 Baylor L. Rev. 35 (1978)Google Scholar. See generally W. Bromberg, The Uses Of Psychiatry In The Law (1979)Google Scholar.

This Note, however, will only evaluate the system of providing psychiatric experts in civil as opposed to criminal proceedings. While use of psychiatric experts for criminal trials engenders confusion similar to that encountered in civil proceedings, employment of a plan to correct those problems requires balancing a different set of criteria. It would be more difficult to resolve this problem in the criminal setting because of the many safe guards built into the system to protect criminal defendants. There is a higher standard of proof required to convict a criminal defendant than a civil defendant. See, e.g., Note,The Privilege Against Self-Incrimination in Pre-Trial Psychiatric Examinations: Oregon's Compromise, 14 Whxiamette L.J. ,313 (1978)Google Scholar. See also Houston v. State, 602 P.2d 784 (Alaska 1979). For,criminal trials, a; defendant must be proved guilty beyond and to the exclusion of every reasonable doubt. W. Lafave & A. Scott, Handbook on Criminal Law § 8 (1972)Google Scholar. In civil cases the burden is less. Most cases require a "preponderance of the evidence.", Sargent v. Massachusetts Accident Co., 307 Mass. 246, 250, 29 N.E.2d 825, 827 (1940). Some extraordinary civil cases require "clear, strong and convincing evidence." Minion v. Farmville-Woodward Lumber Co., 210 N.C. 422, 425, 187 S.E. 568, 570 (1936). That, combined with the mandatory presumptions and safeguards in favor of the criminal defendant which are required by the U.S. Constitution restrict the extent to which the criminal system can be altered. These same restrictions are not present in civil cases, for many civil cases do not even provide for a right to a jury trial, see, e.g., Mass. Gen. Laws Ann. ch. 123, §§ 4-6 (West 1976) (juries not prescribed for commitment proceedings), much less constitutionally require it. Hence, addressing only civil proceedings simplifies the analysis. Since many issues are similar, much of this Note's discussion will also be useful when analyzing the use of psychiatrists in the criminal context.

3 E.g., Baird v. Bellotti, 450 F.Supp. 997 (D. Mass. 1978) (psychiatrist testified as to the incompetence of plaintiff to make informed decisions).

4 E.g., Parham v. J.R., 442 U.S. 584 (1979) (psychiatrist testified as to the emotional instability of a child, and the appropriateness of institutionalization).

5 Some jurisdictions.have approved plans which allow courts to call impartial medical expert witnesses, including psychiatric witnesses, in addition to those of the adversaries. See, e.g., Rule of Court, E.D. Pa., Ri 27 (1974), N.Y. & Bronx County Sup. Ct. R. XI-12 (1952)

6 This Note recognizes that other types of conflicts may occur between psychiatric expert witnesses, such as valid controversies concerning appropriate psychiatric theory. This Note will focus, however, on conflicts which result'from inaccurate or biased testimony.

7 See Hopkins v. State, 480 S.W.2d 212, 220-21 (Tex. Crim. App. 1972), where the court noted that psychiatric testimony often leaves the jury with no real assistance in resolving issues.

8 Weihofen, , An Alternative to the Battle of Experts: Hospital Examination of Criminal Defendants Before Trial, 2 L. & Contemp. Prob. 419 (1935)Google Scholar.

9 See Gross, M. The Psychologicalr Society 9 (1978)Google Scholar.

10 Brown, , The Life of Psychiatry, 133 Am. J. Psych; 489, 490 (1976)Google Scholar. Brown notes that psychiatry as a specialty grew by over 50% from 1963 to 1973. In 1973, of the 25,000 psychiatrists in the United States, 10,000 were engaged in active practice, and they ac counted for approximately 300,000 patient hours per week

11 See notes 1-2 supra. Psychiatrists have also become involved in the courts because of challenges to their professional behavior/See, e.g., Tarasoff v. Bd. of Regents of the Univ. of Cal., 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976). See also Furrow, Defective Mental Treatment: A Proposal for the Application of Strict Liability to Psy chiatric Services, 58 B.U.L.Rev. 391 (1978)Google Scholar. In addition, courts are using psychiatric theory to assist them in determining whether an individual has been denied equal protection. See Washington v. Davis, 426 U.S. 229 (1976) (question concerned the effect of a¹ series of tests to qualify for the police force). See also, Griggs v. Duke Power Co., 401 U.S. 424 (1971)(use of tests, some of which make use of psychiatric theory and testimony, must be accompanied by exacting scrutiny to ensure their accuracy). In addition, First Amendment cases concerning the effect of obscenity or sex education on children implicitly rely on psychiatric theory to substantiate their claims that the exposure to obscenity has a detrimental effect on children. See, e.g., Ginsberg v. New York, 390 U.S. 629, 638 (1968). As more uses are found for psychiatrists in society, it is likely that more uses will also be found for them in the courtroom. In a recent speech to the American Psychiatric Asso ciation, United States Supreme Court Justice Harry Blackmun warned psychiatrists that there will be increased controversy over the psychiatrist's contribution to the legal system. He admonished the audience to have patience, for once the legal system adapted to the increased uses of psychiatrists, a useful and important symbiosis between the two pro fessions would ensue. See Psychiatric News, June 6, 1980, at 7, col. 3.

12 Most experiments have been instituted by judiciary, committees, empowered by the legislatures to promulgate court rules. Generally, courts are entitled to organize a committee to provide rules of procedure in certain limited fields. E.g., Special Rule, Appellate Division of the Supreme Court of the State of New York First Department, Dec. 1,1952.

13 See notes 5 and 12 supra.

14 E.g., The Model Expert Testimony Act as adopted in South Dakota, S.D. COMPILED LAWS ANN. §§ 36.0109-.0118 (Supp. 1960), was designed to cover all areas of expertise, not merely medical testimony. The.prototype for the psychiatric consultant plan discussed in note 58, infra, was designed mainly for areas requiring technical skill, such as elec tronics or chemistry. Rosenberg, , Anything Legislatures Can Do, Courts Can Do BetterŒ, 62 A.B.A.J. 587 (1976)Google Scholar; see also Hand, Historical and Practical Considerations Regarding Ex pert Testimony, 15 Harv.L.Rev. 40 (1901)Google Scholar. Hand dates the impanelling of specialty juries back to Bracton, and even to the Romans. Id. at 40.

15 See Sullivan v. Old Colony Street Railway Co., 197 Mass. 512, 516, 83 N.E. 1091, 1092 (1908) (Rugg, J. observed that "the rule of [money] damages is a practical instru mentality for the administration of justice. The principle on which it is founded is com pensation. Its object is to afford the equivalent in money for the actual loss. . . .").

16 In Meyer v. Nebraska, 262 U.S. 390 (1923), Justice McReynolds discussed the, term "liberty" as used in the fourteenth amendment:

Id. at 399 (emphasis supplied). These issues are often at stake in cases which require psychiatric expertise. See note 1 supra. Where rights guaranteed by the constitution may be denied, minimum safeguards ought to be imposed on the process by which the denial of these rights is effected. See, e.g., In re Gault, 387 U.S. 1 (1967) (minors are entitled to substantial safeguards when the state attempts to impose restraints on them).

17 See Minnesota Rate Case, 134 U.S. 418, 458 (1980) ("If the company is deprived o• the power of charging reasonable rates for the use of its property .. . it is deprived of the lawful use of its property . . .without due process of law. . . .").

18 Addington v. Texas, 441 U.S. 418 (1979) (preponderance of the evidence standard is insufficient for civil commitment because liberty deprivation is so severe); Marsh v. Alabama, 326 U.S. 501 (1946) (holding that private property rights sometimes must yield to certain civil liberties); Shapiro v. Thompson, 394 U.S. 618 (1969) (liberty to travel could not be infringed merely for the purpose of enhancing the state's financial position).

19 See, e.g., Mass. Gen. Laws Ann. ch. 231, § 60B (West 1976). See Paro v. Longwood Hospital, 373 Mass. 645, 369 N.E.2d 985 (1977) (constitutionality of statute enabling pre trial panels was upheld). See a/io"notes 68-70 infra and accompanying text.

20 This plan is a variation of the court rules referred to in notes 5 and 12 supra. See also notes 85 and 86 infra and accompanying text.

21 Llewelyn, K. Bramble Bush 33 (1930)Google Scholar. See also Skidmore v. Baltimore & Ohio R.R. Co., 167 F.2d 54, 60-64 (2d Cir. 1948).

22 Mccormick, D. Evidence § 17 (2d ed. 1972)Google Scholar.

23 Id

24 See Basten, , The Court Expert in Civil Trials—Comparative Appraisal, 40 Mod. L. Rev. 174 (1977)Google Scholar.

25 Id

26 Unjust decisions also can result from psychiatric testimony for reasons besides bias or inaccuracy. One example is conflicts due to different definitions of the same words by the psychiatric professiorKand legal profession. For example, when the legal issue turns on the concept of "insanity" or "dangerousness" (as many commitment statutes do, and as would many probate hearings), the legal and medical definitions may produce different results. See Medicine & the Law, 23 M.D. Med. News Magazine 71, 82 (1979)Google Scholar. Psychiatry does not recognize such concepts as sanity and insanity. As a result, the psychiatric judg ment might well become unhelpful or counterproductive. See Diamond, & Louisell, , The Psychiatrist As: Expert Witness: Some Ruminations and Speculations, 63 Mich. L. Rev. 1335 (1965)Google Scholar. This Note, however, is only concerned with unjust decisions which result from bias or inaccuracy.

27 See Ford & Holmes, The Professional Medical Advocate, 17 Sw. L.J. 551 (1963).

28 See Taylor, & Torrey, , The Pseudo-Regulation of American Psychiatry, 129 Am. J. Psych. 658 (1972)Google Scholar.

29 See Hiday, Reformed Commitment Proceedings for Empirical Study in the Court room, 11 L. & Soc.Rev. 651, 655 (1977)Google Scholar. See also Weihofen, supra note.8.

30 Twardy, & Siomopoulos, , Medical, Testimony—Mental Health Proceedings—Direct Cross-Examination of a Defendant's Clinical Psychiatrist, 1977 Med. Trial Tech. Q. 187, 190 (1977)Google Scholar.

31 This problem is worse in psychiatry than in other fields, both because .there is considerable dissension in psychiatry as to the prope r interpretation of psychiatric dat a and because the psychiatrist's judgmen t is basically subjective in nature . Othe r areas of expertise (such as engineering) are mor e objective and their doctrines are more uniformly accepted. See note 35 infra and accompanying text.

32 Fed. R. Evid. 702, Uniform R. Evid. 703, and Cal. Evid. Code § 720 all qualify as experts anyone with special "knowledge, skill, experience, training, or education. " None require special rules for doctors o r psychiatrists.

33 Collateral impeachment, or a collateral attack, is one which attempts to discredit the integrity of a judgmen t or conclusion by use of facts not directly connected with the principle issue itself. See Trustees of Somerset Academy v. Picher, 90 F.2d 741> 743 (1st Cir. 1937); Jones v. State, 70 Ga. App . 431, 437, 28 S.E.2d 373, 386 (1943).

Impeachment of a witness need not be on collateral issues. Th e better forms of-im peachment result from demonstration of inaccuracies or inconsistencies within a witness's testimony.

34 One way in which physicians' competence is scrutinized is malpractice suits. But see Furrow, supra note 11, at 406-09. Furrow describes how the natur e of psychiatry and the burden of proving malpractice cause attorneys to shy away from bringing such suits. He suggests strict liability for psychiatric providers based on an "experimenta l enter prise" rationale. This, however, would not provide any better barometer for purposes of impeachment, for strict liability is an imposed liability without fault. See, W. Prosser, Handbook Of The Law Of Torts § 75 (4th ed. 1971).

35 See, e.g., 20 C.F.R. § 404.1500, Subpart P, App. 1, § 9.00 (1979). See also Jankav. Califano, 589 F.2d 365 (8th Cir. 1978).

36 FED. R. EVID. 403. See D. MCCORMICK, supra note 22, at 33, on the power to exclude testimony which is not sufficiently supported in fact.

37 Ass'N of the Bar of the City of N.Y., Impartial Medical Testimony 7 (1956)Google Scholar. This is not always the case, however. Sometimes, as in certain probate proceedings, the judge has had such expansive experience because of the frequency with which he or she hears those cases to qualify as an expert. :

38 See Gast v. State, 232 Ala. 307,'167 So. 554 (1936). To prove abuse, a clear and convincing showing must be made that the trial judge's discretion could in no way be correct. See D. Mccormick, supra note 22, at 30.

39 See Dix, The Death Penalty, "Dangerousness," Psychiatric Testimony, And Pro fessional Ethics, 5 Am. J. Crim. L. 151 (1977)Google Scholar. An appellate court will only be capable of identifying flagrantly inadequate credentials, since the standard of review is so deferential. Such flagrancy is rare, for all licensed physicians are qualified to practice psychiatry. See note 28 supra. It is unlikely that an appellate court will seriously challenge the credentials of a doctor who is certified to practice by medical society criteria. See Ethyl Corp. v. En vironmental Protection Agency, 541 F.2d 1, 66 (D.C. Cir. 1976) (Bazelon, C.J.,.concurring).

40 541 F.2dat66.

41 See note 30 supra arid accompanying text. Abuse can occur before trial in several ways. A psychiatrist who improperly administers diagnostic tests (such as the Rorschach) can almost never be challenged, since these tests are conducted in private. In addition, a psychiatrist can manipulate a subject during an interview. Even if the psychiatrist does not manipulate the subject intentionally, it can occur as a result of a preconceived bias by the psychiatrist who expects certain types of answers from the subject. When this occurs, not only will the subject provide answers he did not intend to provide, but he or she also can be demoralized as a result, thus lowering his or her incentive to object to the conclusions of the psychiatrist.

42 Sometimes the record will show ineptitude, and even then the appellate courts have been unwilling to reverse. See discussion of Smith v. State, 540 S.W.2d 693 (Tex. Crim. App. 1976) in Dix, supra note 39, at 152-61. Th e cause of this unwillingness to review is uncertain, but perhaps it is merely a recognition of the difficulties of adminis tering appellate review over the testimony and qualifications of experts.

43 Further explanation of this balancing test and an example is provided in the Appendix.

44 The plans which will be discussed in this Note are drawn from all of the literature concerning expert testimony. As noted earlier, none were proposed specifically for psy chiatric testimony. See notes 12-14 supra and accompanying text. Some have been adopted in various jurisdictions and some are still in the germination stage in the legal or medical journals. The purpose of this Note is to examine all the options to determine which alternatives would be effective in cases requiring psychiatric expert testimony.

45 See Rosenberg, supra note 14; Bazelon, Coping With, Technology Through the Legal Process, 62 Cornell L. Rev. 817 (1977)Google Scholar. These proposals suggest transferring fact finding duties from lay persons to experts who are more qualified to comprehend the issues in cases requiring special knowledge.

46 See Myers, , "The Battle of the Experts:" A New Approach to an Old Problem in Medical Testimony, 44 Neb. L. Rev. 539, 561-77 (1965)Google Scholar. See also note 5 supra. These plans provide for court appointment of an independent expert to provide impartial testimony in addition to that offered by the parties. Experts called by the parties, because of their stake in the outcome, may have a subconscious tendency to color their testimony. The court-appointed expert would not have such a tendency.

47 Ethyl Corp. v. Environmental Protection Agency, 541 F.2d 1, 66 (D.C. Cir. 1976) (Bazelon, C.J., concurring). See also Rosenberg, supra note 14.

48 The "science court" is discussed in Bazelon, supra note 14.

49 This is a plan which has been used on and off in many different forms throughout the history of our legal system. See Hand, supra note 14, at 40. A restatement of its de sirability was made by Bazelon. Bazelon, supra note 45.

50 This "jury" would decide issues of fact regardless of whether a regular jury would have been convened under the present system.

51 There are two reasons why independent psychiatrists will deter biased and in accurate testimony more effectively than adversary psychiatrists. First, expert witnesses are often excluded from the courtroom during other testimony, Zambarano v. Mass. Turnpike Auth., 350 Mass. 485, 215 N.E.2d 652 (1966). The reason that these witnesses are excluded is to prevent one witness's testimony from influencing the others. Independent psychiatrists could be permitted to remain in the courtroom. Second, since the court appointed witness is independent, his or her charges would not be disregarded or dismissed as being simply that of a disgruntled adversary.

52 See note 1 supra. Th e more often psychiatrists testify, the more psychiatric "juries" will have to be convened, and the greater the likelihood that conflicts of interest will arise. In addition, this will increase the number of psychiatrists who are drawn out of medical practice and into the legal arena.

53 See, e.g.. People v. Jackson, 20 A.D.2d 170, 245 N.Y.S.2d 534 (1963) (defendant was afforded only superficial treatment because of a shortage of psychiatrists).

54 See Schlensky, , Psychiatric Expert Testimony and Consultation, 1978 Med. Trial Tech. 38, 42 (1978)Google Scholar. Schlensky reports that 90 percent of America's psychiatrists practice in the 10 largest cities.

55 Usually, a jury's personal knowledge of a witness is not grounds for his or her disqualification for "cause" (as opposed to a peremptory challenge, the exercise of which does not require a reason). See United States v. Kelton, 518 F.2d 531 (8th Cir. 1979). However, as applied to the psychiatric "jury" plan, such knowledge should be grounds for disqualification, because the witness's testimony is central to the disposition of the case, and the pressure on colleagues to be mutually supportive may lead to biased decisions by the psychiatric juror.

56 This plan also can be formulated in such a manner that the psychiatric panel comprises the entire court, and no judge presides. This formulation, however, has limi tations which result from the fact that psychiatrists generally do not possess legal ex pertise. Empowering psychiatrists to make legal decisions, therefore, may render ineffective many of the safeguards built into the traditional adversary system. These safeguards are involved in both the jury and non-jury settings. One of the major strengths of the legal system is the legal sophistication of the judge. Th e panel members of a psychiatric court would not have such sophistication. In addition, this formulation may infringe upon the parties' fifth and fourteenth amendment rights to a fair trial.

57 The strengths of the jury system are important factors, of course, only where jury trials are normally provided.

58 See discussion of the jury system in Williams v. Florida, 399 U.S. 78, 100 (1970).

59 Whenever a homogenous body is convened, the possibility exists that decisions will be affected by the internal politics of the group. It should be noted that, since much of a psychiatrist's practice is dependent upon referrals, there may be internal pressure to resolve cases one way or another. In addition, members of a psychiatric court might en tertain personal or professional biases that would lead them to exclude certain theories from consideration. This exclusion would have the force of law. Not only would this hurt the legal system, but it might prove detrimental to the psychiatric profession itself.

60 The findings of psychiatric fact by the psychiatric "jury" would have a res judicata effect as to these facts in the subsequent litigation. This raises constitutional questions concerning the right to a trial by jury. However, as previously noted, this Note only concerns civil, not criminal cases. See note 2 supra. The seventh amendment right to trial by jury in civil cases has not been incorporated into the fourteenth amendment. Thus, unless the state constitution requires a trial by jury, there is no jury trial right in state cases. The Supreme Court recently indicated that there might be a right to a jury trial in civil commitment cases. Addington v. Texas, 441 U.S. 418 (1979). This issue has not been resolved. See Spaulding, Post-Parham Remedies: The Involuntary Commitment of Minors in Virginia After Parham v. J.R., 13 U. Rich. L. Rev. 695, 722 (1979)Google Scholar. In addition, the psychiatric panel may fulfill the requirements of a jury.

61 For example, in the case of commitments, an individual may need immediate crisis treatment to prevent him from harming himself or others. In other areas, incom petent individuals may need immediate medical care, and a long involved court procedure will impede the resolution of the case. See, e.g., In re Spring, 80 Mass. Adv. Sh. 1209, 405 N.E.2d 115 (1980). These problems, of course, can be ameliorated by temporary injunc tions. But these injunctions sometimes take on the appearance of dispositions of cases, rather than interim measures. One who has been temporarily committed, subject to subsequent judicial approval in an adversary hearing, still must bear the stigma of that commitment thereafter, regardless of his ultimate "vindication" at trial. Similarly, family law cases cannot be ameliorated by injunction. The disruptive effect on a family of a long protracted lawsuit to determine custody or adoption is well recognized. See, e.g., Whitney v. Whitney, 164 Cal. App.2d 577, 330 P.2d 947 (1958).

62 This plan was suggested by Rosenberg, supra note 14, to improve the capacity of courts to obtain information concerning subjects about which they are entitled to take judicial notice. This plan has never been put into practice and therefore, there is no experience by which to gauge its usefulness. Nonetheless, it can fairly be said that the purpose of this body of researchers is not to resolve issues, but rather to inform courts as to the present state of knowledge on certain subjects.

63 For example, involuntary commitments involve psychiatric examinations to deter mine the fitness of a defendant to remain in society, Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966); and child custody proceedings utilize psychiatric examinations to determine whether an individual is fit to be a parent, Painter v. Bannister, 258 Iowa 1390, 140 N.W.2d 152 (1966).

64 Such a body could be designed, but it would be comparable to a group composed of independent court-appointed experts. This alternative is discussed in notes 85-87 infra and accompanying text.

65 See Karasu, Psychotherapies, An Overview, 134 Am . J. Psych. 851 (1977)Google Scholar. See also Diamond & Louisell, supra note 26.

66 See note 34 supra and accompanying text.

67 Id. Impeachment can be effective only if the finders-of-fact can understand the dis tinctions drawn by the attorneys, and if the attorneys themselves can clearly point out where the psychiatrists have digressed from proper medical technique. However, presently, only the qualifications of individual psychiatrists and the inadequacies of the science of psychiatry itself are used to impeach during cross-examination. "[T]he thrust of the entire cross-examination should be to undermine the credibility and expertise which the psy chiatric witness professes to have."* Twardy & Siomopoulos, supra note 30, at 195. Thus, the thrust of the cross-examination is not to detract from the merit of the specific con clusions of the psychiatrist. A successful cross-examination therefore leads to a battle of the experts, and not an impeachment of a professional opinion.

68 Myers, supra note 46, at 562 n.83. Myers calls this the "expert witness and advisory panel plan." Myers reports that this plan had great success in California in 1965, and has since spread to many jurisdictions. See, e.g., Mass. Gen. Laws Ann. ch. 231 § 60B (1976); Paro v. Longwood Hosp., 373 Mass. 645, 369 N.E.2d 985 (1977) (upholding the constitutionality of the Massachusetts statute). A primary benefit of this plan has been to encourage settling cases out of court. When a medical malpractice claim is brought to the courts, the panel hears evidence presented by both parties and makes a preliminary ruling on the sufficiency of the plaintiff's case. This ruling is not binding on the parties, but is evidence in any later proceedings. Usually, parties settle after these hearings, or the plaintiff drops charges. This is usually because the insurance companies involved find it beneficial to limit proceedings to this stage. Some states require the plaintiff to post a bond if he or she has lost in the preliminary hearing, as a prerequisite to proceeding in court. See, e.g., Mass. Gen. Laws Ann. ch. 231, § 60B (1976). This bond is used only to insure that court costs will be paid in the event of plaintiff's losing at trial.

69 Since these proceedings are designed not to determine the truth of the evidence, but rather its sufficiency, attorneys may lead witnesses during direct examination, spend less time qualifying the witness, and may introduce evidence that might be excluded under the rules of evidence. Since the panel members are allowed to ask the witnesses and the attorneys questions, confusion caused by the relaxed rules of evidence will be reduced. See Mass. Gen Laws Ann. ch. 231, § 60B (1976).

70 See Myers, supra note 46, at 562.

71 This Note recognizes that replacing the jury might present Constitutional questions concerning the right to a jury trial. However, this Note concludes that these questions should not presently bar the use of such a panel. See note 60 supra.

72 See note 47 supra and accompanying text.

73 Dix, supra note 39, at 171 suggests that psychiatrists set up their own standards for evaluating individuals for legal proceedings. The American Psychiatric Association has formally encouraged intelligible and accurate psychiatric reports. See, e.g., D. Schetky, M.D., Evaluate Your "Forensic" Psychiatric Report (Oct. 1979) (unpublished report dis tributed at American Psychiatric Association Meeting in Boston, Mass., available at the office of the American Journal of Law and Medicine). In. addition, the New York State Medical Society has adopted a set of professional guidelines which delineate criteria for determining the acceptability of medical experts in criminal and civil cases. See Am. Med. News, June 15, 1979, 6, col. 3.

74 Hammes, The Control of Medical Testimony—The Minnesota Experiment, 28 Minn. Med. 11l (1945)Google Scholar.

75 See Myers, supra note 46, at 561.

76 In the first sixteen years, the committee investigated thirty-four cases, censured witnesses in seventeen, and referred ten to the board of examiners which disciplined one of those ten. See Myers, supra note 46, at 561. Myers notes that by the time of his article^ the plan apparently had fallen into disuse, with few if any cases being reported after the initial flurry. This fact, of course, could be attributed to the success of the plan as easily as to its failure. Myers appears to assign the disuse of the plan to its failure.

77 Given the present state of animosity and tension between the professions, much of it due to the adversary process, any movement toward this goal is desirable. See Ass'N of the Bar of the City of New York, supra note 37, at 5; Twardy & Siomopoulos, supra note 30, at 188-89.

78 The threat of delicensure is most successful where it can be carried out readily. To facilitate delicensure proceedings, regulations such as 243 Code of Mass. Reg.: Board of Registration and Discipline in Medicine, 1:103 (1979), should be expanded to allow for a delicensure hearing to be held when physicians proffer inaccurate or biased testi mony.

79 Intraprofessional embarrassment is a deterrant only to the extent that it has an impact on the number of referrals received by a psychiatrist from his or her colleagues.

80 Self-policing methods have not proved to be effective in achieving the desired goals. For example Professional Standard Review Organizations (PSROs), and other government initiated self-policing programs have not been successful. See Seidenberg, , PSROs of the Second Kind, 6:6 Legal Aspects of Med. Practice 12 (1978)Google Scholar.

81 See note 51 supra.

82 82 Some commentators have suggested that a conspiracy of silence exists. They per ceive this to be a perplexing and recurring problem. W. PROSSER, supra note 34, at § 39. See also Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687 (1944); Cline v. Lund, 11 Cal. 3d 643, 107 Cal. Rptr. 629 (1973) (the physicians would be jointly liable unless they testified against one another to enable the jury to identify which physician was negli gent).

83 These problems stem from the fact that inaccurate or unbiased testimony is very hard to identify from a record. By the time the record is reviewed, the psychiatrist who testified at trial is unlikely to recall the details of the psychiatric examination of the patient. Therefore, the medical society would be unable to obtain the answers to questions not asked by the attorneys at trial. See note 36 supra and accompanying text.

84 Mistrial is not a useful solution because this plan utilizes medical society censure, not legal sanctions.

85 Ass'N of the Bar of the City of New York, supra note 37, at 7. See also Federal Local Court Rule N.D. 111. R.20 (1976); Federal Local Court Rule E.D. Pa. R.27 (1974).

86 Id

87 If the parties were not permitted to prove that a court appointed expert was incompetent or not independent in an individual case, the fear that the independent expert was usurping the function of the jurors would be a reality. See note 90 infra and accompanying text. Leaving the ultimate decision with the jury, however, does not reach the level of usurpation.

88 See, e.g., Berry, , Impartial Medical Testimony, 35 Okla. B.J. 561 (1964)Google Scholar; Botein, , Impartial Medical Testimony, 328 Annals 75 (1960)Google Scholar; Lambert, , Impartial Medical Testi mony: A New Audit, 20 N.A.C.C.A. L.J. 25 (1957)Google Scholar; Levy, Impartial Medical Testimony— Revisited, 34 Temp . L.Q. 416 (1961)Google Scholar.

89 This criticism only embraces those cases in which differing theories can make a significant difference on the conclusion drawn by the expert. These cases are not common in psychiatry, for although theories differ as to the cause or cure of a mental or emotional aberration, psychiatrists of all theories are generally able to diagnose the existence of an abberation, which is the usual function of the psychiatrist in court See, e.g., Am. Psychiatric Ass'N, The Diagnostic and Statistical Manual of Mental Disorders (3d. ed. 1980) (DSM-III) (defining and describing the various mental disorders). But see Spitzer, Williams, & Skodol, DSM-III: The Major Achievements and an Overview, 137 AM. J. PSYCH. 151, 152 (1980) (debates within the DSM-III editorial staff led to divisions over inclusion of certain "fringe" disorders such as "melancholia" and "ego-dystonic homo sexuality").

90 Levy, supra note 88, at 424-29.

91 An example of how neutral experts are capable and willing to expose genuine uncertainties and debates within a professional discipline, while maintaining their own views can be found in Ross v. Marx, 24 N.J. Super. 25, 27, 93 A.2d 597, 598 (1952) (court appointed expert discussing flaws and ambiguities in the blood-typing procedure he supported).

92 See note 89 supra.

93 Myers, supra note 46, at 589. Myers points out that, in fact, juries have not always believed the neutral expert's opinion, but have been willing to decide against him or her. This shows that the claim that court-appointed psychiatrists would exert undue influence over the decisions of juries is invalid.

94 Ass'N of the Bar of the City of New York, supra note 37, at 32.

95 See Griffen, , Impartial Medical Testimony: A Trial Lawyer in Favor, 34 Temp . L. Q. 402, 412 (1961)Google Scholar. As previously discussed, it is difficult to impeach successfully expert psy chiatric witnesses on the basis of collateral issues such as competency. See notes 33-34 supra and accompanying text. However, parties certainly will attempt to impeach these witnesses. These attempts to impeach, even if unsuccessful, may divert the trier of fact from the real issues.

96 This slight predisposition is similar to a "permissive presumption" or "inference." State v. Corby, 28 N.J. 106, 114, 145 A.2d 289, 293 (1958). Inferences are found throughout the law and are, essentially, jurors' prerogatives. In this case, since there is an underlying premise that court-appointed psychiatrists are competent, it is certainly permissible to allow a jury the liberty to be predisposed toward that expert's opinion rather than the opinion of an unknown and adversary psychiatrist. The adverse party, however, is none theless allowed to overcome that inference by force of his or her reasoning.

97 See generally Ass'N of the Bar of the City of New York, supra note 37, at 3-9. The Bar Association also points out that many competent doctors refuse to testify as adversaries, because of the collateral issues which arise during cross-examination. This can only result in weaker testimony overall, and lead to less reliable decisions. The effects of the refusal of many competent psychiatrists to testify as adversaries would be minimized if the legal system provided a well qualified group of psychiatrists whose competence was not seriously open to question.

98 See note 87 supra.

99 Botein, , The New York Medical Expert Testimony Project, 33 U. Det. L.J. 388 (1956)Google Scholar; Niles, Impartial Medical Testimony, 45 III . B.J. 282 (1957).

100 The qualification should be done by some strict standard set up by the medical society. See notes 73, 85 supra.

101 See note 51 supra.

102 Possible legal sanctions include fines, probation, and delicensure. See, e.g., the Massachusetts provisions for sanctioning medical personnel, 243 Code o• Mass. Reg.: Board of Registration Discipline in Medicine, 105:(6)(2).

103 E.g., Workman's Compensation Law, Utah Code Ann. § 35-1-77 (Supp. 1979).

104 Even if court-appointed experts are mandatory in certain cases, they need not be so for all cases. Each jurisdiction should exercise its own discretion in making these determinations. There are a few reasons for limiting the scope of cases covered by this plan. Cost is one factor. If a jurisdiction cannot afford independent psychiatrists in all cases, it might consider utilizing them in the most abused areas. Another reason would be scarcity of psychiatrists. If court-appointed psychiatrists are used in all cases requiring psychiatric expertise, psychiatrists' ability to practice psychiatry may be hindered by their extensive legal duties. Nonetheless, the existence of a pool of experts, from which independent psychiatrists could be drawn, would increase voluntary use o• independent experts, because it would alleviate the difficulties inherent in finding an acceptable witness.

105 E.g., Baltimore Sup. Ct. Gen. R. Prac. R. 5-1 (1959).

106 Judges currently have this power. See D. MCCORMICK, supra note 22, at §§ 8, 17. See also FED. R. EVID. 706. Judges have a general power to call witnesses in a majority, if not all, of the jurisdictions.

107 Plans which called for implementation by the request of the parties were seldom used. On the other hand, those that provided for implementation on the request of the judge were more frequently employed. See Myers, supra note 46, at 566-76.

The experience of the Cleveland courts here is instructive. Cleveland provided for experts only upon the agreement of the parties, and did not allow juries to be told that the experts were independent. The plan proved. to be cumbersome and fell into disuse. It is uncertain whether the awkwardness stemmed from one factor or the other, or from the combination of the two. Both provisions probably contributed to the feeling by parties that the plan was not helpful, and not worth the expense or risk involved. See Cuyohoga County Ct. Civ. Prac. 21(A) & (B). See also Myers, supra note 46, at 575.