Tips for Testifying Lesson 5: Lay Testimony, Expert Testimony, and the Mental Health Professional

Our series of Tips for Testifying in Legal Proceedings continues!  In Lesson 4, we explored the courtroom procedure of direct and cross examination.  Lesson 5 is a little more specific, focusing on when a mental health professional is allowed to give their opinion on the facts while testifying.

Lesson 5: Lay Testimony, Expert Testimony, and the Mental Health Professional

Generally speaking, the law of evidence in both civil and criminal cases confines the testimony of witnesses to statements of concrete facts within their own observation, knowledge, and recollection. That means that witness testimony must normally state direct, observable first-hand facts perceived by the witnesses' use of their own senses, and are not permitted to give testimony on their opinions, inferences, impressions, and conclusions drawn from the facts.

Lay Witnesses and Expert Witnesses

A witness is any person who testifies under oath in a trial or a deposition in a lawsuit. Those who testify in court essentially fall into two categories: expert witnesses and lay witnesses. By definition, a lay witness is any witness who is not qualified to testify as an expert on a particular subject. Unlike an expert witness, a lay witness does not testify based on any education and a lay witness' opinion must not be based on knowledge outside the understanding of the ordinary person.  Generally speaking, a mental health professional, such as a counselor or a therapist, will be testifying as a lay witness, and will only be able to state the facts, not his or her opinions about or conclusions from those facts.

When Lay Witnesses Can Give Opinion Evidence

In certain instances, however, the law allows lay witnesses to provide their opinions on the stand. A lay witness may testify in the form of opinion if the opinion is rationally based on the perception of the witness, and is helpful in understanding his or her testimony or in determining a fact. Lay witness opinion is admissible so long as it would be helpful to the fact finder (the judge or jury) and is rationally based on personal perception.This rule recognizes that a lay witness' opinion can be more helpful at times than the raw data on which the opinion is based. An opinion is often a convenient shorthand device. For example, testimony that a person was "excited" or "angry" is more evocative and understandable than a long, physical description of the person's outward manifestations. Additionally, lay witnesses who have had an opportunity to observe a particular vehicle in motion are normally permitted to testify that it was traveling at a great rate of speed or that it was going pretty fast. Lay witnesses are also normally allowed to give their opinion as to the height, weight, quantity, and dimensions of things, even if their testimony is not precise.

The Role of Mental Health Providers

Most mental health providers provide counseling services to individuals and families in their role as a therapist. This treatment is provided without expecting or intending to testify in court, because the therapist's primary goal is to serve in a help role, assisting those with whom he or she is working with their personal and interpersonal functioning. This generally involves assessment of current functioning, individual and/or family psychotherapy, and other interventions targeted at helping to resolve the issues that clients bring to therapeutic sessions. Professional ethical requirements are unequivocal that mental health providers shall not have any other relationship with their clients other than in their role as a professional counselor. This means that therapists are not ordinarily hired to perform a forensic evaluation (such as a custody evaluation, social study, or other court–related assessment), and cannot, therefore, volunteer to the court their recommendations regarding issues of child custody or other such legal questions.A mental health provider's role in the courtroom -- whether they are there at the patient's request or under order of the court -- is to provide information regarding client progress in counseling and other information related directly to your sessions with the client or his or her family. As such, a therapist or counselor should not provide expert testimony unless hired specifically in the capacity as a forensic expert in a case. Accordingly, never provide any opinion or recommendation on an ultimate issue in a case unless specifically ordered to do so at the commencement of a case.Next time, we'll go further into this topic, looking at when witnesses can provide expert testimony, and what limitations apply.

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