The Telepsychiatry Advantage: Episode 19

Can Forensic Psychiatry Really Be Done Over Video?

Understanding Forensic Psychiatry and Expert Witnesses

Welcome back to The Telepsychiatry Advantage. I’m your host, Dr. Edward Kaftarian. In today’s episode, we’re going to be talking about forensic psychiatry, specifically forensic telepsychiatry—how to do forensic psychiatry over video. Most of you know and understand somewhat what forensic psychiatry means. If you have no idea what forensic psychiatry means, then I’m wondering why you’re listening to this podcast! Maybe you just like the sound of my voice—I don’t know, but you’re welcome to.

For everybody, I’m going to be specific here in my explanation about what forensic psychiatry means. Forensic psychiatry is the intersection of psychiatry and the law. Whenever there’s a matter that comes to the court and there may be a mental health issue involved, we might need a forensic psychiatrist like me. I’m a forensic psychiatrist, so I serve as an expert witness.

I think it’s important to distinguish between an expert witness and a fact witness, because a lot of people get confused about that. Maybe some of you don’t even know that there was a difference, but there is. What is a fact witness? Let’s start with that.

Let’s say that there was a car accident and something horrible happened, and now the issue is in court. We’re going to need some fact witnesses: people on the street that saw the accident. What happened? This car turned that way, the other car turned this way, the accident happened. What was happening in the moment? How were people behaving behind the wheel? Fact witnesses report what happened because they saw it with their own eyes and ears. Fact witnesses can vary in their reliability, but a fact witness is somebody who reports what happened.

An expert witness—somebody like me, a forensic psychiatrist—gives an opinion as to why it happened, not just what happened. We interpret the “why” and give our opinion about what mental health factors were involved and how they affected the outcome.

Criminal vs. Civil Domains

Let’s differentiate between criminal and civil forensic psychiatry. Those are two very separate domains.

Criminal means a crime occurred or is alleged to have occurred, and somebody was charged with a crime. That would be the criminal side of things, where a psychiatrist may opine on the reason why the person is guilty or not guilty because of mental health reasons. For example, you’ve heard of “not guilty by reason of insanity.” That is a plea that somebody makes, though it’s actually pretty rare. When I was training in my forensic fellowship, I was told that an insanity plea occurs in about 1% of cases. Out of a hundred crimes committed, just one person will say that they were insane. And out of that, a very small percentage are actually found not guilty by reason of insanity, so it’s usually not a strategy that works.

How many of you out there immediately think of a case where someone pleaded not guilty by reason of insanity? Unless you’re living under a rock, you will know that the Lindsay Clancy case is happening in Massachusetts, where Lindsay Clancy is pleading not guilty by reason of insanity. The Massachusetts term is “lack of criminal responsibility,” but essentially it’s a similar thing where the defense has to show that a mental disease or defect caused a major impairment, they failed to appreciate the wrongfulness of the crime, and they failed to conform their conduct because of the mental health issue.

The Clancy trial is a good example of a forensic psychiatrist needing to testify and give their expert opinion on whether Lindsay Clancy’s postpartum depression and psychosis—if she had it, which would be a debate between psychiatrists—made her fail to appreciate her conduct and understand what was going on. One of the defense experts, Doctor Phillip Resnick, who is a world-famous forensic psychiatrist, I call my grandfather of forensics because he taught the professor who taught me. Shout out to Phil Resnick! He was retained by the defense as a forensic psychiatrist, and the prosecution has their own experts.

There are other issues that a forensic psychiatrist would opine on in a criminal trial:

• Malingering, which generally means that a defendant is exaggerating, fabricating, or feigning symptoms
• Violence risk assessment for people who may be considered dangerous
• Competency to stand trial, regarding whether a person is actually able to stand trial or if their mental illness makes it such that they can’t participate in their defense

What about a civil case? When would we testify there? This would be cases like disability, guardianship, civil commitment, or personal injury. These are civil cases where the person is not being charged with a crime, but rather the plaintiff is seeking damages for claims made.

The Advantages of Forensic Telepsychiatry

Now let’s talk about why telepsychiatry for forensic psychiatry. Why do forensic psychiatry over video?

If you have been paying attention to this podcast, there are a lot of advantages to telepsychiatry, and a lot of those apply to forensics. If you want the expertise of a psychiatrist in a clinical case, you don’t have to have that psychiatrist physically located in the same place as the patient. The same goes for forensic psychiatry: you don’t need the forensic psychiatrist to be in the same location as the subject being evaluated, whether it’s a criminal case or a civil case. In some cases, the subject is deceased, so the forensic psychiatrist gives an opinion without evaluating the person directly.

It’s a lot easier to provide an opinion via video rather than having to fly on a plane across the country to testify in court. It’s not just about testifying; it’s also about evaluating a subject, or doing a deposition where expert opinion is given ahead of the trial. All of these things can be done via video remotely, as well as asynchronously when writing reports.

It gives attorneys—defense attorneys, plaintiffs, or prosecuting attorneys—faster access to qualified psychiatrists like me. I’m a qualified forensic psychiatrist, and not all of my cases are in California. I don’t necessarily fly to another state to testify. Geographic barriers become much less important when you have access to remote experts.

Rural and underserved jurisdictions can be especially challenged in finding expert witnesses. Doctors who specialize in psychiatry and sub-specialize in forensic psychiatry are rare. If somebody in rural Arkansas wants to find a forensic psychiatrist, good luck! Forensic telepsychiatry gives access to jurisdictions that lack an in-person expert.

Other important advantages:

• Lower Security Burden: When evaluating an incarcerated individual, you don’t have to pull the person out of a jail or prison, avoiding complex coordination, security risks, and delays.
• Scheduling Flexibility: Expert witnesses are busy people, so fitting us in via video is much easier than fitting us in in person.
• Cost Efficiency: Flying an expert across the country costs money. It’s more cost-efficient to testify, be deposed, and complete evaluations remotely.

And for me, I can wear a suit jacket with a tie and wear shorts where you can’t see! That’s a personal advantage, but really it’s everyone’s advantage—that’s why we call it The Telepsychiatry Advantage.

Legal Standards and Evaluation Quality

Is it a different legal standard over video? Just like clinical care, it is generally the same standard.

There are rules of evidence and a voir dire—a preliminary examination by a judge or opposing counsel to determine whether the witness is qualified to testify as an expert based on education, training, experience, and knowledge. For those who have done forensic fellowships, remember the Daubert standard? The Daubert standard basically requires that the expert’s testimony be relevant and reliable.

That standard doesn’t change just because it’s a telepsychiatry-involved forensic witness. Video is simply the delivery mechanism. We don’t lower the standard simply because the testimony or care is delivered remotely. Quality and reliability are very important.

Is a video forensic evaluation as good as being there in person? A lot can be readily observed and obtained in a video encounter. You can observe the subject’s appearance, behavior, speech, affect, thought process—essentially the entire mental status examination.

Just like in clinical evaluations, the environment is important. You want to make sure no one else is present in the room who shouldn’t be. In a criminal or civil case, a subject might fabricate or feign symptoms for secondary gain, or someone in the room might be coaching them on what to say. You want to ensure no one is coaching them, listening in, or providing unauthorized notes.

Detecting Malingering and Handling Tech Issues

How do you assess somebody for malingering remotely? Most of the ways you would do it in person:

• Ask detailed questions about their symptoms.
• Look for internal inconsistencies where their statements contradict their behavior.
• Explore the chronology of symptoms, looking for improbable or atypical symptom descriptions.
• Review collateral information, such as medical records, jail records, prior psychiatric evaluations, and reports from friends and family.

(Note: In forensic evaluations, the person being evaluated is a “subject,” not a “patient,” because your goal is to provide an opinion to the court rather than treat the individual.)

What happens if there’s a technology failure during a forensic evaluation? An interruption in audio or video can disrupt the flow, cause you to miss facial expressions or statements, and potentially affect the quality of your opinion. Opposing counsel might claim in court that the evaluation’s quality was poor due to technical disruptions and move to have your opinion discarded.

• Documentation Pro Tip: Explicitly write in your forensic report that the quality of the video and audio was clear enough to obtain a quality mental status examination and conversation with the subject.
• Proactive Management: Tell the subject at the beginning of the interview to speak up immediately if they have trouble hearing or seeing you. If an interruption occurs, document how long it lasted, where it occurred, whether information was lost, and whether re-established audio/video provided sufficient information to form a solid opinion.

Virtual forensic evaluations are legally accepted across many jurisdictions, but the court and judge ultimately hold discretion. Guidance from organizations like the American Academy of Psychiatry and the Law states that the relevant question is not whether the evaluation happened through video, but whether it was conducted competently using appropriate methodology, with adequate safeguards and recognition of limitations.

In-Person vs. Virtual Testimony

When is it helpful to testify in person versus via telepsychiatry?

Depositions can easily and effectively be done via telepsychiatry. They are convenient, cost-effective, and work extremely well remotely.

Testifying in front of a jury at trial is slightly more nuanced. While video testimony can be done effectively, in-person testimony offers a few potential advantages:

• Jury Connection and Eye Contact: Connecting with individual jurors through direct eye contact helps establish credibility. Over a video feed in a courtroom, you cannot easily make eye contact with individual jurors.
• Perception and Stigma: Some judges or jurors might assume that testifying remotely means you didn’t care enough to travel for the case. Being there in person removes that doubt in high-stakes situations.
• Reading the Room: In person, it’s easier to pick up on the microexpressions of jury members—such as subtle nods or confused looks—and adapt your explanations accordingly. Video feeds showing the full courtroom rarely capture those details clearly.
• Cross-Examination and Comfort: Courtroom dynamics depend on personal comfort. Some experts thrive in the courtroom environment, while those with stage fright or anxiety may perform much better testifying from home over video.

In high-stakes cases—like murder or death penalty trials—some argue it’s better to be there in person, though high-stakes cases can still be conducted effectively via video. Remote testimony allows expert time to be used efficiently to meet high demand across multiple jurisdictions.

Key Takeaways for Forensic Telepsychiatrists

When testifying over video, present yourself professionally:

• Wear professional attire (suit and tie or equivalent formal attire).
• Ensure bright, front-facing lighting without washing out your face.
• Maintain a clean, professional background. Remove personal items, pop culture items, or anything distracting to a jury.

What makes a great forensic telepsychiatrist?

• Strong forensic methodology rooted in facts and logical reasoning
• A clear understanding of the legal question
• Strong interviewing and clinical/forensic knowledge
• Excellent report writing and spoken communication skills

Forensic work can be performed remotely at a very high standard. Ensuring your testimony is relevant, reliable, and professionally presented allows telepsychiatry to deliver essential expertise to the courts effectively.

Thank you so much for joining us. Until next time, keep raising the standard.

 

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