How do you know when an expert witness is getting ready to testify? By the bonfire in his backyard! Upon his conviction for Watergate-related activities, John Ehrlichman, Richard Nixon’s Domestic Policy Advisor, famously said, “As a matter of historical perspective, you can make a pretty good argument that a bonfire on the South Lawn wouldn’t have been a bad idea.”1 One relatively recent appellate level decision seems to carry a similar message to forensic custody evaluators.

A Paragon of Terseness

The Court of Appeals has unequivocally recognized that the “integrity of our judicial system depends on the ability of litigants to locate and identify relevant proof without fear that the truth-seeking process will be thwarted by spoliation of evidence.”2 Notwithstanding this straightforward condemnation of evidentiary destruction, the Appellate Division, Second Department, in O’Loughlin v. Sweetland,3 affirmed a lower court decision that refused to impose any type of sanction upon a forensic custody evaluator who destroyed audiotapes of interviews she conducted in the course of her evaluation. For those who still believe in due process, decisions of this sort send one screaming into the night.

In dismissing the mother’s concerns about the fact that the evaluator had destroyed tapes,4 the Appellate Division was terse if not downright cavalier. The entirety of the court’s treatment of the issue follows:

The Family Court properly denied the mother’s motion to preclude the introduction into evidence of the report and testimony of a forensic evaluator, or, alternatively, for a negative inference to be drawn concerning the evaluator’s credibility, based upon the evaluator’s destruction of certain audiotapes of interviews she conducted in the course of her evaluation. The record does not support the mother’s contention that the missing audiotapes denied her the ability to effectively cross-examine the forensic evaluator (see generally Kesseler v. Kesseler, 10 N.Y.2d 445).5

The most obvious question the above-quoted nugget of intellectualism evokes is how, exactly, could the mother have demonstrated the potential impact on cross-examination of evidence that the evaluator placed beyond the reach of judicial scrutiny by destroying it?

The court’s citation to the 1962 decision of the Court of Appeals in Kesseler is as puzzling as the O’Loughlin result is troubling. Kesseler did not concern the destruction of evidence. It did, however, have something to say about transparency and due process. It addressed the question of whether a court could properly consider written reports of a psychiatrist and a psychologist without disclosing them to the parties. The Court of Appeals held that in the absence of express stipulation by the parties such a procedure fell short of what is “required by due process.”6

All parties to the controversy have a right to present competent evidence in open court. When the court, in the absence of any stipulation, and in the face of timely objection, makes an independent investigation concerning child custody, it commits error.7

The Kesseler court delineated the correct approach to court-appointed forensic investigations that should be used to ensure due process:

In such case the psychologists, psychiatrists or other medical personnel could not report to the court in the absence of stipulation by the parties but would be available to be called as witnesses by either party subject to cross-examination by the other party under common law evidence rules.8

Clearly, the half-century since Kesseler has not been kind to the once venerated concept of due process. Modern practice sees forensic reports being sent directly to the court and then made available to the attorneys on such terms as each individual judge deems fit, sometimes with Draconian restrictions imposed as to the use that may be made of them.9 In any event, to whatever extent one might extrapolate Kesseler and apply it to the spoliation issue, Kesseler must be read to militate against the result reached by the Appellate Division in O’Loughlin.

Perverse Logic of ‘O’Loughlin’

There is logic, albeit perverse logic, to the result reached by the Appellate Division in O’Loughlin when one considers its more recent decision in Suk Cho Kim v. Eun Jung Kim.10 In the latter case, the court blithely affirmed the denial of a litigant’s motion for a direction that the court-appointed evaluator disclose his or her file. The entirety of the Appellate Division’s scholarly decision follows:

In an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Queens County (Jackman–Brown, J.), dated January 3, 2013, which denied his motion, in effect, to compel disclosure of all underlying data, empirical test results, records, and notes utilized by a court-appointed forensic evaluator in preparing a report dated October 6, 2011. ORDERED that the order is affirmed, with costs. Under the particular circumstances presented here, the plaintiff failed to establish his entitlement to the relief sought (see CPLR article 31).

Dazzling! It is as stunning as it is consistent with O’Loughlin. One ought not to be surprised that a court that fails to recognize the imperative of disclosure of the evaluator’s file to facilitate effective cross-examination would see no harm in the evaluator destroying the underlying file in whole or in part. What is the harm of destroying that which no one has the right to see?

As previously noted in this column, two highly experienced and respected matrimonial judges have made the connection between total transparency and due process explicit. Justice Jeffrey S. Sunshine, of Kings County has stated:

I have come to believe that due process requires that whatever materials are provided to or created by the forensic expert must be provided to all of the attorneys. There should be pre-trial disclosure of the expert’s file, including session notes and any other data that were before the expert in the course of the evaluation.11

Justice Ellen Gesmer, of New York County, likewise stated:

It is my view that every attorney in a hotly contested custody case should obtain a copy of the forensic’s entire file to use in cross-examination. Indeed, I don’t know how an attorney can cross-examine responsibly without them.…I regard this as an issue of fundamental fairness and due process of law.12

Likewise, the chief judge’s Matrimonial Commission in 2006 recommended full disclosure of all of the underlying data contained in the evaluator’s file upon demand.13

Forensic Community

The imperative of total transparency, meaning unfettered access to everything in the evaluator’s file, likewise has been recognized within the forensic community, as has the problem of destruction of the very type of evidence at issue in O’Loughlin. Nearly a decade ago, David A. Martindale, Ph.D., wrote:

The fact that creation of an audio-recorded or video-recorded record is not required does not in any way diminish the obligation to preserve the record if it has been made. The American Psychological Association’s Record Keeping Guidelines (citation omitted) instruct psychologists to maintain their records. The applicability of the admonition is not limited to records created in compliance with specific legal or ethical requirements. An evaluator cannot be effectively cross-examined if records that might form the basis of the cross-examination have been concealed or destroyed. Federal Rule of Evidence 705 reminds us that we may be ‘required to disclose the underlying facts or data on cross-examination’ if we have not done so previously.14

Even if the evaluator were to have the parents sign a consent to such evidentiary destruction, Martindale makes the point that such consent is irrelevant in the context of a forensic evaluation where the parties are effectively compelled to participate, thus yielding any purported “consent” inherently involuntary.15

Responding to an inquiry from this writer with respect to the O’Loughlin decision, Martindale expressed the following view:

In 2003, the American Psychological Association published a text the authors of which opined that the erasure of tapes made during evaluators’ interviews ‘prevents the opposing counsel from using contemporaneous material out of context during a later cross-examination at deposition or trial.’ Now, a decade later, a New York appellate court in O’Loughlin v. Sweetland, has found it acceptable for a trial court to admit into evidence the report and testimony of a forensic evaluator who has destroyed audiotapes of interviews the contents of which she presumably relied upon in formulating her opinions. There can be no innocent explanation for the intentional destruction of portions of one’s file. It is a self-serving act that makes effective cross-examination impossible and increases the likelihood that errors will go undetected. For the court to allow such spoliation to pass without negative sanction can only lead to more widespread transgressions as evaluators learn that they can conceal their errors simply by destroying the evidence of those errors.16

Similarly, Jeffrey P. Wittmann, Ph.D., expressed concern that the result in O’Loughlin will send out the message to the forensic community that it is permissible to hide their errors by the simple expedient of destroying those portions of their file that are not consistent with the conclusions expressed in their reports:

There are certain ethical or professional principles that are central to forensic work that have the purpose of insuring a reliable, transparent process. One of the most sacred is the importance of preserving a record of all aspects of the interaction with the litigants, attorneys, and the court, whether in the form of written, digital, audio, or video data. Because preservation of the full data-trail is so basic to the protection of the rights of parents and children to fully analyze the information that may be used to limit their rights or liberties, it often goes unspoken. Without such preservation of data, however, the public loses a critically important protection. It is to insure reasonable judicial scrutiny of the forensic work-product that the Specialty Guidelines for Forensic Psychology require that documentation of all data should be preserved, regardless of the medium on which it is stored. Allowing an evaluator to destroy selected portions of the file without incurring judicial sanction sends entirely the wrong message to the forensic community, namely, that it is permissible to put potentially critical data beyond the reach of judicial scrutiny.17

Conclusion

The deliberate destruction of evidence by an expert witness, particularly one operating under the umbrella of judicial appointment, is an act of incredible arrogance. Yet, until the judicial administration sees fit to promulgate uniform statewide rules that bring some semblance of order to the process by which forensic custody evaluations are conducted and managed by the courts, including a healthy and overdue dose of full disclosure, the task of ensuring propriety will continue to fall on the shoulders of individual judges.

For those judges who still respect the notion of due process, the spoliation issue can be addressed rather readily by inserting a boilerplate provision in all appointment orders requiring retention by evaluators of any and all data that they have created or that have been placed before them during the evaluation process and expressly prohibiting their return, disposition, or destruction without prior judicial permission at the conclusion of the case. Absent such judicial vigilance in this arena, travesties such as that which occurred in O’Loughlin will not only continue but, indeed, are likely to proliferate as word gets about that no negative consequences ensue. O’Loughlin sends the message that expert witnesses can conceal transgressions with a convenient pretrial bonfire. Unless that message is reversed, due process will be immolated in its flames.

Timothy M. Tippins is an adjunct professor at Albany Law School and serves on the faculty of the American Academy of Forensic Psychology.

Endnotes:

1. Gettysburg Times, 01-02-75, p.1, col. 2.

2. Ortega v. City of New York, 9 N.Y.3d 69, 876 N.E.2d 1189, 845 N.Y.S.2d 773 (2007).

3. O’Loughlin v. Sweetland, 98 A.D.3d 983, 951 N.Y.S.2d 160 (2d Dept. 2012).

4. One cannot tell from the decision whether the evaluator destroyed all of the interview recordings or just some of them. If only some were destroyed while others survived, that would be even more suspicious, much akin to the infamous 18-minute gap in the Watergate tapes.

5. The only authority cited by the court in support of this statement is Kesseler v. Kesseler, 10 N.Y.2d 445 (1962). Kesseler says nothing about the destruction of evidence.

6. Kesseler v. Kesseler, 10 N.Y.2d 445, 458 (1962).

7. Kesseler v. Kesseler, 10 N.Y.2d 445, 452 (1962).

8. Kesseler v. Kesseler, 10 N.Y.2d 445, 452 (1962).

9. Tippins, T.M., “Star Chamber Justice and the Desperate Need for Reform.” NYLJ, Sept. 5, 2013.

10. Suk Cho Kim v. Eun Jung Kim, 108 A.D.3d 760, 969 N.Y.S.2d 799 (2d Dept. 2013).

11. Tippins, T.M., “Star Chamber Justice and the Desperate Need for Reform.” NYLJ, Sept. 5, 2013; Tippins, T.M., “Due Process of Law or Dancing in the Dark?” NYLJ, Sept. 6, 2012.

12. Tippins, T.M., “Star Chamber Justice and the Desperate Need for Reform.” NYLJ, Sept. 5, 2013; Tippins, T.M., “Due Process of Law or Dancing in the Dark?” NYLJ, Sept. 6, 2012.

13. Matrimonial Commission: Report to the Chief Judge of the State of New York, Sondra Miller, Chairperson, February 2006, pp. 52-54.

14. Martindale, D.A., “Integrity and Transparency: A Commentary on Record-Keeping in Child Custody Evaluations. Journal of Child Custody: Research, Issues, and Practices, 1:1, 33-42, p. 36. (2004); It should be noted that FRE 705, referenced by Martindale, has its New York State analog in CPLR 4515 which provides, in pertinent part: “Upon cross-examination, he may be required to specify the data and other criteria supporting the opinion.”

15. Martindale, D.A., “Integrity and Transparency: A Commentary on Record-Keeping in Child Custody Evaluations. Journal of Child Custody: Research, Issues, and Practices, 1:1, 33-42, p. 36. (2004).

16. Martindale, D.A., Private Communication, Oct. 20, 2013; The APA publication referenced is Benjamin, G. A. H., and Gollan, J. K., Family Evaluation in Custody Litigation: Reducing Risks of Ethical Infractions and Malpractice. Washington, D.C.: American Psychological Association. (2003), p. 35.

17. Wittmann, J.P., Private Communication, 10-28-13.