The Hippocratic Oath cautions would-be healers to “First, do no harm!” Yet, over the centuries, medical and mental health professionals have, at times with the best of intentions, done enormous harm when they have acted on their unvalidated, subjective beliefs. A previous article in this column noted the epistemological anemia of expert opinions that are based upon clinical judgment, clinical insights, clinical intuition, and clinical experience. T.M. Tippins, “Does Clinical Experience Make One Wiser or Just Wizened?” NYLJ, Nov. 5, 2019. That article described a robust body of social science research, conducted over the span of many decades, that has convincingly demonstrated that the opinions of mental health professionals simply cannot be trusted when they are not supported by research-validated knowledge. The significance of that research extends beyond the ivy-covered walls of academia; it also has profound implications for the courtroom when purported experts come knocking. This article will explore those implications in a historical context and describe recently reported research suggesting that courts are being less than vigilant gatekeepers in the face of shoddy mental health testimony.

Witch-Hunters and Lobotomists

One of the earliest “diagnostic” manuals was the Malleus Maleficarum, first published in 1487. This intellectual gem provided detailed instruction for how to determine whether a suspect, most often a woman, should be classified, i.e., diagnosed, as a witch. Much akin to the American Psychiatric Association’s (ApA) Diagnostic and Statistical Manual (DSM), the Malleus is replete with criteria indicative of one’s necromantic status. It also posits an array of diagnostic tools (mostly torture techniques) to aid in ferreting out the dreaded witches. All the imparted wisdom was, of course, based on the authors’ “experience,” a word that was evidently deemed sufficiently impressive in days of yore without annexation of the turgid honorific, “clinical.” Behold its experiential grounding:

If he wishes to find out whether she is endowed with a witch’s power of preserving silence, let him take note whether she is able to shed tears when standing in his presence, or when being tortured. For we are taught both by the words of worthy men of old and by our own experience that this is a most certain sign, and it has been found that even if she be urged and exhorted by solemn conjurations to shed tears, if she be a witch she will not be able to weep … And it is found by experience that the more they are conjured the less they will be able to weep, however hard they may try to do so.