Forensic Custody Reports

Cross-examination is a fundamental right and a key component of due process. Implicit in the right to cross-examine is the opportunity to do so effectively. Unfortunately, idiosyncratic practices by some judges with respect to disclosure of custody evaluation reports and the records underlying them often thwart the exercise of this most important right. Despite the official call for reform by the Matrimonial Commission, archaic limitations on access reminiscent of Star Chamber protocols continue to obstruct the disclosure essential to effective cross-examination.

A Core Value

Wigmore long ago declared that cross-examination is “the greatest legal engine ever invented for the discovery of truth.” Wigmore, 5 Evidence ' 1367 (3rd Ed. 1940). Current commentators underscore its status as a fundamental right: “Cross-examination is considered so fundamental to the adversary system of trial that it has assumed the status of a right.” Glass v. Philadelphia Elec. Co., 34 F.3d 188 (3rd Cir. 1994); Degelos v. Fidelity & Cas. Co. of New York, 313 F.2d 809 (5th Cir. 1963).

The U.S. Supreme Court has recognized that the right of cross-examination is “essential to due process.” Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038 (1973) It represents such a core value of the adversarial system that it is the conceptual cornerstone of the rule against hearsay. As the U.S. Supreme Court has stated:

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354 (2004).

While the right of cross-examination has a special constitutional edge in criminal cases due to the Sixth Amendment's Confrontation Clause, the courts in New York have long recognized that there is a fundamental right to cross-examine in civil litigation as well. In Barnes v. City of New York, 44 A.D.3d 39, 840 N.Y.S.2d 582 (1st Dept. 2007), an action for money damages, the court stated: “By avoiding his obligation to testify at a trial in which he was seeking millions of dollars, plaintiff was able to frustrate the City's fundamental common-law right to cross-examine a witness.”

New York's highest court, the Court of Appeals, in Matter of Friedel v. Board of Regents, 296 N.Y. 347, 73 N.E.2d 545 (1947), a medical license suspension case, stated pointedly: “Cross-examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact.”

More recently, the Court of Appeals has embraced the view that “the best guarantee of due process ' would be the opportunity for cross-examination.” People v. Marte, 12 N.Y.3d 583, 589, 912 N.E.2d 37 (2009).

Forensic Custody Reports

When the “tender years” presumption was wrenched away on constitutional grounds, custody judges were left at sea to figure out what the indeterminate concept of “best interest of the child” means and how it should be applied. Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973). Neither the statute nor the behavioral science research provides an operational definition of this value-laden model. Over time, the courts increasingly have turned to the discipline of psychology for assistance in implementing this most subjective of concepts by appointing a mental health professional to perform a forensic evaluation.

The most frequently cited authority for such appointments is the seminal decision in Kesseler v. Kesseler, 10 N.Y.2d 445, 180 N.E.2d 402, 225 N.Y.S.2d 1 (1962). In stating the court's authority to appoint a forensic evaluator, Kesseler was quite specific in prescribing the procedure to be used in handling the resulting report: “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.”

Thus, Kesseler made clear that the attorneys would be the first to receive the report. The court would never see it unless one of the two parties presented the expert as a witness subject to all of the common law evidentiary safeguards, not the least of which is cross-examination by the opposing party.

Kesseler stands as perfectly good law. The court has never repudiated its decision and the commitment to due process it embraces. (In Lincoln v. Lincoln, 24 N.Y.2d 270, 247 N.E.2d 659 (1969) the court actually underscored the importance of its holding in Kesseler.) Yet, its procedural prescription has been turned on its head in recent years. Now, it is the court that routinely receives the report first, not the attorneys. Most judges make a copy of the report readily available to the attorneys in the case, often with a proviso that the attorneys not disseminate copies to the client or others outside the litigation team.

Other judges have implemented restrictive practices that can be described only as byzantine if not bizarre. They refuse to release copies of the report to the attorneys, instead insisting that the attorney must come to the courthouse to read the report. Some even proscribe verbatim notes. For the reasons discussed below, this Star Chamber approach seriously impedes the attorney's ability to prepare for cross-examination and deprives the adversely impacted party of the fundamental right to cross-examine effectively.

Why It Matters

It is impossible to prepare effectively for cross-examination of the forensic expert without full and unfettered access to the report and every scrap of data underlying it. Depending upon the facts of the case, the complexity of the issues, and the diligence of the evaluator, the report can range from 50 to 100 pages in length. Longer reports are not uncommon. Nevertheless, irrespective of length, proper preparation requires line-by-line, word-by-word analysis. Minimally, this requires scores of hours. Preparation time exceeding 100 hours is not unusual.

The attorney must painstakingly deconstruct the report to distinguish between accurate and inaccurate data and valid and invalid conclusions drawn from the data. Because it is the client's life that is the subject matter, he or she is uniquely positioned to spot factual errors and, accordingly, must have full access to the report. Only the client can inform the attorney of inaccurate recording of his or her responses to the evaluator. Only the client can inform the attorney of the context of adverse information reported by the opposing party or by third-party collateral sources. Only the client can inform the attorney as to whether he or she was given the opportunity to respond to adverse information provided by others.

The attorney needs to analyze the report to determine the presence of bias or non sequiturs. He or she needs to examine each and every inference or conclusion and measure those against the behavioral science research to determine whether a reliable and valid basis exists for those conclusions. This often requires reading the report 20 or 30 times. It is a process of dissection that entails reading sections of the report, then going to the books; reading a bit more and back to the books. The attorney must repeatedly obtain input from his or her own forensic mental health consultant where that resource is available.

A comprehensive literature search must be undertaken to find contradictory insights and contrary research data that might be used to impeach the expert. None of this can be done on the fly. None of this can be done after a cursory read-through on the basis of paraphrased notes. Every single word and nuance in the report is potentially vital.

Matrimonial Commission

In February 2006, after months of public hearings and consideration of the issue of disclosure of reports and underlying data, New York's Chief Judge's Matrimonial Commission made specific recommendations for reform. Included among them was the following:

Access to reports should be made uniform. Copies of the reports should be given to counsel for the parties and the attorney for the child, with the express instruction that no additional copies be made or disseminated without court permission. Clients can review the report at the attorney's office. If a litigant is self-represented, a separate copy of the report should be maintained at the courthouse for use by that litigant to review and make confidential notes. The litigant would not be permitted to remove this copy from the courthouse.

New York State Matrimonial Commission: Report To The Chief Judge Of The State Of New York (February 2006) p. 54.

Beyond uniform disclosure of the report itself, the Commission resolved the issue of disclosure of the underlying raw data that attorneys must have to prepare their case properly:

The forensic report should be open to all of the trial procedures which allow a litigant and his or her counsel to test the underlying basis for the report. In that regard, all underlying notes and test data, including raw test material, should be made available in discovery to counsel for the litigants, attorney for the child(ren), or a professional designated by counsel to review the material. Upon presentation of the forensic's report to the court and counsel, either party, or attorney for the child(ren), should be permitted to serve a notice, pursuant to Article 31 of the CPLR (Civil Practice Law & Rules), on the forensic expert to produce the underlying notes and test data. The forensic expert should comply with the notice subject to an application to the court by either party or attorney for the child(ren) to limit or otherwise condition the disclosure.

For reasons best known to God and the bureaucrats in command, these important recommendations have yet to find their way into official court rules. However, the courts need not and should not await such administrative action to embrace these crucial common-sense recommendations. This is hardly rocket science. Appreciating the need for full and unfettered access to these materials to prepare for trial is a state of cognitive evolution roughly equivalent to the sprouting of opposable thumbs.

Conclusion

In New York, the courts have decreed that the rules of evidence are “the palladium of the judicial process” and that infringement upon them “destroys the vitality of that judicial process.” Wagman v. Bradshaw, 292 A.D.2d 84, 90, 739 N.Y.S.2d 421 (2d Dept. 2002). They also have declared that evidence doctrine cannot properly be suspended or attenuated simply because the case at hand concerns domestic relations issues. “A trial before a court without a jury in the Family Court does not provide a license to dilute the rules of evidence.” Mtr. of Charles B., 83 A.D.2d 575, 441 N.Y.S.2d 132 (2d Dept. 1981). If such laudatory proclamations are to be more than empty shibboleths, the courts must recommit to due process. Unquestionably, the path of due process can be a tiresome trudge but it is the arduous corridor chosen by the Founders as the only certain course to systemic integrity and the liberty it secures. Shortcuts, detours and roadblocks lead only to other places ' none of them good.

Cross-examination is a fundamental right and a key component of due process. Implicit in the right to cross-examine is the opportunity to do so effectively. Unfortunately, idiosyncratic practices by some judges with respect to disclosure of custody evaluation reports and the records underlying them often thwart the exercise of this most important right. Despite the official call for reform by the Matrimonial Commission, archaic limitations on access reminiscent of Star Chamber protocols continue to obstruct the disclosure essential to effective cross-examination.

A Core Value

Wigmore long ago declared that cross-examination is “the greatest legal engine ever invented for the discovery of truth.” Wigmore, 5 Evidence ' 1367 (3rd Ed. 1940). Current commentators underscore its status as a fundamental right: “Cross-examination is considered so fundamental to the adversary system of trial that it has assumed the status of a right.” Glass v. Philadelphia Elec. Co. , 34 F.3d 188 (3rd Cir. 1994); Degelos v. Fidelity & Cas. Co. of New York , 313 F.2d 809 (5th Cir. 1963).

The U.S. Supreme Court has recognized that the right of cross-examination is “essential to due process.” Chambers v. Mississippi , 410 U.S. 284, 294, 93 S.Ct. 1038 (1973) It represents such a core value of the adversarial system that it is the conceptual cornerstone of the rule against hearsay. As the U.S. Supreme Court has stated:

Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.

Crawford v. Washington , 541 U.S. 36, 61, 124 S.Ct. 1354 (2004).

While the right of cross-examination has a special constitutional edge in criminal cases due to the Sixth Amendment's Confrontation Clause, the courts in New York have long recognized that there is a fundamental right to cross-examine in civil litigation as well. In Barnes v. City of New York , 44 A.D.3d 39, 840 N.Y.S.2d 582 (1st Dept. 2007), an action for money damages, the court stated: “By avoiding his obligation to testify at a trial in which he was seeking millions of dollars, plaintiff was able to frustrate the City's fundamental common-law right to cross-examine a witness.”

New York's highest court, the Court of Appeals, in Matter of Friedel v. Board of Regents , 296 N.Y. 347, 73 N.E.2d 545 (1947), a medical license suspension case, stated pointedly: “Cross-examination of adverse witnesses is a matter of right in every trial of a disputed issue of fact.”

More recently, the Court of Appeals has embraced the view that “the best guarantee of due process ' would be the opportunity for cross-examination.” People v. Marte , 12 N.Y.3d 583, 589, 912 N.E.2d 37 (2009).

Forensic Custody Reports

When the “tender years” presumption was wrenched away on constitutional grounds, custody judges were left at sea to figure out what the indeterminate concept of “best interest of the child” means and how it should be applied. Frontiero v. Richardson , 411 U.S. 677, 93 S.Ct. 1764 (1973). Neither the statute nor the behavioral science research provides an operational definition of this value-laden model. Over time, the courts increasingly have turned to the discipline of psychology for assistance in implementing this most subjective of concepts by appointing a mental health professional to perform a forensic evaluation.

The most frequently cited authority for such appointments is the seminal decision in Kesseler v. Kesseler , 10 N.Y.2d 445, 180 N.E.2d 402, 225 N.Y.S.2d 1 (1962). In stating the court's authority to appoint a forensic evaluator, Kesseler was quite specific in prescribing the procedure to be used in handling the resulting report: “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.”

Thus, Kesseler made clear that the attorneys would be the first to receive the report. The court would never see it unless one of the two parties presented the expert as a witness subject to all of the common law evidentiary safeguards, not the least of which is cross-examination by the opposing party.

Kesseler stands as perfectly good law. The court has never repudiated its decision and the commitment to due process it embraces. (In Lincoln v. Lincoln , 24 N.Y.2d 270, 247 N.E.2d 659 (1969) the court actually underscored the importance of its holding in Kesseler .) Yet, its procedural prescription has been turned on its head in recent years. Now, it is the court that routinely receives the report first, not the attorneys. Most judges make a copy of the report readily available to the attorneys in the case, often with a proviso that the attorneys not disseminate copies to the client or others outside the litigation team.

Other judges have implemented restrictive practices that can be described only as byzantine if not bizarre. They refuse to release copies of the report to the attorneys, instead insisting that the attorney must come to the courthouse to read the report. Some even proscribe verbatim notes. For the reasons discussed below, this Star Chamber approach seriously impedes the attorney's ability to prepare for cross-examination and deprives the adversely impacted party of the fundamental right to cross-examine effectively.

Why It Matters

It is impossible to prepare effectively for cross-examination of the forensic expert without full and unfettered access to the report and every scrap of data underlying it. Depending upon the facts of the case, the complexity of the issues, and the diligence of the evaluator, the report can range from 50 to 100 pages in length. Longer reports are not uncommon. Nevertheless, irrespective of length, proper preparation requires line-by-line, word-by-word analysis. Minimally, this requires scores of hours. Preparation time exceeding 100 hours is not unusual.

The attorney must painstakingly deconstruct the report to distinguish between accurate and inaccurate data and valid and invalid conclusions drawn from the data. Because it is the client's life that is the subject matter, he or she is uniquely positioned to spot factual errors and, accordingly, must have full access to the report. Only the client can inform the attorney of inaccurate recording of his or her responses to the evaluator. Only the client can inform the attorney of the context of adverse information reported by the opposing party or by third-party collateral sources. Only the client can inform the attorney as to whether he or she was given the opportunity to respond to adverse information provided by others.

The attorney needs to analyze the report to determine the presence of bias or non sequiturs. He or she needs to examine each and every inference or conclusion and measure those against the behavioral science research to determine whether a reliable and valid basis exists for those conclusions. This often requires reading the report 20 or 30 times. It is a process of dissection that entails reading sections of the report, then going to the books; reading a bit more and back to the books. The attorney must repeatedly obtain input from his or her own forensic mental health consultant where that resource is available.

A comprehensive literature search must be undertaken to find contradictory insights and contrary research data that might be used to impeach the expert. None of this can be done on the fly. None of this can be done after a cursory read-through on the basis of paraphrased notes. Every single word and nuance in the report is potentially vital.

Matrimonial Commission

In February 2006, after months of public hearings and consideration of the issue of disclosure of reports and underlying data, New York's Chief Judge's Matrimonial Commission made specific recommendations for reform. Included among them was the following:

Access to reports should be made uniform. Copies of the reports should be given to counsel for the parties and the attorney for the child, with the express instruction that no additional copies be made or disseminated without court permission. Clients can review the report at the attorney's office. If a litigant is self-represented, a separate copy of the report should be maintained at the courthouse for use by that litigant to review and make confidential notes. The litigant would not be permitted to remove this copy from the courthouse.

New York State Matrimonial Commission: Report To The Chief Judge Of The State Of New York (February 2006) p. 54.

Beyond uniform disclosure of the report itself, the Commission resolved the issue of disclosure of the underlying raw data that attorneys must have to prepare their case properly:

The forensic report should be open to all of the trial procedures which allow a litigant and his or her counsel to test the underlying basis for the report. In that regard, all underlying notes and test data, including raw test material, should be made available in discovery to counsel for the litigants, attorney for the child(ren), or a professional designated by counsel to review the material. Upon presentation of the forensic's report to the court and counsel, either party, or attorney for the child(ren), should be permitted to serve a notice, pursuant to Article 31 of the CPLR (Civil Practice Law & Rules), on the forensic expert to produce the underlying notes and test data. The forensic expert should comply with the notice subject to an application to the court by either party or attorney for the child(ren) to limit or otherwise condition the disclosure.

For reasons best known to God and the bureaucrats in command, these important recommendations have yet to find their way into official court rules. However, the courts need not and should not await such administrative action to embrace these crucial common-sense recommendations. This is hardly rocket science. Appreciating the need for full and unfettered access to these materials to prepare for trial is a state of cognitive evolution roughly equivalent to the sprouting of opposable thumbs.

Conclusion

In New York, the courts have decreed that the rules of evidence are “the palladium of the judicial process” and that infringement upon them “destroys the vitality of that judicial process.” Wagman v. Bradshaw , 292 A.D.2d 84, 90, 739 N.Y.S.2d 421 (2d Dept. 2002). They also have declared that evidence doctrine cannot properly be suspended or attenuated simply because the case at hand concerns domestic relations issues. “A trial before a court without a jury in the Family Court does not provide a license to dilute the rules of evidence.” Mtr. of Charles B., 83 A.D.2d 575, 441 N.Y.S.2d 132 (2d Dept. 1981). If such laudatory proclamations are to be more than empty shibboleths, the courts must recommit to due process. Unquestionably, the path of due process can be a tiresome trudge but it is the arduous corridor chosen by the Founders as the only certain course to systemic integrity and the liberty it secures. Shortcuts, detours and roadblocks lead only to other places ' none of them good.