Howard Zonana, M.D., responds. Zonana is the medical director of AAPL and a corresponding member of APA's Council on Psychiatry and Law.

The legal problem in the Goldstein case arose over the state's expert testifying about information derived from collateral sources as part of the evaluation. These sources included a former landlady, a girlfriend of a man who previously shared an apartment with the defendant, a current roommate, and a security guard who had restrained the defendant during a previous assault on a woman.

They provided information that supported the prosecution's view that he was not as psychotic and out of control as the defense claimed, gave details of his sexual behavior, and indicated that he sometimes exaggerated his condition when he found himself in trouble. The legal question was whether the expert witness could testify about what was said without the collateral source actually testifying.

Whether attorneys have to bring these sources in for actual testimony and cross-examination is clearly a legal matter, and the distinction of“ testimonial” statements seems relevant and important. AAPL is not recommending trampling on a defendant's right to cross-examine and has no position on the legal matter. It remains unclear as to what collateral interviews will be seen to require testimony; for example, will talking to a defendant's mother about his early development qualify? Probably not. But what if they were actual witnesses to the crime? Probably yes.

In the Goldstein case the collaterals gave information about prior behavior, and the court seemed to go through some kind of balancing test as to how important it was in relation to the expert's testimony. This makes it hard to predict in advance which collateral interviews will be deemed testimonial.

In any event, I would hope psychiatrists will not change their evaluation styles and will continue to seek collateral sources if they may provide relevant information to aid in drawing conclusions (as recommended in AAPL's practice guideline in criminal responsibility evaluations, published in a supplement to the June 2002 Journal of the American Academy of Psychiatry and the Law).

It has usually struck me as a “legal fiction” when the attorney states, “We are only introducing this, not for the truth of the matter, but only as helping to understand how to understand the expert's conclusions.”