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The Prohibition of Ultimate Opinions: A MisguidedEnterpriseRichard Rogers PhD and ABPP a & Charles Patrick Ewing PhD and JD ba Department of Psychology , University of North Texas , P.O. Box 311280, Denton, TX,76203-1280 E-mail:b School of Law, John Lord O'Brian Hall, State University of New York at Buffalo , Buffalo, NY,14260-1100 E-mail:Published online: 17 Oct 2008.

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COMMENTARY

The Prohibition of Ultimate Opinions:A Misguided Enterprise

Richard Rogers, PhDCharles Patrick Ewing, PhD, JD

ABSTRACT. During the 1980s, a coterie of scholars attempted tolimit the scope of expert testimony by curtailing ultimate opinions. Asits foremost proponent, Melton continues to champion this prohibition.This brief commentary attempts to understand the Meltonian perspectiveand its intolerance of ultimate and penultimate opinions. Issues include thead populum thesis, the non-expert exclusion, and a usurpation hypothesis.Beyond Melton, the legal landscape of ultimate opinions is considered.Finally, we examine the untoward effects of categorically prohibiting ulti-mate opinion testimony. [Article copies available for a fee from The HaworthDocument Delivery Service: 1-800-HAWORTH. E-mail address: <docdelivery@haworthpress.com> Website: <http://www.HaworthPress.com> © 2003 by TheHaworth Press, Inc. All rights reserved.]

KEYWORDS. Expert testimony, ultimate opinions, conclusory opin-ions, Daubert standard

R

Richard Rogers, PhD, ABPP, is affiliated with the Department of Psychology, Uni-versity of North Texas, P.O. Box 311280, Denton, TX 76203-1280 (E-mail:rogersr@unt.edu). Charles Patrick Ewing, PhD, JD, is affiliated with the School ofLaw, John Lord O’Brian Hall, State University of New York at Buffalo, Buffalo, NY14260-1100 (E-mail: cewing@acsu.buffalo.edu).

Journal of Forensic Psychology Practice, Vol. 3(3) 2003http://www.haworthpress.com/store/product.asp?sku=J158

2003 by The Haworth Press, Inc. All rights reserved.10.1300/J158v03n03_04 65

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THE PROHIBITING ULTIMATE OPINIONS:A MISGUIDED ENTERPRISE

Expert testimony on psychological issues has played a significantrole in the American legal system for almost a century, although suchtestimony has always been controversial from the beginning (seeWigmore, 1909; Munsterberg, 1923). Well-intentioned but misguidedefforts to remedy perceived abuses of psychological testimony includesweeping proposals virtually banning such testimony or severely limit-ing its scope. This brief commentary examines the ultimate-opinionprohibition that has caught the imagination of a few critics but has littlediscernible influence on forensic practice (Borum & Grisso, 1995).

Until about sixty years ago, most American courts imposed a com-mon-law restriction on ultimate opinions. Experts were allowed to offeropinions on a broad array of matters considered beyond the ken of theordinary juror but were not permitted to opine directly on the ultimateissue. The most common justification for this rule was that such testi-mony would usurp the factfinders’ responsibilities by invading theprovince of the jury (see Arenella, 1982).

A trend emerging in the 1940s and culminating in the 1970s soughtto abolish the ultimate-issue rule in American courts. Since the 1940s,the majority of state courts abandoned the ultimate-opinion prohibi-tions. In 1975, the Federal Rules of Evidence also rejected this prohibi-tion. Specifically, Federal Rule of Evidence 704 articulated whatbecame the statutory model for many state codes of evidence, specify-ing that: “testimony in the form of an opinion or inference otherwise ad-missible is not objectionable because it embraces an ultimate issue to bedecided by the trier of fact” (Federal Rules of Evidence Handbook,2002, p. 10). In enacting the Federal Rules of Evidence, Congress madecrystal clear its intent to abolish the ultimate-issue rule in federal courts:“The basic approach to opinions, lay and expert, in these rules is to ad-mit them when helpful to the trier of fact. In order to render this ap-proach fully effective and to allay any doubt on the subject, theso-called ‘ultimate issue’ rule is specifically abolished . . . ” (FederalRules of Evidence Handbook, 2002, p. 114).

In the view of many legal scholars, the ultimate issue rule met its de-mise for good reasons. For example, Strong (1999, p. 12) concluded,“This change in viewpoint concerning ‘ultimate fact’ opinion resultedfrom the realization that the rule excluding opinion on ultimate facts isunduly restrictive, and can pose many close questions of application.The rule can unfairly obstruct the presentation of a party’s case, to say

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nothing of the illogic of the notion that opinions on ultimate facts usurpthe jury’s function.” Moreover, as noted in the Advisory Committee’snotes to the Federal Rules of Evidence, “The rule was unduly restric-tive, difficult of application, and generally served only to deprive thetrier of fact of useful information. The basis usually assigned for therule, to prevent the witness from ‘usurping the province of the jury,’ isaptly characterized as ‘empty rhetoric’” (Federal Rules of EvidenceHandbook, 2002, p. 114).

Following the acquittal of John W. Hinckley, Jr. for his attempted assassi-nation of President Reagan, Congress fell under tremendous political pres-sure because of public outrage (Perlin, 1994) to reform federal insanity law.In enacting the Insanity Reform Act of 1984, Congress not only altered theinsanity standard but also amended the Federal Rules by re-imposing thepreviously discredited ultimate-issue rule. In view of the sociopolitical impe-tus behind this legislation, it was not surprising that Congress applied the re-versionist ultimate-issue rule almost exclusively to mental health experts.Specifically, Congress added section (b) to Federal Rule of Evidence 704,“No expert witness testifying with respect to the mental state or condition ofa defendant in a criminal case may state an opinion or inference as to whetherthe defendant did or did not have the mental state or condition constituting anelement of the crime charged or of a defense thereto. Such ultimate issues arematters for the trier of fact alone.”

This amended rule imposed a formulaic ban on certain phrases yetleft untouched the fundamental issues concerning the parameters of ex-pert testimony. In an earlier analysis (Rogers & Ewing, 1989), we char-acterized this retrogressive effort as an empty gesture providing nothingmore than a cosmetic fix.

The aftermath of the modified Federal Rule of Evidence 704(b) wasonly a minor ripple (Bergman & Hollander, 1997, 2002) with few statesfollowing its lead and the federal courts remaining largely unaffectedoutside this narrowly-defined exception. Without the impetus from acoterie of highly vocal scholars, the matter would likely have been foot-noted as a historically interesting but largely pointless political exerciseintended to mollify critics of the Hinckley verdict. In an attempt to un-derstand why this effort persists, we examine the efforts of its foremostproponents, namely Melton and his colleagues (Melton, Petrila,Poythress, & Slobogin, 1987, 1997; Melton, 1999). Building on our ear-lier analysis (Rogers & Ewing, 1989), this brief commentary exposesthe misassumptions, mislogic, and ultimate failure of efforts to prohibitcategorically ultimate opinion testimony.

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In setting the stage for subsequent analyses, a review of key terms forexpert opinions is warranted. As defined by Slobogin (1989), an ulti-mate opinion directly addresses the legal standard (e.g., competent tostand trial) while a penultimate opinion addresses only components ofthe legal standard (e.g., a factual understanding of the proceedings). Incontrast, conclusory opinion is an inclusive term applied to all the ex-pert’s final determinations in a particular case.

THE MELTONIAN PERSPECTIVE

Melton et al. (1987) provided a negative analysis of expert testimony,accusing forensic psychologists of “intellectual dishonesty, howeverwell-intended” (p. 9) and a degree of malleability that permits them to “beseduced” (p. 9) into giving improper testimony. Moreover, they polar-ized psychological research into scientific and clinical opinions, deni-grating the latter as “often more art and intuition than science” (p. 6). Giventheir apparent disdain for forensic psychologists, Melton et al.’s (1987)subsequent efforts to restrict opinion testimony are clearly understandable.

Melton et al. (1987) skillfully assumed a centrist position on thescope of expert testimony. Using Morse’s (1978) argument for thenear-exclusion of all psychological evidence as a foil, they adopt an os-tensibly magnanimous position by allowing some testimony aboutpsychopathology and even diagnosis. Based on this self-styled “liberaladmission” (p. 16) of expert evidence, both ultimate and penultimatetestimony are categorically excluded. This centrist maneuvering ap-pears to be largely successful in deflecting thoughtful criticisms.

Melton et al. (1997) undertook a major revision of their influentialtext. Apparently unimpressed by a decade of forensic research (seeHeilbrun, Rogers, & Otto, in press) or the adoption of forensic-spe-cialty ethical guidelines (Committee on Ethical Guidelines for ForensicPsychologists (1991), Melton et al. (1997) simply reiterated their 1987 po-sition characterizing forensic psychologists as intellectually dishonest andseducible (p. 12). They continued to discredit clinical opinions as intuitionaland essentially unscientific (p. 7). Relying on outdated DSM-II era studiesfrom the 1970s (see footnote 80, p. 648), they averred that the diagnosis ofmental disorders, though likely speculative, might still be admitted (p. 19).

Melton et al. (1987, 1997) launched a multiprong argument against ulti-mate and penultimate opinions. The argument embraced an ad populumthesis, the non-expert exclusion, and a usurpation hypothesis. These prongs

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will be examined individually in the following subsections. In testing the fea-sibility of these prohibitions, we examine Melton’s own ultimate opinions.

Ad Populum Thesis

Melton et al. (1997) proposed an ad populum argument by asserting“near-unanimity among scholarly commentators” (p. 17) against “givingexpert opinions as to ultimate legal issues” (p. 17; emphasis in the original). Asan easily-recognized fallacy (i.e., argumentum ad populum), the mere popu-larity of an idea is not evidence of its validity (Dauer, 1996). Moreover, theassertion of “near-unanimity” is patently inaccurate. As reviewed by Rog-ers and Shuman (2000a), scholars have spoken clearly against prohibitions ofthe ultimate opinion (Ciccone & Clements, 1987; Cohen, 1988; Fulero &Finkel, 1991; Rogers, 1986; Rogers & Ewing, 1989) and its underlyinglogic (Shuman, 1996). Grisso, once an adherent to Melton’s position (seeGrisso, 1986), has subsequently moderated his position (Grisso &Appelbaum, 1992). Finally, Slobogin (1989) has broken rank with hisown colleagues; he questions openly the value of banning ultimate opin-ions and embraces the selective use of penultimate opinions.

Exclusion of Non-Experts

Melton et al. (1997) have asserted that clinical-forensic conclusionsconstitute moral or legal decisions (p. 17) that extend beyond forensic psy-chologists’ expertise. Implicitly, their logic appears syllogistic: conclusoryopinions are moral or legal decisions; clinicians are not moral or legal ex-perts; therefore, clinicians cannot offer conclusory opinions. Is the majorpremise true? Is the provision of conclusory testimony by forensic psy-chologists inherently moral or legal? An example is the SupremeCourt’s very recent decision in Atkins v. Virginia (2002) forbidding theexecution of the mentally retarded. The moral and legal underpinningsof executing the mentally retarded may be debated endlessly by philos-ophy, religion, law, ethics and a host of other disciplines. However,such debates are not germane to forensic evaluations of the mentally re-tarded. Psychologists employ established clinical methods in reliableassessment of a defendant’s intellectual abilities.

Usurpation Hypothesis

Melton et al. (1997) expressed concern that ultimate opinions mayusurp the role of the factfinder (p. 17). Other opponents of ultimate

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opinions (e.g., Arenella, 1982; Halleck, 1980) expanded this discussionon “invading the province of the jury” (see Rogers, Bagby, Crouch, &Cutler, 1990, p. 225). Does the usurpation argument carry any weight?Two studies (Fulero & Finkel, 1991; Rogers et al., 1990) have directlyinvestigated this issue.

Fulero and Finkel (1991) directly compared ultimate, penultimate,and nonultimate opinions in homicide case. No significant differenceswere found across verdicts whether (a) a sole expert did or did not pro-vide an ultimate opinion, (b) one expert provided an ultimate opinion,and the second did not, or (c) both experts provided ultimate opinions.Importantly, the same findings held for penultimate opinions.

Rogers et al. (1990) examined the effects of ultimate opinion testi-mony in a factorial design that directly compared ultimate andnonultimate opinions. Of primary importance, ultimate opinions hadvirtually no effect (eta2 = .01) on jurors’ conclusions. When examiningthe two-way interaction for ultimate opinion and the content of testi-mony (i.e., a revenging alcoholic versus a deluded schizophrenic), thedata suggest the possibility of a paradoxical finding. Specifically, ulti-mate-opinion testimony may carry less weight than its non-ultimatecounterpart.

In summary, empirical research on the effects of ultimate opinionsdoes not support and may even contradict the usurpation hypothesis. In-terestingly, both studies found that the ultimate opinions were not espe-cially salient with prospective jurors with substantial numbers (e.g.,38.4% for Rogers et al.) not even recalling this portion of the testimony.

Melton’s Use of Ultimate Opinions

As a feasibility analysis of ultimate-opinion bans consider the prac-tices of its chief adherents, namely Melton and his colleagues. DoesMelton’s own professional practice studiously avoid the apparent seduc-tion of ultimate opinions? As outlined below, Melton has not escaped this“seduction.” Instead, he has offered conclusory opinions where few fo-rensic psychologists would likely venture. On two days’ notice with a“frantic review” (Melton, 1986, p. 63) and “frenzied trip” (p. 63), he of-fered testimony against school prayer. Moreover, the scope of this testi-mony appears to have extended far beyond the domain of psychologicalexpertise extrapolating from sparse developmental and social-psycho-logical research to general psychological issues purportedly germane to“the constitutionality of the West Virginia law” (p. 66).

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Melton also offered ultimate opinions as the chief architect of theAmerican Psychological Association amicus brief in the Thornburgh v.American College of Obstetricians and Gynecologists (1986). The briefasserted the capacity of adolescents to make independent decisions re-garding abortions (see Interdivisional Committee on Adolescent Abor-tion, 1987; Melton & Russo, 1987). Undeterred by the sparseness ofrelevant data (see Melton & Russo, 1987, p. 71), opinions were extrapo-lated from routine medical procedures to abortions. Given the funda-mental differences psychologically and socially, such extrapolations arespeculative and should not be the basis for forensic opinions ultimate orotherwise.1

Additionally, Melton et al. (1997) suggested the use of ultimate opinionswith their own measure, Mental State at the Time of the Offense ScreeningEvaluation (MSE-Offense; Slobogin, Melton, & Showalter, 1984). Theydeclared that the MSE-Offense “may be able to detect the obviously in-sane individual for whom a more comprehensive evaluation is unneces-sary” (Melton et al., p. 235; emphasis added). This conclusion aboutinsanity is undoubtedly an ultimate opinion.2 Although the MSE-Of-fense contains clinical observations and decision data, its validation fo-cuses exclusively on ultimate opinions. Given the expertise of theseresearchers, the compelling conclusion is that the MSE-Offense was ex-pressly designed for ultimate opinions.3

UNTOWARD EFFECTSOF ULTIMATE-OPINION PROHIBITIONS

Psychologists tenaciously embracing the Meltonian perspective arelikely to recognize that the “solution” is unlikely to succeed. Whileclearly sympathetic to the Meltonian position, Heilbrun’s (2001) re-view of the last two decades provides very little data supporting an ulti-mate-opinion ban. Heilbrun avoids any discussion of the unintendedconsequences of banning ultimate opinions. Major problems with thissolution are outlined below (see also Rogers & Ewing, 1989).

Semantic Brinkmanship

The fundamental flaw of ultimate-opinion prohibitions is that noth-ing has actually changed. Forensic experts must simply avoid a short listof proscribed phrases but are given complete latitude in the types of tes-timony offered. Slobogin (1989, p. 62) provides compelling examples

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of how experts can legitimately provide such “close approximations” asto render the ultimate-opinion ban meaningless. In practice, forensicpsychologists are encouraged to engage in semantic brinkmanship par-alleling but not using forbidden phraseology. Undoubtedly, jurors re-main unaware of this semantic exercise performed ostensibly for theirbenefit. Moreover, jurors are unlikely to be affected by subtle if not spe-cious distinctions, such as substituting the word “understand” for “ap-preciate.”

Obscuration of Expert Testimony

Penultimate-opinion prohibitions do not curtail the scope of experttestimony. Paradoxically, their potential obscuration of conclusoryopinions may produce the paradoxical effect of broadening rather thanrestricting the parameters of such testimony. Borrowing an examplefrom Rogers and Ewing (1989), a forensic expert could testify about adefendant’s diminished cognitive abilities and inadequate comprehen-sion without having to relate these impairments to the relevant legalstandard (e.g., the ALI prong “capacity to appreciate the criminality”).Moreover, a vigorous cross-examination cannot effectively attack theinferential impact of such testimony. Why? Any banning of penulti-mate opinions also prohibits direct cross-examination on the lack ofconnection between the proffered testimony and the pertinent legalcriteria.

Slovenko (2002) argued that this paradoxical effect may extend even fur-ther. He discussed cases where the expert testifies to generalities about le-gally-relevant issues. Instead of testifying about the insanity of a particulardefendant, the expert may testify about the typical effects (e.g., the markedimpairment of cognitive capacities commonly found with paranoiddelusions). Such testimony broadens rather than narrows the scope ofopinion testimony.

One hallmark of good testimony is its clarity and obvious avoidanceof obfuscation (Rogers & Shuman, 2000a). Ironically, any bans of ulti-mate and penultimate testimony may obscurify rather than clarify criti-cal issues. To avoid ultimate-opinion testimony, Poythress et al. (2000)advocated that an expert’s conclusions about an “obviously insane indi-vidual” (p. 31) should be described as a “significant mental abnormal-ity” (p. 31). We are left to wonder whether the courts will be satisfied bythis ambiguity.

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AN IMPEDIMENT TO REAL REFORM

In a recent line of decisions the U.S. Supreme Court has stressed theimportance of the trial judge as “gatekeeper” and offered guidelines bywhich the admissibility of expert testimony is to be judged (see Daubertv. Merrell Dow Pharmaceuticals [1993]; General Electric Co. v. Joiner[1997]; Kumho Tire Co. v. Carmichael [1999]). As these cases have be-gun to make their mark on forensic practice in both federal and manystate courts, need for real reform of expert testimony is mounting. Experttestimony of forensic psychologists must meet the emerging standards ofDaubert and its progeny (e.g., tested, peer reviewed principles whichhave known error rates and have been generally accepted in the field ofpsychology). If the rigorous standards for admissibility are not met, ex-pert testimony is likely to come under attack irrespective of its superficialform (i.e., ultimate, penultimate or non-penultimate) for its opinion.

NOTES

1. To avoid any misunderstanding; the preparation of amicus briefs constitutes pro-fessional forensic practice (see Committee on Ethical Guidelines for Forensic Psychol-ogists, 1991, p. 655).

2. Poythress, Melton, Petrila, and Slobogin (2000) offered the dubious distinctionthat the MSE-Offense insanity opinion applies only to “preliminary forensic report”(p. 31). Obviously, an ultimate opinion is still an ultimate opinion whether presentedin a forensic report or on the witness stand (Rogers & Shuman 2000b).

3. The only alternative is inconceivable; i.e., the researchers were incompetent attest development and thereby violated their ethical standards (Ethical Standard 2.03,Test Construction; American Psychological Association, 1992).

REFERENCES

American Psychological Association (1992). Ethical principles of psychologists andcode of conduct. American Psychologist, 47, 1597-1611.

Arenella, J. (1982). Reflections on current proposals to abolish or reform the insanitydefense. American Journal of Law and Medicine, 8, 271-284.

Atkins v. Virginia, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002).Bergman, B. E., & Hollander, N. (2002). Wharton’s criminal evidence (15th ed.). Min-

neapolis: West Group.Borum, R., & Grisso, T. (1995). Psychological test use in criminal forensic evalua-

tions. Professional Psychology: Research and Practice, 26, 465-473.

Commentary 73

Dow

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of

Ovi

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4

Ciccone, J. R., & Clements, C. (1987). The insanity defense: Asking and answering theultimate question. Bulletin of the American Academy of Psychiatry and the Law, 16,329-338.

Cohen, D., (1988). Punishing the insane: Restriction of expert psychiatric testimony byFederal Rule of Evidence 704(B). University of Florida Law Review, 10, 541-562.

Committee on Ethical Guidelines for Forensic Psychologists (1991). Specialty guide-lines for forensic psychologists. Law and Human Behavior, 15, 655-665.

Daubert v. Merrel Dow Pharmaceuticals, 509 U.S. 579 (1993).Dauer, F. W. (1996). Critical thinking: An introduction to reasoning. New York:

Barnes and Noble.Federal Rules of Evidence handbook. (2002). Cincinnati: Anderson Publishing.Fulero, S. M., & Finkel, N. J. (1991). Barring ultimate issue testimony: An “insane”

rule? Law and Human Behavior, 15, 495-507.Grisso, T. (1986). Evaluating competencies: Forensic assessments and instruments.

New York: Plenum.Grisso, T., & Appelbaum, P. S. (1992). Is it unethical to offer predictions of future vio-

lence? Law and Human Behavior, 16, 621-633.Halleck, S. L. (1980). Law in the practice of psychiatry. New York: Plenum.Heilbrun, K. (2001). Principles of forensic mental health assessment. New York:

Kluwer.Heilbrun, K., Rogers, R., & Otto, R. K. (in press). Forensic assessment: Current status

and future directions. In J. R. P. Ogloff (Ed.), Psychology and law: Reviewing thediscipline. New York: Plenum.

General Electric Company et al. v. Joiner et ux, 522 U.S. 136 (1997).Kumho Tire Company Ltd. et al. v. Carmichael et al., 526 U.S. 137 (1999).Melton, G. B. (1986). Populism, school prayer, and the courts: Confessions of an ex-

pert witness. New Directions for Child Development, 33, 63-73.Melton, G. B. (1999). Due care, not prohibition of expert opinions. Clinical Psychol-

ogy: Science and Practice, 6, 335-338.Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin C. (1987). Psychological evalu-

ations for the courts. New York: Guilford.Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin C. (1997). Psychological evalu-

ations for the courts (2nd ed.). New York: Guilford.Melton, G. B., & Russo, N. F. (1987). Adolescent abortion: Psychological perspectives

on public policy. American Psychologist, 42, 69-72.Morse, S. J. (1978). Law and mental health professionals: The limits of expertise. Pro-

fessional Psychology, 9, 389-399.Münsterberg, H. (1923). On the witness stand; Essays on psychology and crime. New

York: Clark.Perlin, M. L. (1994). The jurisprudence of the insanity defense. Durham: Carolina Aca-

demic Press.Poythress, N., Melton, G. B., Petrila, J., & Slobogin, C. (2000). Commentary on “The

Mental Status at the Time of the Offense measure.” Journal of the American Acad-emy of Psychiatry and Law, 28, 29-32.

Rogers, R. (1986). Conducting insanity evaluations. New York: Van NostrandReinhold.

74 JOURNAL OF FORENSIC PSYCHOLOGY PRACTICE

Dow

nloa

ded

by [

UO

V U

nive

rsity

of

Ovi

edo]

at 0

5:22

30

Oct

ober

201

4

Rogers, R., Bagby, R. M., & Chow, M. M. (1992). Psychiatrists and the parameters ofexpert testimony. International Journal of Law and Psychiatry, 15, 387-396.

Rogers, R., Bagby, R. M., Crouch, M., & Cutler, B. (1990). Effects of ultimate opin-ions on juror perceptions of insanity. International Journal of Law and Psychiatry,13, 225-232.

Rogers, R., & Ewing, C. P. (1989). Proscribing ultimate opinions: A quick and cos-metic fix. Law and Human Behavior, 13, 357-374.

Rogers, R., & Shuman, D. W. (2000a). Conducting insanity evaluations. New York:Guilford Publications.

Rogers, R., & Shuman, D. W. (2000b). The “Mental Status at the Time of the Offense”measure: Its validation and admissibility under Daubert. Journal of the AmericanAcademy of Psychiatry and Law, 28, 23-28.

Shuman, D. W. (1996). Psychiatric and psychological evidence (2nd ed.). ColoradoSprings: Shepherds/McGraw-Hill.

Slobogin, C. (1989). The “ultimate issue” issue. Behavioral Sciences and the Law, 7,259-266.

Slobogin, C., Melton, G. B., & Showalter, C. R. (1984). The feasibility of a brief evalu-ation of mental state at the time of the offense. Law and Human Behavior, 8,305-320.

Slovenko, R. (2002, October). The role of psychiatric diagnosis in the legal process.Paper presented at the First International Conference on Symptom, Diagnostic andDisability Validity. Toronto, Canada.

Strong, J. W. (1999). McCormick on evidence (5th Ed.). Minneapolis: West Pub-lishing.

Thornburgh v. American College of Obstetricians and Gynecologists, 106 S.Ct. 2169(1986).

Wigmore, J. H. (1909). Professor Munsterberg and the psychology of testimony: Beinga report of the case of Cokestone v. Munsterberg. Illinois Law Review, 3, 399.

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