Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Series Editor
Vincent B.Van Hasselt
Nova Southeastern University Center for Psychological Studies
Fort Lauderdale, Florida, USA
Behavioral Criminology is a multidisciplinary approach that draws on behavior-
al research for the application of behavioral theories and methods to assessment,
prevention, and intervention efforts directed toward violent crime and criminal
behavior. Disciplines relevant to this field are criminology; criminal justice (law
enforcement and corrections); forensic, correctional, and clinical psychology and
psychiatry: neuropsychology, neurobiology, conflict and dispute resolution; sociol-
ogy, and epidemiology. Areas of study and application include, but are not limited
to: specific crimes and perpetrators (e.g., homicide and sex crimes, crimes against
children, child exploitation, domestic, school, and workplace violence), topics of
current national and international interest and concern (e.g., terrorism and counter
terrorism, cyber crime), and strategies geared toward evaluation, identification, and
interdiction with regard to criminal acts (e.g., hostage negotiation, criminal investi-
gative analysis, threat and risk assessment).
The aim of the proposed Briefs is to provide practitioners and researchers with
information, data, and current best practices on important and timely topics in Be-
havioral Criminology. Each Brief will include a review of relevant research in the
area, original data, implications of findings, case illustrations (where relevant), and
recommendations for directions that future efforts might take.
More information about this series at http://www.springer.com/series/10850
Laurence Miller
1 3
Laurence Miller
Miller Psychological Associates
Boca Raton
Florida
USA
In many ways, we have never been safer or healthier. People living in modern in-
dustrial societies can access advances in nutrition, medicine, transportation, and
communication technologies undreamed of even a century ago. Yet, the traumas
of human life continue to afflict us. Some are as old as human society: disease,
warfare, criminal aggression, and natural disasters. Others are new: motor vehicle
accidents, medical mishaps, cyberstalking.
Arguably, one of the advances of modern civilization consists of the form of
codes of law to guide fair and productive interactions among humans living in in-
creasingly complex societies. And all such societies contain laws that strive to de-
termine just penalties for persons who commit crimes and reasonable compensation
for the victims of aggression, exploitation, or willful neglect.
Many of the victims of unfair actions suffer psychological as well as physical
injuries, and most legal codes contain remedies that can be applied to mitigate the
damage for victims through the civil courts. In other cases, criminal offenders may
appeal to extenuating circumstances or inner and outer forces beyond their control
to exculpate (completely excuse) or mitigate (lessen the blameworthiness of) their
actions.
In all these circumstances, claims of posttraumatic stress disorder (PTSD) may
be asserted: in civil cases, to argue for psychological injury meriting a damage
award; in criminal cases, to lessen the penalty for a felonious act. Posttraumatic
Stress Disorder and Forensic Psychology: Applications to Civil and Criminal Law
concisely but comprehensively addresses these issues for professionals in both the
mental health and legal fields. Chapter 1 describes the history and concept of PTSD,
Chap. 2 delineates the main clinical features of the syndrome, and Chap. 3 describes
the subtypes and variants of PTSD that may be seen in clinical and forensic settings,
providing guidelines for differential diagnosis of PTSD from a variety of syndromes
and disorders that may be confused with it in both civilian and military cases.
Next, the book discusses applications of PTSD to civil law, particularly personal
injury and Workers Compensation cases. Chapter 4 describes how PTSD can be
used to make a case for compensable psychological injury, as well as describing
measures for refuting these claims. Chapters 5 and 6 describe applications of PTSD
to criminal law, delineating the various ways PTSD may predispose, trigger, or
v
vi Introduction
I wish to thank series editor Dr. Vincent Van Hasselt for encouraging this project,
as well as the editorial staff at Springer for their courteous and efficient work on the
book. Many of the clinical and forensic concepts described herein have been vicari-
ously honed by the incisive questions and comments from students in my classes
throughout the years, and the practical applications further creatively challenged,
enhanced, and expanded through working with a fine group of attorneys, law en-
forcement officers, and mental health clinicians. Finally, as always, I am grateful
to my family for spotting me the time necessary to work on this kind of project
when not busy with my “day job,” and, as mental health clinicians themselves,
offering valuable contributions in the form of suggestions, ideas, or just collegial
encouragement.
vii
Contents
ix
x Contents
Erratum............................................................................................................ E1
References......................................................................................................... 91
Index.................................................................................................................. 115
About the Author
xiii
xiv About the Author
An awareness that traumatic events can leave long-lasting effects on the human
psyche has been recognized for as long as people have faced the adversities of an-
cient and modern life. However, in today’s clinical and forensic mental health prac-
tice, as well as in the popular culture, it seems like posttraumatic stress syndromes
are everywhere. Is this concept new or are clinicians and attorneys merely taking
proper note of a phenomenon that has always been there?
Historically, the pendulum of interest in posttraumatic stress syndromes has
swung back and forth between military and civilian traumas (Evans 1992; Finley
2011; Holbrook 2011; Jones and Wessely 2007; Miller 1998c, 2007d, e, f, 2008a,
b, 2012a, c, 2013b; Modlin 1983; Pizarro et al. 2006; Rosen 1975; Sherman 2005;
Trimble 1981; Wilson 1994). During warfare, rulers and generals have always had
a stake in knowing as much as possible about the factors that might adversely affect
their fighting forces. To this end, doctors of every era have been pressed into service
to diagnose and treat soldiers, with the aim of getting them back to the front lines
as quickly as possible. In peacetime, attention turns to the everyday accidents and
individual acts of mayhem that can produce stress, pain, and trauma in the lives of
civilians (Table 1.1).
One of the first modern conceptualizations of posttraumatic stress was put forth by
the army surgeon Hoffer, who, in 1678, developed the concept of nostalgia, which
he defined as deterioration in the physical and mental health of homesick soldiers.
The cause of this malady was attributed to the formation of abnormally vivid im-
ages in the affected soldier’s brain by battle-induced overexcitation of the “vital
spirits.”
With the eighteenth and nineteenth centuries came the mechanized progress of
the Industrial Revolution, bringing with it new and dangerous machines to crush,
grind, flay, and terrify the scores of workers who tended them, producing a new
catalog of physical and psychological injuries. At about the same time, a new form
of high-speed transportation, the railroad, began to reveal a disturbing propensity
to rattle and strew its passengers about in derailments and collisions. Physicians of
the day noted that, all too often, after the physical scars had healed, or even when
injury to the body was minor or nonexistent, many accident victims showed lasting
mental and physical disabilities.
For example, in 1882, Erichson introduced the concept of railway spine, which
he believed could be traced to as-yet unobservable perturbations in the structure of
the central nervous system caused by blows to the body, despite the fact that many
cases lacked any evidence for such bodily concussions. Others among Erichson’s
colleagues considered that these strange disorders of sensation and movement might
be due to small hemorrhages or disruptions in the blood flow to the spinal cord.
While these organically-minded physicians were squinting to discern structural
microtraumas in nervous tissue, others expanded their gaze to view the origin of
these posttraumatic impairment syndromes as a psychological phenomenon, albeit
straying none too far from the home base of neurophysiology. This was reflected
in the theory of nervous shock, introduced by Page in 1895, which posited a state
of overwhelming fright or terror, not physical injury, as the primary cause of trau-
matic impairment syndromes in railway and industrial accidents. Similarly, at about
the same time, Oppenheim (1890) theorized that a stimulus perceived through the
senses alone, if strong enough, might jar the nervous system into a state of disequi-
librium. Charcot (1887) regarded the effects of physical trauma as a form of hyste-
ria, the symptoms arising as a consequence of disordered brain physiology caused
by the terrifying memory of the traumatic event.
Even Sigmund Freud weighed in after observing the physical and psychological
carnage of the First World War. No stranger to neuroscientific theory and prac-
tice himself (Miller 1984, 1991b); Freud (1920) regarded the tendency to remain
Wartime Trauma 3
Wartime Trauma
Attention, however, soon shifted back to the fields of battle. The American Civil
War (1861–1865) introduced a new level of industrialized killing and, with it, a dra-
matic increase in reports of stress-related nervous ailments. Jacob Mendes Da Costa
described a syndrome in traumatized American Civil war soldiers that he called
irritable heart. Later, Frazier and Wilson (1918) and Mearburg and Wilson (1918)
attributed this condition to overstimulation of the sympathetic (“fight-or-flight”)
branch of the autonomic nervous system. A contemporaneous study noted a marked
increase in the number of men sentenced to prison during the years following the
Civil War. More generally, “crime epidemics” were reported to follow wars or other
social upheavals, such as in France after the French Revolution (1848), in Germany
following the Franco-Prussian War (1870–1871), and in England after the Second
Boer War (1899–1902).
Further advances in weapons technology during the First World War (1914–
1918) produced an accumulation of new and horrifying battlefield casualties from
machine guns, poison gas, aerial bombardment, and long-range artillery. The latter
led to the widely applied concept of shell shock, a form of cognitive and emotional
incapacitation initially thought to be produced by the brain-concussive effects of
exploding shells.
The experiences of the Second World War (1939–1945) contributed substantially
little to the development of new theories and treatments for wartime trauma, now
renamed battle fatigue, combat neurosis, or combat exhaustion. In fact, resistance
to these concepts, with their implications of mental weakness and lack of moral
resolve, was widespread in both medical and military circles. Utilizing advances in
psychological testing, the US military in WWII rejected 1.6 of 20 million draftees
on psychological grounds, a rate nearly eight times than in WWI. Moreover, WWII
soldiers diagnosed with combat trauma were discharged at five times the rate of
those in WWI.
Following each of the world wars, the USA and its European allies braced for
a civilian crime wave as battle-hardened veterans returned to the home front. Af-
ter WWII, researchers in New York City reported a substantial increase in violent
crime, although it was unclear whether this was specifically due to the toughening
effect, or “lost morality,” of war on returning veterans, or simply to the fact that
there were suddenly so many young males simultaneously flooding back into civil-
ian life and competing with one another for jobs and mates.
4 1 History of the PTSD Concept and Its Relation to the Law
Nevertheless, the traumatic effects of wartime experiences began to make their way
into the criminal justice system between and following the two world wars. For ex-
ample, in People v. Gilberg (1925), a WWI veteran pled insanity as a defense against
the charge of child molestation, on the basis of his having incurred shell shock during
the war. His attorneys retained medical experts to opine on the neurological and psy-
chological effects of shell shock—which they appear to have conflated with the effects
of epilepsy—and argued that this rendered the defendant not legally responsible for his
crimes. In People v. Danielly (1949), an argument for reducing a murder conviction
to the lesser charge of manslaughter was entered by a WWII veteran on the basis that
amnesia for the crime was caused by his “nervous disability” acquired in combat.
By the time of the Korean War (1950–1953), military medicine had formalized a
set of treatment protocols for combat exhaustion that included temporary hospital-
ization with return to duty as soon as possible. In addition, combat tours in Korea
were shortened to 9 months. As a consequence of these measures, the incidence rate
of psychological stress casualties dropped significantly. However, the Korean War
also introduced a new type of psychological warfare, called brainwashing, which
involved isolation and psychological indoctrination of detainees by the enemy.
The experiences of American soldiers in the Vietnam War (1965–1973) high-
lighted the stress of battle through the new medium of television. However, due to a
combination of fixed duty tours, frequent rest and relaxation breaks, and concerted
efforts to apply mental health services to soldiers, psychological casualty rates in
the Vietnam War were actually lower than in prior conflicts. Nevertheless, addi-
tional strain on service members stemmed from the general unpopularity of this
war and the absence of the kind of heroic homecomings that had greeted soldiers in
earlier conflicts. After their service, many Vietnam veterans went to work for gov-
ernment agencies like the US Post Office, and a few isolated reports of disgruntled
ex-service members becoming violent at work—“going postal”—led to the stereo-
type of Vietnam vets as ticking bombs, ready to explode at the slightest provocation.
In the case of Kemp v. State (1973), a Vietnam veteran shot his wife in bed and
then pled not guilty by reason of insanity, claiming that the attack took place while
he was dreaming of being surrounded by the Vietcong. The defendant claimed to
have witnessed multiple companions killed by a land mine in Vietnam, which al-
legedly caused him to develop “battle neurosis” during his combat tour. After dis-
charge, he began to drink heavily, experienced bouts of amnesia, and had recurring
nightmares. Although, the defense-retained psychiatrist and two court-appointed
psychiatrists all testified that the defendant was legally insane at the time of the
crime, the jury nevertheless found him guilty and was convicted of murder; how-
ever, the case was appealed to the Wisconsin Supreme Court.
Prior to 1980, criminal defendants faced the challenge of relating the experience of
traumatic stress to a recognized psychiatric disorder in order to fulfill the “mental
disease or defect” criteria of most insanity standards (see Chap. 6). Shell shock,
Posttraumatic Stress Disorder 5
combat fatigue, and similar syndromes were not officially recognized medical or
psychiatric diagnoses, and defense counsel experts often had to force these dramatic
clinical presentations into the procrustean bed of an officially-sanctioned anxiety
disorder, mood disorder, psychotic disorder, brain syndrome, or other recognized
medical or psychiatric syndrome.
With the publication of the Diagnostic and Statistical Manual of Mental Dis-
orders, 3rd Edition (DSM-III) in 1980, this clinical-forensic hurdle was overcome
by the introduction of posttraumatic stress disorder (PTSD) as a distinct diagnos-
tic category, enabling veterans and other PTSD claimants to mount exclupatory or
mitigatory defenses for charges ranging from murder and kidnapping to drug traf-
ficking and tax fraud. By 1985, up to a million US veterans had been diagnosed with
PTSD, and use of this syndrome had enabled 250 Vietnam veterans to obtain acquit-
tals, sentence reductions, or diversion to treatment programs in criminal cases.
For example, in State v. Heads (1981), the defendant was convicted of murder
in 1978, pre-DSM-III, but the case was later appealed on the basis that the defense
was denied the opportunity to demonstrate that the defendant’s behavior during
the crime was “Vietnam-like,” i.e., that it represented a severe posttraumatic stress
reaction. By the time the case was retried, the newly minted DSM-III diagnosis of
PTSD was available to invoke as a medically sanctioned psychiatric disorder and
thus could form the basis for an insanity defense. The defendant, it was argued,
was in a dissociative state of consciousness during the crime, which rendered him
unable to distinguish right from wrong. At the second trial, a Louisiana jury found
the defendant not guilty of murder by reason of insanity due to his retrospectively
diagnosed PTSD.
During the 1980’s, PTSD became a victim of its own success, as increasing num-
bers of civilian and military PTSD claims came to be invoked as exclupatory or
mitigatory defenses in criminal trials, as well as being used as the basis for claiming
psychological damages in civil tort cases. A kind of “trauma creep” (Miller 2008c,
2012c) began to emerge, as an expanding catalog of life events came to be used as
the basis for Criterion 1, the stressor criterion, of the PTSD diagnosis (Chap. 2),
including transportation accidents, natural and manmade disasters, crime victimiza-
tion, financial crises, health problems, and even vicarious traumas (Miller 1998c,
2007d, f, 2008b, c). Indeed, the subjective nature of the traumatic stressor criterion
made it possible to claim PTSD on the basis of almost any kind of unpleasant ex-
perience. At the same time, evidence was emerging that many claims of military
PTSD were unfounded and that a sizable proportion of military PTSD claimants
had never even seen combat; in fact, some claimants had no military record at all.
Finally, by the late 1980’s and early 1990’s, as a national crime wave began to peak,
public opinion began to grow frustrated with insanity defenses in general, and it be-
came harder to persuade juries and judges to exculpate or mitigate charges against
a defendant claiming PTSD or any other psychiatric diagnosis.
In the first Gulf War of 1990–1991, many cases of PTSD appear to have been
somatized (see Chap. 3) in the form of Gulf War syndrome, which produced an ar-
ray of physical, cognitive, and emotional symptoms, including weakness, sensory
disturbances, headaches, dizziness, memory loss, and depression. Unable to pin
down a precise cause, many military medical authorities attributed this syndrome
6 1 History of the PTSD Concept and Its Relation to the Law
either to the toxic effects of munitions, paint, or other chemicals, or, alternatively,
to hysterical reactions by psychologically unstable service members (Miller 1993a,
c, 1995b; Morrow et al. 1989, 1991). As this war was otherwise relatively short in
duration, low in American casualties, and generally successful in its limited aims,
few cases of PTSD-related contact with the criminal justice system seem to have
emerged from this conflict.
The more recent Iraq (2003–2011) and Afghanistan (2003–2015) theaters have
seen longer tours, multiple deployments, unconventional combat tactics, and great-
er contact with civilian populations. Ironically, advances in military medicine have
enabled more service members to survive what would previously have been fatal
injuries, and to live on with chronic, disabling physical and psychological impair-
ments. Thus, up to 20 % of today’s US veterans suffer from PTSD, and incident
rates are generally related to the number of firefights or other combat experiences
the service member has experienced (Holbrook 2011). Correspondingly, PTSD as
both an exculpatory and mitigating defense has made a comeback in the criminal
courts, abetted by a generally more sympathetic social attitude toward returning
veterans than was the case with the Vietnam generation.
For example, in State v. Bratcher (2009), the defendant allegedly stalked, hunt-
ed, and killed a man whom he believed had raped his girlfriend—ordinarily, all the
elements necessary for a charge of first-degree, premeditated murder. However, an
Oregon jury found this former Army National Guard veteran “guilty but insane”
due to the combat trauma he purportedly suffered during his deployment. Follow-
ing the jury’s verdict, the defendant was transferred to an Oregon state hospital for
treatment.
Around the same time, the case of Porter v. McCollum (2009) presented the US
Supreme Court with the argument that a convicted murderer’s Sixth Amendment
right to counsel had been violated by his attorney’s failure to introduce evidence
at his sentencing of significant combat experience that might have influenced the
Florida sentencing judge to mitigate the imposed death sentence. In addition, a neu-
ropsychologist testified that the defendant had sustained brain damage in combat,
rendering him unable to control his impulsive, violent behavior—which actually
served to conflate the separate issues of posttraumatic stress disorder and traumatic
brain injury in this case (see Chap. 3).
This is not just an American phenomenon. In R. v. Bosch (2006), a Canadian
jury heard the case of a defendant who was charged with kidnapping, raping, and
murdering a 13-year-old girl, and acquitted him on the grounds of insanity. This
was based on his claim that he developed PTSD after witnessing atrocities while
serving as part of the peacekeeping mission in Bosnia in the 1990’s, despite the fact
that he was unable to corroborate many of these reported events (Grover 2007). At
trial, the defense took great pains to dramatically describe for the jury the severity
of the traumatic stress the defendant allegedly suffered in the cause of his military
service—again, without definitively documenting that these combat experiences
had actually occurred.
These cases illustrate a problematic trend that runs through many recent military
PTSD cases in the criminal justice system: Are military veterans granted exculpation
Posttraumatic Stress Disorder 7
or mitigation for serious charges due to the clinical-legal facts of the case, that is, do
they meet the strict criteria for PTSD and, as a direct result, was their mental state at
the time of the crime sufficiently impaired to meet the high standards of an insanity
defense? Or do courts simply grant a special kind of dispensation in PTSD cases
involving veterans, as a sort of general “thank you” for the service and sacrifice of
veterans everywhere? Indeed, the Supreme Court basically stated as much in its
opinion in the Porter case: “Our nation has a long tradition of according leniency
to veterans in recognition of their service, especially for those who fought on the
front lines as Porter did” (cited in Holbrook 2011, p. 276). It is this tilt toward the
presumed special circumstances of military veterans in the criminal justice system
that has given rise to the recent proliferation of special Veterans’ Courts and the
arguments for categorical elimination of the death penalty for all military veterans
(Giardino 2009; Holbrook 2011; Wortzel and Arciniegas 2010); this controversy
continues to the present day (see Chap. 6).
Meanwhile, workers compensation, military compensation, and civil tort cases
invoking PTSD continue to expand, as does the range of life experiences being pro-
posed as precipitating stressors, from vehicle accidents to workplace harassment,
domestic violence to child abuse, natural disasters to media violence, and so on.
This book will explore the clinical phenomenon of posttraumatic stress disorder and
provide the theoretical foundations and practical guidelines for forensic evaluation
of PTSD cases.
Practice Points
• Forensic clinicians who evaluate PTSD cases should be familiar with the history
of this diagnosis and the various forms it has taken in diverse places and times.
• Broad scholarship in the field of clinical and forensic traumatology contributes
to the accuracy and validity of a case evaluation and enhances the examiner’s
credibility as an expert witness when presenting one’s findings in a written report
or in testimony.
Chapter 2
Posttraumatic Stress Disorder: The Syndrome
One of the themes that informs this book derives from Thibault’s (1984) observa-
tion that “the first step to making an accurate diagnosis is to think of it.” That is,
no psychometric test or printed decision tree can substitute for solid scholarship
and experience in the field that the clinical therapist or forensic examiner practices
in. Unfortunately, many psychological “experts,” not to mention attorneys, judges,
case managers, and the ordinary people that form the juror pools that many post-
traumatic stress disorder (PTSD) cases depend on, have an incomplete or erroneous
understanding of exactly what PTSD, is and what it is not.
Remember, if you are conducting a forensic psychological evaluation in a PTSD
case, you will probably be called upon to explain the basis for your findings in a
written report and/or testimony at deposition or trial (Chap. 7). This chapter will
explain the phenomenology, diagnostic criteria, and theoretical models of PTSD
and associated syndromes. The next chapter will place PTSD in the context of a va-
riety of mental disorders that may be confused with PTSD or that may comorbidly
complicate its diagnosis, treatment, and forensic analysis.
Demographics of PTSD
is estimated to be 31 % for men and 27 % for women. The overall rate for recent
Iraq and Afghanistan theater veterans so far appears to be somewhat lower, with
estimates ranging from 15 to 20 %. In civilian contexts, the occurrence rate of PTSD
for motor vehicle accidents ranges from 9 to 39 %; for rape and sexual assault, up
to 80 %; and for a terrorist attack, 10–35 % (Friel et al. 2008; Guriel and Fremouw
2003; Hall and Hall 2007; Holbrook 2011; Kessler et al. 1995; Kulka et al. 1990;
McNally 2004; Nash 2007).
In the overwhelming majority of cases, PTSD is a recoverable syndrome, with
fewer than 15 % of diagnosed cases showing clinically significant or functionally
disabling symptoms 18 months after first diagnosis. Effective treatment accelerates
recovery (Bowman 1997, 1999; Dyregrov and Regel 2012; Miller 1994a, 1998c,
1999a, c, d; 2007f, 2013b; Rosen and Lilienfeld 2008).
PTSD is associated with a characteristic pattern of signs and symptoms (APA 2000;
Meek 1990; Merskey 1992; Miller 1994a, 1998c, 2007f, 2012c, 2013b; Modlin
1983; Parker 1990; Weiner 1992). No one particular sign or symptom is specific
to PTSD; rather it is the combination of these features following a traumatic event
that defines the syndrome; note that there is some degree of overlap among the
diagnostic criteria in each category. Recently, the diagnostic criteria have been
Clinical and Diagnostic Features of PTSD 11
hurt feelings this engenders in those she rebuffs may spur reactive avoidance, lead-
ing to a vicious cycle of rejection and recrimination.
Criterion E—Marked Alterations in Arousal and Reactivity The subject experiences
increased anxiety, hypervigilance, irritability, anger, exaggerated startle response,
difficulty sleeping, and/or impaired attention, concentration, and memory. The sub-
ject describes a continual state of free-floating anxiety or nervousness. There is
a constant gnawing apprehension that something terrible is about to happen. He
maintains an intense hypervigilance, scanning the environment for the least hint of
impending threat or danger. Panic attacks may be occasional or frequent. About one-
half of PTSD subjects show a classic startle reaction: surprised by an unexpected
door slam, telephone ring, sneeze, or even just hearing his name called, the patient
may literally jump out of his seat. There may be a pervasive chip-on-the-shoulder
edginess, impatience, loss of humor, and quick anger over seemingly trivial matters.
Friends may grow annoyed with this pervasive “bad attitude,” coworkers may shun
the subject, and family members may feel abused and alienated. A particularly com-
mon complaint is the patient’s increased sensitivity to children’s noisiness or the
family’s bothering questions. Impulsive behavior and substance abuse may be seen,
especially where there has been a premorbid history of these problems.
Onset of PTSD may be acute (duration less than 3 months), chronic (duration
more than 3 months), or delayed (onset is 6 months or more following the traumatic
stressor).
Acute Stress Disorder (ASD) was introduced as a diagnostic category into the DSM-
IV (APA 1994) primarily to help identify those at risk of developing later PTSD.
ASD is defined as a reaction to the traumatic stress that occurs within 4 weeks fol-
lowing the index trauma. Although ASD focuses more on dissociative symptoms
than does PTSD, it also includes symptoms of reexperiencing, avoidance, and hy-
perarousal. Between 60 and 80 % of individuals meeting criteria for ASD following
a traumatic event will meet criteria for PTSD up to 2 years later (Koch et al. 2006).
Depending on the circumstances, the reaction to a traumatic event can begin within
the first few moments of the crisis. Hollywood portrayals to the contrary, during
most emergencies, the majority of people involved do not become overwhelmed or
paralyzed by intense fear or shock; in fact, many behave quite adaptively and even
heroically (Aldwin 1994; Weiner 1992; Miller 1998c, 2003, 2004, 2013b). In an
acute crisis, the entire organism seems to go on automatic and is directed toward
survival. A certain degree of adaptive depersonalization or dissociation may take
14 2 Posttraumatic Stress Disorder: The Syndrome
place, a self-protective mental detachment from the surrounding events that enables
the person to deal with the practical survival needs of the situation; this is often
described in retrospect as “like being in a dream” or “happening in slow motion.”
After the event, the subject may experience the wrenching emotional seesaw
of painful intrusion alternating with numbing denial, along with the other post-
traumatic stress symptoms described above. In the best cases, the major symptoms
and disturbances diminish in the course of weeks to months as the event becomes
integrated into the life narrative and personal history of the individual. However, in
some cases, a number of cognitive and emotional roadblocks may stand in the way
of the trauma survivor’s making peace with himself and the world (Everstine and
Everstine 1993; Matsakis 1994; McCann and Pearlman 1990; Miller 1994a, 1998c,
2001d, 2008c, 2012b), as follows.
Guilt and Stigma Many trauma survivors believe that they could have somehow
prevented the traumatic event from occurring. Others interpret the event as a kind
of hard knocks wake-up call for their poor judgment or as cosmic punishment for
present or past misdeeds. Many survivors feel “marked by fate,” especially if this is
not their first traumatic experience. Still others experience a violation of their bodily
and territorial integrity. They feel fragmented and scattered, and the slightest upset
makes them anxious, irritable, and isolative.
Existential Crisis The traumatic event and its aftermath comprise a shattering
existential experience (Herman 1997). The trauma survivor is starkly confronted
with his or her own vulnerability and mortality in a way that most people evade by
using the normal, adaptive denials of everyday life. The victim’s existential viola-
tion may be all the more painful if the trauma took place at the hands of another
person; worse still if the actions of the malfeasor were maliciously intentional or
uncaringly negligent. And even more devastating may be traumas perpetrated by a
known and heretofore trusted person, such as a family member, friend, workmate,
neighbor, doctor, or clergy member (Miller 1998c, 2008c, 2012c; Neustein 2009;
Plante 2004).
Trauma Generalization Many trauma survivors generalize the helplessness of the
cognitive survival state to other aspects of their lives, now feeling powerless to con-
trol even their own behavior or to influence the actions of others. They may impute
domineering or retaliatory motives to anyone who tries to exert even the normal,
socially appropriate influence or control over them, e.g., bosses, doctors, parents, or
spouses. In some cases, outright paranoia and hostility may develop.
Uneven Recovery Course Even after things seem to have calmed down, when the
trauma survivor has achieved some measure of delicate equilibrium, the stresses of
returning to the normal routines of work and family life may trigger PTSD reac-
tions. Also, delayed PTSD reactions may crop up years or even decades after the
event, as a superimposed illness, injury, loss, or just the aging process begin to
deplete the individual’s adaptive reserves (Bonwick and Morris 1996; Christenson
et al. 1981; Hamilton 1982; Kaup et al. 1994; McLeod 1994).
Civilian Posttraumatic Stress Syndromes 15
In general, the more severe the trauma and the longer the trauma response per-
sists, the more unfavorable the outcome. That is why it is important for all traumatic
disability patients to receive quick, effective treatment (Miller 1998c, 2008c). And
even after a delay, or when the trauma syndrome takes time to surface, proper treat-
ment can still have a significant impact, so no situation should ever be considered
categorically hopeless.
The National Vietnam Veterans Readjustment Study (NVVRS; Kulka et al. 1990)
estimated that the lifetime prevalence of PTSD amongst Vietnam War veterans was
30.9 % for men and 26.9 % for women. Higher rates of traumatic events and subse-
quent development of PTSD are found in those with preexisting or co-occurring ma-
jor mental illnesses such as psychotic disorders or borderline personality d isorder.
Military PTSD sufferers may experience more persistent symptoms than civil-
ian subjects. The NVVRS estimated that 15 % of Vietnam veterans diagnosed with
PTSD still had the full or partial syndrome 15 years after returning from Vietnam
(Kulka et al. 1990). The National Comorbidity Study (Kessler et al. 1995) showed
that more than a third of those with service-related PTSD never fully remit, with
or without treatment, even after many years, although there is no information as to
whether symptom severity and overall disability decline over time. Many veterans
may experience PTSD symptoms for decades (Bonwick and Morris 1996; Lee et al.
1995; Miller 1999d; Nichols and Czirr 1986; Potts 1994; Schnurr et al. 2005).
More contemporaneously, approximately 15–20 % of military service members,
or up to 300,000 of the 1.64 million veterans who have served in the Iraq and Af-
ghanistan theaters since 2001, suffer from PTSD. Researchers have documented
a dose-effect relationship, in that the incidence of PTSD cases correlates with the
number of combat exposures, from a rate of 9.3 % for soldiers involved in one or
two firefights to 19.3 % for those involved in five or more firefights (Holbrook
2011; Koren et al. 2007; MacManus and Wessely 2012). Nevertheless, soldiers who
experience persistent, disabling PTSD symptoms as a consequence of combat are
still clearly in the minority.
Although, historically, much of the initial interest in traumatic stress reactions has
come from the field of military psychology and psychiatry, most of the PTSD cas-
es seen by practitioners in routine mental health practice, and that comprise the
caseloads of most forensic examiners, involve civilian instances of PTSD from a
variety of sources (Miller 1998c, 1999e, 2002b, 2007d, 2008c, 2012b, 2013b).
16 2 Posttraumatic Stress Disorder: The Syndrome
Medical Procedures
Emergency medical care, lifesaving though it may be, often employs procedures
for which the patient has little or no preparation (Shalev et al. 1993). The emotional
impact of a serious illness or injury may be compounded by these invasive, pain-
ful, and frightening medical procedures, such as occurs in emergency treatment for
a heart attack, motor vehicle accident, or workplace injury. Intrusive recollection
and avoidance of stimuli are frequently observed among hospitalized survivors of
trauma, but tend to be time-limited and self-remitting. However, medical conditions
or procedures themselves may constitute possible traumatic stressors, as they are
often associated with sudden onset, feelings of helplessness, lack of control by the
patient, and/or a perceived or actual threat to life (Miller 1994a, 1998c; Patterson
et al. 1990; Shalev et al. 1993).
Pain
In addition to fear and threat to life, one of the most traumatically stressful aspects
of injuries, or the treatments for them, may be the unavoidable physical pain that is
sometimes involved (Miller 1990c, 1993b, 1994a, 1998c, 2002b). Research shows
that the prevalence of PTSD among physically injured survivors of stressful events
is higher than that of survivors without physical injury in both military and civilian
traumas, and that pain can be the most stressful aspect of a traumatic injury (Helzer
et al. 1987; Malt et al. 1989; Pitman et al. 1989; Schreiber and Galai-Gat 1993),
although in some cases, physical injury may actually defuse and limit the stress re-
sponse by giving the patient something “real” on which to focus his or her concern
(Modlin 1983).
A physical injury that produces pain may also result in a traumatic brain injury
(TBI) that is followed by a postconcussion syndrome (PCS). Although this syn-
drome is usually conceptualized by neuropsychologists in terms of cognitive im-
pairment, the emotional and social effects may be equally or even more trauma-
tizing (Denney and Sullivan 2008; Miller 1990a, b, 1991a, 1992, 1993c, 1994b,
2002b, 2012c; Parker 1990, 2001; Raskin and Mateer 2000; Small 1980; Varney
and Roberts 1999; Vasterling et al. 2012). Brain injury is a distinct form of stress-
or because the person’s very organ of coping has been damaged. Thus, the sub-
ject’s ability to maintain vocational, domestic, or academic responsibilities—one’s
normal hold on reality—is impaired. Physical effects of PCS include headaches,
dizziness, impaired equilibrium, tinnitus (ringing in the ears), sleep disturbances,
and hypersensitivity to light, sound, and temperature changes. Cognitive effects of
PCS include impairment of attention, concentration, memory, complex reasoning,
Civilian Posttraumatic Stress Syndromes 17
We live in a car culture and motor vehicle accidents (MVAs) are a major cause of
injury and death in the USA and other industrialized nations, especially for people
under 30 (Blanchard and Hickling 2003). A wide variety of post-MVA traumatic
psychological symptoms have been described, including anxiety, panic attacks, in-
trusive recollections, dissociative flashbacks, driving and riding phobias, traumatic
nightmares, and disruption of work and family life (Blanchard et al. 1994; Brom
et al. 1989; Foeckler et al. 1978; Hodge 1971; Kuch 1987; Kuch and Swinson 1985;
Malt et al. 1993; Munjack 1984; Parker 1996) Since MVAs can result in multiple
injuries, there often occurs an “unholy trinity” of post-MVA effects, consisting of:
(1) postconcussion syndrome due to head trauma; (2) chronic pain due to low back
or cervical whiplash injury; and (3) posttraumatic stress disorder. These syndromes
often exacerbate one another in a vicious cycle (Miller 1998c, 1998d).
18 2 Posttraumatic Stress Disorder: The Syndrome
Disasters
While the posttraumatic reactions to natural and man-made disasters in many ways
resemble those to other traumatic stressors, several features make the disaster ex-
perience unique (Abueg et al. 2000; Aldwin 1994; Freedy et al. 1992; Green 1991;
Miller 1998c; Raphael 1986; Reijneveld 2003; Smith et al. 1990; Ursano et al.
1995; Weiner 1992).
First, there is often little or no warning, such as in an earthquake or building col-
lapse. Even when advance notice is available, as with a hurricane that is tracked for
days, people often display a stupefying capacity for denial and minimization until it
is too late to act effectively. Second, most natural and man-made disasters—chemical
spills, tornadoes, tsunamis, nuclear power plant meltdowns, terrorist attacks—
generally occur within a relatively short time frame. By the time the full extent of
the threat is realized, the worst may be over and the aftermath must now be dealt
with. Third, disasters typically involve extreme danger, including loss of life. At
the very least, people lose something of value, often in both material and emotional
terms. Fourth, both natural and technological disasters provide very little chance for
people to exert any kind of meaningful human control, so that actual and perceived
helplessness magnify the traumatic effect of disasters. Finally, disasters happen to
many people at once, often causing victims to feel that the whole world is coming
to an end, or that the larger world has abandoned them. On the positive side, a sense
of communal purpose and mutual support can be important in mitigating the effects
of disaster-related traumatic stress.
The effects of trauma are often amplified when the harm comes through intentional
human malevolence. These psychic injuries violate our sense of security, stability,
and community. As difficult as it may be to bear the traumas of injury and loss that
occur in accidents and mishaps of nature, far more wrenching are the wounds that
occur as the result of the callous and malicious acts of our fellow human beings.
Trauma due to interpersonal violence can thus be especially severe and long-lasting
(Falsetti and Resnick 1995; Foa and Riggs 1993; Freedy et al. 1994; Hough 1985;
Miller 1994a, 1998c, 2008c, 2012b; Rothbaum et al. 1992; Spungen 1998).
Workplace Violence
Many people spend most of their waking hours at work, so not feeling safe on the
job can result in both chronic stress and acute trauma. The National Institute of
Occupational Safety and Health (NIOSH) reports that homicide is the second lead-
ing cause of death in the workplace. Murder is the number one workplace killer of
women and the third leading cause of death for men, after motor vehicle accidents
Civilian Posttraumatic Stress Syndromes 19
and machine-related fatalities (Kinney 1995; Labig 1995; Mantell and Albrecht
1994). Annually, robberies account for the greatest number of deaths, followed by
business disputes, personal disputes, and law enforcement line-of-duty deaths. The
majority of workplace homicides are committed by firearms. For every actual kill-
ing, there are anywhere from 10 to 100 sublethal acts of violence committed at work
(Flannery 1995; Labig 1995). Workplace violence combines crime victimization
with a violation of the expectations of safety and security we come to expect at a fa-
miliar worksite, similar to violence that occurs at home (Blythe 2002; Dennenberg
and Braverman 1999; Miller 1998c, 1999f, 2001b, c, 2008d, 2012c).
School Violence
According to the National School Safety Center (Bender and McLaughlin 1997),
the Federal Bureau of Investigation (FBI 2004) and other sources (Cornell 2006;
Devoe et al. 2005), there has been an overall decline in rates of juvenile violent
crime since the mid-1990s. Incidents of mass violence, involving high-powered
weaponry and multiple casualties, are still rare events on school campuses, with less
than 1 % of youth homicides occurring in schools. However, almost three million
crimes of every type are committed on or near a school campus each year, com-
prising 11 % of all reported crimes in America. These include rape, sexual assault,
robbery, aggravated assault, and simple assault. In general, youths under age 18
account for approximately 16 % of violent crimes in the USA The number of chil-
dren who carry guns to school on a daily basis is estimated to range from 135,000
to 200,000. And while the incidence, or frequency, of youth violence as a whole
has been decreasing since the 1970s, during the same period, the severity of juve-
nile violence has dramatically increased, including a greater number of homicides,
involving more potent weapons. In addition, students are committing violence at
increasingly younger ages.
The psychologically traumatic effects of school violence extend far beyond the
incidents themselves (Miller 2002a, 2007b, 2008c, 2012c). For example, in the first
year following the Columbine High School shooting, there were a disproportion-
ately high number of vehicular accidents, suicide attempts, assaults, and several
student deaths (Cullen 2009; Johnson 2000). Following a sniper attack on an el-
ementary school playground, schoolchildren exhibited traumatic responses similar
to those of adults exposed to mass violence (Pynoos et al. 1987). Posttraumatic
symptoms can also affect teachers and other school personnel (Ardis 2004; Daniels
et al. 2007; Dworkin et al. 1988; Newman et al. 2004).
Terrorism
intimidate the many by targeting the few. However, terrorism has achieved special
prominence in the modern technological era, beginning in the 1970s as international
terrorism, continuing in the 1980s and 1990s as American domestic terrorism, and
apparently coming full circle in the twenty-first century with mass terror attacks on
the US soil by foreign nationals. Arguably, the two culmination points of domes-
tic and international terrorism in the past decades have been the 1995 Oklahoma
City and the 2001 World Trade Center and Pentagon attacks, with the recent 2013
Boston Marathon bombing heightening fears of a new wave of terrorism in which
the lines between foreign and domestic are blurred. Indeed, some terrorism experts
believe that the worst is yet to come (Bolz et al. 1996; Kuzma 2000; Savitch 2003),
although others assert that the overall threat has been exaggerated (Mueller 2005).
Essentially, terrorism is the “perfect” traumatic stressor, because it combines the
elements of malevolent intent, extreme harm, and unending fear of the future. Mass
terror attacks further combine the features of a criminal assault, a disaster, and an
act of war. Accordingly, much of our clinical knowledge in treating terror victims
is adapted from experiences in treating these other kinds of traumas, and terror-
ism will be an important part of trauma psychology into the twenty-first century
(Bongar 2007; Cromartie and Duma 2009; Kratcoski et al. 2001; Miller 2003, 2004,
2006f, g, 2012c; Silke 2003; Stebnicki 2001).
Special challenges are faced by the men and women in law enforcement, firefight-
ing, paramedic, mental health, and other civilian emergency services who regularly
deal with the most violent, impulsive, and predatory members of society, and also
with their victims. Handling of both routine stresses and episodic crises requires
a certain adaptively defensive toughness of attitude, temperament, and training.
Sometimes, however, the stress becomes too great, and the very toughness that fa-
cilitates smooth functioning in their daily duties now becomes an impediment to
these helpers seeking help for themselves. Accordingly, specialized forms of treat-
ment have been developed for this first responder population (Blau 1994; Bohl
1995; Dunning 1999; Henry 2004; McMains 1991; Miller 1995a, 1998c, 2000a,
2006a, b, c, d, 2007a, 2008a, b, 2009a, 2013c, 2013d, in press-a, in press-b; Mitchell
and Everly 1996; Paton and Smith 1999; Reese 1987; Sheehan et al. 2004; Silva
1991; Solomon 1995; Toch 2002; Williams 1991).
Neurobiology of PTSD
In the last few decades, advances in brain research have led to a variety theoreti-
cal models that describe the neural mechanisms that may account for the trauma
response and the symptoms of PTSD and other traumatic disability syndromes
(Bremner 2002, 2005, 2006; Bremner and Vermetten 2002; Bremner et al. 1993,
Risk and Resiliency Factors for Traumatic Stress Responses 21
1995, 1996, 1997, 1999, 2005, 2006; Charney et al. 1993; Deitz 1992; Dowden and
Keltner 2007; Etkin et al. 2005; Frewen and Lanius 2006; Kolb 1987; Kretschmer
1926; Lobo et al. 2011; Ludwig 1972; Lyons et al. 1993; McFarlane 1997; McNally
2007; McNally and Shin 1995; Miller 1993d, 2007d, 2013b; Nutt and Malizia 2004;
Paris 2000; Parker 1990; Perry 2002; Rosen and Lilienfeld 2008; Roth and Cham-
pagne 2012; Sapolsky 1996; Sapolsky et al. 1984, 1990; Shin et al. 2006; van der
Kolk 1994; van der Kolk 2003; Vermetten and Bremner 2002a, b; Weiner 1992;
Weiss 2007;Yang et al. 2004; Yehuda and LeDoux 2007; Yehuda 1998, 1999, 2002)
Although the neurophysiological details are beyond the scope of this book (in-
terested readers should consult the references listed in this section), these models
all mainly focus on the interaction between the hypothalamic–pituitary–adrenal
axis of endocrine system and the cortical-limbic system of the brain, especially
the medial prefrontal cortex, amygdala, and hippocampus. It should also be noted
that some postulations (e.g., whether PTSD causes direct anatomical changes in
the hippocampus or whether such anomalies represent premorbid vulnerability fac-
tors to PTSD) are still controversial. As neuroinvestigative technologies become
more refined, evidence of brain changes in PTSD may be useful in forensic cases.
However, it should be noted that such evidence is hardly essential in documental
the presence of the PTSD syndrome, as long as a rigorous diagnostic process is
appropriately applied.
As noted earlier, not everyone who experiences a traumatic critical incident devel-
ops the same degree of psychological disability, and there is significant variability
among individuals in terms of their degree of susceptibility and resilience to stress-
ful events. While many individuals are able to resolve acute stress and traumati-
zation through the use of informal social support or appropriate short-term clini-
cal intervention (Bonano 2004; Bowman 1997, 1999; Carlier and Gersons 1995;
Carlier et al. 1997; Gentz 1991), in other cases, traumatic stress that is not resolved
adequately or treated appropriately in the first few days or weeks may evolve into a
number of disabling psychological traumatic disability syndromes (Miller 1998c).
Risk Factors
Risk factors for PTSD or other traumatic disability syndromes (Carlier 1999; Paton
et al. 2000) include: (1) a biogenetic predisposition to heightened physiological reac-
tivity to various stimuli; (2) a history of prior exposure to trauma or other coexisting
adverse life circumstances; (3) characteristically poor coping and problem-solving
skills, learned helplessness, and a history of dysfunctional interpersonal relationships;
and/or (4) inadequate or dysfunctional family, clinical, workplace, or social support.
22 2 Posttraumatic Stress Disorder: The Syndrome
Resiliency Factors
Treatment of PTSD
Although specific treatment methods are beyond the scope of this book (see Ander-
son et al. 1995; Ball and Peake 2006; Blau 1994; Bohl 1995; Borders and Kennedy
2007; Dyregrov 1989; Dyregrov and Regel 2012; Everstine and Everstine 1993;
Figley and Nash 2007; Freeman et al. 2009; Gilliland and James 1993; Hoge 2010;
James 1989; Johnson 1989; Matsaks 1994; McCann and Pearlman 1990; Miller
1998c, 2006d, 2008c, 2010; Miller et al. 2010; Mitchell and Everly 1996; Mitchell
and Levenson 2006; Moore 2011; Rudofossi 2007; Violanti et al. 2000), a few com-
ments can be made with respect to treatment recommendations as part of a forensic
psychological evaluation for PTSD (see also Chap. 7).
First, in most cases, PTSD is a fully or partially recoverable syndrome. The
rate and extent of recovery among individual subjects will vary greatly depending
on: (1) the individual’s biological and psychosocial vulnerabilities to trauma (e.g.,
hyperreactive nervous system and/or prior psychopathology); (2) the nature and
degree of family and social support (e.g., family or workplace makes light of it or
takes it seriously); (3) the circumstances under which the trauma occurred (e.g., nat-
ural disaster or personal attack); (4) the psychological and material incentives (e.g.,
control of a family member, satisfaction of dependency needs, desire for monetary
compensation); and (5) the speed and effectiveness of therapeutic interventions pro-
vided (e.g., on-scene first response, short-term mental health treatment, longer-term
follow-up psychotherapy, and broader psychosocial interventions).
Second, appropriate mental health treatment almost always accelerates recovery
and reduces the overall level of psychological disability in PTSD cases, which is
why some form of treatment recommendation is typically part of a forensic PTSD
Treatment of PTSD 23
Practice Points
• Be familiar with the range of military and civilian posttraumatic syndromes that
may be encountered in forensic practice, how they are similar, and how they dif-
fer from one another. For example, be prepared to explain why the reaction of a
military veteran following a battlefield injury may not be the same as a home-
owner whose house and neighborhood have been destroyed by a tornado.
• Be conversant with the basic neurobiology of PTSD so as to provide the trier of
fact, or fact-finder (i.e., those persons who make a decision on a case, usually a
judge or jury, but also sometimes an insurance adjuster or other clinician) a basic
scientific rationale for your findings of PTSD. However, also know enough of
the basic neuroscience to be able to refute spurious claims by opposing experts
(e.g., “Scientific studies have conclusively shown that exposure to traumatic
stress always damages the brain.” Well, actually, no, they do not).
• In addition to your forensic role, if you are also a clinician who treats PTSD
cases, you will hopefully be aware of the range of short- and long-term treatment
options for subjects with this syndrome. In fact, you will probably be asked as
part of your forensic evaluation to make specific treatment recommendations, so
if this is not a part of your daily practice, educate yourself as to the empirically
validated treatments for PTSD and know how to scrutinize other experts’ treat-
ment recommendations to detect and refute their prescriptions for undertreat-
ment, overtreatment, or unvalidated therapies.
Chapter 3
PTSD and Other Traumatic Disability
Syndromes: Differential Diagnosis
Traumatic brain injury Disturbances in attention, concentration, memory, and mood regulation may mimic the cognitive and emotional impairment
(TBI) seen in some cases of PTSD. Look for a history of head injury or other physical trauma. Also note that TBI and PTSD fre-
quency co-occur in both military and civilian traumatic events
Anxiety disorders Generalized anxiety disorder may be confused with PTSD arousal symptoms; PTSD subjects may develop phobias to traumat-
ically-themed stimuli or situations; and panic attacks can occur following exposure to a traumatic stressor, or occur spontane-
ously without it. Check for premorbid history of any of these disorders, which may be worsened in the context of PTSD
Mood disorders PTSD withdrawal may be confused with major depressive disorder, and posttraumatic mood swings may mimic bipolar dis-
order. As a rule, it is rare for these disorders to arise abruptly and spontaneously, so assess for exposure to a traumatic stressor
that may have precipitated them
Dissociative disorder The subject experiences episodes of depersonalization, derealization, amnesia, and/or disturbed identity. Although dissociation is
often reported in the context of PTSD, it may occur as an independent syndrome in some subjects, so check for premorbid history
Personality disorders Histrionic and borderline personality may overdramatize PTSD symptoms for attention or manipulation, and the latter is
susceptible to dissociation; avoidant and dependent personalities may embrace the sick role as a way out of uncomfortable
responsibilities or to solicit social support; obsessive–compulsive personalities may fixate on their impairment and the harm it
has done to their lives; narcissistic personalities typically insist that their cases be treated as unique and special, and complain
about inadequate clinical care; paranoid personalities will be mistrustful and oppositional to clinical treatment and may insist
that the “system” is out to get them; antisocial personalities are likely to malinger PTSD symptoms and other impairments for
material gain or to avoid legal consequences; schizoid and schizotypal personalities often present bizarre and baffling symp-
toms that are difficult to classify
Somatoform disorders The defining feature of this group of syndromes is that the subject’s intention and motivation for feigning or exaggerating
impairment is unconscious: they really believe there is something wrong with them. In somatization disorder, there is likely
to be a long history of excessive medical evaluation and treatment for multiple disorders predating the PTSD index event;
subjects with hypochondriasis will obsessively worry about one or two symptoms and be impervious to reassurance; in conver-
sion disorder, look for a symbolic connection between a syndrome of impairment and a repressed psychological conflict; pain
disorder represents a magnification of chronic pain due to psychological factors, but check for the real painful effects of physi-
cal injury comorbid with PTSD; in body dysmorphic disorder, the subject is consumed with self-perceptions of defectiveness
or ugliness, but note that traumatic events often include physical injuries that can leave real and disturbing disfigurement
Factitious disorder The intention to magnify or feign impairment is conscious, but the subject assumes the sick role for the primary purpose of
receiving the care, support, love, and devotion from others that ordinarily is bestowed on someone who is ill or injured
3 PTSD and Other Traumatic Disability Syndromes: Differential Diagnosis
Malingering Here, the subject also consciously and knowingly feigns or distorts symptoms, but the motive is for some material gain, such
as a cash award in a civil lawsuit, access to narcotic medication, relief of work or military responsibility, or exculpation from a
criminal charge. Look for a history of previous marginal or antisocial behavior
Anxiety Disorders 27
In the USA, an estimated 400,000 people are admitted to civilian hospitals with
closed head injuries (CHI) every year, and about 1.7 million suffer from resulting
traumatic brain injury (TBI) at any given time (Faul et al. 2010; Slagle 1990). With
returning military veterans from the Iraq and Afghanistan theaters, this number is
likely to swell in the coming years (French et al. 2010). The constellation of somat-
ic, cognitive, and behavioral symptoms seen with a TBI was first termed the post-
concussion syndrome (PCS) by Strauss and Savitsky (1934), and included irritabil-
ity, poor concentration, loss of confidence, anxiety, depression, and hypersensitivity
to light and noise. Today, PCS describes a particular cluster of symptoms that occur
following a CHI—sometimes a seemingly “mild” head injury—and it continues
to be a source of clinical and forensic controversy (Dinn et al. 2009; Evans 1992;
Levin 1990; Miller 1990a, b, 1991, 1992, 1993c, d, 1994b, 2002b).
Commonly reported PCS symptoms include headache, dizziness, fatigue, slow-
ness and inefficiency of thought and action, impaired attention, concentration
and memory, irritability, anxiety, depression, impaired sleep patterns, nightmares,
heightened somatic concern, hypersensitivity to noise and light, blurred or double
vision, concrete thinking, cognitive inflexibility, impulsivity, poor judgment, poor
organization and planning, impaired problem solving, lack of self-control, irrita-
bility, emotional lability, problems in sustaining motivation, egocentricity, lack of
empathy, unawareness of personal impact on others, and socially inappropriate be-
havior.
Many of these symptoms are nonspecific and can occur in a variety of syn-
dromes, ranging from depression to attention deficit hyperactivity disorder; as with
PTSD, it is only their pattern of co-occurrence following a known head trauma that
identifies them as components of PCS. In addition, many PCS symptoms overlap
with those seen in PTSD cases, especially where the latter includes prominent cog-
nitive and memory impairment, as in the new cognitive impairment PTSD criterion
in DSM-5. Compounding the diagnostic issue further is that, especially in military
service members and civilian assault or accident victims, PCS and PTSD may be
comorbid and mutually exacerbate one another, often further aggravated by chronic
pain from physical injuries (Barth et al. 2010; Eslinger 1998; Koren et al. 2007;
Miller 1990c, 1993b, c, d, 2007f, 2013b; Parker 1990; Stuss and Benson 1984;
Vasterling et al. 2010, 2012). For cases of known or suspected PCS, a competent
neuropsychological evaluation is essential.
Anxiety Disorders
Normal levels of anxiety serve as an adaptive warning system for most people.
Anxiety disorders are characterized by heightened worry, fear, and arousal that pro-
duce distress or dysfunction in the person’s life.
28 3 PTSD and Other Traumatic Disability Syndromes: Differential Diagnosis
Mood Disorders
All healthy people show a range of moods, but like any trait or syndrome, it is the
extremes of mood that characterize a disorder, especially when these mood distur-
bances impair healthy life functioning or produce unreasonable conflict with others.
Major depressive disorder is characterized by episodes of depressed mood that
may last for weeks or months at a time. In severe cases, the individual may be
virtually immobilized. More characteristically, subjects feel dejected, demoralized,
helpless, and hopeless. Sleep and appetite may be impaired; alternatively, some
individuals become hypersomnic (sleep virtually all the time) or may binge-eat.
Concentration and memory may be affected to the point where the individual feels
he or she has dementia. Motivation or enthusiasm for work, play, or family activi-
ties deteriorates.
Accompanying emotions may include sadness, helplessness, hopelessness,
worthlessness, anxiety, panic, irritability, or anger. The disorder usually recurs in
Mood Disorders 29
cycles over the lifespan, and, in most cases, is responsive to proper treatment, which
optimally consists of some combination of mood-stabilizing medication and psy-
chotherapy. The greatest risk is suicide. For some individuals, a first depressive
episode may be precipitated by a traumatic event, or such event may accelerate the
reappearance of a subsequent episode in a subject who has already been diagnosed
with depression. Also, symptoms of depression may resemble the numbing/avoid-
ance symptom of PTSD.
Bipolar disorder, formerly called manic-depressive disorder, is characterized
by extreme shifts in mood, from elation (sometimes anger) to depression. Some
subjects experience a normal mood in between episodes; for others, there are only
highs and lows. The hypomanic phase typically begins with the individual feeling
energized and overconfident—“pumped.” He becomes hyperactive and grandiose,
but increasingly impulsive and distractible. Thinking and speech become rapid and
forced. Need for sleep decreases and the individual may become hypersexual; all
appetites are on sensory overdrive, although need for sleep is often sharply reduced.
The overall impression is of someone on stimulant drugs, and indeed, such indi-
viduals may abuse amphetamines, cocaine, or alcohol to enhance the natural high
and try to keep it going. In severe cases, the subject becomes frankly delusional
and may develop overt delusions and hallucinations, in which case the episode is
diagnosed as full-blown mania.
At the beginning of the hypomanic phase, the individual may appear quite en-
gaging and entertaining in a kind of gonzo-comic way. However, as the manic phase
progresses, he becomes increasingly short-tempered, irritable, anxious, and para-
noid. Inevitably, the crash comes as the subject cycles into the depressed phase. At
this point, he may increase his use of stimulant drugs or alcohol to try to prolong the
high, but eventually even this is not enough to stave off the onset of the depressed
phase. Suicide is a distinct risk at this stage. In other bipolar patients, the manic
episodes do not involve much elation at all, but are characterized mainly by irrita-
bility, anger and paranoia, and may be misdiagnosed as schizophrenia or antisocial
personality disorder.
Subjects with bipolar I disorder experience both manic and depressed phases,
whereas those diagnosed with bipolar II swing mainly into the depressed phase,
sometimes alternating with milder hypomanic symptoms. It is the rapidity of the
mood change (hours to days) that distinguishes the depression of bipolar disor-
der from that of unipolar major depressive disorder (which typically evolves over
weeks or months). Manic-like symptoms may be seen in some dissociative episodes
of PTSD subjects; this may especially be the case in subjects that might have pre-
morbid or comorbid diagnoses of a psychotic disorder, such as schizophrenia.
For the forensic examiner, the high emotionality, pressured speech and behav-
ior, impulsivity, impaired judgment, and sometimes delusional psychosis of mania
implicates this syndrome as a high risk factor for impulsive criminal behavior and
substance abuse (Barzman et al. 2007; Calabrese et al. 2003; Dean et al. 2007; Graz
2009; Lewinsohn et al. 1995; Modestin et al. 1997; Pliszka et al. 2000; Quanbeck
et al. 2004, 2005b; Solomon and Draine 1999).
30 3 PTSD and Other Traumatic Disability Syndromes: Differential Diagnosis
Personality Disorders
Personality disorders are not traumatic disability syndromes per se, but may strong-
ly influence the psychological reaction to injury and thereby complicate treatment
and legal disposition. Although all human beings are characterized by different
clusters of personality traits, a personality disorder is defined as an enduring pat-
tern of inner experience and behavior that deviates markedly from the expectations
of the individual’s culture, is pervasive and inflexible, has an onset in adolescence
or early adulthood, is stable over time, and leads to distress or impairment (APA
2013; Sperry 1995).
Antisocial personality disorder is a pattern of disregard for, and violation of,
the rights of others. It is typically associated with impulsivity, criminal behav-
ior, sexual promiscuity, substance abuse, and an exploitive, parasitic, and preda-
tory lifestyle. These “psychopaths” or “sociopaths” will have no qualms about
malingering PTSD or other impairment syndromes for monetary gain, to obtain
drugs, or to avoid legal consequences, and they may be quite slick, engaging, and
convincing in their performances, often eliciting sympathy from well-meaning
doctors, lawyers, and family members. In clinical settings, there is a high associa-
tion of antisocial personality disorder with malingering (see below) and medica-
tion-seeking behavior, and common comorbidities include alcohol and substance
abuse.
Histrionic personality disorder is a pattern of excessive emotionality and atten-
tion-seeking. PTSD or other symptoms will typically be reported by these subjects
with theatrical flamboyance, and all attempts at medical explanation or reassurance
will be evaded or resisted by persistent complaints of total, catastrophic, and heart-
wrenching disability. If engaged in treatment, therapeutic progress may be impeded
by excessive bids for attention, reassurance, nurturance, and support. Common co-
morbidities include depression and somatization disorder.
Borderline personality disorder is a pattern of instability in interpersonal rela-
tionships, impaired and inconsistent self-image, and emotional lability and mood
swings, along with marked impulsivity, including self-injury and suicidal gestures.
The pervasive mistrust, anger, and cynicism of many borderline subjects, along
with their tendency to alternately idealize and devalue others, may impel them to
pursue lawsuits with righteous fury to “punish” treacherous employers, doctors, or
insurance companies whom they blame for hurting or betraying them. Borderlines
may also alternately overidealize and devalue their doctors and attorneys, thereby
complicating clinical and legal cooperation. Common comorbidities include panic
disorder, bipolar disorder, and substance abuse, and these subjects’ highly dramatic
reactions to most events make them prime candidates for development of PTSD and
other traumatic disability syndromes.
Paranoid personality disorder is a pattern of pervasive distrust and suspicious-
ness, so that others’ actions and motives are almost invariably interpreted as per-
secutory or malevolent. Believing that “the system is out to get me,” this subject
Personality Disorders 31
may feel no compunction about “beating the bastards at their own game” by
exaggerating impairment and making excessive disability claims. In the criminal
justice system, paranoid subjects may react violently to perceived threats and be
mistrustful of their own lawyers and the legal system in general. Common comor-
bidities include mood disorders and psychotic disorders, and posttraumatic dis-
sociative reexperiencing symptoms may take on an especially bizarre delusional
quality in these subjects.
Narcissistic personality disorder is a pattern of grandiosity, entitlement, need
for admiration, and lack of empathy. How dare the military disability review board
or insurance company deny them compensation for their loss and suffering! These
subjects may feel they have the right to feign or exaggerate disability in order to
win their case and get what they deserve. Less calculatingly, their wounded narcis-
sistic pride at not being able to return to work or other important roles may spur
exaggerated claims of injury simply to save face by presenting themselves as totally
disabled from work. In clinical settings, they may present themselves as special and
entitled, and try to take partial or full control of the treatment plan: “It’s my body—I
know what’s best for me.” In legal contexts, they may try to tell the attorney how
to run his or her case. Common associated diagnoses include bipolar disorder and
substance abuse.
Dependent personality disorder is a pattern of submissive and clinging behavior
that stems from an excessive need to be taken of. These subjects may latch onto the
sick or injured role as a way of conscripting and prolonging the nurturing care and
support of doctors, family members, and solicitous attorneys. Comorbid anxiety
and mood disorders are common.
Avoidant personality disorder is a pattern of social inhibition, feelings of inade-
quacy, and hypersensitivity to negative evaluation or criticism, often accompanied
by anxiety disorders, panic disorder, phobic disorders, and alcohol abuse as self-
medication. Schizoid personality disorder is a pattern of aloof detachment from
social interaction, with a restricted range of emotional expression, which may
represent a clinically less severe phenotypic variant of schizophrenia. Avoidant
subjects fear people and schizoid subjects do not need people. Consequently, both
of these types may welcome the enforced invalidism and isolation of a traumatic
disability syndrome to maintain their distance from unwanted social interaction.
Their PTSD manifestations may show a predominance of numbing-avoidance
symptoms.
Obsessive–compulsive personality disorder is a pattern of preoccupation with
orderliness, perfectionism, and control. These subjects may drive doctors and law-
yers crazy with their incessant and repetitive demands for medical information and
details about the progress of their cases. Heightened anxiety and obsessive hypo-
chodriacal preoccupation may lead to the overinterpretation of mild symptoms or
impairments as catastrophic. Comorbid diagnoses include anxiety disorders, mood
disorders, and somatoform disorders, and some will abuse substances for self-med-
ication.
32 3 PTSD and Other Traumatic Disability Syndromes: Differential Diagnosis
Dissociative Disorders
Somatoform Disorders
more somatoform disorders, as the subject now projects all of his or her past and
present life’s problems onto the index traumatic event. Somatoform disorders in-
clude several subtypes. Although these tend to be relatively consistent from subject
to subject, it should be recognized that a given subject may show more than one
subtype, a combination of subtypes, or alternation between several subtypes as a
continuum of coping style (van der Kolk 1991).
Somatization Disorder Once referred to as “hysteria,” this syndrome involves a
history of multiple unexplained physical symptoms and complaints, beginning
before age 30, and often traced to childhood and adolescence. Outbreaks of numer-
ous and varied symptoms may occur in clusters that wax and wane over time, often
in response to interpersonal, vocational, and other stressors. Associated features
include anxiety, depression, impulsivity, relationship problems, and possibly sub-
stance abuse.
Symptoms in somatization disorder may closely mimic true medical disorders
or they may be atypical or bizarre in quality, location, or duration. The subjects
typically describe their symptoms in exaggerated, florid terms, and several phy-
sicians may be consulted concurrently, leading to secondary problems associated
with medication abuse and unnecessary surgical treatment. Forensic psychologi-
cal examiners, or treating clinicians who review the medical records of these sub-
jects, will be impressed by the sheer number and variety of past injuries, illnesses,
and unexplained symptoms, covering a wide range of organ systems and medical
diagnoses.
In forensic disability cases, evaluating experts should try to determine whether
the present symptoms developed in the aftermath of the traumatic event or fall into
a prior longstanding pattern and history of multiple symptoms and complaints. In
pure somatization disorder, the patient genuinely believes that he or she is ill or
impaired and that all or most of the disability is related to the traumatic event.
The underlying motivation is typically a quest for support and reassurance, or to
manipulate the affection of a significant other. The psychodynamic goal is the sat-
isfaction of dependency needs by reliance on caretakers or on the protective role of
medical and/or judicial authority. In such cases, being a “victim” can have multiple
meanings, including the need to be treated with extra special care, consideration,
and love. Underlying histrionic personality disorder is a frequent comorbidity.
Conversion Disorder The essential feature is the presence of sensory or motor defi-
cits that appear to suggest a neurological or medical illness or injury, but with an
absence of corroborating physical findings. In conversion disorder, the patient is
unshakably convinced of his or her disability, and the underlying motivation typi-
cally involves the attempted resolution of psychological conflicts, such as those
involving dependency wishes or denial of disturbing aggressive or sexual impulses,
by unconsciously channeling the conflict into physical impairment. Frequently,
there may be an actual symbolic “conversion”—hence the name—of a particular
psychological conflict into a representative somatic expression, as in psychogenic
paralysis of an arm in a subject who wishes to repudiate a hostile retaliation fantasy,
34 3 PTSD and Other Traumatic Disability Syndromes: Differential Diagnosis
or severe, incapacitating back pain in a worker who believes that “I was a stand-up
guy, but my spineless company didn’t back me up when my coworker knocked me
flat on my back.”
Other examples of symbolic conversion symptoms include visual or auditory im-
pairment; genitourinary and sexual dysfunction, most frequently seen in victims of
sexual assault; disturbances in consciousness or cognition, such as impaired memo-
ry; and psychogenic seizures or fainting spells. Unlike the anxious, agitated, angry,
or depressed emotional state of many injured and traumatized subjects, those with
conversion disorder often display a bland, eerily unconcerned and nonchalant de-
meanor, known as la belle indifference. This attitude seems to suggest that, despite
his or her protests of catastrophic ruin, the serious impairment is of little concern to
the subject, seeming, in fact, to be a “relief” from having to deal consciously with
the conflicts and challenges of everyday life.
Pain Disorder Here, chronic pain causes significant distress or impairment in
social, occupational, or other important areas of functioning, and psychological
factors are judged to play a significant role in the onset, severity, exacerbation, or
maintenance of the pain. The pain is not intentionally produced or feigned as in
malingering or factitious disorder (see below), but rather expresses, represents, or
disguises an unconscious need, fear, or conflict, closer to somatization disorder, of
which it is generally considered a subset. In addition, pain caused by documented
physical injury can be exacerbated by psychological stressors, setting up a vicious
cycle. In many cases, however, no legitimate medical explanation for the degree
of severity and/or length of persistence of the pain can be discovered, and sub-
jects make the rounds from doctor to doctor until they are eventually shunted into
the mental health system or rejected outright from further treatment (Miller 1993b,
1998c). Problems with overuse of narcotic pain medication and with alcohol and
drug abuse may compound the problem by producing toxicity and addiction. Inas-
much as many cases of PTSD, especially in military settings, are accompanied by
physical injury (as well as by traumatic brain injury), somatoform pain syndromes
need to be assessed and properly dealt with in any traumatic event involving physi-
cal injury.
Hypochondriasis The conviction that one has a serious illness or injury, in the
face of repeated negative findings on medical exams, is the defining characteristic
of hypochondriasis. Patients are preoccupied with the fear of pathology, injury,
disease, or deterioration, and tend to misinterpret normal bodily signals as signs
of dire illness or injury. Unlike the varied and changing clinical presentations of
somatization disorder, hypochondriacs tend to focus on one or a few specific symp-
toms and remain preoccupied with them; although, the focus may shift over time
from one symptom or disorder to another—e.g., from memory impairment to diz-
ziness, to headaches, to back pain, and back again—and the associated anxiety
may wax and wane over time. Unlike conversion disorder, there may be no actual
observed or experienced impairment per se: it the fear of illness or injury that is
the problem. The unconscious motivation in hypochondriasis typically involves a
deflection of anxiety away from broader issues surrounding the subject’s life which
Factitious Disorder 35
may seem insoluble, such as family, romantic, or career issues. This emotional redi-
rection is achieved psychodynamically by focusing the anxiety on a more limited,
and hence “controllable” source of concern in the form of a somatic symptom or
feared illness.
Body Dysmorphic Disorder Many traumatic injuries leave victims physically dis-
figured or disabled, sometimes severely, other times almost imperceptibly. Diag-
nostically, body dysmorphic disorder involves a preoccupation with an imagined
defect in appearance or overconcern with a minor defect that has resulted in some
degree of disfigurement or loss of function that impacts the patient’s self-image.
More broadly, such overvalued impairments may include facial or other bodily dis-
figurement, lost physical prowess, reduced work capacity, or weight changes due to
immobility after an injury or mood-related changes in appetite. It may also present
itself as a form of cognitive dysmorphic disorder associated with the PCS following
a TBI (Miller 1993c), in which diminished intellectual skills, interpersonal func-
tioning, or employment status are the main sources of self-deprecation.
Unconsciously, the motivation for such preoccupation with self-perceived ugli-
ness or worthlessness may involve deep-seated and longstanding feelings of self-
loathing which are now, posttraumatically, projected onto a more objectifiable
physical or mental impairment that serves as the new focus of the subject’s self-per-
ceived unworthiness. Alternatively, the physical disfigurement may come to repre-
sent a concrete, physical symbolization of a more general and ill-defined existential
fear and loathing that the trauma victim is struggling with. Focusing one’s attention
on an “ugly face” may actually be less threatening than confronting the prospects
of an “ugly life.” The physical disability or disfigurement becomes a permanent
reminder of what has happened to the trauma survivor and assails the victim every
time he or she looks in the mirror. Especially in the case of facial injury that results
from violent assault, victims may be at an increased risk for PTSD, depression, and
other traumatic disability syndromes (Bisson et al. 1997; Fukunishi 1999; Jaycox
et al. 2004; Levine et al. 2005; Roccia et al. 2005; Wong et al. 2007).
Factitious Disorder
life that this entails, sometimes even at the price of substantial cost in money, health,
or freedom—that is, the motive would be viewed by most people as “senseless” or
even self-defeating in terms of significant practical gain. In many cases, the subject
also appears to derive satisfaction, perhaps only partly unconscious, from manipu-
lating the medical system and “fooling the experts.”
The manifestations of factitious disorder are limited only by the imagination
and ingenuity of the subject (Sparr and Pankratz 1983). Medically sophisticated
subjects, such as nurses or mental health clinicians, may be quite clever in feigning
credible medical and psychiatric illnesses and injuries by the surreptitious use of
chemical substances or medical apparatus, or by faking realistic physical or psychi-
atric symptoms. Less knowledgeable subjects may resort to cruder methods such as
drinking toxic concoctions, bruising or cutting themselves to simulate injuries, or
acting like their best approximation of a “brain-damaged” or “crazy” person. Trau-
ma survivors may incorporate their new disability status into their existing lifelong
victim role by exaggerating symptoms and impairments, and presenting themselves
as a uniquely challenging (and therefore special) case to clinical and forensic per-
sonnel (Weissman 1990).
Malingering
Malingering is not classified as a true psychiatric disorder per se, but rather is de-
fined as the conscious and intentional simulation of illness or impairment for the
purpose of: (1) obtaining financial compensation or other reward; (2) evading duty,
responsibility, or obligation; or (3) being relieved of the consequences of one’s
criminal actions or other illicit behavior. In other words, there is a practical and
sensible—albeit ill-intended—motive for the subterfuge and therefore it does not
represent a true symptom of psychopathology, although malingering may co-occur
with a variety of medical and psychiatric syndromes. Thus, unlike somatoform dis-
order, in which the subject truly believes in the false claims of illness he conveys,
and unlike factitious disorder, where the subject deliberately feigns disability but
for predominantly psychological reasons, in malingering the subject is deliberately
lying for profit or to escape the consequences of his or her behavior.
Types of Malingering
one category of malingering may be observed in the same subject at the same or
different times. To compound matters further, more than one syndrome may be
the subject of different types and degrees of malingering, e.g., PCS, chronic pain,
anxiety, depression, PTSD, or others. Finally, malingering can co-occur with other
psychological syndromes, such as the somatoform disorders or personality disor-
ders. In many cases, malingering is suspected when subjects exaggerate impair-
ment beyond the level of clinical believability, or when they are observed (e.g., on
insurance company surveillance cameras) to be performing activities that they are
supposedly incapable of doing.
Authorities on malingering detection agree that there are only two ways to deter-
mine malingering with absolute certainty: (1) the subject admits to it; or (2) the sub-
ject is caught doing precisely what he claims he is unable to do (Larrabee and Berry
2007; Stone and Boone 2007; Sweet 2009). There are a plethora of psychometric
tests and measures purported to detect malingering, but bear in mind that no single
indicator is a sure-fire “lie-detector.” In assessing for malingering, the clinician or
forensic evaluator should first try to ascertain a motive for the subterfuge, e.g., a
monetary claim in a civil case or exculpation/mitigation of a criminal charge. A
careful history should be taken that includes both the index event and larger life his-
torical features. To assess for malingering, multiple data sources should be utilized,
including direct clinical interview, psychometric testing, interview of collaterals
(people who know the subject) and, if possible, direct observation of the subject in
his natural environment, e.g., through court-ordered surveillance and recording. In
this way, a combination of indicators, gleaned in the context of a competent forensic
evaluation, can yield valuable clues to the veracity of a PTSD claimant’s report.
These principles apply also to a range of other potentially malingered syndromes,
such as concussive brain injury and chronic pain (Miller 1993c, 1998c).
Collated from a variety of sources (Appelbaum et al. 1993; Atkinson et al. 1982;
Burkett and Whitely 1998; Cima et al. 2004; Esposito et al. 1999; Fairbank et al.
1983; Frankel 1994; Frueh et al. 2000, 2007; Garfield 1987; Hall and Hall 2006;
Hall and Poirier 2001; Hall and Pritchard 1996; Hellawell and Brewin 2004; Jones
et al. 2003; Knoll and Resnick 1999; 2006; Kozaric-Kovacic and Borovecki 2005;
Kuch and Cox 1992; Lowenstein 2001; Lynn and Belza 1984; Merckelbach et al.
2003a, 2003b; Pillar et al. 2000; Resnick 1995, 1997, 1999; Roemer et al. 1998;
Ross et al. 1989, 1991; Rothbaum and Mellman 2001; Schreuder et al. 2000; Silva
et al. 1998; Sparr and Atkinson 1986; Taylor 2001; van der Kolk et al. 1984; Watson
2004; Wessely et al. 2003; Zervos and Saldatos 2005), the following are some indi-
cators that should raise red flags about possible PTSD malingering.
Flashbacks Subjects’ descriptions of flashbacks may range from simple recollec-
tions of the traumatic event, to hallucinatory sights, sounds, or smells in relatively
clear consciousness, to dissociative states where the subject actually believes he is
Malingering 39
back in the traumatic scene. In true dissociative flashbacks, the subject typically
recalls the events that took place during the dissociative state, including acts of vio-
lence or other illegal activity he may have committed. During the flashback itself,
the PTSD subject will often be observed to talk about past events in the present
tense and report an enhanced cognitive, perceptual, and emotional state.
Malingered flashbacks typically have a dramatic, cinematic flavor, with hal-
lucinatory images of explosions and flying bodies, much like in a Hollywood war
movie. The malingerer will often claim total amnesia for any violent or illegal acts
that he supposedly committed while in the dissociative flashback state (“I blacked
out, and the next thing I knew, I was sitting in the stolen car with the dead guy
next to me”), when, in fact, true dissociative amnesia occurs in less than 5 % of
veridical PTSD flashback cases. Nevertheless, up to 40 % of violent criminal of-
fenders of all types, whether claiming PTSD or not, report partial or total amnesia
for their criminal actions. What they may not realize is that the law does not regard
impaired memory for a criminal act as automatically exculpatory, even when as-
sociated with a known medical or psychiatric condition (Miller 2012c; Smith and
Resnick 2007).
Dreams There appear to be some differences between posttraumatic dreams associ-
ated with military vs. civilian traumatization. Military PTSD subjects, especially in
the early stages, are more likely to report stereotypic, repetitive dreams replicating
the traumatic event, which may represent more of a nocturnal flashback than a dream
per se. With the passage of time, dream content may become more varied. Civilian
PTSD subjects are more likely to have dreams that vary in content from night to
night, but whose themes reflect the emotions, reactions, and symbolic expressions
associated with the trauma, as in the sexual assault victim who dreams of being
attacked by wild animals. Typical emotional themes of PTSD dreams involve fear,
helplessness, guilt, and/or rage. Combat soldiers with PTSD experience nightmares
more often than waking flashbacks, while the ratio seems about equal for civilian
PTSD. In both cases, PTSD-related dreams are often associated with more body
movement, sleep talking, and recurrent awakenings than ordinary nightmares. For
both combat and civilian PTSD, the intensity and frequency of posttraumatic night-
mares tend to diminish over several weeks and months.
Malingerers often report stereotypic, unvarying nightmares that persist for
months or years; alternatively, the images reported may vary wildly from retell-
ing to retelling. The dreams often involve themes of anger and resentment against
authority figures for injustices committed against the subject (“This would never
have happened if those bastards hadn’t sent me out there”). Alternatively, the dream
themes may be focused on the grandiose heroism of the subject. Unless acting in
collusion with the claimant, sleep partners of the malingering PTSD subject will
typically fail to confirm an observation of disturbed sleep patterns.
History PTSD malingerers often show histories of past irregular employment,
involvement with the criminal justice system, prior injury claims and lawsuits, and/
or previous diagnoses of narcissistic, histrionic, borderline, or antisocial personality
disorder. Malingerers often show a prior history of substance abuse and narcotic
40 3 PTSD and Other Traumatic Disability Syndromes: Differential Diagnosis
medication misuse, and this typically continues and even escalates following their
pursuit of a compensatory or exculpatory PTSD claim. Note that many true PTSD
sufferers may also have had a pre-incident substance abuse history, and this will
likely escalate as the emotionally injured subject attempts to quell his symptoms
with drugs or alcohol. In addition, a disabled person has a lot of free time, and
substance use often emerges as a vacuum activity to relieve simple boredom as
well as the disturbing PTSD symptoms that rush in to fill the empty spaces. Many
substances can cause symptoms of their own, either directly or upon withdrawal,
exacerbating or adding to the already existing PTSD symptoms, in a vicious cycle.
On close inspection of their service records, some military PTSD compensation
claimants turn out to have seen no combat at all, and a few have not even been in
the military. When confronted with his gap in their record, a number of subjects
have resorted to the claim that they were on top-secret “special missions” that could
not be recorded, referencing the kind of “black ops” assignments often portrayed
in movies. However, it should be noted that, even if the details about such missions
are classified, the special training required to qualify for being chosen for such an
assignment in the first place is always listed in a service member’s record. In many
cases, a degree of clinical-forensic detective work may be required to confirm the
objective facts.
Clinical Presentation During the clinical interview, the PTSD malingerer may
be sullen, evasive and uncooperative, or, alternatively, he may be animated and
voluble, overwhelming the evaluator with vivid descriptions of the traumatic event
and the multiple and dramatic effects it has had on his life. In still other cases, the
malingerer may attempt to seize control of the interview, behaving in an intimidat-
ing and confrontational manner. It is not uncommon for a given subject to cycle
through all three presentations—sullen, animated, and confrontational—in a single
session.
True PTSD sufferers are often plagued by feelings of helplessness, hopelessness,
and survivor guilt. PTSD malingerers are more likely to express anger, outrage, and
blaming of others for their predicament. Many true PTSD claimants are reluctant
to talk about their experiences and may downplay their symptoms, whereas the
malingerer will typically bring up the index event early in the interview and regale
the examiner with multiple symptoms and disabilities. Malingerers’ descriptions of
the index event often have a dramatic, theatrical tone, like a scene from a movie,
and PTSD symptoms may be reported as “textbook”-like descriptions with formal
diagnostic names, as if the recounting had been rehearsed, which is often has. Al-
ternatively, the subject may report atypical and frankly bizarre symptoms that have
no bearing on PTSD; much depends on the sophistication of the malingerer and his
access to reliable information about PTSD or coaching by someone more knowl-
edgeable.
There is a tendency for the malingerer to overidealize all pre-incident aspects of
his life, i.e., all his problems are presented as being caused by the effects of the in-
dex event. Symptoms are constant and nonvarying, and no improvement is reported,
even after many months or years; in fact, many claimants report a worsening of the
Malingering 41
condition over time. Typically, treatment has been sought only in connection with
the current case, i.e., after a lawsuit or compensation claim has been filed or after a
criminal charge has been brought; then, the subject may “fly into treatment” and be-
come a pseudocompliant patient, giving every outward appearance of cooperating
with the various therapies, but not getting any better, thereby starkly highlighting
the utter hopelessness of his plight.
In the course of multiple retellings, exaggerations and contradictions in the ma-
lingering claimant’s story will frequently emerge. Be careful to distinguish legiti-
mate fear-based posttraumatic avoidance of painful topics from deliberate evasion.
When internal inconsistencies and contradictions are pointed out, the malingerer
will often display hurt, indignation, or outrage; alternatively, he may grin and even
laugh as he buys time and mentally gropes for a way to fill in the gaps. External in-
consistencies may also be found, i.e., the claimant is seen doing things in his natural
environment that he claims he cannot do, or disturbing symptoms seen or reported
during the clinical examination evaporate when the subject thinks he is unobserved,
e.g., no one else notices the reported “five flashbacks a day,” or his sleep partner
does not observe any sign of the claimant’s supposed nightly thrashings in bed.
Malingerers who claim total disability from work may be observed or reported to
be able to engage in recreational activities; if confronted about this, they typically
rationalize that, “after all I’ve suffered, don’t I deserve a vacation? I have to do
something to take my mind off the pain.”
Comorbidity of PTSD with psychotic symptoms is reported to occur in up to
40 % of combat veterans, and true PTSD sufferers often express the fear of “going
crazy;” in fact, it is this fear that often leads them to initially conceal such symp-
toms. Civil tort or work disability PTSD malingerers rarely report psychotic symp-
toms per se because this would conflict with their heroic struggle narrative, as well
as placing them at risk of being administered unwanted psychotropic medication or
even confined to a mental health facility. False claims of psychosis may be higher in
criminal populations, where a defendant is feigning PTSD or some other syndrome
in order to be adjudicated incompetent to stand trial or to pursue an insanity or di-
minished capacity defense. In these cases, confinement to a mental health facility is
seen as a less aversive alternative to incarceration in prison.
Practice Points
Clinicians and forensic examiners who negotiate the legal system need to have
some understanding of the forensic issues involved in diagnosing, treating, and
forensically evaluating traumatically disabled subjects involved in civil litigation
and criminal prosecution. At the same time, attorneys may appreciate some insight
into the sometimes untidy real-life psychological worlds their clients inhabit while
pursuing civil claims or asserting criminal defenses (Barton 1990; Koch et al. 2006;
Miller 1990b, 2012a, c, 2013a; O’Brien 1998; Pitman et al. 1996; Schouten 1994;
Simon 1995, 2003; Slovenko 1995; Sparr 1990; Sparr and Pittman 2007; Stone
1993; Young and Yehuda 2006).
This chapter will first summarize the main differences between the civil and
criminal court systems, then describe how posttraumatic stress disorder (PTSD)
is used as a claim in civil court and what the proper role of the examining psycho-
logical expert should be. PTSD in the criminal justice system will be covered in
Chaps. 5 and 6.
The US court system is divided into two major branches. Civil courts deal with mat-
ters between citizens: contracts and wills, divorce and custody, civil competencies,
compensation claims, and personal injury. In civil cases, one party, the plaintiff,
files a lawsuit against a second party, the defendant. The standard of proof in most
civil cases is preponderance of the evidence, that is, the jury deciding the case must
only be a little more certain than not about their verdict, which is generally inter-
preted as “just over 50 % sure.” Attorneys may be retained by either side, and in
such cases, the attorney directly represents his or her client. Where the defendant
cannot afford an attorney, he/she may proceed pro se, that is, on their own behalf,
as there is no Constitutional guarantee of right to counsel in civil cases as there is in
criminal cases (in some cases, even where funds exist, a plaintiff or defendant may
elect to proceed pro se, but this is generally not advised).
In a civil case, the jury may find for the plaintiff or for the defendant. In cases
of personal injury or compensation claims, if the jury finds for the plaintiff, a cash
award usually results; if they find for the defendant, no such award is granted. In
many jurisdictions, the losing side is responsible for paying court costs and other
fees. Some personal injury cases are tried by a jury; other cases are decided by a
judge, which is also the case with most workers compensation claims. Prior to trial,
every effort is usually made to reach a settlement between the parties, in order to
avoid a potentially costly and time-consuming court battle.
In civil personal injury cases, plaintiff’s attorneys typically work on contingency,
meaning that they do not get paid unless they win an award for their client, in which
case, they take a proportion of the collectibles, averaging around 40 %, plus expens-
es. One of these expenses is the fee paid to expert witnesses for their evaluations and
testimony (also see Chap. 7). Defense attorneys are usually paid an hourly fee by
the party being sued, who in many cases, is represented by an insurance company,
as in product liability or medical malpractice lawsuits.
In criminal courts, it is the state or the federal government who brings a criminal
charge against a citizen or organization for violating the law. The accused party is
still called the defendant, but the side bringing the charge is the prosecution, whose
legal representative is the prosecutor, state attorney, district attorney, or federal at-
torney. Unlike civil cases, the Sixth Amendment to the US Constitution guarantees
the right of a defendant to be represented by counsel in criminal cases; he or she can
either retain their own lawyer or, if indigent, the court will appoint a public defender
to the case. The standard of proof in most criminal cases is beyond a reasonable
doubt, which is usually interpreted to mean “at least 90–95 % sure.”
If the jury finds for the prosecution’s side, the defendant is convicted. If they
find for the defendant, he or she is acquitted. Prior to trial, every effort is made to
arrive at a plea-bargain, i.e., getting the defendant to plead guilty to a lesser charge
to avoid a potentially costly and laborious trial. In fact, over 90 % of criminal cases
are “pled out;” if every defendant asserted their Constitutional right to a trial by a
jury of their peers, the criminal justice system would grind to a halt. Prosecutors are
paid a salary by the state or federal government jurisdiction they work for, as are
public defenders. Where the defendant can afford one, he or she may retain a private
defense attorney.
In criminal cases, the defense attorney represents the defendant, but the prosecu-
tor represents the state or federal government, not the victim of a crime. In some
cases where the victim or her family has suffered some compensable damage or
loss, a civil suit will be filed following, or simultaneously with, the criminal charge
(this process was made famous by the O.J. Simpson case). The substantial differ-
ence in burden of proof between the two systems accounts for the seemingly para-
doxical phenomenon of many criminal defendants being acquitted in criminal court,
but then being successfully sued in civil court. Some studies (e.g., Des Rosiers et al.
1998) suggest that the primary goal of many crime victims who pursue civil litiga-
tion is not just monetary compensation, but to be heard and to obtain some sort of
apology; most are sorely disappointed. An associated motive may be to obtain facts
about the case during civil trial discovery (the data-gathering process that precedes
the trial) that were excluded from evidence in the criminal trial (Table 4.1).
Torts and Psychological Injury 45
With the exception of divorce actions, it is estimated that half of all civil cases
pending on American court dockets are personal injury cases (Modlin 1983). Along
with military and civilian compensation cases, tort cases will comprise the bulk of
a psychological examiner’s civil forensic PTSD caseload.
46 4 PTSD in the Civil Litigation System
The law of torts covers a variety of possible actions or inactions, such as trespass,
invasion of privacy, plagiarism, negligence, false representation or deceit, slander,
libel, and malicious prosecution (Modlin 1983). Most personal injury lawsuits are
pursued under the theory of negligence that is, unintentional breach of duty, which
is the most common basis for third-party negligence suits (e.g., cases of poorly-lit
premises, lax security, slip-and-fall). In cases of direct traumatic victimization, e.g.,
as in a criminal assault, the legal claim may include intentional infliction of emo-
tional distress. To pursue a personal injury lawsuit successfully, the plaintiff must
assume the burden of proof and must establish the four essential elements of a tort
claim: duty, breach, causation, and damages.
1. A legal duty of care existed. For example, as a restaurant owner, I am required to
sterilize utensils to a certain temperature for a certain amount of time in order to
prevent spread of disease.
2. The defendant breached that duty willfully or fulfilled it negligently. It was a
heavy lunch hour, so I cut the time in the sterilizer for some utensils and merely
rinsed off some others.
3. The breach of duty caused an event that affected another person(s). One of the
cutting utensils I failed to sterilize was infected with hepatitis B that made a
dozen customers sick.
4. The event caused by the breach of duty produced significant damages. Many of
the infected customers incurred medical bills for treatment, and some have had
their livelihoods and quality of life affected by the illness. Some are so trauma-
tized that they cannot eat at restaurants anymore, and thus cannot entertain busi-
ness clients; others are fearful of dying early or of being disabled for life.
The testimony of medical and psychological experts, especially with respect to cau-
sality and damages, expressed in a written report, deposition, or trial appearance,
can often make or break a plaintiff’s case (Barton 1990; Feigenson 2000; Modlin
1983; Simon 1995; Taylor 1997).
Causation need not be all-or-nothing, and the law attempts to manage complex cau-
sation by the chain of events concept: if the index event set off a chain of events
beyond the plaintiff’s control, the tortfeasor (the party allegedly responsible for
the damages) may still be held responsible for the adverse outcome. In some cases,
this can get complicated; for example, what percentage of the disability from a
traumatic injury was caused by physical blows to the head and body, the fear and
pain attendant to the injury, inept or insensitive handling of the incident by law
enforcement officers, rescue workers, clinicians, and the courts, or preexisting or
concomitant medical or psychosocial problems?
Torts and Psychological Injury 47
The legal approach to causation may appear to differ markedly from the clini-
cal approach to which most mental health practitioners are accustomed (Feigenson
2000; Harsha 1990). In viewing a patient’s current symptoms and syndromes, medi-
cal and mental health clinicians typically search for both basic and complex causes
which underlie the disorder, and they try to understand all aspects of their patient’s
condition. By contrast, judges, juries, and attorneys seek to determine whether one
or more specific events precipitated or aggravated the plaintiff’s current condition,
and they limit their concern to the precise proportion of the plaintiff’s condition that
allegedly has been precipitated, hastened, or exacerbated by the index event. That
is, clinicians tend to think in terms of twists and turns; the legal system typically
wants a straight line.
With regard to causation, the law is concerned with proximate cause, the legally
definable cause for the claimed disability. A reasonable time relationship between
cause and effect is usually sought, although, in cases of “delayed reaction,” the
psychological expert should be prepared to explain that a latency period is possible
and symptoms of PTSD may not emerge fully until several weeks or months post-
injury (Everstine 1986; Everstine and Everstine 1993; Modlin 1983). As noted in
Chap. 2, although rare, some cases of PTSD or other traumatic disability syndrome
may be triggered months, years, or decades later by a subsequent intervening trau-
matic event.
With regard to a claimant’s preexisting or predisposing conditions, the law of
torts states that the tortfeasor is equally liable whether the injury totally caused the
disability, activated a latent condition, or worsened a preexisting condition. Any pri-
or disorder that is exacerbated and produces significantly greater physical or emo-
tional pain, discomfort, or distress than before the injury may still be grounds for
damages. This is the well-known but-for principle that essentially states that, even if
the plaintiff was already susceptible to impairment (via, say, weak bones or a weak
ego), the present level of disability would not have occurred “but for” the injury in
question. This concept is often articulated as the thin skull or fragile eggshell princi-
ple: the tortfeasor takes the victim as he finds him, prior weaknesses, vulnerabilities,
and susceptibilites notwithstanding (Meek 1990; Modlin 1983, 1990; Sparr 1990).
Further, as noted above, psychological traumatization in one incident may ren-
der the subject more susceptible to the effects of future traumatic events (Bursztajn
et al. 1994), which may have implications for the structure and amount of damage
claims. For example, a history of child abuse may render a subject more susceptible
to combat trauma when she grows up and joins the military, and the child abuse and
combat trauma may, in turn, increase her vulnerability to subsequent traumatiza-
tion in a civilian motor vehicle crash or sexual assault. As expected, in many cases,
just what constitutes a preexisting or coexisting condition or susceptibility can be a
complex clinical and forensic knot to disentangle.
Another issue relates to just what exactly constitutes a physical or mental “in-
jury” (Melton et al. 1997; Miller 1999b, e; Schouten 1994; Simon 1995; Slovenko
1994; Sparr 1990; Stone 1993). In the recent past, compensation for mental pain and
suffering in a civil action was recognized only as an ancillary, or so-called parasitic
element of damages. Thus, where the tortious (damaging) conduct inflicted bodily
48 4 PTSD in the Civil Litigation System
harm, the ensuing emotional distress could be taken into account in assessing dam-
ages. Emotional distress could be the sole basis of a claim only in cases of inten-
tional wrongdoing for assault, defamation, false imprisonment, invasion of privacy,
or malicious prosecution. In the mid-1950s, courts in various states began to allow
an action for the intentional infliction of emotional distress itself, as in the case of a
malicious jokester who intentionally traumatizes a mother by falsely telling her that
her child has been killed in an accident.
Also, beginning in the mid-twentieth century, an increasing number of states
have removed the physical impact or injury limitation in tort and Workers Compen-
sation actions, opening the way for so-called mental-mental claims, where a mental
event (e.g., witnessing a shocking scene) causes a damaging mental outcome (de-
veloping PTSD or other traumatic disability syndrome). In 1968, some courts began
allowing legal action for mental distress even for those who witness a traumatic
negligent injury, as in the case of someone who sees a workmate or family member
hurt or killed. Standards were set out for this kind of bystander action, that is: (1)
a close relationship to the person injured; (2) close proximity to the scene; and (3)
a “sensory and contemporaneous observation” of the incident (Melton et al. 1997;
Slovenko 1994; Sparr 1990).
Even this latter requirement that the plaintiff has to be at the scene of the act that
caused the mental suffering has been relaxed in a number of jurisdictions. In 1980,
the Massachusetts Supreme Court allowed a wife and child to sue for mental dis-
tress arising out of seeing their injured husband and father at a hospital hours after
an accident that was allegedly caused by the defendant. In the 1972 Buffalo Creek
disaster case, in which a dam broke owing to the alleged negligence of the defen-
dant, there was a settlement of claims brought by a number of plaintiffs who suf-
fered emotional distress when they heard the news and feared for their loved ones,
even though they were miles away when the disaster occurred. Recent decades have
seen a frightening succession of school and workplace violence incidents and acts
of terrorism, and it will be intriguing to see how some of these cases work them-
selves out in civil court.
The credible fear of becoming ill or incurring worsening disability at a later date
may also be compensable. The question of this kind of delayed reaction arises most
commonly in so-called toxic tort cases (Miller 1993a, 1995b, 1999e, 2002b; Mor-
row et al. 1989, 1991), where the ultimate effects of exposure to toxic substances or
radioactive materials may not be felt or fully realized for decades, and the affected
persons must live with the fear of cancer later in their lives or birth defects in their
offspring.
In all tort actions, when courts decide that a defendant is not liable for damages
due to an intentional or negligent act, they most often cite the following factors:
• The injury is too remote from the source of the action, e.g., a firefighter today
claims to have just developed PTSD from the 9/11 terrorist attack 15 years ago.
• The injury is wholly out of proportion to the defendant’s culpability, e.g., a teen-
ager carjacks a woman’s SUV without physical injury, but she becomes physi-
cally paralyzed and bedridden for the next year.
Torts and Psychological Injury 49
• It appears extraordinary that the action would have brought about the harm, e.g.,
as a joke, a workmate drops an empty paper cup on the plaintiff’s head from a
distance of 6 in and the latter claims severe cognitive impairment (nobody’s skull
is that thin).
• Allowing recovery would place an unreasonable burden on the defendant, e.g.,
a man makes an off-color remark at work to a fellow male coworker, and a fe-
male employee sitting nearby overhears it, then goes on to claim total disability
from work based on traumatization from the sexist comment, demanding that she
receive compensation for the rest of her life in the form of a permanent garnish-
ment of the potty-mouth coworker’s salary.
• Allowing recovery would likely open the way for fraudulent claims. This is
the “Pandora’s box” argument: in the case above, every time an employee said
something stupid but harmless to another worker, a ruinous harassment lawsuit
would ensue from some oversensitive eavesdropper.
• Allowing recovery would create a field having “no sensible or just stopping
point.” This is the “slippery slope” argument: should we compensate any person
who hears a remark he or she doesn’t like or thinks someone looked at them the
wrong way?
Unlike the case with the insanity defense in the criminal justice system (see
Chap. 5), an actual accepted psychiatric diagnosis is not essential in a civil court
action, as long as it can be shown that the plaintiff has suffered some kind of harm.
However, in psychological injury cases, plaintiffs’ attorneys typically strive for a
precise diagnosis to enhance the clinical credibility of the claim: “My client devel-
oped major depressive disorder” sounds more convincing to a jury than, “My client
became very, very depressed.” Plaintiffs’ attorneys especially like to invoke PTSD
in pursuing an award for “mental stress” because this diagnosis is thought to give
the claim more medical legitimacy. Recall from Chap. 2 that a defining feature of
the PTSD diagnosis is criterion A, the stressor criterion. Therefore, in tort litigation,
if a diagnosis of PTSD can be related to a specific incident, it confers greater cred-
ibility to the plaintiff’s argument that all of his or her psychological distress and
subsequent problems arose from the index traumatic event. In contrast, a diagnosis
of anxiety disorder or depression may dilute the issue of causation because many
factors other than, or in addition to, the index event can determine the onset and
course of these disorders, thereby potentially blurring the causation element of the
plaintiff’s tort case.
Plaintiff’s attorneys also prefer to have a formal PTSD diagnosis because it
sounds more objective and scientific than just “mental stress.” Indeed, in the face
of impending tort reform threatening to limit or even exclude damages for non-
objective and noneconomic losses such as pain, suffering, and emotional distress,
PTSD may be seized upon as a bona fide neuropsychiatric diagnostic entity with a
50 4 PTSD in the Civil Litigation System
putative central nervous system basis (see Chap. 2), thus “scientifically” skirting
this threat by assuming the status of a legitimate medical disability, warranting
compensation.
However, some authorities have asserted that, especially in the forensic context,
PTSD should be diagnosed only if the clinical facts warrant such a conclusion;
otherwise, both the diagnosis and the concept of PTSD risk becoming overutilized,
diluted, and trivialized. In this view, an important role for the forensic clinician
is to communicate to insurance carriers, Workers Compensation claims adjusters,
military compensation review boards, attorneys, judges, and juries that the plaintiff
is experiencing psychological distress and impairment; the precise diagnosis may
be less important than a thorough phenomenological description of the symptoms
that demonstrate disability and attribute causation to the index event. Where di-
agnoses other than PTSD exist, these should be specified and the relationship to
the disability carefully explained (Simon 1995; Sparr 1990). Experts should also
be prepared to describe how participation in the legal system itself can produce
its own set of stressors, the so-called legal stress syndrome (Bernsten and Rubin
2007; Bursztajn et al. 1994; Huffer 1995; Miller 2008f.; Vesper and Cohen 1999;
Winick 2000).
not only to advise the patient to consult with an attorney but, when appropriate, to
educate that attorney about the subtleties of how the patient’s psyche has become so
deleteriously affected by the trauma and what might occur during the legal process.
Practice Points
• There are important differences between the civil and criminal legal systems in
the US, and the forensic clinician must be aware of how each system functions.
• The essential elements of a civil personal injury lawsuit are duty, breach, causa-
tion, and damages. An evaluation for PTSD psychological disability must ad-
dress each of these factors.
Practice Points 53
As noted throughout this book, only a small proportion of individuals who are ex-
posed to a traumatic stress or develop clinically significant PTSD; and an even
smaller proportion of those go on to commit acts of aggression or other antisocial
behavior following their traumatic event. Who are the subjects in this violent subset
and how can we identify them?
Military Veterans
The overwhelming majority of research on PTSD and crime comes from studies
of military populations (Calhoun et al. 2004; Card 1983; Holbrook 2011; Kehrer
and Mittra 1978; Kulka et al. 1990; National Center for PTSD 2010; Pentland and
Rothman 1982; Shaw et al. 1987; Taft et al. 2009). As noted in Chap. 1, an associa-
tion between military exposure and subsequent civilian violence has been observed
in American conflicts since the Civil War. More recent systematic studies from the
Vietnam War era have demonstrated that veterans with a history of combat expo-
sure, and especially those who had been diagnosed with PTSD, show a much higher
rate of conviction and incarceration for violent crimes than nonveterans or noncom-
bat exposed veterans. PTSD-diagnosed veterans also self-report more feelings of
anger and hostility than other groups.
More recent studies of Iraq and Afghanistan theater veterans show similar trends,
with up to 35 % of these veterans showing symptoms of PTSD, depression, alcohol
and drug abuse, suicidal ideation, completed suicide, and self-reported aggression 6
months after deployment. In both Vietnam and Iraq-Afghanistan veterans, there is a
special correlation between experiencing PTSD hyperarousal symptoms and having
greater difficulty controlling one’s anger, aggressive impulses, and violent behavior.
Among Vietnam combat veterans, those who experienced heavy combat have had
a higher arrest rate than light combat or noncombat veterans. In most cases, these
same heavy-combat arrestees had little or no premilitary arrest record, seeming to
argue for a direct effect of heavy combat exposure on later propensity to commit
crimes. However, more than 80 % of these arrests have been for nonviolent crimes.
The association between PTSD and aggression is reflected in studies of prison
populations, where a significant proportion of inmates are military veterans, par-
ticularly Vietnam-era veterans, probably reflecting that fact that these veterans have
been around longer than Iraq-Afghanistan service members and so have had more
time and opportunity for contact with the criminal justice system. Compared to
nonveterans, veteran prison inmates are more likely to have been convicted of mur-
der, rape, or assault, but they are less likely to have been convicted of robbery or
burglary. Veteran support groups typically attribute this to the greater incidence of
service-related PTSD in incarcerated veterans. Histories of drug abuse are common
in incarcerated inmates, slightly less so for veterans than nonveterans, although
Vietnam-era veterans are more likely than nonveterans to have abused heroin.
Nonmilitary Populations
Some research has shown increases in aggressive behavior following civilian trau-
matic experiences; however, all of these have involved mass casualties that affected
large groups of people, even whole populations (Ardis 2004; Calhoun et al. 2004;
Cullen 2009; Daniels et al. 2007; Dworkin et al. 1988; Goenjian 1993; Johnson
2000; Newman et al. 2004; Nims 2000; Pynoos et al. 1987; Reijneveld et al. 2003).
These include an increased incidence of accidents, suicides, reckless driving, physi-
cal assaults, stabbings, and deaths following a café fire in the Netherlands, the Col-
umbine school shootings in the USA, and the Armenian earthquake. Posttraumatic
symptoms have affected both direct and indirect victims of these disasters. Little or
no information is provided about the specific characteristics of subjects who did and
did not experience these kinds of posttraumatic effects.
Criminal psychologists have consistently identified a set of risk factors for criminal
behavior that appear to apply fairly universally to diverse populations and cultures
(Andrews and Bonta 2006, 2010; Appelbaum et al. 1999, 2000; Barratt 1994; Cap-
rara et al. 1996; Dodge et al. 1990; Douglas and Skeem 2005; Douglas and Webster
PTSD and Violent Crime: Populations and Risk Factors 57
1999; Link and Stueve 1994; Lipsey et al. 1997; McNiel et al. 2003; Miller 1987,
1988, 1994b; Monahan 2001, 2002; Monahan et al. 2001; Novaco 1994; Skeem
et al. 2005; Steadman et al. 1998; Swanson et al. 1990, 1996, 2006; Webster and
Jackson 1997; Wolf and Shi 2010). Most of these risk factors have also been identi-
fied in military personnel, with or without PTSD, who have committed violent or
other antisocial acts post-deployment (Beckham et al. 1998; Begic and Jokic-Begic
2001; Carlson et al. 2008; Chapin 1999; Dileo et al. 2008; Dohrenwend et al. 206;
Elbogen et al. 2008, 2010; Freeman and Roca 2001; Grafman et al. 1996; Hartl et al.
2005; Hiley-Young et al. 1995; Jakupcak et al. 2007; Kilgore et al. 2008; Kulka
et al. 1990 Lasko et al. 1994; Lehmann et al. 1999; McFall et al. 1999; McGuire
and Clark 2011; Moss 1989; Pardek and Nolden 1983; Pasternack 1971; Roca and
Freeman 2002; Taft et al. 2007, 2009; Teten et al. 2009; Windle and Windle 1995;
Yesavage 1983, 1984; Zatzick et al. 1997). Therefore, when evaluating cases of al-
leged PTSD-related violence, the examiner should always be alert for evidence of
premorbid traits such as the following.
Impulsivity
Negative Emotionality
Many chronic offenders take great pride in their “rebel” status and do their best to
advertise it to the world. They often see themselves as noble warriors in a hostile
environment, deserving praise (and the status, money, and sexual conquests that
go with it), for being clever enough and strong enough to outwit or outfight rivals
58 5 PTSD in the Criminal Justice System I: Signs, Symptoms, and Syndromes
and take what they want. Many have histories of antisocial behavior dating back to
childhood.
This can be a direct factor for criminal violence by lowering inhibitions to antisocial
behavior while intoxicated, or a proxy factor, i.e., impulsive, thrill-seeking people
who commit violence for kicks are also highly likely to enjoy getting drunk and
high; the two factors are correlated but not necessarily causative. So well-associated
is the connection between alcohol and criminal behavior that virtually all probation
and parole agreements mandate abstention from substances and avoidance of estab-
lishments where alcohol is served and of persons who are associated with drug use.
Again, this may represent a case of bidirectional influence. Impulsive, violent, and
unstable people are less likely to enter and remain in long-term relationships in the
first place and, at the same time, the absence of those relationships may deprive
them of one last buffer against violent behavior.
Psychosis
For those at-risk offenders who have been receiving treatment, failure to adhere to
clinical recommendations or to follow through with their treatment is a strong risk
factor for recidivistic criminal behavior. Again, the effect may be another bidirec-
tional vicious cycle: impulsive, unstable people have a hard time staying with any
treatment program, and absence of treatment makes these behavioral disturbances
worse.
PTSD and Violent Crime: Populations and Risk Factors 59
Neurological Injury
Traumatic brain injury, particularly that which affects the brain’s frontal lobes, can
have a disinhibitory effect on aggressive behavior, although the relationship may
be complex. That is, a higher incidence of traumatic brain injuries is most likely to
occur in those young males who are already most prone to risky and confrontational
behavior such as automobile speeding and fighting. In the military, more impulsive,
thrill-seeking personnel may volunteer for the most dangerous missions and take
greater risks during their deployments. However, where the behavioral impulsivity
follows a brain injury in the context of a previously normal personality and behav-
ioral pattern (as in a military explosive injury by a roadside bomb), a causal link to
the injury itself, rather than premorbid factors, is easier to make (Miller 1987, 1988,
1990a, 1992, 1993c, 1994b, 2012a, 2012c; Vasterling et al. 2010, 2012).
These include male sex, younger age, lower educational level, lower socioeconomic
status, possession of firearms, history of frequent unemployment or homelessness,
history of childhood abuse and/or early exposure to extreme violence, and dysfunc-
tional family of origin.
Note that any or all of these risk factors may coexist in a given subject with
PTSD without there being any causal connection to the syndrome. In fact, the exist-
ing evidence suggests that the criminogenic traits of emotional instability, impul-
sive reactivity, and negative emotionality may actually contribute to a heightened
risk for developing PTSD in the first place (Bowman 1997, 1999; Koch et al. 2006;
Miller 1987, 1988, 1990a, 1992, 1993c, 1994b, 2012a, c). At the time of the clinical
examination, a clinician who hears his subject report violent behavior in connection
with his trauma symptoms may erroneously conclude that the bad behavior was a
direct consequence of the index traumatic event, which is why a thorough under-
standing of a subject’s prior history is so important.
Injury-related Factors
These risk factors for violence in traumatized subjects, studied most intensively
with military personnel, may exist independently or co-occur with the dispositional
risk factors described above. Injury-related risk factors for violence include: (1)
greater number of life-threatening combat exposures, the so-called “dose effect;”
(2) seeing people killed, injured, or maimed; (3) killing another person; and (4)
a high prominence of hyperarousal and/or numbing PTSD symptoms following
traumatic exposure. When these factors are present, and premorbid risk factors are
largely absent, it can be more confidently asserted that there is a direct relationship
between trauma-induced PTSD and subsequent criminal behavior (Table 5.1).
60 5 PTSD in the Criminal Justice System I: Signs, Symptoms, and Syndromes
In recent years, two very similar typologies of PTSD-related violence have been
preferred, that of Wilson and Zigelbaum (1983) and Silva et al. (2001). Although in-
tended to apply to military veterans, similar phenomena have been reported to occur
in civilian law enforcement trauma (Miller 2006a, b, c, d, 2007a, e, 2008a, b; Violani
1999). The categories are: (1) dissociative/flashback-related violence, where the
subject acts defensively in response to what is essentially a delusional re-enactment
of a prior traumatic event; (2) combat addiction/sensation-seeking syndrome, where
the subject has become dependent on the adrenalinized rush of combat and seeks,
deliberately or unconsciously, to recreate that stimulation through dangerous and
aggressive behavior; (3) mood disorder-associated violence which can range from
manic agitation to suicidal depression; and (4) sleep disorder-associated violence
which may involve either a lowered threshold to violence caused by insomnia and
impaired sleep cycles, or, alternatively, the presence of specific parasomnias, such
as sleepwalking or REM sleep behavior disorder. These will be described below.
PTSD and Violent Crime: Patterns and Causes 61
Dissociation/Flashback-Related Violence
Studies have shown that the symptom of dissociation, whether as part of the PTSD
syndrome or not, is associated with an increase in violence in a wide range of popu-
lations (Moskowitz 2004). The experiencing of dissociative states, while an uncom-
mon presentation of PTSD in general, seems to be the most common manifestation
of PTSD related to criminal behavior. In this scenario, the subject re-experiences el-
ements of the trauma in dreams, uncontrollable and emotionally distressing intrusive
images, episodes of reliving the traumatic event, and in behavioral re-enactments
of the traumatic situation. In most of these reported cases, the victim of the attack
is misidentified as a former enemy who is perceived to be threatening the subject
during the dissociative flashback which replicates the original traumatic event, such
as a firefight in a war zone or a civilian first responder deadly encounter (Auberry
1985; Friel et al. 2008). For example, an Afghanistan veteran dining at a Middle
Eastern restaurant may mistake the waiter holding a teapot for an enemy combatant
wielding a grenade and attack the employee to “protect” himself. Amnesia may be
reported for the dissociative violent episode, although, in any particular case, it may
not be immediately clear how much of this is a self-serving description when crimi-
nal charges are pending, inasmuch as many other subjects with noncriminal-related
flashbacks can clearly recall their episodes (Moskowitz 2004; Silva et al. 2001).
With all dissociative syndromes, the forensic challenge is to demonstrate that the
criminal behavior indeed occurred in such an impaired state of consciousness that
the subject literally did not know what he was doing or was unable to control his
actions (Miller 2012a, c; Slobogin 2010). For example, many subjects may “lose
it,” “go ballistic,” “go postal,” or otherwise attack another person in a fit of rage,
but extreme anger or other emotional disturbance, in and of itself, is not evidence of
dissociation or of an exculpatory or mitigatory impairment of the mind. This will be
discussed further in Chap. 6.
may last up to 20 min and may include autonomic nervous system symptoms of diz-
ziness, nausea, sweating, cold sensations, and uncontrolled urination, erection, or
ejaculation. These manifestations, along with the violent act itself, occur seemingly
without emotion, but are usually well-remembered. Upon recovery, most subjects
are frightened and remorseful about what they have done.
Although the term “limbic psychotic trigger reaction” would seem to imply some
kind of neurophysiological dysfunction, there is no specific brain abnormality that
has been identified to explain this disorder, although some features of the syndrome
are reminiscent of temporal lobe seizure phenomena. The “psychotic” component
relates to the fact that there is a delusional and hallucinatory quality to the episodes,
but between episodes, these subjects do not resemble patients with schizophrenia
or other psychotic disorders. The “trigger” part refers to the fact that each subject
has very individualized eliciting stimuli, typically relating to prior traumatic expe-
riences in the subject’s life that had been repressed. Similar to a PTSD flashback,
the trigger evokes a reliving of the traumatic experience, from which the subject at-
tempts to defend himself with a violent reaction. LPTR is a very rare syndrome and
has been definitively diagnosed in only 18 out of 200 criminal felony cases referred
for evaluation of an exculpatory brain syndrome or mental disorder (Pontius 1987,
1996). Its precise relationship to the more common manifestations of PTSD is as
yet unclear.
This category describes the veteran who has become “addicted” to the violence he
experienced and/or perpetrated in wartime and therefore finds it hard to leave the
aggressive mindset behind when he returns to the civilian world. Individuals affect-
ed by this type of combat addiction will seek out or create circumstances where they
can re-experience the dangerous thrill of previous combat encounters by engaging
in repeated patterns of aggressive behavior. Preoccupation with weapons, fighting,
sexual offending, and domestic violence are typical expressions of this kind of this
stimulation-seeking behavior. The episodes of heightened violence-related excite-
ment are typically followed by a “letdown” period, and these ups and downs oc-
cur cyclically. While some of these individuals may be trying to master disturbing
traumatic memories by acting them out, most will describe a never-ending quest to
recapitulate the “rush” they felt in combat. There is usually no dissociation per se
and most of these subjects realize that their antisocial activities can get them into
trouble, but they report being nevertheless driven to pursue them (Auberry 1985;
Friel et al. 2008; Grossman and Christensen 2007; Moore et al. 2009; Solursh et al.
1991). Note that this pattern has no diagnostic correlate in the formal PTSD criteria.
In a sample of 100 Vietnam War veterans attending outpatient clinics at a Vet-
erans Administration Center (Solursh et al. 1991), 81 % reported being “unable”
to stay away from their weapons, 94 % described their re-experiencing phenom-
ena as exciting and associated with a “rush” or a “high,” followed by a “down”
PTSD and Violent Crime: Patterns and Causes 63
feeling when the sensation has passed, and 59 % reported seeking physical fights
for excitement after leaving military service. The authors conclude that heightened
arousal states might cause these men to become addicted to violence. However, as
noted earlier, in many cases, the direction of the cause-and-effect pattern may not
be straightforward. That is, subjects who are already predisposed to antisocial and
sensation-seeking behaviors are more likely to actively pursue activities that pro-
vide thrills through sexual activity, drug use, and aggressive power displays (Hare
1999, 2006; Lykken 1995; Miller 1987, 1988, 2012c; Zuckerman and Kuhlman
2000); these are the same subjects who were probably most likely to seek out dan-
gerous combat situations or take the greatest risks during their military service and
to have carried back to civilian life their taste for violent confrontation, whetted and
intensified by their wartime experiences.
The other question is whether or not a hunger for repeated violence, however
predisposed, acquired, triggered, or reinforced, truly represents an “addiction” in
the sense that is generally described for dependence on chemical substances. And
even if the psychobiological bases for addiction to combat could be demonstrated to
be equivalent to that for a narcotic, the law is still resistant to exculpating criminal
responsibility merely on the basis of addiction to alcohol or drugs alone, no matter
how strongly some clinicians may argue that such an addiction is a “disease.” The
law’s attitude seems to be that people are responsible for managing those personal
risk factors, even medical ones, that they can reasonably be expected to control. For
example patients with epilepsy or diabetes must take their medications and near-
sighted persons must wear their glasses while driving. Failure to control a danger-
ous impulse is not the same as the inability to do so, and, for the latter determination
to be made, the burden of proof is on the defendant, whether the proposed exculpa-
tory or mitigatory syndrome is drug addiction, schizophrenia, dementia, or PTSD
(Miller 2012c; Slobogin 2006, 2010; Treadwell 2010).
depressed and suicidal for reasons that are: (1) directly related to their service (sur-
vivor guilt, physical disability); (2) indirectly related to their service (inability to so-
cially or vocationally adjust to civilian life) or (3) entirely unrelated to their service
(family problems, financial stresses, premorbid psychopathology).
Most vivid dreaming occurs during rapid eye movement, or REM sleep, and a spe-
cial REM paralysis mechanism in the brainstem normally keeps us from moving
around in response to dream images. REM sleep behavior disorder (RSBD) is char-
acterized by the malfunctioning of this movement-dampening brain mechanism,
disinhibiting the sleeper to literally act out his or her dreams (Schenck and Ma-
howald 1995; Schenck et al. 1986, 2009). Most violent activity in this state tends
to occur in response to a bedmate trying to rouse the sleeper, although spontaneous
acts of aggression may occur, as when the sleeper is dreaming of being attacked and
grabs the bedmate, thinking he or she is the attacker in the dream. Documented acts
committed during RSBD episodes include choking or headlocking the bed partner,
jumping from the bed into a wall or furniture, or throwing the bed partner out of
a window. Silva et al. (2001) describe a patient with combat PTSD who, during a
vivid combat dream, began swinging his arms forcefully, fracturing his wife’s rib.
In RSBD, the dreamer typically recalls the events of the dream itself, but is unaware
of his real-world behavior while he is doing it in his sleep.
Slow-wave sleep (SWS) disorders of arousal do not usually involve the acting-
out of a dream. They occur during slow-wave sleep, not REM sleep, but they share
PTSD and Violent Crime: Patterns and Causes 65
Night Terrors
Unlike nightmares that occur during REM sleep, night terrors occur in SWS and
are distinguished from REM-stage nightmares by a predominance of physiological
manifestations of fearful arousal (shaking, sweating, heart palpitations, screaming),
and a paucity of dream content or coherent dream narrative; that is, there is a lot of
emotion with very little dream “story,” and, upon awakening, the subject is typically
unable to recount what he or she was so terrified about. However, brief fragments
of frightening visual imagery may occur during night terrors, impelling the sleeper
to try to escape or to defend himself violently, which may result in a confusional
arousal or sleepwalking episode (see below).
Sleepwalking
In this syndrome, also called somnambulism, the individual gets out of bed and
may wander a few feet or several miles, although most sleepwalkers remain within
the confines of their sleeping environment, most commonly their home. The sleep-
walker’s eyes are often open (unlike in REM sleep, where they are almost always
closed) and there is often an automatistic and confused aspect to the subject’s be-
havior. Violent or sexual acts have been documented to occur in a small proportion
of cases during these episodes, the former usually triggered by attempts to arouse
the sleepwalker, the latter often having no clear precipitant other than opportunity
and stimulus. Arousal from the SWS state is more gradual than from REM sleep,
and the subject typically does not recall any significant dream content or remember
his or her behavior during the episode.
Confusional Arousals
no special relationship to PTSD is noted for these parasomnias, although they may
occur as part of the PTSD syndrome in some cases.
Not included in the above categories, perhaps because they are rarely used in cases
of criminal defense, are instances of noncombat trauma-associated violence, such
as that which has been reported to follow fires (Reijneveld et al. 2003), school shoot-
ings (Cullen 2009; Johnson 2000), and natural disasters (Goenjian 1993). Also not
included are cases of law enforcement critical incident-associated violence (Miller
2000, 2006b, d, 2007e, 2012c, 2013c, d, in press-a), although an analogy with com-
bat trauma has been made explicitly for this group (Violanti and Paton 1999).
et al. 2007; Miller 2006d, 2008a, g 2013c; Nielsen 1991; Rudofossi 2007; Russell
and Beigel 1990; Violanti 1999; Williams 1999).
Finally, although we naturally think of those who commit violence as the pur-
veyors of traumatic stress, not its victims, even some criminal offenders may suffer
PTSD-like symptoms as the result of the traumatizing effects of their own actions,
or of experiencing the consequences of their crime, i.e. arrest, interrogation, and
incarceration (Byrne 2003; Friel et al. 2008; Grey et al. 2003; Harry and Resnick
1986; Papanastassiou et al. 2004; Pollock 1999). These are not typically offenders
with antisocial personality disorder who are unlikely to feel much anxiety or re-
morse over their aggressive actions, but rather characteristically nonaggressive in-
dividuals who committed their acts of violence during an episode of loss of control,
as an unplanned, impulsive or provoked “crime of passion.” The violence is thus out
of character for the perpetrator, which contributes to its self-traumatizing effect, and
a number of these defendants may actually be willing to plea-bargain rather than
face further traumatization by reliving the crime at trial.
Practice Points
The fields of psychology and criminal justice are like two twins, separated at birth,
who discover later in life that they have been living on the same block and working
in the same place their entire lives. Both fields concern themselves with the nuances
of human thought, emotion, intention, volition, behavioral expression, and self-con-
trol—in one case as it applies to clinical diagnosis and treatment, in the other, as it
relates to criminal motivation, blameworthiness, and punishment (Miller 2012c).
Although forensic psychologists and psychiatrists may be called upon to conduct eval-
uations in a wide range of legal contexts, the majority of psychological evaluations for
the criminal court involve three main areas: (1) competency to stand trial; (2) mental
status at time of offense, or insanity evaluation; and (3) prediction of dangerousness
and risk of future offending (Miller 2012c). The most frequent context of posttraumatic
stress disorder (PTSD) claims in the criminal justice system relates to the sanity of the
defendant at the time of the crime. In this regard, two basic principles apply.
First, the presence, absence, or severity of any diagnosed mental disorder, condi-
tion, or state does not by itself make a legal determination. That is, just because a de-
fendant suffers from verifiable PTSD—or any other mental disorder, such as schizo-
phrenia, bipolar disorder, or an organic brain syndrome—this does not automatically
mean he/she is not guilty by reason of insanity. It is the examining expert’s respon-
sibility to assert or refute the connection between the defendant’s mental state at the
time of the offense and the relevant insanity criteria or other legal question.
Second, any conclusions about the relevance of the defendant’s mental state to
the legal question at issue must consider the point in time of that issue’s relevance.
This explicitly addresses the time element. The defendant’s mental state at the time
of the forensic psychological examination may be similar or very different from his
or her mental state at the time of the alleged offense, which might have occurred
months or years earlier. In one case, a defendant who committed murder while in
the throes of a PTSD dissociative flashback or in a suicidal depression-fueled rage
© The Author 2015 69
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DOI 10.1007/978-3-319-09081-8_6
70 6 PTSD in the Criminal Justice System II
may have undergone treatment and is now, at the time of the examination, suf-
ficiently recovered as to show only minimal or no symptoms. Conversely, shortly
following a traumatic event, the subject may have shown minimal symptoms at
the time he committed the index offense, but as months roll by and treatment is
delayed, his condition worsens, so by the time of the forensic examination, he is in
a severely deteriorated state. In both cases, what is relevant to an insanity defense
is the subject’s mental state at the time of the index offense, no matter what it may
be right now. That is, an insanity evaluation always entails a retrospective diagnosis
(Gutheil 2002).
Despite isolated media accounts of flagrant abuses of the insanity defense letting
hard-core criminals go free, in reality, the defense of not guilty by reason of insanity
(NRGI), or not guilty by reason of mental disease or defect, or simply the insanity
defense, is raised as an affirmative defense in about one out of every 100 felony
cases. In about half of these, the defendant is so obviously disturbed that both pros-
ecution and defense sides agree to adjudicate the case as NGRI without trial. It is
only in the other half of 1 % of cases that the two sides disagree and a TV-style
“battle of the experts” ensues. And, in about half of these contested cases—one in
400—the jury finds the defendant NGRI following a trial. Thus, the law sets a rela-
tively high legal bar with regard to a person’s criminal responsibility (Miller 2012c;
Gover 2008; Slobogin 2006, 2010).
A basic tenet of the American legal system is that, to be justly punished for a crime,
a defendant must be proven to (1) have actually committed the offense in question,
called actus reus, or “guilty act;” and to (2) have had the mental capacity to have
committed the act consciously, knowingly, autonomously, and purposefully, known
as mens rea, or “guilty mind.” Note that, a verdict of NGRI is not an excusatory or
mitigating factor; it is literally a verdict of not guilty, i.e., the defendant is just as
legally blameless as if he or she did not commit the act at all. That is because the
law recognizes a subtle but crucial psychological and philosophical principle of
human nature: for an act to be consciously (I know I’m doing it) and purposefully
(I decide to do it) committed, requires the presence of identity (it is “I” who am
doing it) and agency (it is my free choice to do it, not otherwise compelled). This
principle, tacitly or overtly, underlies the major NGRI standards of the USA and
most Western societies.
The two major principles that guide insanity evaluations in the USA are the
M’Naghten test and the American Law Institute (ALI) test; different states employ
one or the other standard. The first goes back to the 1843 British case of Daniel
The Insanity Defense 71
M’Naghten, who was acquitted by reason of insanity for killing Edward Drum-
mond, secretary to Prime Minister Sir Robert Peel, during an attempt to assassinate
the prime minister himself. At the time, M’Naghten was laboring under the delu-
sion that Peel and the Tory party were involved in a plot to kill him and that he was
only defending himself by preemptively attacking the prime minister (Allnutt et al.
2007). In response to the public outcry in this case, Queen Victoria ordered the Brit-
ish House of Lords to come up with a more rigorous standard for insanity, which
ultimately became the one that bears the defendant’s name.
According to the M’Naghten test, in order to establish a defense on the grounds
of insanity: “It must be clearly proved that, at the time of committing an act [at that
specific time, no matter what the mental state may have been prior or subsequent to
the act], the party accused was laboring under such a defect of reason [his powers
of perception and/or cognition were severely impaired], from disease of the mind
[there must be an identifiable, diagnosable syndrome, recognized by the medical
community, to account for the mental disturbance], as to not know the nature and
quality of the act he was doing [he literally did not know what he was doing], or
if he did know it, that he did not know he was doing wrong [he literally could not
tell right from wrong based on the prevailing laws and moral standards of his com-
munity and culture].”
In 1962, the American Law Institute drafted the Model Penal Code, under which
their insanity standard came to be known as the ALI test: “A person is not responsi-
ble for criminal conduct if at the time of such conduct, as a result of mental disease
or defect [same as M’Naghten], he lacks substantial capacity [he may not be totally
lacking in capacity, but sufficiently impaired] either to appreciate the criminality
(wrongfulness) of his conduct [same as M’Naghten] or to conform his conduct to
the requirements of the law [even if he understands what he is doing and knows that
it is wrong, he is effectively powerless to control it].”
The chief differences between the two standards is that M’Naghten is a purely
cognitive test, according to which the defendant either did not know what he was
doing during the commission of the crime, or else he could not distinguish right
from wrong. The ALI preserves the cognitive right-wrong standard but adds a vo-
litional prong, i.e., even if the defendant understood what he was doing, and that it
was wrong, he was substantially powerless to control himself. What is often debated
in criminal cases involving the ALI standard is just what degree of lack of control
qualifies as “substantial.” What both standards share is a fairly strict set of exclusion
criteria to invoke a NGRI defense, as well as the requirement for presence of a rec-
ognized medical, neurological, or psychiatric disorder to account for the cognitive
or volitional impairment.
Clinically, there are very few mental disorders whose symptoms are sufficient-
ly disabling to produce such an exculpatory level of impairment. Most qualifying
syndromes would fall into the category of severe psychosis or some type of organic
brain syndrome. In those cases where a murder defendant might claim NGRI on the
basis of PTSD, the only PTSD component that might meet either the M’Naughten
or ALI standard would be a dissociative flashback in which the defendant literally
believed he was experiencing the original trauma and genuinely felt in fear for his
life, causing him to defensively retaliate by killing the victim (Friel et al. 2008;
72 6 PTSD in the Criminal Justice System II
Diminished Capacity
At the conclusion of a trial in which the jury has found the defendant guilty, the
judge sets a date for the sentencing hearing. In some jurisdictions, the jury who
decided on the defendant’s guilt also deliberates and determines the sentence. In
other jurisdictions, the judge, sometimes utilizing mandated guidelines, determines
the sentence and outlines his or her reasoning in a sentencing report that summa-
rizes the facts of the case and provides the rationale for the judge’s decision. In
cases where there is judicial discretion, the sentencing hearing is the forum in which
third parties can present evidence or personal appeals, in the form of aggravating or
mitigating factors, that are intended to influence the sentencing decision in either a
stricter or more lenient direction.
Aggravating factors, typically presented by the prosecution’s side, may include
the defendant’s past criminal history (usually excluded at trial), the particularly cruel
The Insanity Defense 73
and callous manner in which the crime was committed, the lasting impact of the
crime on the victim or survivors, the lack of a stable family or social structure that
the defendant can safely return to, and so on. Mitigating factors, typically presented
by the defense side, seek to portray the defendant as overall less malevolent and
dangerous, e.g., he was influenced by bad peers, his mind was impaired by drugs
or mental illness, he did not cause unnecessary harm or injury during the crime, he
played a peripheral role in the crime (e.g., drove the getaway car, but did not partici-
pate in the holdup), he has a stable job and family structure to return to, and so on.
One type of potentially mitigating factor is the claim of diminished capacity, that
is, the defendant’s mental state at the time of the crime was sufficiently impaired as to
lessen his overall culpability or blameworthiness for the criminal act. Since the purpose
of the sentencing stage is not to determine legal guilt or innocence, as in an insanity
defense, issues of mitigation due to diminished capacity typically require a less severe
degree of impairment than NGRI. Often, the same type of evidence is presented at
sentencing that may have originally been offered at trial to form grounds for an insanity
defense, but did not at that time rise to the standard necessary for acquittal by NGRI.
These may include a history of early childhood abuse, dysfunctional family of origin,
susceptibility to undue influence by antisocial peers, limited intellectual capacity, or
any number of medical or mental disorders (e.g., schizophrenia, traumatic brain injury)
sufficient to affect one’s actions but not severe enough to meet the NGRI standard. In
some jurisdictions, diminished capacity may be asserted ahead of trial to argue for a
lesser charge, e.g., reducing a murder charge to manslaughter.
In arguing for diminished capacity due to the presence of PTSD as a diagno-
sis, one might expect these defendants to receive greater sympathy than those with
other syndromes, especially if the PTSD defendant suffered his or her trauma in
the course of “his service to his community or country,” (police officer or military
veteran), or at least was an innocent victim of a traumatic event (civilian noncomba-
tant injured in a terrorist attack or parent who observed her child murdered), unlike
the defendant who appeals for mercy on the basis of having been in the throes of
a substance addiction, which is far less likely to garner sympathy, or unlike even
schizophrenia or bipolar disorder, which are regarded as at least morally neutral.
In a few cases of military PTSD, defense counsel may attempt to use the combat
addiction syndrome discussed in Chap. 5 as a mitigating factor, although this is not
a recognized diagnostic category and does not meet either the clinical diagnostic
criteria for PTSD, nor any of the legal standards for a mental disease or defect that
would qualify for an NGRI defense, unless linked to another recognized disorder,
e.g., bipolar mania.
Some states allow a verdict of guilty but insane, or guilty but mentally ill, which has
the effect of imposing a verdict of guilt, but allows for commitment to a forensic
mental health facility for treatment, in lieu of a criminal sentence. In theory and
practice, this ruling preserves the actus reus component of adjudicative guilt, but
has much the same effect on the practical disposition of the case as a traditional
74 6 PTSD in the Criminal Justice System II
insanity defense. A recent PTSD case is that of Iraq war veteran Jesse Bratcher, who
claimed he killed an unarmed man during a dissociative flashback, and whom, in
2009, an Oregon jury found guilty but mentally ill due to military-related PTSD,
sparing him a 25-year prison term, instead committing him to a psychiatric facility
(McGuire and Clark 2011).
Automatism—Unconsciousness
In the UK and some other countries, courts allow the defense of automatism. Here,
the crime is alleged to have been committed in a state where the defendant had no
conscious control of his or her bodily actions and consequently there cannot have
been a mens rea at the time of the crime. In England and Wales, there are two types
of automatism. A sane automatism results from an external cause that robs the ac-
tor of conscious will and control over his actions, such as a blow to the head or a
toxic-metabolic delirium. If the causal connection can be made, this usually results
in what is termed a complete acquittal, meaning the defendant is not mandated for
mental health treatment. An insane automatism results from an internal cause, such
as idiopathic epilepsy or sleepwalking, and is argued much in the same way as is a
traditional insanity defense. Because of the stressor criteria, PTSD-related impair-
ment of volition and control during a violent criminal act, such as occurs during a
dissociative state, would technically be considered a sane automatism, strictly on
the basis that the cause (the triggering traumatic stressor) technically came from
outside the person (Gover 2008).
In the USA, some jurisdictions allow a similar defense of unconsciousness, where
the defendant’s conduct is out of his voluntary control due to a physical event, such
as an epileptic seizure, a bodily movement during sleep, or during a hypnotic trance
(Gover 2008). Note that many of parasomnias discussed in Chap. 5 would probably
fit under this definition. The implication is that if a dissociative flashback related to
PTSD is regarded as akin to a hypnotic trance, one could argue exculpation under
the unconsciousness standard. Like a sane automatism, unconsciousness typically
results in a complete acquittal. It is not hard to see how criminal cases involving
these standards might serve to overwhelm juries with abstruse psychological and
philosophical arguments about free will and personal responsibility.
Self-Defense
To the extent that a subject experiencing a dissociative PTSD flashback truly be-
lieved that an otherwise innocent person was attacking him, and used deadly force
to “defend” himself, does it matter that no actual threat existed, even if the defen-
dant thought it did? Most cases of verifiable dissociation will probably be argued
under the insanity or diminished capacity standard, but self-defense may offer at-
torneys one more instrument to pull out of the defense toolbox if the other defenses
fail (Gover 2008, see Table 6.1).
The Insanity Defense 75
Recall the principle that the presence, absence, or severity of any mental disorder,
condition, or state does not by itself render a legal determination. Whatever legal
purposes a diagnosis of PTSD might be put to in reducing responsibility for a crime,
it is vital that a defense psychological expert witness be able to credibly draw a
clear, bright line connecting the symptoms of the disorder to the criminal behavior
in question (Appelbaum et al. 1993; Friel et al. 2008; Slovenko 1994; Sparr 1996;
Sparr et al. 1987). For example, assault or murder committed during a fearful, disso-
ciative flashback, absent any evidence of premeditation or prior hostile relationship
between perpetrator and victim, might qualify as an NGRI defense, but probably
not where there was a history of animosity between the parties or where the defen-
dant was heard making threats to the victim. A PTSD-afflicted military veteran’s
extreme irritability, hair-trigger temper, sleeplessness, and attempts to self-medicate
with alcohol might be grounds for mitigation at sentencing on an assault or murder
conviction, but not if witnesses attest to the fact that he was pretty much an angry,
hard-drinking trouble-maker long before his military service. As in every aspect of
a forensic psychological evaluation, adequate attention to all details of the case, es-
pecially a careful consideration of preexisting risk factors for violence, as described
in Chap. 5, is essential.
The US public support for members of the armed forces is currently the highest
it has been since the Second World War, two generations ago. A growing trend,
especially since the beginning of the Iraq-Afghanistan wars, is for courts to apply
special consideration to veterans with combat exposure, sometimes accepting any
claim of mental distress putatively attributed to such exposure as a mitigating fac-
tor in sentencing for felony crimes, whether or not a formal diagnosis of PTSD has
been made (Aprilakis 2005; Frazier and Haney 1996; Goldberg 1994; Heath et al.
Utilizing PTSD as an Affirmative Defense or Mitigatory Factor in Criminal Cases 79
2003; Leal 2005; Marciniak 1986; McAllister and Bregman 1986; McGuire and
Clark 2011; McCollum 2009; Robinson and Darley 1995; Russell 2009; Slovenko
2004; Sparr and Atkinson 1986; Sparr et al. 1987; U.S. v. John Brownfield 2009;
Weiner et al. 1998; Wilson et al. 2011).
According to this research, mock jurors (volunteers presented with a staged trial
or the transcript of a real trial) view military PTSD defendants as being less crimi-
nally responsible than defendants with other psychiatric diagnoses or no diagno-
sis. Especially for low-level offenses, prosecutors view military veterans as less
blameworthy and less criminally culpable than nonveteran defendants, and offer
more favorable pretrial plea agreements and diversion programs (e.g., to treatment
programs in lieu of prison). Combat experience per se, and not necessarily a di-
agnosis of PTSD, is often sufficient to elicit this sympathy. In fact, Wilson et al.
(2011) reports that, in many prosecutors’ minds, there appears to be an explicit or
unconscious hierarchy of least-to-most blameworthy and culpable defendants: (1)
veterans with PTSD; (2) veterans without PTSD; (3) nonveterans with PTSD; and
(4) nonveterans without PTSD.
This exceptionalist bias is further expressed in the proliferation of special Veter-
ans Courts over the past decade (Aprilakis 2005; Clark et al. 2010; Russell 2009;
Wortzel and Arciniegas 2010), modeled after mental health courts and drug courts.
However, unlike the latter two systems, which exceptionalize their target popula-
tions based on the need for a balance between jurisprudence and clinical therapy,
veterans courts often confer special legal treatment based on a defendant’s status
as a military service member per se. These courts are not for mentally ill veter-
ans, or substance abusing veterans—or even, for that matter, only for veterans with
PTSD—but eligibility for such special judicial treatment is often based solely on
the defendants’ military experience. This raises the question of whether other “spe-
cial status courts” would be equally or appropriate for professional service members
who society admires, e.g., police officer courts, first responder courts, doctor courts,
teacher courts, clergy courts, and so on. And what about defendants who have been
severely traumatized in nonmilitary settings—do they not deserve special crime
victims courts, battered spouse courts, and abused children courts, as well?
The special consideration granted to service members clearly has less to do with
formal criteria for diminished capacity than with expressing a general “thank-you-
for-your-service” leniency applied to military veterans, especially combat veterans,
charged with a crime. It is true that veterans charged with serious felonies such as
homicide or rape, are excluded from Veteran’s Courts; however, while it is laud-
able to honor military veterans for their service and to want to give them a “second
chance,” especially if the crime was not a serious one, affording military service
members special treatment in the legal system based on their service record alone
risks subverting the very principle of equal treatment under the law that our justice
system relies on. Those truly concerned about the welfare of veterans might devote
more of their energies to ensuring that adequate access to such services as mental
health counseling and job training programs are available to those who have served
honorably, thereby hopefully mitigating many of the circumstances that would im-
pel a military veteran into committing a crime in the first place.
80 6 PTSD in the Criminal Justice System II
As noted earlier, both major US versions of the insanity defense (M’Naghten and
ALI) require that a defendant’s cognitive and/or volitional impairment be severe
and that it be caused by a recognized medical or psychiatric syndrome. Defenses
of diminished capacity typically require less proof of total cognitive or volitional
impairment, but also commonly cite some known diagnostic entity. Yet, over the
years, creative attorneys have tried to apply novel defenses based on syndromes that
heretofore have not existed in the psychiatric and psychological literature, and these
have come to be termed designer defenses (Apel 2002; Browne 1987; Foster 1997;
Godklang 1997; Miller 2012c; Slovenko 1995, 2004; Sneirson 1995; Walker 1984).
Some examples are summarized below.
Battered Spouse Syndrome Repeated abuse by a violent husband or other intimate
partner produces a state of learned helplessness in the physically and emotionally
battered victim and leads her to perceive that she “has no choice” but to kill her
persecutor out of fear for her own life. On the one hand, this homicide occurs not
during a direct confrontation, when it might be considered simple self-defense, but
surreptitiously while the husband is asleep, intoxicated, incapacitated, or distracted.
On the other hand, this is not conceptualized as mere revenge, but as a kind of
preemptive self-defensive strike combined with diminished capacity, and might be
argued as a form of justifiable homicide.
Battered Child Syndrome Similar to the above, children who kill one or more par-
ents argue that years of torturous abuse have induced a prisoner-of-war survival
mentality that impels them one day to defensively erupt and slay the tyrants—again,
typically while the parents are preoccupied or asleep.
Holocaust Syndrome Children of parents who survived Nazi concentration camps
have, over the years, been so inculcated with a hypervigilant, self-protective, suspi-
cious, and even paranoid mindset by their traumatized parents that they come to
regard even the slightest provocation as a life-threatening attack, and so one day
lash out and kill an otherwise innocent person, whether a family member, acquain-
tance, or stranger.
Black Rage Syndrome From years of personal discrimination, as well as centuries
of enculturated subjugation, many African-Americans harbor a smoldering rage and
resentment against the larger white society (whether they consciously realize it or
not), until, one day, with minor provocation, one of these citizens “snaps” and com-
mits violence against an otherwise blameless white person, often a total stranger.
The incident in question may have had nothing to do with prejudice, insult, or dis-
crimination and there may have been no contact at all between assailant and victim
prior to the attack; the victim was just in the wrong place at the wrong time.
The premise of all of these designer defenses is that, as with PTSD, the affected
individuals have been exposed to a single or repeated overwhelming traumatic ex-
perience that impairs their mental state sufficiently to eliminate or diminish their
Practice Points 81
capacity to understand the nature of their violent act or to control it. According
to some authorities (Frances 2013; Slovenko 1995, 2004) this expanding catalog
of traumatic experiences has been aided and abetted by psychiatry’s broadening
of the definition of trauma, from horrific events clearly outside the range of usual
experience, to various and sundry irritations and frustrations of daily life. Unless
both mental health and legal experts agree on a reasonable definition of a traumatic
stressor, such “trauma creep” (Miller 2012c) threatens to undermine the validity of
the PTSD diagnosis itself.
Practice Points
• There are two essential concepts undergirding all criminal forensic psychologi-
cal evaluations: (1) the presence, absence, or severity of any diagnosed mental
disorder, condition, or state does not by itself make a legal determination; and
(2) any conclusions about the relevance of the defendant’s mental state to the
legal question at issue must consider the point in time of that issue’s relevance.
• The most common reasons PTSD is evoked by a defendant in the criminal justice
system is for purposes of exculpation (affirmative defense of NGRI) or mitiga-
tion ( diminished capacity to argue for a lesser charge or for leniency in sentenc-
ing).
• Different legal standards apply in different states in the USA, the M’Naughten
standard with two cognitive prongs, and the ALI standard with a cognitive prong
and a volitional prong.
• If a defendant with PTSD does not meet the criteria for an affirmative NGRI de-
fense, he or she may still utilize the clinical data to argue for diminished capacity
or other defenses (e.g., guilty but mentally ill, in jurisdictions that permit this).
• The forensic clinician can advise the defense attorney on how to best utilize a
diagnosis of PTSD as an exculpatory (insanity) or mitigatory (diminished capac-
ity) defense, as well as testify as to his or her findings at trial. Conversely, psy-
chological experts for the prosecution can explain why they believe a diagnosis
of PTSD does not exist or why it does not rise to the level of severity to warrant
exculpation or mitigation.
• Forensic clinicians should be aware of a variety of “designer defenses” that may
be proferred in a criminal case, and understand how to deal with them.
Chapter 7
PTSD Cases: Evaluation, Interpretation,
and Testimony
There are a few major differences between a forensic evaluation for legal purposes
and a clinical evaluation for treatment. If a patient voluntarily goes to a psychologist
for help, a fiduciary relationship exists between the doctor and the patient and the
purpose of any formal evaluation is to diagnose and effectively treat that patient’s
disorder or to help him or her with the presenting problem. The content of the ex-
amination and any additional treatment records are confidential, and informed con-
sent must be obtained for the clinician to release the results of any examination to a
third party (family member, other clinician, etc.). The patient is free to terminate the
evaluation or treatment process at any time.
In the forensic setting, however, the fiduciary relationship exists between the
examining psychologist and the court and/or the referring attorneys involved in the
case. The purpose of the exam is to assess those aspects of the defendant’s mental
status that are relevant to the legal issue in question, not necessarily to treat the dis-
order, although the examining psychologist may make treatment recommendations
as part of his or her conclusions. The results of the evaluation will typically go to the
court or to the attorney who ordered it, although the opposing attorney will usually
get a copy of the report, as part of the pretrial discovery process. In many cases, it
will be the defendant’s own attorney who requests the evaluation to document some
mental condition that he or she feels will affect the case, e.g., an insanity defense in
a criminal case or documentation of psychological injury in a civil case.
Experts in civil cases are typically retained by either the plaintiff or defense side;
in most cases, each side will have their own expert who will conduct his evaluation
© The Author 2015 83
L. Miller, PTSD and Forensic Psychology, SpringerBriefs in Psychology,
DOI 10.1007/978-3-319-09081-8_7
84 7 PTSD Cases: Evaluation, Interpretation, and Testimony
of the claimant. The expert is paid directly by the attorney who retains him, and in
cases of defense experts, the fee may be paid by the insurance company of the party
being sued, as in premises liability or medical malpractice cases. In criminal cases,
experts may be retained by either prosecution or defense. It is more common for
private defense attorneys to retain experts because clients who can afford private
representation can usually afford to hire experts as well. In cases where a public
defender is appointed, clients are likely to be indigent and thereby not be able to af-
ford the “best” (i.e., higher-priced) experts; in these cases, experts may be appointed
by the court from a pool of psychologists who have agreed to be on a panel that
perform such evaluation at court fees (usually less than private fees).
The exact procedures and measures utilized in the psychological evaluation will de-
pend on the specific referral question. However, the basic components of a forensic
psychological evaluation are similar across contexts, and include the following (see
also Table 7.1).
Review of Records This will provide the necessary background for the examination
and may determine what questions are asked and which measures are used. It is
inadvisable for examiners to go into an evaluation “blind,” i.e., without sufficient
background information, but in some cases, full records may not be available until
after the examination, in which case the psychologist should do his or her best to put
the findings in context retrospectively. For example, background records allow the
examiner to assess the veracity of the subject’s self-reports as to prior educational,
work, medical, and mental health history, as well as to pertinent aspects of the index
event.
Clinical Interview This is the meat of the evaluation, and can range from a few
minutes to many hours over several days, depending on the nature and complexity
of the case and the responsiveness of the subject. The psychologist will observe the
subject’s behavior and ask him to explain his account of events, typically followed
by a series of clinical and case-relevant questions. In a criminal case, the interview
assesses the defendant’s ability to provide a coherent narrative, his understanding of
relevant legal criteria, his version of events and his explanations for them, his medi-
cal, academic, and employment history, any current signs and symptoms he may be
experiencing, and a set of mental status exam questions to assess the defendant’s
orientation, memory, reasoning, and emotional state.
Psychological Tests and Measures Discussion of individual tests is beyond the
scope of this book (e.g., see Wilson and Keane 2004). However, while there may
be many such measures, selection of particular tests will depend on the nature of
the examination and the characteristics of the subject. Formal psychometric testing
can range from only a few standardized measures in an uncomplicated case, to an
extensive, hours-long battery of neuropsychological and personality tests in cases
The Forensic Psychological Evaluation and Report 85
Deposition Testimony
That is, the deponent is subpoenaed (legally summoned) to testify at the deposition,
he or she is sworn in, then examined and cross-examined by opposing attorneys,
and the proceedings are transcribed by the court reporter and become part of the
permanent case record.
The main purposes of a deposition of an expert witness are to find out how that
witness will fare under questioning in court and to get the witness to state certain
things on the record that may later be used at trial to contradict his or her testimony
there. In some cases, especially where a witness may be unavailable for trial, depo-
sition testimony may be read in court lieu of trial testimony; in cases where possible
witness unavailability for trial is anticipated, the deposition may be videotaped.
Note that the basic principles of effective expert witness testimony apply fairly
equally to the deposition or trial setting.
Since most legal cases are settled out of court, the courtroom testimony role of an
expert witness may actually be the least frequent. Nevertheless, after you have com-
pleted your forensic psychological evaluation and submitted your report, and per-
haps reinforced or modified your conclusions in deposition testimony, you may be
subpoenaed to testify about your findings and conclusions in court. Your task now
becomes to ensure that the facts and interpretations you present tell the complete
story and that your delivery of these facts makes your testimony clear, credible, and
convincing (Barton 1990; Blau 1984; Miller 2006e, 2009b; Mogil 1989; Posey and
Wrightsman 2005; Simon 1995; Taylor 1997; Vinson and Davis 1993).
A fact witness is someone who has personal knowledge of events pertaining to the
case and can only testify as to things he or she has personally observed (“I saw
Fred arguing with his supervisor in the break room”). Fact witnesses may not offer
opinions, which are interpretations and extrapolations of the available facts (“Fred
looked mad earlier that morning, and that kind of hothead is likely to fly off the
handle and attack someone”). These opinions are the province of the expert wit-
ness, who, in a criminal case, is likely to be appointed by the court, although either
prosecution or defense may retain an independent expert witness; in civil cases, the
plaintiff and defense sides typically each retain their own experts. In either system,
in presenting their opinions, expert witnesses are allowed to make statements about
aspects of the case that they have not personally observed but in which they have
specialized knowledge and training that can assist the fact finders (usually a jury
in most adult criminal and civil cases, but sometimes a judge, as in juvenile court
or some family courts) in rendering their decision. Although experts are typically
88 7 PTSD Cases: Evaluation, Interpretation, and Testimony
allowed more leeway than fact witnesses, the content of their testimony may be
carefully vetted by the court for admissibility prior to their testimony.
Review your notes on the case as many times as necessary so you will be ready
for any kind of question; there is no such thing as too much preparation. In most
cases, prior to the trial date, you will probably have one or more meetings with the
attorney who retained you to go over your testimony for purposes of clarification
and narrative flow, and to get a sense of what you’ll be asked by both sides. Use
role-play and rehearsal—many attorneys do it—to make yourself comfortable with
verbally articulating your points.
Testimony Sequence
Prior to taking the stand, you will be sworn in, promising to tell the truth, the whole
truth, and nothing but the truth. You will probably first be questioned on direct
examination by the attorney who retained you. First, you will be asked some profes-
sional biographical questions that confirm your qualifications as an expert (known
as voir dire), then asked about your involvement in the case, the activities you per-
formed with regard to the case, and your conclusions. When your attorney is done,
the other side’s attorney will subject you to cross-examination, looking for holes
and inconsistencies in your testimony and trying to get you to make statements
favorable to their side. In some instances, when the cross-examination is done, the
first attorney may want to follow with a re-direct examination; more rarely, there
will even be a re-cross, and so on, until both attorneys have finished getting what-
ever they hope to obtain from your testimony.
On the Stand
To the average juror, a doctor or other professional conveys an air of authority and
respect, so use this to your advantage. In the witness box, your general attitude
and communication style should be one of confidence, but not cockiness. Maintain
composure and dignity at all times and act like a professional; avoid either being
cowed into submission or baited into an angry overreaction. Remember that it is
not you who will ultimately decide the case for the prosecution or defense; your
responsibility is to clearly present the facts, your conclusions, and the evidence that
supports them to the fact finders, and then let them do their job.
Body language is important. Sit up straight and try not to slouch or fidget. If
there is a microphone in front of you, sit close enough so that you don’t have to
lean over every time you speak. If you are in a swivel chair, try to avoid twisting
May it Please the Court: Testifying Tips for Expert Witnesses 89
and spinning; make a conscious effort to plant your feet firmly on the floor while
speaking. Keep your presentation materials neatly organized in front of you, so you
can find documents and exhibits when you need them.
While testifying, look at the attorney while he or she is questioning you, then
switch your eye contact to the jury while answering the question; jurors tend to find
a witness more credible when he or she looks straight at them. Let your facial en-
gagement of the jurors be neither overly detached nor overly intense. Open, friend-
ly, and dignified are the attitudinal words to remember. Speak as clearly, slowly,
and concisely as possible to be understood. Keep sentences short and to the point.
Maintain a steady voice volume and use a normal conversational tone. Your general
attitude toward the jury should convey a sense of collegial respect, that is, you are
there to present the facts as you know them to a group of mature adults who you are
confident will make the right decision.
Listen carefully to each of the cross-examining attorney’s questions before you re-
spond. If you do not fully understand the question, ask the attorney to repeat or
rephrase it. Do not be baited into giving a quick answer; if you need a couple of
seconds to compose your thoughts, take them. Answer each question completely,
but do not over-elaborate or ramble. If you do not know the answer to the question,
state plainly, “I don’t know.” Do not try to bluff your way out of a tricky question.
Do not become defensive. Above all, maintain credibility by always being honest.
Attorneys will often phrase questions in a way that constrains your answers in
the direction they want you to go by asking you yes-or-no questions. If you feel
you cannot honestly answer the question by a simple yes-or-no answer, say so:
“Sir, if I limit my answer to yes or no, I will not be able to give factual testimony.
Surely, that’s not what you wish me to do.” Sometimes, the attorney will voluntarily
reword the question. If he or she presses for a yes-or-no answer, at that point either
your attorney may voice an objection or the judge may intervene. The latter may
instruct the cross-examining attorney to allow you more leeway in responding, or
to rephrase the question, or the judge may simply order you to answer the question
as it has been asked, in which case that is what you do—with a resigned look on
your face.
Another attorney ploy is to phrase questions in such a way as to force you to
respond in an ambiguous manner by prefacing your answer with such phrases, as “I
believe,” “I estimate,” “To the best of my recollection,” and so on. If the facts war-
rant it, be as definite about your answers as possible; if they do not, honestly state
that this particular piece of your testimony may not lend itself to precise quantifica-
tion or may not be a clear perception or recollection, but be firm about what you are
sure about. Again, if you do not know the answer to a question, just say you don’t
know. Jurors will respect and appreciate honest ignorance of a few details far more
than a disingenuous attempt to make everything “fit” with your testimony.
90 7 PTSD Cases: Evaluation, Interpretation, and Testimony
Finally, remember that most citizens, which includes most jurors, want to believe
that the people they place their trust in—which includes most doctors and other
healthcare professionals—have their best welfare in mind. This means that they
will mentally bend over backward to give you the benefit of the doubt if you can
give them a credible reason to do so. It is common to walk out of court wishing you
could have better answered this or that question or made this or that point clearer,
and a little bit of constructive second-guessing and self-review will keep you sharp.
However, try not to obsess; just prepare carefully for your case, be clear and honest
in your testimony, maintain dignity and decorum at all times, and in most cases you
will emerge from the courtroom with the satisfaction of a job well done.
Practice Points
Laurence Miller
Miller Psychological Associates
Boca Raton
Florida
USA
DOI 10.1007/978-1-4939-2202-4_8
The Publisher regrets for the following errors in chapter 3, 4 and 5.
DOI 10.1007/978-3-319-09081-8_3
In chapter 3, incorrect line was printed on page 40 as :
“diagnostic names, as if the recounting had been rehearsed, which is often has.”
The correct line should be:
“diagnostic names, as if the recounting had been rehearsed, which it often has.”
DOI 10.1007/978-3-319-09081-8_4
On p. 45, in Table 4.1, both column headings read Civil Justice System which was
printed incorrectly.
The correct second heading should be “Criminal Justice System”.
DOI 10.1007/978-3-319-09081-8_5
On page 63, incorrect line appeared as
For example patients with epilepsy or diabetes must take their medications and
near-sighted
But, the correct version should be:
For example, patients with epilepsy or diabetes must take their medications and
near-sighted
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References 113
A F
Acute stress disorder, 13 Factitious disorder, 26, 34–36, 42
Anxiety disorders, 26–28, 31 Flashbacks, 11, 12, 17, 38, 39, 41, 61, 72, 75
Automatism defense, 75 Forensic psychological evaluation
Avoidance/numbing, 11–13, 16, 25, 29, 31, components of, 85
35, 41, 58 report of, 84
B G
Battle fatigue, 2, 3 Generalized anxiety disorder, 26, 28
Bipolar disorder, 25, 26, 29–31, 69, 73, 76 Guilty but mentally ill, 73–75, 81
Gulf war syndrome, 2, 5
C
Civil justice system, 45 H
Civil War, American, 3 Hyperarousal, 13, 52, 56, 59, 72
Cognitive impairment, 16, 25, 27, 32, 49
Crime victim trauma, 18 I
Criminal justice system, 4, 6, 7, 31, 39, 43–45, Insanity defense standards, 70
49, 55–66, 69, 70, 72, 74, 76, 78, 80, 81 Insanity defense, PTSD and, 70–75
D L
Deposition testimony, 86, 87 Law Enforcement Trauma, 60
Designer defenses, 80, 81 Limbic psychotic trigger reaction, 60–62
Diminished capacity, PTSD and, 73, 75
Disasters, 5, 7, 18, 56, 66 M
Dissociative disorders, 32 Major depressive disorder, 10, 25, 26, 28,
Dreams, 3, 11, 12, 17, 39, 61, 64 29, 49
DSM-5, 11, 27 Malingering, 26, 30, 34–42, 72, 77, 86
DSM-III, 5 Memory impairment, 27, 34
Military disability claims, 31, 52
E Military veterans
Evolution of trauma response, 13–15 PTSD as criminal defense for, 78, 79
Expert witness, 7, 44, 76, 83, 87–90 PTSD in, 55, 56
Expert witness testimony, testifying tips, Mood disorders, 26, 28, 29, 31, 60
87, 89 Motor vehicle accidents, 10, 17
P R
Pain, 16, 34 Re-experiencing, 62
Panic disorder, 28, 30, 31
Personality disorders, 9, 25, 26, 30, 31, 38 S
Personal injury claims, 44–46, 51–53 School violence, 19
Postconcussion syndrome, 16, 17, 27 Self-defense, 74, 75, 80
Posttraumatic Stress Disorder (PTSD) Shell shock, 2–4
active shooter, 66, 67 Sleep disorders, 60, 75
civilian, 15–20, 39 Somatoform disorders, 26, 31–35, 38
demographics of, 9, 10 Stressor criterion, 5, 49, 78
diagnostic criteria for, 23, 73
differential diagnosis of, 25–41 T
history of, 1–7 Terrorism, 19, 20, 48
military, 5, 6, 15, 39, 40, 73, 79 Torts, 26, 45–47, 49
neurobiology of, 20, 21 Tort claims, legal criteria, 46
resiliency factors in, 21, 22 Toxic trauma, 17
risk factors in, 21, 56, 57 Traumatic brain injury, 6, 12, 16, 25–27, 34,
treatment of, 22 59, 73
PTSD and civil litigation, 43–52 Trial testimony, 87
PTSD and criminal prosecution, 43
PTSD and insanity defense, 70–75
PTSD and violence, 18, 19, 61, 64, 66 V
combat addiction, 60, 62, 63 Vietnam War, 2, 4, 9, 15, 55, 62
dissociative flashback, 60, 69
limbic psychotic trigger reaction, 60–62 W
mood disorder, 26, 28, 29, 60, 63 Workers Compensation, 7, 44, 45, 48, 50,
risk factors for, 21, 56, 57 51, 53
sleep disorders, 60 Workplace violence, 18, 19, 48
PTSD and violent crime World War I, 2–4
patterns of, 60–67 World War II, 2–4
PTSD and war, 5, 9, 15, 37, 55, 62, 74
PTSD as criminal defense, 78
PTSD as criminal defense in military veterans,
78, 79