Social Worker as Expert Witness in Maryland
© 1999 Gorman & Williams
M E M O R A N D U M
Date: November 23, 1998
Issue: Whether a licensed clinical social worker (LCSW) will be recognized
as an expert witness in Maryland courts. From a review of case law, statutory
law, and other sources, the answer is a qualified "yes."
Maryland Statutory Authority
Maryland Rule 5-702, Testimony by Experts, adopting Federal Rule of
Evidence 702, deals with the admissibility of expert testimony. Rule 5-702
provides that:
Expert testimony may be admitted, in the form of an opinion or otherwise,
if the court determines that the testimony will assist the trier of fact
to understand the evidence or to determine a fact in issue. In making that
determination, the court shall determine (1) whether the witness is qualified
as an expert by knowledge, skill, experience, training, or education, (2)
the appropriateness of the expert testimony on the particular subject,
and (3) whether a sufficient factual basis exists to support the expert
testimony.
Md. Rule 5-702. This rule thus gives the court complete discretion in determining
whether an experts testimony may be admitted. Determination of whether
an expert meets the requisite criteria levels for admissibility as enumerated
by the court are also left to the court's discretion. In any event, if
the court finds that an expert may be admitted, the opposing party would
still have the right to cross-examine an expert witness for both relevance
of proposed testimony and to determine whether the witness is fit to be
admitted.
Relevant Case Law
A search of relevant case law does not disclose any cases which directly
deal with the issue of whether a licensed clinical social worker will per
se automatically be recognized as an expert witness in Maryland. However,
cases which discuss the standard for admitting expert witnesses in Maryland
assist in discerning the applicable standard for admission.
The case of Consolidated Mechanical Contractors, Inc. v. Ball,
263 Md. 328 (1971) set out the general Maryland rule regarding the use
of expert testimony at trial. The court, in Consolidated, stated
that, "It is settled in Maryland that the test is whether the expert's
opinion will aid the trier of fact, and the trial judge has wide discretion
in determining whether the expertise of the witness has been established."
(citations omitted). Id at 338. The Court, in Consolidated,
admitted the expert testimony in this case because the expert's background
and experience, in the Court's opinion, qualified him to testify, and the
substance of his testimony would assist the trier of fact. Id. at
338-39.
In Dillingham v. State, 9 Md. App. 669 (1970), the court discussed
the qualifications of an expert witness, a factor in determining the admissibility
of an expert witness's testimony at trial. The court, in a concurring opinion,
stated that,
The average person . . . is certainly not qualified to give expert
testimony . . .. The fact that he might have a degree in education, sociology
or theology does not, per se, make him qualified; nor does the mere fact
that he is a social worker, a probation officer, a teacher, a priest, minister
or rabbi. Something more is required. He need not, of course, be an authority
but there must be an affirmative showing (and an opportunity to cross-examine
thereon) that he is possessed of some special and sufficient knowledge
and information, however acquired, which would elevate his opinion above
the realm of conjecture, speculation or personal reaction . . . [W]hatever
his status in life may be, his qualifications can not be assumed; they
must be established by evidence. The quality or quantity of that evidence
occasionally may require some adjustment, depending upon the exigencies
of the moment, and in such circumstances the trial judge will need to exercise
the full measure of his judgment, skill and discretion.
The Dillingham concurrence discusses another case, Sanza v. Maryland
State Board of Censors, 245 Md. 319, where the Court of Appeals found
two individuals qualified as experts in their particular fields based on
the test from Hewitt v. Maryland State Board of Censors, 243 Md.
574 (1966). In Sanza, the Court evaluated the academic and professional
experiences of two witnesses in determining that these witnesses were both
qualified. Sanza at 330.
In Saul v. State, 6 Md. App. 540 (1969), the court upheld a lower
court's exercise of discretion in finding that an individual with extensive
academic and clinical experience in clinical psychology, although not a
diplomate of the American Board of Examiners in Professional Psychology
and not licensed to practice as a medical doctor, was qualified as an expert
psychologist. The court, citing Hewitt, approved the lower court's
exercise of discretion in evaluating the totality of the expert's qualifications
and experience in admitting the doctor as an expert witness:
In Hewitt v. Maryland State Board of Censors, 243 Md. 574 (1966),
the court also applies the discretionary standard in qualifying an individual
to give expert testimony. Though the court, in this case, eventually disallows
the purported expert's testimony, the court states that "[s]omething more"
than a mere showing that an individual is a "social worker, a probation
officer, a teacher, a priest, minister or rabbi" is necessary. He need
not, of course, be an authority but there must be an affirmative showing
. . . that he is possessed of some special and sufficient knowledge and
information, however acquired, which would elevate his opinion above the
realm of conjecture, speculation or personal reaction. . . . The term expert
has many lights and shadows. It can denote a man who is recognized authority
and, perhaps as accurately, a fellow who once went to the city. At what
point between those two extremes he will be allowed to express an opinion
on the witness stand will be for the trial judge to decide in the first
instance. But whatever his status in life may be, his qualifications can
not be assumed; they must be established by evidence. The quality or quantity
of that evidence occasionally may require some adjustment, depending upon
the exigencies of the moment, and in such circumstances the trial judge
will need to exercise the full measure of his judgment, skill and discretion.
Id. at 900. Admissibility, as stated by the Court of Appeals, thus
turns on the discretion of the trial judge in evaluating an expert's qualifications
as presented to him at trial. This is consistent with the current Maryland
Rule 5-702.
These cases are also consistent with more recent cases which also address
the admissibility of expert testimony. In Sippio v. State, 350 Md.
633 (1998), the Court noted that "[u]nder the well-established Maryland
common law of evidence, it is within the sound discretion of the trial
court to determine the admissibility of expert testimony. . . . The Maryland
Rules of Evidence, adopted by this Court in 1994, did not limit that discretion."
Id.
The standard under which the Sippio Court evaluated the expert
testimony was:
[W]hether the trier of fact will receive appreciable help from the
expert testimony in order to understand the evidence or to determine a
fact in issue. The trial court need not consider whether the trier of fact
could possibly decide the issue without the expert testimony. Nor must
the subject of the expert testimony be so far beyond the level of skill
and comprehension of the average layperson that the trier of fact would
have no understanding of the subject matter without the expert's testimony.
Id. at 871-72 (citations omitted). Thus, in Sippio, because
the court determined that all of the requirements of 5-702 were met, the
court permitted the expert to testify.
In another Court of Appeals case decided in 1998, that of Massie
v. State of Maryland, 349 Md. 834 (1998), the court also addressed
the admissibility of an expert witness under Rule 5-702. The Court, in
Massie, echoed the reasoning of Consolidated twenty-seven
years earlier in stating that, "It is well settled law in Maryland that
Rule 5-702 vests trial judges with wide latitude in deciding whether to
qualify a witness as an expert or to admit or exclude particular expert
testimony." Id. at 850-51. The Court went on to state that:
The trial court is free to consider any aspect of a witness's background
in determining whether the witness is sufficiently familiar with the subject
to render an expert opinion, including the witness's formal education,
professional training, personal observations, and actual experience.
Id. at 851. Ultimately, the Massie court found no abuse of
discretion when the trial judge permitted the expert to testify, stating
that, "The trial judge concluded that [the witness], by virtue of his experience,
training, and education, had special knowledge on the subject beyond the
experience of the jurors and that [the witness]'s opinion would assist
the jury." Id.
The body of Maryland case law, while not directly addressing the admissibility
of clinical social workers as expert witnesses, nonetheless permits their
admission as experts in cases where the required showing is made consistent
with Maryland Rule 5-702.
Other Sources
In the National Association of Social Workers (NASW) publication entitled
Social Workers as Expert Witnesses General Counsel Law Note, the
NASW reviews the role that a social worker plays in the courtroom. Though
written as an advocate for social workers' rights and professional standing,
this publication cites a number of sources which support a social worker's
role as expert witness in a trial.
The NASW cites the case of Jaffee v. Redmond, 116 S.Ct. 1923
(1996), in stating that the Supreme Court of the United States has extended
the psychotherapist-patient privilege not only to psychiatrists and psychologists,
but also to social workers. The NASW notes that the Court acknowledged
that "no discernible public purpose would be served by treating the counseling
of more readily accessible social workers different from other psychotherapists."
Id. at 1931. The NASW interprets this as putting social workers
in the same position as psychotherapists and psychiatrists in their roles
as expert witnesses, and validating the professional status of licensed
social workers in the behavioral health field.
The NASW goes on to cite numerous instances where social workers have
been called on to provide expert testimony. In particular, they cite a
number of cases involving post-traumatic stress disorder (PTSD), where
social workers were qualified as expert witnesses. Though none of the cited
cases originate in Maryland, one of the cases (Hensler v. O'Sullivan Corp.,
et al., _____ (4th Cir. 1996)) is from the U.S. Fourth Circuit.
Conclusion
Though there does not appear to be any statutory or reported case authority
which expressly authorizes licensed clinical social workers to testify
as expert witnesses in trial in Maryland courts, there is also no statutory
or reported case authority which prohibits such testimony. As such, the
evidentiary standard of Maryland Rule 5-702, that the proponent of the
witness make a showing of the witness's knowledge, skill, experience, training,
or education; the appropriateness of the testimony; and the factual basis
for the testimony, must be met, to the satisfaction of the court, for the
witness's testimony to be admitted.
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