Attachment evidence and expert testimony are reliable and admissible using the DMM and IASA Family Attachment Court Protocol
A Conflict Science Institute Whitepaper
Also published at DMM News, #29 Dec 2018
Mark Baumann J.D., Director, CSI
Attachment assessment coders using the IASA Family Attachment Court Protocol (Crittenden, Farnfield, Landini, & Grey, 2013) and Dynamic Maturational Model of Attachment and Adaptation (DMM, Crittenden & Spieker, 2018a; Crittenden & Spieker, 2018b) may testify in court to:
- educate judges about attachment and/or the DMM,
- provide person-specific assessment results,
- give opinions based on assessment information and/or hypothetical fact scenarios,
- provide recommendations which may be in the form of a Family Functional Formulation.
To do so, they must qualify as an expert witness which, in the U.S., requires they, their methods, and their evidence be reliable and helpful.
U.S. Evidentiary standards overview
Rules governing the admissibility of expert evidence in the U.S. involve some combination of standards from the Frye case (1923), the Daubertcase (1993), and/or some version of Federal Rules of Evidence 702 to ensure reliability and helpfulness (relevance).
Frye merely requires the science and theory be generally accepted in the relevant community.
Daubert sets forth a non-exclusive checklist to help courts better assess reliability:
- Whether the expert’s technique or theory can be or has been tested and can be challenged in some objective sense, or is instead simply a subjective conclusion that cannot reasonably be assessed for reliability (validity);
- Whether the technique or theory has been subject to peer review and publication;
- The known or potential rate of error of the technique or theory when applied;
- The existence and maintenance of standards and controls; and
- Whether the technique or theory has been generally accepted (by a majority or recognized minority) in the scientific community. (FRE 702, committee notes.)
Expert evidence need not be provably “accurate” (difficult in human assessments), but when opinions diverge, more weight should usually be given to the more reliable testimony (Daubert, 1993).
Federal Rules of Evidence 702 broadens Daubert and allows a witness to testify from knowledge, skill, experience, training, or education about facts, opinions or “otherwise” if testimony is:
- based on sufficient facts or data,
- the product of reliable principles and methods, and
- reliably applied to the facts of the case.
Reliability is enhanced if the methods and standards are transparent (Kasten, 2008), alternative explanations are accounted for (Claar, 1994), and each stage of methodology is properly conducted (Heller, 1999). The facts and data may be required to be disclosed if requested or inquired about during cross-examination (FRE 705).
Evidentiary standards, and even specific language of evidence rules, can vary greatly by State. The Federal Rules of Evidence are similar to the Uniform Rules of Evidence which have been fully or partially adopted in a majority of U.S. states (34 states), although not all states have exactly adopted the Federal Rules of Evidence. Daubert (1993) or Frye (1923) may be solely controlling authority in some States.
Daubert and the FRE set the highest standards for admissibility and reliability. The higher the standard, the more the expert must be able to explain how scientific data and theory are applied to the facts, how specific conclusions were arrived at, and how and why alternative hypothesis were considered and rejected (bloomberg, 2016). Most courts will likely be applying some form of requirement that the principles be generally accepted in the relevant scientific community, that the evidence be relevant, and be reliable. Washington State, for example, uses the Fryestandard and a modified version of FRE 702, and the elements just described are all required to be established (Lakey, 2013).
Is attachment-science evidence speculative?
Expert evidence and testimony may not, in most jurisdictions, be speculative. But what constitutes speculation is not easy to define. Speculation often comes up in the context of proving causation in personal injury cases. In Toyota (2013), an expert was allowed to testify that a vehicle driver who died in a car accident had a neurological condition at time of the accident that could have affected her ability to operate the vehicle safely, but could not testify her condition was the cause of the accident because that would require a speculation.
Efforts to connect an attachment issue to a cause, such as parental maltreatment, or to support or refute charges of abuse, neglect, or sexual abuse are always speculative and inappropriate under DMM (and ABC+D) principles (Crittenden and Spieker, 2018). On the other hand, the DMM considers that most adults with a high numbered DMM Classification (A3/4 or C3/4 or higher) have experienced problems in childhood. The future development of attachment science and theory from either model may move the dial on the speculation issue.
Weight vs. admissibility of attachment evidence
Once expert witness testimony is admitted, the question still remains whether or not it is accurate and what the significance may be. The judge (or jury if there is one) must determine whether or not to accept the evidence and determine what it’s significance is. In the human sciences, it is unlikely much expert evidence or opinion will ever be close to 100% accurate and the significance may vary depending the level of understanding the fact finder may be able to obtain.
Also, two experts testifying about attachment assessments may have different conclusions which could be minor or substantial. One pair of experts may find an individual’s classification is A3 and A4, or B2 and A2, or B2 and B4. These three distinctions may lead to different solutions, treatments, or approaches and identify slightly different needs the child has, but the difference is probably not tremendously significant. Another pair of experts may find an individual’s classification is B4 or C5, or A4 or C4, and here the distinctions would lead to quite different approaches and require the court to look carefully at other evidence before relying on either opinion.
Regardless of minor or major differences in classifications, both opinions may be admissible if they both used reliable methods and reliably followed procedures. Thus the law recognizes the need to distinguish between admissible evidence and what weight evidence should be given in consideration of all the other evidence presented. Expert evidence which has better credibility through reliability would presumably be given greater weight.
IASA Family Attachment Court Protocol
The IASA Family Attachment Court Protocol (IASA 2018a) is thoughtfully designed to maximize report reliability and helpfulness (Landini & Florit, 2018). The DMM, with over 450 peer reviewed DMM-related publications (IASA, 2018b), published validity data, and use of standard assessment procedures, is recognized in the scientific community. The DMM was
developed initially by Dr. Patricia M. Crittenden (Crittenden, 1983; Crittenden & Landini, 2011; Crittenden, 2016; see also Hautamäki, 2014; Farnfeld & Holmes 2014; Holmes & Farnfeld, 2014).
Coder reliability is facilitated by requiring the highest of four coder-certification levels for forensic reports, annual re-certification of coders, and blind coding (minimizing confirmatory bias). Recommendations should ideally be based on assessments of all family members to understand family dynamics. The DMM is science-based and provides clearly defined theory. The assessment techniques used are standardized and structured. Guidelines for the court reports (Crittenden, et al., 2013) require that findings, opinions and recommendations must be written, clearly articulated, and include statements about potential alternatives.
Transparency is facilitated by making testing data available for other experts to review. Assessment procedure, theory, and validity data are all published, and data inconsistent with current theory, and vice versa, is clearly noted. Also required is disclosure of coder certification status and coder error rates.
Helpfulness is facilitated by the use of the DMM-based Family Functional Formula (DMM-FFF) report, which puts emphasis on facts over expert opinion (Landini & Florit, 2018)). Because attachment strategies occur in relation to other family members, the comprehensive DMM-FFF report answers questions deeper than the not-helpful question“Is the child attached?” Instead, the report provides information about the bigger picture of how family members are getting their needs met (Carr-Hopkins, 2018).
Take-away points: Attachment science can provide helpful evidence
The IASA Family Attachment Court Protocol is an excellent method, and the only published method, to provide courts with structured, reliable, helpful, and verifiable evidence about attachment for an individual, dyad, and/or family system. Such reports should be easily admissible in any jurisdiction if the reporter is qualified and follows procedure, and extremely helpful to legal decision making.
For an article about the definition and relevance of attachment for lawyers, click here.
Mark Baumann, J.D.
Director, Conflict Science Institute
Mark Baumann is the founder and director of The Conflict Science Institute and has developed several of CSI’s integrative models for high conflict professionals, including the Conflict Model. Mark has served as a family law litigator, counselor, mediator, educator, and professional speaker since 1988, and as an ad-hoc board member of the International Association for the Study of Attachment (IASA). In addition to teaching CSI concepts worldwide, Mark continues to develop CSI techniques through the practice of family law, with a focus on attachment, trauma, and domestic violence. (His complete C.V. can be found here)
States slow to adopt Daubert Evidence Rule, Bloomberg News, April 27, 2016, https://www.bna.com/states-slow-adopt-n57982070384/
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International Association for the Study of Attachment (IASA) (2018a). Family Court Protocol, https://www.iasa-dmm.org/family_court_protocol/
International Association for the Study of Attachment (IASA) (2018b). DMM Resources, https://www.iasa-dmm.org/resources/
Kasten v. Saint-Gobain Performance Plastics Corp., 556 F. Supp. 2d 941 (W.D. Wis. 2008)
Lakey v. Puget Sound Energy, Inc., 176 Wash. 2d 909, 296 P.3d 860 (2013)
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