By David Lombard, PhD, Licensed Psychologist and Forensic Evaluator
When most attorneys think about a forensic psychologist, they picture the witness stand. In practice, much of the most useful work an expert does happens months before trial, and in many cases the expert never testifies at all.
A consulting expert works behind the scenes, for the attorney, to help answer practical questions early: Is there a real mental health issue in this case? Is it a competency question, a sanity question, or a sentencing question? What records do we need before they disappear? How strong is the other side's evaluation, and where are its weak points?
Getting those answers early can change the direction of a case. It can prevent a defense from being raised that will not hold up, or make sure one that should be raised is built on a solid foundation. For prosecutors, it can mean understanding a defense expert's report well enough to respond to it effectively.
Last week's post on criminal responsibility in homicide cases ended with a recommendation to involve a consultant before the notice of insanity defense is filed. This post explains what that consultation looks like and why it matters.
Consulting Expert vs. Testifying Expert
The two roles sound similar but work very differently.
| Comparison | Consulting expert | Testifying expert |
|---|---|---|
| Works for | The attorney, as part of the legal team | The court and the trier of fact, through the retaining party |
| Main job | Educate counsel, assess the issues, shape strategy | Offer an independent opinion under oath |
| Confidentiality | Work is generally treated as attorney work product | Opinions, reports, and file are typically discoverable |
| Evaluates the defendant? | Often reviews records only; may or may not interview | Usually conducts a full evaluation |
| Typical timing | Early, often before charges are resolved or notices filed | After the issues are defined and a defense is chosen |
Confidentiality has limits. In general, a consultant's work is protected as part of the attorney's trial preparation. But protection in criminal cases is not uniform across jurisdictions, and it can be lost. In one 2023 Indiana case, introducing a single page of a protected expert report at a deposition opened the door to discovery of the entire report. Attorneys should treat the consultant's work as protected, structure the engagement in writing through counsel, and be careful about what gets shared or used.
Keep the roles separate. An expert who starts as a consultant and later becomes the testifying expert can create problems. Communications and work product that would have been protected may become discoverable, and the expert's objectivity can be questioned because they were part of the strategy team. Many attorneys retain one expert to consult and, if the case needs testimony, a separate expert to evaluate and testify. The consultant can then help counsel prepare for that testimony and for the other side's expert. (For more on why this separation matters, see The Ethics of Testifying: Objectivity vs. Advocacy in Expert Work.)
What an Early Consultant Actually Does
Every case is different, but early consultation usually covers a few core tasks.
Identifying whether there is a real issue. Not every unusual behavior or mental health history supports a legal defense. A consultant reviews the available records and helps counsel sort out whether the facts point toward a viable issue, a sentencing consideration, or nothing that will help.
Naming the right question. Attorneys sometimes come in asking about insanity when the more pressing issue is competency to stand trial, or the reverse. These are different legal questions with different standards and timelines. Raising the wrong one first can waste months. (For more on competency, see Competency Restoration Programs: What Actually Happens During Treatment.)
Preserving and gathering evidence. Mental state cases depend on records that can be lost: jail medical and mental health notes from the first days after arrest, booking video, 911 and dispatch audio, prior treatment records, and statements from family members while memories are fresh. A consultant can tell counsel what to request now and why.
Advising on the decision to raise a mental state defense. In Indiana, filing a notice of insanity defense triggers court-appointed evaluations, opens the door to evidence that might otherwise be inadmissible, and allows the State to examine the defendant. A consultant can help counsel weigh those consequences against the strength of the evidence before committing.
Helping choose and prepare a testifying expert. If the case needs testimony, the consultant can help identify the right kind of expert, explain what that expert will need, and make sure the referral question is framed correctly.
Reviewing the Other Side's Evaluation
One of the most valuable things a consultant does has nothing to do with the consultant's own opinion. It is helping counsel understand someone else's.
Forensic reports are dense, technical, and written in language that can be hard to evaluate without training. A consultant can review a report from the opposing expert or a court-appointed evaluator and answer questions like:
Were the tests appropriate for this person and this question, and were they scored and interpreted correctly?
Did the evaluator consider the full record, or rely mainly on the defendant's own account?
Was response style, such as exaggeration or minimization, assessed with validated methods?
Were alternative explanations considered and addressed?
Does the opinion actually answer the legal question, or does it go beyond the data?
From there, the consultant can help counsel prepare deposition and cross-examination questions that target real weaknesses rather than surface issues. Just as important, a candid consultant will tell counsel when the opposing report is solid. Knowing that early is valuable too, especially for plea negotiations.
This works in both directions. Prosecutors facing a defense expert's insanity opinion benefit from the same kind of review. (See How Forensic Evaluators Document and Defend Their Reasoning for the standards these reports should meet.)
Beyond Trial: Pleas, Sentencing, and Mitigation
Most criminal cases end in a plea, not a verdict. Mental health information often matters most at that stage.
Plea negotiations. A clear, well-supported understanding of a defendant's mental health can shape what both sides consider a fair resolution. That may include a plea of guilty but mentally ill, a treatment-focused probation, or referral to a problem-solving court where one is available.
Sentencing. Even when a mental state defense is not viable, a documented history of serious mental illness, intellectual disability, trauma, or brain injury may be relevant to sentencing. A consultant can help counsel decide what is worth developing and whether a formal evaluation for sentencing makes sense.
Treatment planning. Courts and probation officers want to know what will reduce risk going forward. A consultant can help counsel present a realistic treatment plan rather than a general request for leniency.
In each of these settings, the same principle applies: the earlier the issues are understood, the more options remain open.
When to Call, and What to Send
When to call. The best time is as soon as a mental health question appears. In practice, that often means:
Your client's behavior at arrest, in jail, or in meetings with you raises concerns
There is a known history of serious mental illness, brain injury, or intellectual disability
The facts of the offense seem senseless, bizarre, or out of character
You are considering a notice of insanity defense or a competency motion
You have received an expert report from the other side or the court and need to understand it
What to send for an initial review. A first consultation can usually start with:
The charging information and probable cause affidavit
Police reports and any recorded statements or interviews
Jail medical and mental health records
Any prior treatment, hospitalization, school, or military records you already have
Any existing evaluations, including competency reports
Your specific questions and any deadlines, such as the omnibus date
You do not need everything at the start. Part of the consultant's job is to tell you what is missing and which records matter most.
Frequently Asked Questions
What is the difference between a consulting expert and a testifying expert? A consulting expert works confidentially with the attorney to assess issues and shape strategy. A testifying expert offers an independent opinion in court, and their work is generally discoverable.
Is a consulting expert's work confidential? Generally, it is treated as attorney work product. Protection in criminal cases is not absolute, though, and it can be waived, for example by using part of a protected report in the case.
Can my consultant also be my testifying expert? It is possible, but often not advisable. Moving from one role to the other can make previously protected communications discoverable and can invite questions about the expert's objectivity.
Does a consultant need to meet with the defendant? Not always. Many consultations start with a review of records, recordings, and existing reports. Whether an interview is needed depends on the questions counsel is trying to answer.
Is consultation only useful for the defense? No. Prosecutors use consultants to understand and respond to defense expert reports, assess competency and sanity findings, and prepare for cross-examination.
How early is too early? Rarely. Records are easier to preserve and options are easier to keep open when the mental health questions are identified at the start of a case.
Talk Through a Case Early
If a mental health question has come up in one of your cases, or you have an expert report you need to understand, I offer confidential consultation to defense attorneys and prosecutors. Contact me through davidlombard.com to discuss your case.
David Lombard, PhD, is a licensed psychologist providing forensic evaluations and expert consultation in criminal and family law matters in Indiana.
This article is for general educational purposes and is not legal advice.
Sources consulted