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					 HANDBOOK
     of
PSYCHOLOGY


     VOLUME 11
FORENSIC PSYCHOLOGY


   Alan M. Goldstein
        Volume Editor




    Irving B. Weiner
        Editor-in-Chief




  John Wiley & Sons, Inc.
 HANDBOOK
     of
PSYCHOLOGY
 HANDBOOK
     of
PSYCHOLOGY


     VOLUME 11
FORENSIC PSYCHOLOGY


   Alan M. Goldstein
        Volume Editor




    Irving B. Weiner
        Editor-in-Chief




  John Wiley & Sons, Inc.
                                           ➇
This book is printed on acid-free paper.

Copyright © 2003 by John Wiley & Sons, Inc., Hoboken, New Jersey. All rights reserved.

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Library of Congress Cataloging-in-Publication Data:

Handbook of psychology / Irving B. Weiner, editor-in-chief.
         p. cm.
      Includes bibliographical references and indexes.
      Contents: v. 1. History of psychology / edited by Donald K. Freedheim — v. 2. Research
   methods in psychology / edited by John A. Schinka, Wayne F. Velicer — v. 3. Biological
   psychology / edited by Michela Gallagher, Randy J. Nelson — v. 4. Experimental
   psychology / edited by Alice F. Healy, Robert W. Proctor — v. 5. Personality and social
   psychology / edited by Theodore Millon, Melvin J. Lerner — v. 6. Developmental
   psychology / edited by Richard M. Lerner, M. Ann Easterbrooks, Jayanthi Mistry — v. 7.
   Educational psychology / edited by William M. Reynolds, Gloria E. Miller — v. 8.
   Clinical psychology / edited by George Stricker, Thomas A. Widiger — v. 9. Health psychology /
   edited by Arthur M. Nezu, Christine Maguth Nezu, Pamela A. Geller — v. 10. Assessment
   psychology / edited by John R. Graham, Jack A. Naglieri — v. 11. Forensic psychology /
   edited by Alan M. Goldstein — v. 12. Industrial and organizational psychology / edited
   by Walter C. Borman, Daniel R. Ilgen, Richard J. Klimoski.
      ISBN 0-471-17669-9 (set) — ISBN 0-471-38320-1 (cloth : alk. paper : v. 1)
   — ISBN 0-471-38513-1 (cloth : alk. paper : v. 2) — ISBN 0-471-38403-8 (cloth : alk. paper : v. 3)
   — ISBN 0-471-39262-6 (cloth : alk. paper : v. 4) — ISBN 0-471-38404-6 (cloth : alk. paper : v. 5)
   — ISBN 0-471-38405-4 (cloth : alk. paper : v. 6) — ISBN 0-471-38406-2 (cloth : alk. paper : v. 7)
   — ISBN 0-471-39263-4 (cloth : alk. paper : v. 8) — ISBN 0-471-38514-X (cloth : alk. paper : v. 9)
   — ISBN 0-471-38407-0 (cloth : alk. paper : v. 10) — ISBN 0-471-38321-X (cloth : alk. paper : v. 11)
   — ISBN 0-471-38408-9 (cloth : alk. paper : v. 12)
      1. Psychology. I. Weiner, Irving B.

     BF121.H1955 2003
     150—dc21
                                                                                                 2002066380
Printed in the United States of America.

10   9   8   7   6   5   4   3   2   1
Editorial Board

Volume 1                          Volume 5                             Volume 9
History of Psychology             Personality and Social Psychology    Health Psychology
Donald K. Freedheim, PhD          Theodore Millon, PhD                 Arthur M. Nezu, PhD
Case Western Reserve University   Institute for Advanced Studies in    Christine Maguth Nezu, PhD
Cleveland, Ohio                      Personology and Psychopathology   Pamela A. Geller, PhD
                                  Coral Gables, Florida
                                                                       Drexel University
                                  Melvin J. Lerner, PhD                Philadelphia, Pennsylvania
Volume 2                          Florida Atlantic University
Research Methods in Psychology    Boca Raton, Florida                  Volume 10
                                                                       Assessment Psychology
John A. Schinka, PhD
University of South Florida       Volume 6                             John R. Graham, PhD
Tampa, Florida                    Developmental Psychology             Kent State University
                                  Richard M. Lerner, PhD               Kent, Ohio
Wayne F. Velicer, PhD
University of Rhode Island        M. Ann Easterbrooks, PhD             Jack A. Naglieri, PhD
Kingston, Rhode Island            Jayanthi Mistry, PhD                 George Mason University
                                  Tufts University                     Fairfax, Virginia
                                  Medford, Massachusetts
                                                                       Volume 11
Volume 3
                                                                       Forensic Psychology
Biological Psychology             Volume 7
                                  Educational Psychology               Alan M. Goldstein, PhD
Michela Gallagher, PhD
                                                                       John Jay College of Criminal
Johns Hopkins University          William M. Reynolds, PhD                Justice–CUNY
Baltimore, Maryland               Humboldt State University            New York, New York
Randy J. Nelson, PhD              Arcata, California
Ohio State University             Gloria E. Miller, PhD                Volume 12
Columbus, Ohio                    University of Denver                 Industrial and Organizational
                                  Denver, Colorado                     Psychology
                                                                       Walter C. Borman, PhD
Volume 4                          Volume 8                             University of South Florida
Experimental Psychology           Clinical Psychology                  Tampa, Florida
Alice F. Healy, PhD               George Stricker, PhD                 Daniel R. Ilgen, PhD
University of Colorado            Adelphi University                   Michigan State University
Boulder, Colorado                 Garden City, New York                East Lansing, Michigan
Robert W. Proctor, PhD            Thomas A. Widiger, PhD               Richard J. Klimoski, PhD
Purdue University                 University of Kentucky               George Mason University
West Lafayette, Indiana           Lexington, Kentucky                  Fairfax, Virginia




                                                     v
           To the three most important people in my life:
                     Paula, Naomi, and Marion.
Each day you bring joy to my life and to those whose lives you touch.
Handbook of Psychology Preface


Psychology at the beginning of the twenty-first century has                   A second unifying thread in psychology is a commitment
become a highly diverse field of scientific study and applied              to the development and utilization of research methods
technology. Psychologists commonly regard their discipline               suitable for collecting and analyzing behavioral data. With
as the science of behavior, and the American Psychological               attention both to specific procedures and their application
Association has formally designated 2000 to 2010 as the                  in particular settings, Volume 2 addresses research methods
“Decade of Behavior.” The pursuits of behavioral scientists              in psychology.
range from the natural sciences to the social sciences and em-               Volumes 3 through 7 of the Handbook present the sub-
brace a wide variety of objects of investigation. Some psy-              stantive content of psychological knowledge in five broad
chologists have more in common with biologists than with                 areas of study: biological psychology (Volume 3), experi-
most other psychologists, and some have more in common                   mental psychology (Volume 4), personality and social psy-
with sociologists than with most of their psychological col-             chology (Volume 5), developmental psychology (Volume 6),
leagues. Some psychologists are interested primarily in the be-          and educational psychology (Volume 7). Volumes 8 through
havior of animals, some in the behavior of people, and others            12 address the application of psychological knowledge in
in the behavior of organizations. These and other dimensions             five broad areas of professional practice: clinical psychology
of difference among psychological scientists are matched by              (Volume 8), health psychology (Volume 9), assessment psy-
equal if not greater heterogeneity among psychological practi-           chology (Volume 10), forensic psychology (Volume 11), and
tioners, who currently apply a vast array of methods in many             industrial and organizational psychology (Volume 12). Each
different settings to achieve highly varied purposes.                    of these volumes reviews what is currently known in these
    Psychology has been rich in comprehensive encyclope-                 areas of study and application and identifies pertinent sources
dias and in handbooks devoted to specific topics in the field.             of information in the literature. Each discusses unresolved is-
However, there has not previously been any single handbook               sues and unanswered questions and proposes future direc-
designed to cover the broad scope of psychological science               tions in conceptualization, research, and practice. Each of the
and practice. The present 12-volume Handbook of Psychol-                 volumes also reflects the investment of scientific psycholo-
ogy was conceived to occupy this place in the literature.                gists in practical applications of their findings and the atten-
Leading national and international scholars and practitioners            tion of applied psychologists to the scientific basis of their
have collaborated to produce 297 authoritative and detailed              methods.
chapters covering all fundamental facets of the discipline,                  The Handbook of Psychology was prepared for the pur-
and the Handbook has been organized to capture the breadth               pose of educating and informing readers about the present
and diversity of psychology and to encompass interests and               state of psychological knowledge and about anticipated ad-
concerns shared by psychologists in all branches of the field.            vances in behavioral science research and practice. With this
    Two unifying threads run through the science of behavior.            purpose in mind, the individual Handbook volumes address
The first is a common history rooted in conceptual and em-                the needs and interests of three groups. First, for graduate stu-
pirical approaches to understanding the nature of behavior.              dents in behavioral science, the volumes provide advanced
The specific histories of all specialty areas in psychology              instruction in the basic concepts and methods that define the
trace their origins to the formulations of the classical philoso-        fields they cover, together with a review of current knowl-
phers and the methodology of the early experimentalists, and             edge, core literature, and likely future developments. Second,
appreciation for the historical evolution of psychology in all           in addition to serving as graduate textbooks, the volumes
of its variations transcends individual identities as being one          offer professional psychologists an opportunity to read and
kind of psychologist or another. Accordingly, Volume 1 in                contemplate the views of distinguished colleagues concern-
the Handbook is devoted to the history of psychology as                  ing the central thrusts of research and leading edges of prac-
it emerged in many areas of scientific study and applied                 tice in their respective fields. Third, for psychologists seeking
technology.                                                              to become conversant with fields outside their own specialty

                                                                    ix
x   Handbook of Psychology Preface


and for persons outside of psychology seeking informa-           valuable contributions to the literature. I would like finally to
tion about psychological matters, the Handbook volumes           express my appreciation to the editorial staff of John Wiley
serve as a reference source for expanding their knowledge        and Sons for the opportunity to share in the development of
and directing them to additional sources in the literature.      this project and its pursuit to fruition, most particularly to
   The preparation of this Handbook was made possible by         Jennifer Simon, Senior Editor, and her two assistants, Mary
the diligence and scholarly sophistication of the 25 volume      Porterfield and Isabel Pratt. Without Jennifer’s vision of the
editors and co-editors who constituted the Editorial Board.      Handbook and her keen judgment and unflagging support in
As Editor-in-Chief, I want to thank each of them for the plea-   producing it, the occasion to write this preface would not
sure of their collaboration in this project. I compliment them   have arrived.
for having recruited an outstanding cast of contributors to
their volumes and then working closely with these authors to                                                  IRVING B. WEINER
achieve chapters that will stand each in their own right as                                                     Tampa, Florida
Volume Preface


When first asked by Irving Weiner, Editor-in-Chief of the               This volume also considers emerging directions in forensic
Handbook of Psychology, to serve as editor of the Forensic              psychology, including therapeutic jurisprudence and the ap-
Psychology volume, I was somewhat hesitant to do so. The                plication of forensic psychology to public policy and the law.
task seemed enormous: selecting topics and authors, meeting                 Each chapter reviews the professional literature relevant
deadlines, and assembling a volume that speaks in “one                  to its topic. Major ethical conflicts and their potential resolu-
voice,” a book that reads as more than a hodgepodge of sep-             tions are presented; where appropriate, authors have dis-
arate manuscripts housed in a single binding.                           cussed statutes and landmark case law and have described
    It was my experience as chair of the Continuing Education           practical implications of conducting forensic evaluations.
Program of the American Academy of Forensic Psychology                  Appropriate forensic assessment methodology, including the
that persuaded me to participate in this project. To paraphrase         use of traditional psychological techniques, specialized
Will Rogers, I’ve never met a forensic psychologist I didn’t            forensic assessment instruments, and forensically relevant in-
like. Workshop leaders have always generously shared their              struments, is reviewed. When appropriate, chapters discuss
knowledge with tremendous enthusiasm and communicated                   the nature of written reports and expert testimony. Future
complex information so that others could understand and                 trends in each area of forensic practice are predicted.
apply what they had learned. This group of forensic psychol-                Authors for each chapter were selected because of their
ogists would serve as the core team of authors, allowing this           reputations as experts in their specific subfield. Those readers
volume to hit the road running.                                         familiar with forensic psychology research, attendees of con-
    Each person asked to participate in this volume agreed to           tinuing professional education programs, and those experi-
do so without hesitation. Everyone generously gave of their             enced in forensic practice will, most likely, recognize the
time, their expertise, and most important, did so with enthu-           names of the authors included in this volume. All bring to
siasm. Each contributor recognized the potential significance            their topic a vast array of knowledge and experience typically
of this book, a volume that would reflect the state of the art as        acquired through their own research and research conducted
we begin the twenty-first century. It is hoped this book will be         by their graduate students or postdoctoral fellows. Most
valuable to psychology graduate students as well as to psy-             authors’ expertise has been recognized by awards from
chologists who already work in forensic psychology areas or             national professional organizations. Many are authors of their
who seek to do so.                                                      own texts and serve as editors or on editorial boards of the
    Topics were chosen to reflect the scope of forensic psy-             major journals in the field.
chology practice and research. This volume is organized so                  I gratefully acknowledge the major contribution each
that those with little or no prior knowledge and experience             author has made in preparing this volume. Each has not only
can develop an understanding of the unique nature of the                written or coauthored the most up-to-date, inclusive treat-
field. It includes chapters focusing on the nature of the field:          ment of the subject matter, but has done so with a sense of
what forensic psychologists do, ethical conflicts they en-              dedication, professionalism, and enthusiasm that has made
counter, and the field’s special methodology, such as the use            the job of editor almost unnecessary. Not a single chapter
of third-party information and the assessment of malingering            arrived past the deadline (although one or two made it a close
and deception. The nature of expert witness testimony is                finish!). No one complained (at least to my face) about my
reviewed, along with the limits imposed on such testimony.              “subtle” e-mail reminders about deadlines, sent on an all-too-
A wide range of civil and criminal psycholegal issues is                frequent basis. Many of the authors started out as personal
addressed. Chapters focus on topics such as eyewitness                  friends and, despite my calls and e-mails, remain so today.
memory, jury selection, screening for high-risk occupations,            Others, whose names I knew only through their publications
sexual offenders, battered women, those with violent attach-            and reputations, I now count as friends. I am grateful to each
ments (e.g., stalkers), and risk assessment of those about              for producing a work in which we all can take pride. Thank
whom there are questions of potential future acts of violence.          you for being such flexible, professional, wonderful people.

                                                                   xi
xii   Volume Preface


   I am appreciative to Irving Weiner, Editor-in-Chief, for       for forensic psychology, and their sense of ethics: Curt
inviting me to serve as editor of this volume and for his         Barrett, Chuck Ewing, Tom Grisso, Kirk Heilbrun, Paul
suggestions and support. He allowed me free rein to choose        Lipsitt, Bob Meyer, Richard Rogers, David Shapiro, and
authors and topics, and he always presented comments and          Herb Weissman. There is no question in my mind that foren-
suggestions as guidance, with options to accept or reject. He     sic psychologists such as these are among the most giving,
embodies the concept of academic freedom. Jennifer Simon,         open, communicative professionals that exist.
Senior Editor at John Wiley and Sons, was most helpful in            No list of acknowledgments would be complete without
guiding this book to completion. There was not a question         expressing my eternal gratitude to Paula Goldstein, my wife,
she could not answer nor a request she could not fulfill, and      for her patience in dealing with me (before, during, and after
I am most appreciative.                                           I edited this book) and for her reviews of many chapters and
   My involvement in the field of forensic psychology dates        her outstanding suggestions. To my daughter (and forensic
back approximately 30 years. During that time, I have             psychologist), Naomi Goldstein, thank you for the many
learned much from lawyers with whom I have worked and             hours when you set aside your own work to review those
from numerous forensic psychologists—attendees of AAFP            chapters I wrote or coauthored, editing the editor. Not a
workshops and presenters, most of whom are diplomates in          single recommendation was ignored and each chapter is
Forensic Psychology of the American Board of Professional         infinitely better as a result. To Marion Goldstein, your cre-
Psychology. In particular, I would like to thank attorneys Jean   ativity, perspective, and recommendations were, as always,
Barrett, Jim Kervick, Jean Mettler, Arlene Popkin, and David      invaluable.
Ruhnke for educating me about the law and for never causing
ethical crises to arise. I will always be indebted to a number
of psychologists for sharing with me, when I was relatively                                          ALAN M. GOLDSTEIN, PhD
new to the field, their knowledge, encouragement, enthusiasm                                              Hartsdale, New York
Contents


Handbook of Psychology Preface ix
     Irving B. Weiner

Volume Preface xi
     Alan M. Goldstein

Contributors xvii


                                         PA RT O N E
                                    NATURE OF THE FIELD

 1    OVERVIEW OF FORENSIC PSYCHOLOGY 3
      Alan M. Goldstein

 2    FORENSIC TRAINING AND PRACTICE 21
      Ira K. Packer and Randy Borum

 3    ETHICAL PRINCIPLES AND PROFESSIONAL COMPETENCIES 33
      Herbert N. Weissman and Deborah M. DeBow

 4    EXPERT TESTIMONY: LAW AND PRACTICE 55
      Charles Patrick Ewing


                                         PA RT T W O
                           APPROACHES TO FORENSIC ASSESSMENT

 5    THIRD PARTY INFORMATION IN FORENSIC ASSESSMENT 69
      Kirk Heilbrun, Janet Warren, and Kim Picarello

 6    FORENSIC AND CLINICAL ISSUES IN THE ASSESSMENT OF PSYCHOPATHY 87
      James F. Hemphill and Stephen D. Hart

 7    EVALUATION OF MALINGERING AND DECEPTION 109
      Richard Rogers and Scott D. Bender


                                        PA RT T H R E E
                         SPECIAL TOPICS IN FORENSIC PSYCHOLOGY

 8    FORENSIC ASSESSMENT FOR HIGH-RISK OCCUPATIONS 133
      Randy Borum, John Super, and Michelle Rand


                                              xiii
xiv   Contents


 9      EYEWITNESS MEMORY FOR PEOPLE AND EVENTS 149
        Gary L. Wells and Elizabeth F. Loftus

10      VOIR DIRE AND JURY SELECTION 161
        Margaret Bull Kovera, Jason J. Dickinson, and Brian L. Cutler


                                                      PA RT F O U R
                                       CIVIL FORENSIC PSYCHOLOGY

11      CHILD CUSTODY EVALUATION 179
        Randy K. Otto, Jacqueline K. Buffington-Vollum, and John F. Edens

12      ASSESSMENT OF CHILDHOOD TRAUMA 209
        Steven N. Sparta

13      PERSONAL INJURY EXAMINATIONS IN TORTS FOR EMOTIONAL DISTRESS 233
        Stuart A. Greenberg

14      ASSESSING EMPLOYMENT DISCRIMINATION AND HARASSMENT 259
        Melba J. T. Vasquez, Nancy Lynn Baker, and Sandra L. Shullman

15      FORENSIC EVALUATION IN AMERICANS WITH DISABILITIES ACT CASES 279
        William E. Foote

16      SUBSTITUTED JUDGMENT: ROLES FOR THE FORENSIC PSYCHOLOGIST 301
        Eric Y. Drogin and Curtis L. Barrett



                                                      PA RT F I V E
                                    CRIMINAL FORENSIC PSYCHOLOGY

17      FORENSIC EVALUATION IN DELINQUENCY CASES 315
        Thomas Grisso

18      COMPETENCE TO CONFESS 335
        Lois B. Oberlander, Naomi E. Goldstein, and Alan M. Goldstein

19      ASSESSMENT OF COMPETENCE TO STAND TRIAL 359
        Kathleen Powers Stafford

20      EVALUATION OF CRIMINAL RESPONSIBILITY 381
        Alan M. Goldstein, Stephen J. Morse, and David L. Shapiro

21      SENTENCING DETERMINATIONS IN DEATH PENALTY CASES 407
        Mark D. Cunningham and Alan M. Goldstein

22      CHILD SEXUAL ABUSE EVALUATIONS 437
        Kathryn Kuehnle
                                                                 Contents   xv


                                          PA RT S I X
                    FORENSIC ASSESSMENT OF SPECIAL POPULATIONS

23    EVALUATION OF SEXUAL PREDATORS 463
      Mary Alice Conroy

24    BATTERED WOMAN SYNDROME IN THE COURTS 485
      Diane R. Follingstad

25    PATHOLOGIES OF ATTACHMENT, VIOLENCE, AND CRIMINALITY 509
      J. Reid Meloy

26    VIOLENCE RISK ASSESSMENT 527
      John Monahan



                                      PA RT S E V E N
                                EMERGING DIRECTIONS

27    FORENSIC PSYCHOLOGY, PUBLIC POLICY, AND THE LAW 543
      Daniel A. Krauss and Bruce D. Sales

28    THERAPEUTIC JURISPRUDENCE 561
      Susan Daicoff and David B. Wexler

Author Index 581

Subject Index 597
Contributors


Nancy Lynn Baker, PhD, ABPP                          Eric Y. Drogin, JD, PhD, ABPP
Diplomate in Forensic Psychology                     Diplomate in Forensic Psychology
Independent Practice                                 University of Louisville School of Medicine
El Granada, California                               Louisville, Kentucky
Curtis L. Barrett, PhD, ABPP                         John F. Edens, PhD
Diplomate in Forensic Psychology                     Sam Houston State University
University of Louisville School of Medicine          Huntsville, Texas
Louisville, Kentucky
                                                     Charles Patrick Ewing, JD, PhD, ABPP
Scott D. Bender, PhD
                                                     Diplomate in Forensic Psychology
University of North Texas
                                                     State University of New York at Buffalo, School of Law
Denton, Texas
                                                     Buffalo, New York
Randy Borum, PsyD, ABPP
                                                     Diane R. Follingstad, PhD, ABPP
Diplomate in Forensic Psychology
                                                     Diplomate in Forensic Psychology
University of South Florida
                                                     University of South Carolina
Tampa, Florida
                                                     Columbia, South Carolina
Jacqueline K. Buffington-Vollum, MA
Sam Houston State University                         William E. Foote, PhD, ABPP
Huntsville, Texas                                    Diplomate in Forensic Psychology
                                                     University of New Mexico School of Law
Mary Alice Conroy, PhD, ABPP                         Albuquerque, New Mexico
Diplomate in Forensic Psychology
Sam Houston State University                         Alan M. Goldstein, PhD, ABPP
Huntsville, Texas                                    Diplomate in Forensic Psychology
                                                     John Jay College of Criminal Justice, CUNY
Mark D. Cunningham, PhD, ABPP
                                                     New York, New York
Diplomate in Forensic Psychology
Independent Practice                                 Naomi E. Goldstein, PhD
Abilene, Texas                                       MCP Drexel University
Brian L. Cutler, PhD                                 Philadelphia, Pennsylvania
University of North Carolina, Charlotte              Stuart A. Greenberg, PhD, ABPP
Charlotte, North Carolina                            Diplomate in Forensic Psychology
Susan Daicoff, MS, JD, LLM                           University of Washington
Florida Coastal School of Law                        Seattle, Washington
Jacksonville, Florida                                Thomas Grisso, PhD, ABPP
Deborah M. DeBow, JD                                 Diplomate in Forensic Psychology
Private Practice of Law                              University of Massachusetts Medical Center
Rancho Santa Fe, California                          Worcester, Massachusetts

Jason J. Dickinson, MA                               Stephen D. Hart, PhD
Florida International University                     Simon Fraser University
Miami, Florida                                       Burnaby, British Columbia

                                              xvii
xviii   Contributors


Kirk Heilbrun, PhD, ABPP                        Michelle Rand, MPA
Diplomate in Forensic and Clinical Psychology   University of South Florida
Drexel University                               Tampa, Florida
Philadelphia, Pennsylvania                      Richard Rogers, PhD, ABPP
James F. Hemphill, PhD                          Diplomate in Forensic Psychology
Simon Fraser University                         University of North Texas
Burnaby, British Columbia                       Denton, Texas
Margaret Bull Kovera, PhD                       Bruce D. Sales, PhD, JD
Florida International University                University of Arizona
Miami, Florida                                  Tucson, Arizona
Daniel A. Krauss, JD, PhD                       David L. Shapiro, PhD, ABPP
Claremont McKenna College                       Diplomate in Forensic Psychology
Claremont, California                           Nova Southeastern University
                                                Ft. Lauderdale, Florida
Kathryn Kuehnle, PhD
University of South Florida                     Sandra L. Shullman, PhD
Tampa, Florida                                  Executive Development Group
                                                Columbus, Ohio
Elizabeth F. Loftus, PhD
University of Washington                        Steven N. Sparta, PhD, ABPP
Seattle, Washington                             Diplomate in Forensic and Clinical Psychology
                                                University of California at San Diego School of Medicine
J. Reid Meloy, PhD, ABPP
                                                San Diego, California
Diplomate in Forensic Psychology
University of California, San Diego             Kathleen Powers Stafford, PhD, ABPP
San Diego, California                           Diplomate in Forensic Psychology
                                                Psycho-Diagnostic Clinic
John Monahan, PhD, ABPP
                                                Akron, Ohio
Diplomate in Forensic Psychology
University of Virginia                          John Super, PhD, ABPP
Charlottesville, Virginia                       Diplomate in Forensic Psychology
                                                Manatee County Sheriff’s Office
Stephen J. Morse, JD, PhD, ABPP
                                                Bradenton, Florida
Diplomate in Forensic Psychology
University of Pennsylvania Law School           Melba J. T. Vasquez, PhD, ABPP
Philadelphia, Pennsylvania                      Diplomate in Clinical Psychology
                                                Anderson House at Heritage Square
Lois B. Oberlander, PhD, ABPP
                                                Austin, Texas
Diplomate in Forensic Psychology
Harvard Medical School                          Janet Warren, DSW
Boston, Massachusetts                           University of Virginia
                                                Charlottesville, Virginia
Randy K. Otto, PhD, ABPP
Diplomate in Forensic Psychology                Herbert N. Weissman, PhD, ABPP
University of South Florida                     Diplomate in Forensic and Clinical Psychology
Tampa, Florida                                  University of California San Diego School of Medicine
                                                San Diego, California
Ira K. Packer, PhD, ABPP
Diplomate in Forensic Psychology                Gary L. Wells, PhD
University of Massachusetts Medical School      Iowa State University
Worcester, Massachusetts                        Ames, Iowa

Kim Picarello, MA                               David B. Wexler, JD
Drexel University                               University of Arizona College of Law
Philadelphia, Pennsylvania                      Tucson, Arizona
      PA R T O N E


NATURE OF THE FIELD
CHAPTER 1


Overview of Forensic Psychology
ALAN M. GOLDSTEIN




SELECTION OF TOPICS 3                                              A BRIEF HISTORY OF FORENSIC PSYCHOLOGY                  6
DEFINITION OF FORENSIC PSYCHOLOGY 4                                ORGANIZATION OF THIS VOLUME 7
DIFFERENCES BETWEEN CLINICAL AND                                      The Nature of the Field 7
  FORENSIC PSYCHOLOGY 4                                               Approaches to Forensic Assessment 9
  Roles 4                                                             Special Topics in Forensic Psychology 10
  Diagnoses 5                                                         Civil Forensic Psychology 11
  Conceptualization of Human Behavior 5                               Criminal Forensic Psychology 13
  Product of the Professional Relationship 5                          Forensic Assessment of Special Populations 16
  Trust of the Client’s Responses 5                                   Emerging Directions 17
  Temporal Focus of the Evaluation 5                               SUMMARY 18
  Level of Proof 5                                                 REFERENCES 19
  Professional Accountability 6
  Who Is the Client? 6
  Other Noteworthy Differences 6




Forensic psychology has received considerable attention            SELECTION OF TOPICS
from the public and media during the past decade, thanks,
in large part, to books and films such as Silence of the            Topics were selected to reflect forensic psychology’s applic-
Lambs and assorted television series and made-for-TV               ability to both the civil and criminal justice systems. This vol-
movies. A commonly asked question of forensic psycholo-            ume is organized into sections, grouping topics with common
gists is “How do I become a profiler?”, replacing, for better       themes. The reader will first develop an understanding of the
or worse, “So, you dissect dead people?” In fact, forensic         nature of the field—what it is and why it is different from
psychologists have no contact with corpses (leaving that           other areas of specialization—and, next, how forensic psy-
to forensic pathologists, forensic scientists, and forensic        chologists gather information: the methods they use to con-
anthropologists). And some definitions of the field do               duct assessments.
not consider criminal profiling to be part of forensic                  Not all psychologists testify in court about a specific indi-
psychology.                                                        vidual (e.g., a plaintiff in a personal injury suit or a defendant
    This book is intended to present the most up-to-date de-       in an insanity case). Some serve as consultants to law enforce-
scription of the field of forensic psychology. The chapters         ment agencies evaluating police applicants, to attorneys as
represent contemporary topics and areas of investigation in        jury selection specialists, or testify as experts to educate juries
this exciting, rapidly expanding field. Forensic psychology’s       about specific topics, such as accuracy of eyewitness memo-
roots date back to 1908, predating the public’s awareness of       ries. A section of this volume focuses on these “specialized”
the field. As is explained in the chapter by Ira Packer and         roles.
Randy Borum, although Münsterberg (1908) proposed vari-                Two sections address topics involving a range of civil and
ous roles for psychologists as experts in court, it was not        criminal forensic assessments, including child custody, per-
until the 1970s that efforts began to more formally define          sonal injury, trial competence, and criminal responsibility.
the field, to recommend qualifications for those practicing in       Another section comprises chapters involving the forensic
this area, and to develop guidelines for both ethics and           assessment of special groups or populations, such as sexual
training.                                                          predators and battered women. The final section consists of

                                                               3
4   Overview of Forensic Psychology


chapters exploring future directions of the field, such as its        research, theory, practice, and traditional and specialized
application to public policy formation.                              methodology (e.g., interviewing, psychological testing,
   Although this volume may serve as a text on forensic psy-         forensic assessment, and forensically relevant instruments) to
chology, chapters were written to stand on their own. Each           provide information relevant to a legal question. The goal of
reviews the professional literature relevant to the topic.           forensic psychology as an area of practice is to generate
Ethics and case law are explained, and, when appropriate to          products (information in the form of a report or testimony) to
the topic, current assessment methodology is described.              provide to consumers (e.g., judges, jurors, attorneys, hiring
Chapters reflect the current state of the field. The volume            law enforcement agencies) information with which they may
should serve the novice as well as the experienced forensic          not otherwise be familiar to assist them in decision making
psychologist as an indicator of the state of the field at the start   related to a law or statute (administrative, civil, or criminal).
of the twenty-first century.                                          As an area of research, its goal is to design, conduct, and in-
                                                                     terpret empirical studies, the purpose of which is to investi-
                                                                     gate groups of individuals or areas of concern or relevance to
DEFINITION OF FORENSIC PSYCHOLOGY                                    the legal system. Numerous other definitions exist (Bartol &
                                                                     Bartol, 1999; Hess & Weiner, 1999; and see the chapter by
The word forensic, derived from the Latin, forensis, means           Packer and Borum, and the chapter by Ewing in this volume,
“forum,” the place where trials were conducted in Roman              and the chapter by Brigham and Grisso in Volume 1. For a
times. The current use of forensic denotes a relationship be-        discussion on how judges, prosecutors, and defense attorneys
tween one professional field, such as medicine, pathology,            view mental health testimony see Redding, Floyd, and
chemistry, anthropology, or psychology, with the adversarial         Hawk (2001)).
legal system.
   Many definitions of forensic psychology exist. The “Spe-
cialty Guidelines for Forensic Psychologists” (Committee on          DIFFERENCES BETWEEN CLINICAL
Ethical Guidelines for Forensic Psychologists, 1991), a set of       AND FORENSIC PSYCHOLOGY
ethical guideposts for those working in the field, defines
forensic psychology as a field that covers “all forms of pro-         The fields of psychology and law are concerned with and
fessional conduct when acting, with definable foreknowl-              focus on understanding and evaluating human behavior. The
edge, as a psychological expert on explicitly psychological          law exists to regulate human conduct; for this reason, psy-
issues in direct assistance to the courts, parties to legal pro-     chologists are invited to participate in the civil and criminal
ceedings, correctional and forensic mental health facilities,        justice systems. Because psychology is involved in studying
and administrative, judicial, and legislative agencies acting in     behavior, in certain legal cases, findings and insights may as-
a judicial capacity” (p. 657).                                       sist the judge or jury in deliberations and decision making.
   Forensic psychology is a specialty recognized by the Amer-        However, there are significant differences between psycholo-
ican Board of Professional Psychology (ABPP). ABPP defines            gists working in traditional settings and those conducting
the field in their written material as “The application of the sci-   forensic assessments for the courts. Goldstein (1996) has
ence and profession of law to questions and issues relating to       summarized some of these significant differences. Greenberg
psychology and the legal system.” In the “Petition for the           and Gould (2001) considers role boundaries and standards of
Recognition of a Specialty in Professional Psychology”               expertise of treating and expert witnesses in child custody
prepared by Kirk Heilbrun, Ph.D. (2000), on behalf of the            cases.
America Board of Forensic Psychology (the forensic Specialty
Board of ABPP) and the American Psychology—Law Society               Roles
(Division 41 of the American Psychological Association), it is
defined as “the professional practice by psychologists within         The major role of psychologists working in clinical settings,
the areas of clinical psychology, counseling psychology,             whether as psychotherapists or as psychological evaluators, is
neuropsychology, and school psychology, when they are                to help the client. What is learned about the patient is used to
engaged regularly as experts and represent themselves as such,       benefit the patient in terms of personal growth and support.
in an activity primarily intended to provide professional psy-       However, in forensic psychology, the role of the expert is sig-
chological expertise to the judicial system” (p. 6).                 nificantly different. Forensic psychologists are charged with
   The editor of this volume considers forensic psychology           using the results of their assessment to help or educate the
to be a field that involves the application of psychological          court, without regard to the potential benefits to the examinee.
                                                                            Differences between Clinical and Forensic Psychology     5


Diagnoses                                                          behavior and level of intelligence are generally irrelevant.
                                                                   Such explanations may be accurate, but they do not respond
In clinical psychology, psychiatric diagnosis serves a major       to the specific legal issue or question. To be valuable, foren-
function in treatment strategy. In addition, a diagnosis, based    sic reports should address psycholegal behaviors, rather than
on criteria described in the Diagnostic and Statistical            focusing on explanations, psychodynamics, IQ, or “excuses”
Manual of Mental Disorders, fourth edition (DSM-IV) or             for conduct.
IV-Text Revision (DSM-IV-TR; American Psychiatric Associ-
ation, 2000), is required for patients to receive insurance re-
imbursement. In forensic psychology, the role of psychiatric       Trust of the Client’s Responses
diagnosis is generally less critical an issue. Diagnoses are       Rarely do clinical psychologists question the truthfulness or
not required in many legal issues (e.g., child custody,            motivation behind a patient’s statements or test responses. In-
Miranda rights waivers, personal injury). Although insanity        accuracies are typically attributable to a lack of insight rather
statutes require a diagnosis as a prerequisite for its consider-   than a conscious effort to deceive. However, in forensic as-
ation by a jury, the psychiatric diagnosis does not, per se, de-   sessments, the motivation to consciously distort, deceive, or
fine insanity. Rather, in forensic psychology, “diagnoses” are      respond defensively is readily apparent. Consequently, foren-
based on statutes, which define the relevant behaviors of           sic psychologists cannot take the word of the client unques-
concern to the court and, therefore, become the focus of the       tioningly. All information must be corroborated by seeking
evaluation. For example, the question of a defendant’s abil-       consistency across multiple sources of information (e.g., in-
ity to validly waive Miranda rights is defined as being able        terview of third parties, review of documents). In addition,
to do so knowingly, intelligently, and voluntarily—in legal,       tests that objectively evaluate test-taking attitude are avail-
not psychological, terms. The job of the forensic psycholo-        able to address the validity of claims of cognitive impairment
gist is to operationalize or translate the legal terms into psy-   and mental illness.
chological concepts, which can be objectively evaluated
(Grisso, 1986).
                                                                   Temporal Focus of the Evaluation

Conceptualization of Human Behavior                                Most clinical assessments are present-oriented; that is, they
                                                                   focus on the client’s state at the time of testing (e.g., his or her
During Introduction to Psychology, college students are            psychodynamics, level of intellectual function). Some foren-
taught that behavior falls on a continuum. The normal distri-      sic assessments have at least part of their focus on the present
bution curve is the statistical and visual representation of the   (e.g., which parent is best suited to address the current needs
orientation of psychologists: Behavior is complex and cannot       of the child), but most address either exclusively or partially
be readily categorized into discrete groups (e.g., intellectu-     past or future behavior. For example, insanity assessments
ally gifted versus mentally retarded; normal versus psy-           focus on the defendant’s state of mind at the time a crime
chotic). Unfortunately, the legal system most often considers      occurred: days, weeks, months, or years before. In personal
behavior to be dichotomous. Typically, it requires the trier of    injury cases, the court is interested in not only the plaintiff’s
fact to classify people and behavior into one of two cate-         current impairments, but also in what he or she was like be-
gories (e.g., guilty versus not guilty; sane versus insane;        fore the injury, whether there was a connection between the
liable versus not liable). With the exception of awarding          alleged wrong and the damage, and the prognosis for restora-
monetary damages and instructing jurors to consider lesser         tion to the preincident state. Even in child custody assess-
charges in criminal proceedings, gradients rarely exist in the     ments, developmental changes attributable to age require the
justice system. Ethical conflicts arise when those who view         evaluator to assess the parents’ ability to best serve that
behavior as falling on a continuum are expected to sort indi-      child’s interests.
viduals into discrete categories.
                                                                   Level of Proof
Product of the Professional Relationship
                                                                   Because psychology is a science, the level of proof is based
Clinical psychologists conducting traditional assessments          on the normal distribution. Empirical studies must demon-
seek to explain the client’s behavior. The underlying focus of     strate statistical significance to be considered interpretable;
the written report is typically cognitive functioning and          this level is typically set at the .05 level of probability. That
psychodynamics. In forensic psychology, explanations of            is, the investigator must be 95% certain that the results of the
6   Overview of Forensic Psychology


study are attributable to the variables under investigation           difference between forensic practice and clinical practice. He
rather than to chance. In court, various standards of proof           argued that the expert serves not only the person being eval-
exist (e.g., beyond a reasonable doubt, clear and convincing          uated, but many others as well. Because of the nature of the
evidence, preponderance of the evidence), the level depen-            assessment, the nature of the oath (to tell the whole truth and
dent on the legal issue in question and which side bears the          nothing but the truth), and APA ethical principles, clients in-
burden of proof. However, as expert witnesses, forensic psy-          clude the retaining attorney, the consumer of the product
chologists typically are asked whether they were able to              (e.g., the judge and jury), and those potentially affected by
reach an opinion “to a reasonable degree of psychological             the expert’s opinion: society as a whole.
certainty.” This level does not refer to the .05 level of statisti-
cal significance, nor does it relate to other legal levels of
                                                                      Other Noteworthy Differences
proof. Rather, it refers to the data on which the opinion is
based: Can the expert describe the reasons for his or her opin-       Greenberg and Shuman (1997) discussed several other irrec-
ion based on all the information considered, and, at the same         oncilable differences between clinical and forensic evalua-
time, can he or she explain why alternative opinions (such as         tions. They described differences in the cognitive set of the
malingering) can be ruled out?                                        clinical psychologist and the forensic expert. Clinical psy-
                                                                      chologists approach clients with supportive, empathic orien-
Professional Accountability                                           tations; the unique requirements of forensic assessments
                                                                      necessitate detached, neutral, and objective approaches. In
The “Ethical Principles and Code of Conduct” govern the               terms of the amount of structure and control in the relation-
professional activities of psychologists (American Psycho-            ship, patient-structured relationships have relatively less
logical Association [APA], 1992). As such, psychologists are          structure than forensic examiner-examinee relationships.
answerable to their professional organization (as well as to              These fundamental differences shape and determine the
state boards in which they hold licenses) for complaints of           approach of forensic psychologists to conducting assess-
unethical conduct. However, relative to the number of psy-            ments, their methodology, and the structure of their opinions
chologists who are members of the APA, complaints are few.            and testimony. Only by recognizing and addressing these
Without implying misconduct on the part of large numbers of           major differences can forensic psychologists function in an
psychologists, psychotherapy is conducted behind closed               effective, ethical manner.
doors with only the patient as witness. In traditional testing
situations, the client is evaluated and a report is sent to the
referring party. Because that party made the referral, a sense        A BRIEF HISTORY OF FORENSIC PSYCHOLOGY
of trust in the psychologist’s competence exists; few people
look over the psychologist’s shoulder. However, in forensic           Hugo Münsterberg, a student of Wilhelm Wundt and a pro-
psychology, reports and testimony are carefully examined,             fessor at Harvard University, is generally credited with
dissected by opposing counsel, and subjected to close, prob-          founding the field of forensic psychology. His landmark text-
ing cross-examination. Transcripts of the testimony are pre-          book, On the Witness Stand (1908), comprised nine chapters
pared. If an attorney, judge, opposing expert, or party in the        arguing for the involvement of psychologists in a number of
litigation believes, justly or unjustly, that misconduct has          aspects of the legal system. Relying, in part, on his own ex-
occurred, an ethics complaint may result. Forensic psycholo-          perience as an expert witness, Münsterberg considered such
gists are responsible not only to their profession, but, in some      topics as memories of witnesses, crime detection, untrue con-
ways, they are answerable to all parties involved in the legal        fessions, hypnosis and crime, and crime prevention. He
system, suggesting the need for a conservative approach to            found it “astonishing that the work of justice is ever carried
those issues and conflicts that arise in the legal arena.              out in the courts without ever consulting the psychologist”
                                                                      (p. 194). Despite his importance in addressing psycholegal
                                                                      issues, his 269-page book lacks any references. According to
Who Is the Client?
                                                                      Bartol and Bartol (1999), “His claims were often exagger-
In clinical psychology, the client is readily identifiable: The        ated . . . and his proposals were rarely empirically based”
person to whom professional services are offered is the client,       (p. 6). At the turn of the twentieth century, psychology was in
the one owed the legal duty, the one to whom privilege                its infancy, lacking a sufficient scientific foundation to
belongs. In contrast, in the judicial system, forensic psychol-       support the admissibility of expert testimony. Despite
ogists serve multiple clients. In his landmark book, Who Is           Münsterberg’s impassioned pleas for psychology’s involve-
the Client?, Monahan (1980) confronted a fundamental                  ment in the legal system, his suggestions were largely
                                                                                                    Organization of This Volume   7


ignored. However, he generated interest in the possibility          ORGANIZATION OF THIS VOLUME
that, some day, psychology might make contributions to the
judicial system.                                                    The Nature of the Field
    A law professor, John H. Wigmore, was familiar with
Münsterberg’s text. As a leading scholar on the law of              Forensic psychology is unique. By its very nature, it must re-
evidence, he wrote a satirical article, published in the Illinois   spond to questions of a legal nature, requiring not only an
Law Review (Wigmore, 1909), mocking the value of psy-               understanding of how the legal system operates but also a
chology to the legal system. Wigmore’s criticisms of                working familiarity with relevant statutes and case law.
Münsterberg’s somewhat grandiose views of psychology’s                  At the turn of the twenty-first century, no one in the United
relationship to the law delayed the growth of the field for          States had earned a doctoral degree in forensic psychology
approximately 20 years.                                             (in Canada, Simon Fraser University comes closest to this
    As psychology continued to develop as a science based on        qualification, with a degree in clinical psychology with a spe-
empirical studies, the judicial system slowly began to use the      cialty in either forensic research or forensic practice). Conse-
services of psychologists in court. However, because they           quently, those practicing in the field are, for the most part,
lacked a medical degree, psychologists’ qualifications were,         clinical, counseling, or neuropsychologists with little or no
at times, questioned. In 1962, the D.C. Circuit Court of Ap-        formal graduate school education in forensic psycholegal is-
peals held in Jenkins v. United States that psychologists could     sues nor in the specialized methodology required to conduct
provide expert opinions in court regarding mental illness at        valid assessments. In most states, licenses to practice psychol-
the time a defendant committed a crime. In the opinion,             ogy are generic in nature; only a few states have specialty
Judge David Bazelon reviewed the training and qualifications         certification for forensic practitioners. Those identifying
of psychologists. Writing for the majority, he indicated that       themselves as forensic psychologists do so on the basis of
experts on mental disease could not be limited to physicians,       their personal, somewhat subjective belief that they possess
but rather, such factors as training, skills, and knowledge         the background, experience, skills, training, and knowledge
should serve as the basis on which experts were qualified.           that legally qualify them to make this claim. The only cre-
Consequently, psychologists were accepted by courts as ex-          dentialing organization recognized by the APA for inclusion
perts on a wide range of legal issues.                              in its Directory as specialists are those holding the Diplo-
    In 1954, the U.S. Supreme Court, in Brown v. the Board          mate in Forensic Psychology from the American Board of
of Education, held that school segregation was illegal, in          Professional Psychology, approximately 200 individuals
violation of the 14th Amendment. In this case, an appendix          nationwide. How are experts to be validly identified in this
prepared by three psychologists, Kenneth B. Clark, Isider           specialized area of practice?
Chein, and Stuart Cook, was included with the plaintiff’s               The issue of professional training and qualifications is a
brief. Social science research, including the psychological         critical one for the field, and it should be equally significant
effects of segregation on the self-image of children, was           to judges who are in the position of declaring a psychologist
cited in 35 footnotes (Brigham & Grisso, 2002). Points              an expert for the purposes of offering testimony. What should
raised in this appendix and in a subsequent response to the         be included in the graduate training of those intending
Court were cited in the opinion, representing the application       to enter forensic practice? At the postdoctoral level, what
of psychological research to appeals court decisions.               should be required as part of the training fellowship?
    In 2000, a petition was submitted to the APA in support of      How can those from traditional psychology doctoral pro-
recognition of forensic psychology as a specialty in profes-        grams “retool” to develop the knowledge and skills expected
sional psychology. In August 2001, APA’s Counsel of Repre-          of experts in the field?
sentatives formally approved forensic psychology as an area             The APA’s (1992) “Ethical Principles and Code of Con-
of specialization within the field of psychology. With this          duct for Psychologists” is written in somewhat general terms
recognition, the number of graduate programs and postdoc-           because it is intended to apply to all areas of psychology. Yet,
toral fellowships are likely to increase, and the demand for        the conflicts and issues that develop when attempting to prac-
forensic psychologists in a wide range of research, acade-          tice ethically and objectively in the legal arena, a system of
mic, and practice settings should intensify. (The origins of        advocacy, readily become apparent. Where do forensic
forensic psychology are addressed in the chapter by Ewing           psychologists find guidance and direction working in this
of this volume and in greater detail in the chapter by              unique area of practice?
Brigham and Grisso in Volume 1. In addition, Bartol & Bar-              Forensic assessments are conducted for a purpose. Al-
tol, 1999, provide a detailed history of the development of         though many, if not most, cases in both civil and criminal
the field).                                                          court do not go to trial, forensic experts must anticipate that
8   Overview of Forensic Psychology


their work will require court testimony (forensic reports fre-       education, including those offered by such organizations as
quently contribute to pretrial settlements in civil suits and in     the APA and the American Academy of Forensic Psychology.
plea bargains in criminal cases). How can forensic psycholo-         They include a list of relevant case law for Diplomates in
gists offer expert testimony that is objective, data-based, and      Forensic Psychology and discuss models for future training in
effective? How can they know the legal limits of their in-           the field.
tended testimony?
    In this section, forensic training and practice, the relation-
                                                                     Ethical Principles and Professional Competencies
ship among professional ethics, professional competence, and
                                                                     in Forensic Practice
effectiveness, and the nature of expert testimony are exam-
ined. Authors argue for specialized training, skills, and knowl-     Because of its uniqueness, perhaps no area of psychological
edge, consider unusual ethical dilemmas and their resolutions,       practice receives more scrutiny than does forensic psychol-
and discuss methods of conveying complex information to              ogy. Reports and testimony focusing on the opinions reached
laypeople in an effective, objective fashion while conforming        by the expert are open to both criticism and formal cross-
to the requirements and expectations of the legal system.            examination. The findings of forensic assessments often have
                                                                     profound effects on the lives of litigants, whether used to
Forensic Training and Practice                                       award or deny a parent custody of a child, to determine a
                                                                     financial verdict in a personal injury suit, or to deprive a de-
Although the origins of forensic psychology date back                fendant of his or her freedom. Forensic psychologists are
approximately 100 years to the publication of On the Witness         expected to possess specialized knowledge of statutes and
Stand (Münsterberg, 1908), attempts to define and establish           case law, familiarity with rules of evidence, and experience in
the field as a specialty area of practice began in the 1970s.         administering forensic assessment and forensically relevant
The APA established a division devoted to Forensic Psychol-          instruments, as well as traditional clinical psychological
ogy (American Psychology-Law Society). The ABPP recog-               tests. The “Ethical Principles of Psychologists and Code of
nized the field as a Specialty Board, certifying, as Diplomates       Conduct” (APA, 1992) is meant to apply to all areas of pro-
in Forensic Psychology, those licensed psychologists demon-          fessional psychological activity. Because of the conflicts
strating expertise through peer review of written work sam-          between the demands of the legal system and the “Ethical
ples and oral examinations. The field has its own set of ethical      Principles,” forensic experts continually face conflicts and
guidelines, the “Specialty Guidelines for Forensic Psychol-          challenges in attempting to satisfy the needs of the court
ogists” (Committee on Ethical Guidelines for Forensic                and the ethics of their profession.
Psychologists, 1991), and the “Ethical Principles of Psychol-           Herbert Weissman and Deborah DeBow discuss profes-
ogists and Code of Conduct” (APA, 1992) contains a section           sional standards implicit in the competent professional
devoted to forensic psychology. Books and journals, both             practice of forensic psychology. They contend that legal
nationally and internationally, abound. Most recently, the           competence is addressed through the application of ethical
American Board of Forensic Psychology (a specialty board of          professional competency. In conforming one’s practice
ABPP) and the American Psychology-Law Society submitted              to the APA’s “Ethical Principles” and the “Specialty Guide-
to the APA a petition for the recognition of forensic psychol-       lines for Forensic Psychologists” (Committee on Ethical
ogy as a specialty in professional psychology. Consequently,         Guidelines for Forensic Psychologists, 1991), professional
the issue of professional training is a critical one for this        competence is enhanced. They describe impediments and in-
rapidly expanding field.                                              fluences that impact ethical conduct, many of which derive
    In the chapter by Ira Packer and Randy Borum, the histor-        from conflicts inherent in the relationship between psychol-
ical development of forensic psychology is briefly described.         ogy and the law. Weissman and DeBow offer ways to medi-
They review the roles of social, developmental, cognitive,           ate such conflicts.
and clinical psychologists in the field and consider areas of
focus, subspecialization, and psycholegal issues addressed by        The Nature of Expert Testimony
forensic psychologists (most of the topics are covered in de-
tail in this volume). They describe graduate training in the         Forensic psychologists typically conduct evaluations with
field, doctoral programs, and joint degree programs (those            the expectation that findings will be presented in the court-
that award the Ph.D. or Psy.D. and the J.D.). Packer and             room as expert witness testimony. Whereas witnesses of fact
Borum discuss levels of training, internships, postdoctoral          (lay witnesses) may testify only to knowledge they have ac-
programs, and the nature and goals of continuing professional        quired firsthand through the senses (generally, what they
                                                                                                    Organization of This Volume   9


have seen and heard), experts offer testimony about their           The Use of Third-Party Information
thoughts (including inductive and deductive reasoning) and          in Forensic Assessment
can offer opinions based on hearsay testimony. Since the
landmark decision in Jenkins v. U.S. (1962), qualified psy-          A forensic psychologist conducting a psycholegal evalua-
chologists have been permitted to offer expert witness testi-       tion, whether in a civil or criminal context, must obtain in-
mony on a wide range of psycholegal issues in both civil and        formation from those directly involved in the legal case (i.e.,
criminal courts.                                                    the plaintiff or respondent in a civil lawsuit; the parents,
   Charles Patrick Ewing examines the history of expert tes-        children, and others when custody is an issue; the defendant
timony. He reviews the general legal rules that govern expert       in a criminal case). However, such sources of information
witness testimony, including the Federal Rules of Evidence.         are “interested parties,” biased at best and, possibly, provid-
Ewing explains statutes and case law that determine who             ing false or selective information because of malingering
qualifies as an expert, the admissibility of topics for expert       (simulation or dissimulation) and defensiveness. For this
testimony, and the limitations placed on expert witness testi-      reason, experts must consider data provided by independent
mony. Selected practical aspects of the process of providing        sources, third-party information, to corroborate data ob-
effective, ethical expert testimony are described, focusing on      tained from the interested party through interviews and psy-
specific types of expert testimony, cross-examination, and the       chological testing. Sources for third-party information in-
issue of immunity of experts from civil liability.                  clude others knowledgeable about the party involved in the
                                                                    suit or the events related to the case, and documents and
                                                                    records that may relate to statements made by the individual
Approaches to Forensic Assessment                                   or that may provide additional information helpful in form-
In clinical psychological evaluations, with few exceptions,         ing an opinion.
the psychologist interviews the person being evaluated and             Kirk Heilbrun, Janet Warren, and Kim Picarello examine
then administers a battery of tests appropriate to the referral     the relevance of third-party information in the forensic as-
question. Data are analyzed and a report is prepared. Typi-         sessment process, describing its importance in forensic eval-
cally, no other information is considered. The assumption is        uations. They present research on this method, including a
made, for the most part correctly so, that the examinee has         review of empirical studies on the use and value of third-
been truthful during the interview and candid in answering          party information. Relevant law and ethical standards re-
test questions, that no conscious attempts were made to look        lated to these independent sources of data are explained.
better or worse than the actual clinical picture. In forensic       Heilbrun, Warren, and Picarello review the practice litera-
psychology, however, there is an obvious motivation to con-         ture regarding the use of such data in terms of standards of
sciously present a distorted picture for an obvious, identifi-       practice, and they describe the process by which experts ob-
able, secondary gain. In the civil setting, parents seeking         tain, apply, and communicate third-party information in
custody may attempt to look more virtuous than they actually        forensic assessments.
are, and plaintiffs in a personal injury suit may distort re-
sponses to appear more damaged than is the case. In criminal
                                                                    Forensic and Clinical Issues in the
cases, defendants may choose to present a picture of being
                                                                    Assessment of Psychopathy
more emotionally disturbed than is justified to avoid trial,
criminal culpability, or a sentence of death.                       Forensic assessments frequently incorporate traditional psy-
    Chapters in this section address ways of increasing the ob-     chological tests, as well as instruments designed to provide
jectivity and validity of opinions on psycholegal issues. The       data relevant to specific psycholegal questions. In the field of
need to consider corroborative information by way of third-         psychopathy, a specific form of personality disorder, we
party interviews and review of written records is explored.         have witnessed the development of such specialized method-
Using psychopathy as a model, the ways in which the use of          ology during the past two decades (Hare, 1996). The pres-
reliable, objective measures of relevant psycholegal behavior       ence or absence of psychopathy is relevant to a number of
and familiarity with the professional literature serve to in-       civil (e.g., civil commitment) and criminal contexts (e.g.,
crease the validity of forensic evaluations is detailed. In addi-   probation and parole, detention under violent offender
tion, because the cornerstone of any forensic assessment is         statutes, and death penalty cases; Hart, 2001). The reliable
the evaluation of malingering, exaggeration, and defensive-         and valid assessment of psychopathy is, therefore, critical to
ness, relevant research and the use of measures designed to         issues of freedom and, in some cases, to decisions regarding
provide information on this topic are described.                    life and death.
10   Overview of Forensic Psychology


   James Hemphill and Stephen Hart describe the nature of           people. These roles, though somewhat different from those of
psychopathy, identifying its distinction from antisocial, psy-      traditional experts expected to provide information relevant
chopathic, dissocial, and sociopathic personality disorders in      to specific individuals in courts of law, nonetheless require
their chapter of this volume. Current conceptualizations of         knowledge about the relevant professional literature, case
psychopathy, including symptom patterns, are reviewed. As           law, and the legal system.
part of the overall evaluation strategy, Hemphill and Hart             In this section, three topics are considered, representative
present assessment methodology, focusing on the Psychopa-           of roles of the psychologist as consultant and as expert wit-
thy Checklist-Revised (Hare, 1980, 1991). They consider             ness on specific areas of research. Law enforcement and other
questions, conflicts, and legal issues arising when forensic         agencies employing those in high-risk occupations frequently
psychologists assess psychopathy, and they report the occur-        retain psychologists as consultants. Experts on a specific area
rence of psychopathy in juveniles and among various cultural        or topic of research may be consulted and asked to serve as
groups. Priorities for future research on this critical topic are   expert witnesses to review, for a jury, research related to such
suggested.                                                          topics as eyewitness memories for people and events. Still
                                                                    other experts are retained as jury consultants, advising
Evaluation of Malingering and Deception                             lawyers about which potential jurors might be most open to
                                                                    the arguments and evidence likely to be raised during trial.
Evaluators in a forensic context cannot accept unquestion-
ingly a respondent’s answers as a valid or optimal repre-
                                                                    Forensic Assessment for High-Risk Occupations
sentation of mental state. The motivation to respond in a
self-serving fashion for secondary gain is readily apparent         In recent years, there has been a significant increase in re-
(e.g., financial reward in a personal injury case; custody of a      quests to evaluate job applicants and current employees in law
child in a custody dispute; the assumption, often incorrect, of     enforcement and other high-risk positions (Inwald & Resko,
a shorter period of restricted freedom in an insanity case).        1995). Forensic psychologists prescreen applicants for these
Consequently, forensic experts must consider the possibility        occupations to assess their psychological suitability for high-
that the examinee may have attempted to distort test results        risk jobs. In addition, referrals are made to conduct fitness-
because of malingering, exaggeration, and defensiveness.            for-duty evaluations when questions have been raised about a
Neither rare nor very common in forensic evaluations, malin-        current employee’s ability to perform the full duties associ-
gering is estimated to occur in 15% to 17% of forensic cases        ated with his or her position (and, in many cases, to carry
(Rogers, Salekin, Sewell, Goldstein, & Leonard, 1998;               firearms). The methodology used in these evaluations applies
Rogers, Sewell, & Goldstein, 1994).                                 not only to law enforcement personnel, but also to corrections
   In the chapter by Richard Rogers and Scott Bender of this        officers, security officers, firefighters, airline pilots, and nu-
volume, they present an overview of conceptual issues and           clear power plant operators (Rigaud & Flynn, 1995).
response styles related to malingering and defensiveness.              Randy Borum, John Super, and Michelle Rand examine
They describe explanatory models of why individuals may             representative ethical issues confronting those performing
attempt to portray psychological and physical impairments,          such assessments in a chapter of this volume. They discuss
and they examine major empirical issues and false assump-           legal issues regarding the right to conduct evaluations for
tions frequently made about malingering. Rogers and Bender          high-risk occupations and cite case law supporting its role in
review detection strategies designed to identify response           the employment process. From a practice perspective,
styles, including the use of both traditional and forensically      Borum, Super, and Rand review job-related abilities, assess-
relevant instruments, such as the Structured Interview of           ment methodology, and suitability analysis. The primary
Reported Symptoms (Rogers, Bagby, & Dickens, 1992) and              focus of this chapter is on preemployment screenings and
the Validity Indicator Profile (Fredrick, 1997).                     fitness-for-duty evaluations.


Special Topics in Forensic Psychology                               Eyewitness Memory for People and Events

At times, forensic psychologists are retained as consultants.       In a criminal trial, attempts are made, through the introduc-
They are asked to assess job applicants or current employees        tion of evidence, to reconstruct what occurred at the moment
or to assist as expert witnesses testifying about specific topics    of the crime. In addition to physical evidence (e.g., finger-
or areas of specialized research, rather than about specific         prints, tire tracks, DNA), eyewitnesses to the crime
                                                                                                     Organization of This Volume    11


(including the victim) may be called on to testify about mem-        Civil Forensic Psychology
ories of what they saw. However, for a number of reasons,
memories may become contaminated, lost, or destroyed, re-            The judicial system operates on the premise that those who
sulting in well-intentioned, but nonetheless inaccurate testi-       have committed a wrong should be punished. This holds true
mony. The consequences for the defendant and society may             in both the civil and the criminal justice systems. Whereas the
be significant. Mistakes in eyewitness identification account          criminal justice system may punish those found guilty of a
for more convictions of innocent defendants (exonerated by           crime by depriving them of freedom, those found responsible
DNA evidence) than all other factors combined (Scheck,               for committing a wrong from which a damage resulted may
Neufeld, & Dwyer, 2000; Wells et al., 1998).                         be punished by having to pay a monetary award to the injured
   Gary Wells and Elizabeth Loftus argue for a scientific             party. In a civil case of child custody, the parent deemed more
model to collect, analyze, and interpret eyewitness evidence         likely to fulfill the best interests and needs of the child is
in a chapter of this volume. The scientific literature and the-       awarded custody, and the other parent may be permitted only
ory on eyewitness memory for events is reviewed, and they            limited or supervised visitation or no contact at all.
examine factors that may impact accuracy. The literature on             In this section, a range of topics related to forensic assess-
eyewitness memory for people, focusing on the ability of eye-        ments in the civil arena is considered. Each specialized area
witnesses to identify suspects from lineups, is detailed, and        of practice requires knowledge of the relevant statutes and
those factors that may impair this ability are discussed. Sci-       case law, familiarity with the professional literature, and an
entific procedures for lineups are suggested to reduce these          awareness of the forensic assessment methodology available
factors demonstrated to increase error rate. Wells and Loftus        to address the specific type of civil psycholegal issue in
present a case to illustrate major points raised in their chapter.   question.
                                                                        Authors consider child custody assessments, personal in-
                                                                     jury evaluations related to both childhood trauma and breach
Voir Dire and Jury Selection                                         of duty, and discrimination evaluations based on claims of
                                                                     harassment, sexual harassment, hostile work environment,
The jury is the hallmark of a democratic system of justice.
                                                                     retaliation, physical and emotional disability, learning dis-
Decision making as to guilt or innocence in a criminal case
                                                                     ability, and substance abuse. In addition, substituted judg-
and for or against a plaintiff in a civil case is placed in the
                                                                     ments involving such matters as living wills, health care
hands of ordinary citizens, expected to consider evidence in
                                                                     surrogacies, and right to refuse treatment are discussed. For
an objective, unbiased fashion. However, it has long been
                                                                     each civil issue, statutes, case law, ethical considerations, and
recognized that potential jurors bring into the courtroom their
                                                                     assessment methodology are reviewed.
prior experiences, attitudes, biases, and personality charac-
teristics, factors that may interfere with the impartial
outcome of a trial. The process of voir dire (to speak the
                                                                     Child Custody Evaluation
truth), mandated both by federal and state statutes, is de-
signed to uncover biases that might interfere with the objec-        The assessment of child custody is one of the most complex,
tive weighing of evidence. Who is on the jury is critical,           challenging, and professionally risky areas of forensic evalu-
therefore, for both sides in a trial.                                ation. The vast majority of other types of forensic referrals
    Margaret Bull Kovera, Jason Dickinson, and Brian Cutler          address relatively specific, well-formulated psycholegal is-
describe the process of voir dire, as well as the system devel-      sues. Often, assessments involve evaluating only one person
oped to challenge potential jurors, in this volume. They             (e.g., a personal injury litigant, a defendant for whom trial
review the traditional methods of jury selection, typically          competence is an issue, a victim of rape), but custody assess-
relying on conjecture, the use of stereotypes, body language,        ments require assessing multiple parties, each individually
and anecdotal strategies to predict inclinations favorable           and in various combinations (e.g., each child, each parent,
toward a specific verdict. They contrast this approach with           child and stepparents, child and stepsiblings). The standard
scientific jury selection, developed by Schulman, Shaver,             “best interests of the child” is somewhat more complex and
Colman, Emrich, and Christie (1973). This approach relies            vague than other psycholegal criteria, requiring a multifo-
on demographics, personality traits, and attitudes and their         cused approach to the overall assessment process (e.g., men-
relationship to trial outcome. Kovera, Dickinson, and Cutler         tal heath of each parent, needs of the child, attitudes, interests
explain the limitations of research on jury selection and sug-       of the parents). Because the stakes are high in a custody case,
gest directions for future research in this area.                    at least one parent is apt to be angry or resentful of the
12   Overview of Forensic Psychology


outcome; consequently, ethics complaints against forensic         the wrong and the damage, such that the damage would not
psychologists involved in this area of assessment are more        have occurred but for what the defendant did: the concept of
frequent than in any other facet of consultation (APA Ethics      proximate cause.
Committee, 2001).                                                    Stuart Greenberg explains the legal framework of personal
   In the chapter by Randy Otto, Jacqueline Buffington, and        injury cases, the law of torts, placing it in historical perspec-
John Edens in this volume, they review judges’ and attor-         tive. He examines the role of the forensic psychologist in
neys’ perceptions of the value of child custody assessments.      such cases, including assessing the plaintiff’s functioning be-
They describe the legal standards for the determination of        fore the harm; the extent of distress caused to the plaintiff; the
custody in the United States and review child custody evalu-      extent of impairments and injuries to the plaintiff’s function-
ation guidelines developed by professional organizations.         ing; the likely cause of each impairment or injury; and the
The evaluation process is described, including the value and      prognosis and steps necessary to restore the plaintiff’s prein-
use of traditional psychological tests and forensic assessment    cident level of functioning. Greenberg reviews the rules of
instruments available for this purpose. Otto, Buffington, and      civil procedure on both federal and state levels. Methodology
Edens discuss research related to child custody evaluations       for conducting personal injury evaluations is described. He
and decision making, including the effects of divorce on          discusses depositions and report writing in personal injury
children. The nature of reports and testimony is considered       cases, as well as expert witness testimony. He presents a
as well.                                                          mock transcript, highlighting how the neutral, objective ex-
                                                                  pert can offer effective, ethical testimony and advocate for
The Assessment of Childhood Trauma                                his or her opinion.

During the past two decades, mental health professionals and
                                                                  Assessing Employment Discrimination and Harassment
attorneys increasingly have focused attention on the causes
and effects of traumatic stress on children. Trauma has been      Title VII of the 1964 Civil Rights Act made it illegal to dis-
associated with a number of psychological responses, includ-      criminate against others based on race, sex, religion, or na-
ing posttraumatic stress disorder (Pynoos, Steinberg, &           tional origin. Forensic psychologists may be called on to
Goenjian, 1996). Claims of emotional damage or injury from        evaluate claims of alleged discrimination and harassment in-
childhood trauma may be relevant in a number of legal con-        volving a range of issues. Questions asked of experts include:
texts, including personal injury, child custody, special educa-   Did harassment or discrimination occur, and if so, why? Was
tion eligibility, and delinquency cases.                          it welcomed or unwelcome, voluntary or coerced? Could
   In Steven Sparta’s chapter, he examines the definitions         there have been misinterpretation? Was there harm? and
and categories of childhood trauma, as well as the determents     What were the effects of this tort?
of traumatic affects. The concept of trauma is discussed from         Melba Vasquez, Nancy Lynn Baker, and Sandra Shullman
a developmental perspective. He presents a number of psy-         present the legal bases underlying these claims in their chap-
cholegal contexts in which trauma may be the proximate            ter. Forms of legal discrimination, including harassment,
cause of a claimed injury or damage. Sparta reviews assess-       sexual harassment (heterosexual and same-sex), hostile envi-
ment strategies to evaluate these questions, including inter-     ronment, and retaliation are considered. The professional
views with children and specific tests that are appropriate for    literature on sexual and racial discrimination is reviewed.
this special population.                                          The roles of the forensic psychologist are described, and
                                                                  specialized methodology addressing issues of employment
Personal Injury Examinations in Torts                             discrimination and harassment are reviewed. Vasquez, Baker,
for Emotional Distress                                            and Shullman discuss the future directions of this area of
                                                                  forensic practice.
The law typically allows those who believe they have been
physically or emotionally harmed to bring suit, in civil court,   Forensic Evaluation in Americans
against those they believe damaged them. To prevail in a per-     with Disability Act Cases
sonal injury law suit, the plaintiff usually must demonstrate
that there has been a breach of a legal duty owed by the de-      Whereas the Civil Rights Act of 1964 banned discrimination
fendant to the plaintiff and that the plaintiff has been proxi-   on the basis of race, sex, religion, and national origin, it was
mately harmed by that tort or wrong (Greenberg & Shuman,          not until the Americans with Disabilities Act of 1990 (ADA)
1999). The plaintiff must demonstrate a relationship between      that discrimination against those with physical and mental
                                                                                                  Organization of This Volume   13


disabilities was prohibited. Designed to help those with dis-      Criminal Forensic Psychology
abilities achieve full functioning in the workplace, this legis-
lation outlawed discrimination on the basis of disability          In the forensic criminal arena, issues related to legal compe-
for hiring, training, compensation, and benefits (Bell, 1997).      tencies are the focus of most requests for forensic psychologi-
In addition, it became illegal to employ tests or other non-       cal assessments. The 5th, 6th, 8th, and 14th Amendments are
job-related criteria that would result in screening out those      guaranteed, even to those accused of horrific crimes. In recent
with disabilities if they might otherwise be “reasonably ac-       years, considerable attention has been given to crimes com-
commodated.” The ADA also prevented retaliation against            mitted by juveniles. Depending on the state, juveniles of a
those who filed claims under this Act.                              specified age, having been charged with a predetermined spe-
    In William Foote’s chapter, he examines the issue of           cific crime, may be transferred to adult court, where adult
disability in the workplace and how the ADA fits with               penalties are imposed. Consequently, juveniles, despite their
existing disability systems. He details the impact of              age and immaturity, are expected to be as competent as adults
discrimination on the basis of disability and focuses on           in understanding their rights and must be afforded the same
mental disabilities, learning disabilities, and substance          constitutional protections as adults. (Some states allow appro-
abuse disorders. Foote presents methodologies to evaluate          priate developmental immaturity as a basis for incompetence.)
claims of disability related to both the assessment of dam-            Issues related to the comprehension of the rights to remain
ages and failure to provide reasonable accommodations. He          silent, to avoid making incriminating statements, and to be
explores the topics of disparate treatment and disparate im-       represented by an attorney serve as the basis for assessments
pact assessments, reprisals for pursuing claims, and disabil-      of a defendant’s ability to make a valid waiver of Miranda
ity harassment and hostile work environments for those with        rights. Defendants are entitled to be represented by an attor-
disabilities.                                                      ney in court, and such representation includes the ability to
                                                                   assist the attorney in defense strategy, to communicate ratio-
Substituted Judgment                                               nally with the attorney, and to understand courtroom proce-
                                                                   dures. This requirement may result in questions regarding the
Questions may arise regarding a person’s ability to make in-       ability of a defendant to be competent to stand trial. To be
formed, reasoned judgments in his or her best interests and        convicted of a crime, it must be established that, not only did
that accurately reflect the individual’s intentions. Situations     the defendant commit the criminal act, but, at the time of the
in which this issue may arise include decisions involving the      offense, he or she possessed the required mental state or mens
abilities to consent or refuse medical or psychiatric treatment,   rea necessary to be held culpable. Assessment of criminal re-
execute a will, and prepare a health care proxy. The concept       sponsibility represents a major area in which forensic
of substituted judgment involves the replacement of an indi-       psychologists may be asked to provide information to the
vidual’s judgment with that of a substitute: another person or     court on matters of mental or emotional culpability, such as
agency. Substitutions may involve prior judgments made by          insanity or extreme mental or emotional disturbance. When a
the individual (advanced directives), present judgments, or        defendant has been found guilty of a capital offense, a sen-
future judgments. Forensic psychologists may be called on to       tencing phase of the trial is held. The jury is asked to decide
offer opinions about decisions to be made or already made by       whether he or she should be executed. Forensic psychologists
individuals, alive or deceased.                                    may be retained to evaluate the defendant in terms of the
   Eric Drogin and Curtis Barrett describe the role of the         presence or absence of aggravating and mitigating factors in
forensic psychologist in the assessment of psycholegal issues      capital cases. When accusations of child sexual abuse are
related to substituted judgment. They review the legal and         made without physical supportive evidence or third-party
historical background for evaluating past, present, and future     witnesses, questions may be raised about the validity of the
substituted judgment. Drogin and Barrett explain substitu-         child’s report.
tions for prior judgments, including living wills, heath care          In this section, forensic evaluations focusing on a number
surrogacies, and durable powers of attorney. The right to          of criminal psycholegal issues are reviewed. Waiver of
refuse or consent to treatment, the informed consent doctrine,     youths to adult court, competence of children to waive
and affirmations of an individual’s autonomy to make deci-          Miranda rights, and the competence of youths to stand trial
sions regarding present concerns are examined. They discuss        are examined. In addition, the assessment of violence risk in
decisions related to guardianships and conservatorships. A         juvenile offenders is discussed. The ability to make a know-
range of forensic assessment instruments developed for con-        ing, intelligent, voluntary waiver of Miranda rights and is-
ducting these forensic evaluations is described.                   sues and assessment methodology related to confessions that
14   Overview of Forensic Psychology


may be untruthful are detailed in a chapter in this section.      Competence to Confess: Evaluating the Validity
Evaluations of fitness to stand trial and restoration of trial     of Miranda Rights Waivers and Trustworthiness
competence are the focus of another chapter. Legal issues and     of Confessions
evaluation methodology related to criminal culpability is dis-
cussed, and sentencing in capital cases is presented. This        Confessions to crimes are valuable commodities, which,
section concludes with a chapter focusing on evaluating alle-     once introduced to a judge or jury, are exceedingly difficult
gations of child sexual abuse.                                    for defense lawyers to overcome. Unchallenged, inculpatory
                                                                  statements are devastating, typically taken as a clear sign of
                                                                  the defendant’s guilt. In Miranda v. Arizona (1966) the U.S.
Forensic Evaluation in Delinquency Cases
                                                                  Supreme Court held that the process of interrogation is hid-
The first juvenile court was established in Chicago in 1899,       den from public scrutiny. Suspects are often frightened, and
acknowledging, in part, that juveniles were not miniature         investigators are equipped with a range of interrogation
adults, and that because of immaturity associated with age,       strategies designed to take advantage of the suspect’s weak-
their misguided “transgressions” should not be viewed nor         nesses. To level the playing field, the Court required inter-
treated as crimes. The goal of juvenile court—rehabilitation      rogators to administer the Miranda warnings to those placed
rather than punishment—was significantly different from            under arrest or made to believe they are not free to leave. In
that of adult court. However, the U.S. Supreme Court ac-          Dickerson v. United States (2000), the Court ruled that the
knowledged in 1967 (In re Gault) that because juveniles are       Miranda warnings had become so deeply ingrained in our
deprived of their freedom when placed in a youth facility,        culture that they could neither be revoked nor could Congress
they are entitled to most of the constitutional protections af-   override them by legislation. In Crane v. Kentucky (1986),
forded adults. It was recognized that youths may not be           the Court opined that a defendant has the right to introduce
competent in a number of legal domains because of their           evidence to a jury that a confession found to have been
immaturity. However, the courts tended to avoid addressing        legally obtained through a valid waiver of Miranda rights
these issues because juveniles were not to be punished but,       may, nonetheless, not be trustworthy.
rather, rehabilitated. The 1990s appear to have brought these        Lois Oberlander, Naomi Goldstein, and Alan Goldstein
issues to a head. Juveniles currently arrested and charged        examine case law regarding the ability to waive Miranda
with crimes may be exposed to a very different system of          rights and the validity of confessions. They describe re-
justice, one in which adult penalties apply. Attorneys repre-     search relevant to child, adolescent, and adult Miranda
senting juveniles can no longer look the other way, expect-       rights comprehension, and the relationship between under-
ing the youth to receive help if sentenced. Instead, attorneys    standing these rights and IQ, academic achievement, reading
are obligated to ensure that their young clients are, in fact,    ability, familiarity with the criminal justice system, race, and
competent to waive their Miranda rights and stand trial and       socioeconomic status. Forensic assessment instruments de-
meet all of the psycholegal competencies legally required of      veloped to objectively evaluate the ability of an individual to
adults.                                                           make a knowing, intelligent waiver are reviewed, and the
    Thomas Grisso argues that the knowledge base and the de-      use of traditional clinical tests as an adjunct in the evaluative
velopment of forensic assessment instruments to evaluate the      process is described. Oberlander, Goldstein, and Goldstein
psycholegal competence of juveniles have lagged behind the        explore the literature on false confessions: the significance
development of other areas of forensic knowledge and prac-        of inculpatory statements; frequency of false confessions;
tice. He presents a history of the juvenile justice system and    and why some defendants may provide a false confession.
describes general methods for evaluating juveniles, including     The authors present methodology for evaluating those fac-
personality and problem scales developed for delinquency          tors that may contribute to inculpatory statements that may
cases. Legal standards and specialized assessment methodol-       not be truthful.
ogy needed to evaluate waivers to adult criminal court, com-
petence to waive Miranda rights, and competence to stand
                                                                  Assessment of Competence to Stand Trial
trial are explained. Grisso reviews the current state of knowl-
edge regarding the assessment of violent juvenile offenders       A defendant in a criminal case must be more than just a phys-
and recidivism, and discusses actuarial methods, base rates,      ical presence in the courtroom; he or she must be competent
and methods and instruments. He concludes with a consider-        to stand trial, a two-pronged standard delineated by the U.S.
ation of future advancements in forensic assessment in delin-     Supreme Court in Dusky v. U.S. (1960). According to Dusky,
quency cases.                                                     fitness for trial is based on whether a defendant “has sufficient
                                                                                                  Organization of This Volume   15


present ability to consult with his attorney with a reasonable    cases involving insanity and extreme emotional disturbance
degree of rational understanding—and whether he has a ra-         defenses are presented and discussed.
tional as well as factual understanding of the proceedings
against him.” Fitness-for-trial assessments are the most com-     Sentencing Determinations in Capital Cases
mon of all criminal evaluations, court-ordered in 2% to 8% of
all felony cases (Hoge, Bonnie, Poythress, & Monahan,             Unlike any other form of punishment, the death penalty is the
1992).                                                            ultimate, irrevocable sanction. The U.S. Supreme Court held
    Kathleen Powers Stafford reviews the legal framework of       that death penalty statutes must not be “capricious” and that
trial competence, placing it in historical perspective in her     specific guidelines are required to avoid the “uncontrolled
chapter of this volume. She describes the variables relevant      discretion” of judges and juries, whereby “People live or die,
to trial competence that are reported in the empirical litera-    dependant on the whim of 1 man or 12” (Furman v. Georgia,
ture. She examines the methodological approaches to assess        1972). Similarly, the Court rejected North Carolina’s statute
competence to stand trial, including the use of forensic as-      making all first-degree murder convictions punishable by
sessment instruments designed expressly for this purpose.         death (Woodson v. North Carolina, 1976), reasoning that
Stafford considers trial competence with special populations:     each case must be individualized. In Gregg v. Georgia
those with psychosis, the mentally retarded, and those with       (1976), the Court accepted as constitutional that state’s re-
severe hearing and communication impairments. Disposi-            quirement that at least one aggravating factor must be estab-
tional issues, including prediction of competence restoration,    lished during a separate sentencing phase of a capital trial
treatment of incompetent defendants, and permanent incom-         before a defendant could be sentenced to death. The defense
petence, are considered.                                          was permitted to introduce mitigating facts or circumstances
                                                                  for the jury or judge to weigh against the aggravating factor
                                                                  or factors before the death penalty could be imposed. Be-
Evaluation of Criminal Responsibility
                                                                  cause sentencing must be individualized, the defense is per-
Perhaps no other area of forensic assessment engenders            mitted to introduce any aspect of the defendant’s character or
more attention and, at the same time, feelings of hostility       record and any circumstances of the offense in mitigation
and resentment than evaluations focusing on issues of crim-       (Lockett v. Ohio, 1978).
inal responsibility. The trial of John W. Hinkley for the             Mark Cunningham and Alan Goldstein describe the nature
attempted murder of President Reagan and his acquittal by         and structure of capital trials and the data regarding the ad-
reason of insanity (U.S. v. Hinkley, 1982) fanned the flames       ministration of the death penalty. They examine landmark
of the perceived injustices resulting from insanity defenses.     U.S. Supreme Court decisions related to capital punishment,
However, public perceptions differ significantly from reality      and they address ethical issues regarding the role of the psy-
in terms of the frequency of insanity defenses, their rate of     chologist in sentencing evaluations and in assessments
success, and what ultimately happens to those acquitted by        addressing competence to be executed. The authors discuss
reason of insanity. The evaluation of a defendant’s mental        methodology in conducting capital evaluations, including as-
state at the time of an offense is central to the issue of        sessment parameters. Cunningham and Goldstein focus on
criminal culpability and, hence, punishment. These assess-        violence risk assessment in death penalty cases and detail
ments require the “reconstruction” of a prior mental state        common errors in such evaluations. They also discuss issues
to assist the trier of fact in rendering a decision of legal      related to base rates, risk management, and group statistical
responsibility.                                                   data. Two capital case assessments are presented to illustrate
   Alan Goldstein, Stephen Morse, and David Shapiro ex-           teaching witness and evaluating witness testimony. The role
plain the basic doctrines of criminal liability. They focus on    of forensic psychologists is discussed in postconviction and
mental state issues relevant to culpability, including negation   habeas relief cases and in assessing competence to waive ap-
of mens rea, provocation and passion, extreme mental or           peals and competence to be executed.
emotional disturbance, voluntary and involuntary intoxica-
tion, imperfect self-defense, and duress. The authors review      Child Sexual Abuse Evaluations
the history of the insanity defense, including its develop-
ment, changes, and recent reforms. Ethical issues and con-        When allegations are made involving sexual abuse of a child,
flicts that arise in conducting these assessments are explored.    the victim is, typically, the only witness to the crime. Usually,
Goldstein, Morse, and Shapiro describe the methodology            medical evidence is absent; behavioral symptoms, if present,
necessary to evaluate a defendant’s prior mental state. Two       may be attributable to factors other than or in addition to the
16   Overview of Forensic Psychology


claimed abuse; and admissions of culpability by the alleged        whether real or imagined. Forensic experts may be consulted
perpetrators are rare (Myers, 1998). There is considerable         in such cases, not only for forensic assessments focusing on
controversy in the academic and practice community about           acts of violence previously committed, but also regarding
the frequency of false reports of abuse, attributable to           potential actions by those who have committed acts of
distortions of memory and suggestibility of the child. How-        violence against others. In a number of psycholegal areas
ever, there is agreement that any mental health professional       (e.g., civil commitment, child custody, presentencing reports,
retained to evaluate claims of child sexual abuse must be          probation and parole, death penalty cases) violence risk as-
familiar with relevant statutes and case law, the professional     sessment is a crucial process.
literature on child development, and potential behavioral             In this section, chapters focus on conducting assessments
manifestations of child sexual abuse. In addition, the evaluator   with those belonging to identifiable, special populations.
must be well versed in the specialized methodology required        Authors address legal, ethical, and assessment methodology
to conduct such evaluations. To address issues raised by these     necessary to evaluate violent sexual predators, battered
complex and emotionally charged cases, Kuehnle (1998)              women, those with a history of violent attachments, such as
proposed a scientific-practitioner model of assessment.             stalkers and those engaging in interpartner violence, and risk
    Kathryn Kuehnle describes this model for assessing child       assessment. The limits of such assessments for expert testi-
sexual abuse, a model based on the empirically established         mony are described.
relationship between science and the child’s behavior. She re-
views the data on the prevalence of child sexual abuse and         Evaluation of Sex Offenders
those factors demonstrated to increase children’s vulnerabil-
ity to the risk of sexual abuse. Symptom patterns associated       With the exception of drug offenders, during the 1990s the sex
with child sexual abuse are examined. In addition, Kuehnle         offender population has increased faster than any other group
reviews the literature on factors that may distort valid recall    of violent criminals (La Fond, 1998). The nature of these
and reporting of the event in question: childhood memory           crimes, especially those against children, drew the attention
and suggestibility. She considers the interview process with       and ire of the public, legislators, and courts. Many states
children who may have been victims of sexual abuse and de-         passed both civil and criminal legislation requiring manda-
scribes a range of tools and instruments that may assist in the    tory, lengthy sentences for sex-related crimes and, in some
assessment procedure. She also explores relevant legal issues      states, lifelong probation. For sex offenders who have com-
in relationship to these topics.                                   pleted their prison sentence and been released, requirements
                                                                   may include registration as a sex offender with local police
Forensic Assessment of Special Populations                         authorities, notification to neighbors that a sex offender has
                                                                   moved into their community, and the possibility of civil
At times, forensic psychological evaluations focus on legally      commitment following the expiration of their prison term
relevant issues as well as identifying and making predictions      (Bumby & Maddox, 1999). The decision of the U.S. Supreme
about “special populations,” or those identified in the profes-     Court in Kansas v. Hendricks (1997) stated that the civil com-
sional literature as belonging to a unique category. Recently      mitment of sex offenders deemed at risk for recidivism after
enacted sexual violent predator statutes have given rise to re-    completion of their prison term violated neither the double
quests to evaluate those convicted of violent sexual crimes        jeopardy nor ex post facto clauses of the Constitution. This
who have fulfilled their prison sentence. Such individuals can      decision further encouraged states to enact sexual predator
be transferred to civil commitment status if they meet criteria    statutes.
defined by each state. Assessments may be requested to eval-            Mary Alice Conroy describes the impact of this legislation
uate the risk of future sexual offending of those belonging to     on forensic practice in her chapter in this volume. She reviews
this special group. Similarly, battered women have been            sex offender legislation (including sexual violent predator
singled out as a special category. Admissible in most states,      statutes) and evaluations in legal and historical contexts, and
battered women’s syndrome may be introduced to explain a           considers issues related to evaluating the sex offender’s men-
defendant’s mental state if charged with the murder or assault     tal state and assessing the risk for recidivism. Both clinical and
of her batterer.                                                   actuarial predictions are explained and the use and abuse of
   Those who have developed violent attachments, including         “profiles” are reviewed. Conroy examines forensic assessment
pathologies of bonding, represent still another special popula-    instruments that have been developed to evaluate future risk of
tion. Such individuals are at increased risk for violent behav-    offending. In addition, she reviews specialized treatment
iors directed against those with whom they have relationships,     modalities important to risk management with this special
                                                                                                    Organization of This Volume   17


population. Included in this chapter are sections addressing the         J. Reid Meloy focuses on the relationship among attach-
evaluation of minorities (women, juveniles, and ethnic minori-       ment, violence, and criminality. He reviews the origins of
ties), as well as ethical concerns and expert testimony.             attachment theory and considers the psychobiology of attach-
                                                                     ment. Meloy places pathologies of attachment in historical
Battered Woman Syndrome in Courts:                                   perspective and describes the relationship between this at-
Issues and Applications                                              tachment and interpartner violence. He suggests new avenues
                                                                     of forensic psychological research, including stalking behav-
A battered woman who assaults or kills her partner or                ior, which he has described as an old behavior but a new
spouse may be charged with a criminal offense. Frequently,           crime (Meloy, 1999).
there is little or no physical evidence that the woman was in
imminent danger, nor had she memorialized her prior bat-
tering in hospital records or by confiding in friends or fam-         Violence Risk Assessment
ily. Conceptualized and labeled by Lenore Walker (1979,              Despite the U.S. Supreme Court’s decision in Barefoot v.
1984), battered woman syndrome (BWS) may represent a                 Estelle (1983) that clinical predictions of violence could not
defense against such charges. BWS represents an attempt to           be made with an acceptable degree of reliability, the Court in-
establish that the woman’s actions at the time of the crime          dicated that to prevent such testimony was “like asking us to
were motivated by self-defense. In fact, BWS is the pre-             disinvent the wheel.” In both the civil and criminal legal sys-
dominant method of defending battered women who have                 tems, courts frequently consider risk of future violence in the
assaulted or killed their batterers, and it is the most success-     decision-making process. Questions regarding orders of pro-
ful syndrome testimony in terms of acceptance in court               tection, involuntary commitment, parental child abuse, trans-
(Downs, 1996).                                                       fers of juveniles to adult court, sex offenders transferred to
    In the chapter by Diane Follingstad, she argues that             civil commitment status, and mitigation and aggravation in
Walker’s initial conceptualization of BWS and its dynamics           death penalty cases are but a few of the areas relying on vio-
have shaped the criteria by which judges determine its admis-        lence risk assessment.
sibility and that provide the “scientific evidence” that in-             John Monahan describes the relevance of violence risk as-
formed appellate court review about this syndrome. Based on          sessment to the legal system and how such evidence is legally
the scientific literature, Follingstad concludes that there are se-   evaluated. He contrasts clinical and actuarial risk assessment
rious problems with the validity and applicability of BWS to         and then reviews instruments developed specifically to eval-
legal cases. She reviews the history and uses of BWS in court,       uate risk of violence. He summarizes those risk factors found
including major legal issues and case law focusing on those de-      to be related to the occurrence of violence as identified in the
cisions addressing the admissibility of testimony on this issue.     MacArthur Violence Risk Assessment Study (Monahan et al.,
She describes difficulties with syndrome evidence in general,         2001; Steadman et al., 2000). Monahan addresses the issue of
and with BWS in particular, questioning whether BWS is an            the relationship between clinical and actuarial risk assess-
actual syndrome. The relevance of BWS in other cases involv-         ment in formulating opinions and explains how such opin-
ing allegations, such as fraud, drug running, child abuse, child     ions should be communicated.
homicide, divorce, and custody, is examined. Follingstad de-
scribes methodology for assessing battered women’s legal
cases and suggests future directions for defending battered          Emerging Directions
women without relying on BWS, while still using data about
battered women as an organizing principle in their defense.          Forensic psychologists and attorneys are beginning to recog-
                                                                     nize the potential influence that forensic psychological re-
                                                                     search and practice could have on public policy and the law.
Pathologies of Attachment, Violence, and Criminality
                                                                     In the final section of this volume, the interdependence
Interpersonal violence most frequently occurs between those          between psychology and law is explored. Psychologists are
who know one another. However, rates are still higher for            encouraged to take a more active role in familiarizing them-
a subcategory of people: those who are attached or bonded            selves with case law and the legal system and improving the
to one another. Meloy (1992) described the nature of these           quality of services they offer to the law. They are urged to
“violent attachments,” identifying a group of individuals at         advise legislators about what psychologists can and cannot
risk for acts of violence against those with whom they have          validly assess and to attempt to influence legislation and
intense or sexual relationships.                                     public policy.
18   Overview of Forensic Psychology


   In addition, it is recognized that the law, public policy, and    fects the mental health and functioning of those whom it im-
psychology have a direct impact on those they serve and af-          pacts (Stolle, Wexler, Winick, & Dauer, 1997). As defined
fect. Legal decision making may have a profound influence             by Slobogin (1995), TJ uses the social sciences to “study the
on the mental health of all parties in civil and criminal litiga-    extent to which a legal rule or practice promotes the psy-
tion. The final chapter in this volume describes ways in which        chological and physical well-being of the people it affects”
forensic psychology can encourage judges and attorneys to            (p. 767). TJ represents a more humane, therapeutic approach
promote the emotional well-being of parties in legal cases           to the legal system, the goal of which is to maximize the
while minimizing the law’s negative effects on overall psy-          positive or therapeutic consequences of laws and their ad-
chological functioning.                                              ministration while minimizing the negative or antither-
                                                                     apeutic consequences. TJ evaluates the behavior of those
Forensic Psychology’s Interdependence                                involved in the legal system: attorneys; judges, probation of-
with Law and Policy                                                  ficers, and law enforcement officers.
                                                                         The chapter authored by Susan Daicoff and David Wexler
There are a number of roles for forensic psychologists (i.e.,        in this volume, considers the law from a therapeutic perspec-
consultant, testifying about a specific individual or topic, pro-     tive, focusing on criminal, personal injury, employment, and
viding legislative testimony), each involving knowledge of           family law. They discuss the concepts of “therapeutic lawyer-
the law and the ability to apply it. Consequently, forensic          ing” and “therapeutic judging,” and they examine the ways
psychologists must possess knowledge of the appropriate              laws may be altered, administered, or applied to increase
statutes, case law, and policies to effectively practice and         their positive therapeutic consequences. Daicoff and Wexler
conduct relevant research. They must understand the explicit         consider ethical and philosophical issues involved in the TJ
wording of the law and be aware of the subtle shifts in legal        approach to the law and discuss future trends in this emerg-
language that occur regularly.                                       ing field.
    Daniel Krauss and Bruce Sales explore the interdependent
relationship between forensic practice and research and law
and policy. They examine problems arising when nomolithic            SUMMARY
data are used to address idiographic questions. Using two
common areas of forensic practice and research, forensic eval-       Although the roots of forensic psychology date back to the
uations and testimony, the authors demonstrate the impact of         early 1900s, marked by the publication of On the Witness
law and policy on the field of forensic psychology. The ability       Stand (Münsterberg, 1908), it required almost two decades
of forensic psychologists to influence lawmakers and shape            for the field to demonstrate the empirical basis necessary to
public policy is still in its infancy. Although Brown v. the         qualify as evidentiary expert testimony. Both state and fed-
Board of Education (1954) involved the application of social         eral courts now generally accept the application of forensic
psychology research to public policy, few examples exist that        psychology theory, research, and methodology to a wide
so clearly demonstrate the relevance of psychological re-            range of civil and criminal legal questions. Programs offer-
search to the law. Krauss and Sales argue that because legisla-      ing doctorates in forensic psychology have been estab-
tors frequently assume, often incorrectly, that psychologists        lished, and postdoctoral fellowships, although limited in
can provide information of direct relevance to a legal question,     number, are available. Continuing professional education
forensic psychologists should have a greater sense of involve-       programs, presented by APA-approved sponsors, designed
ment in the formation of laws and policies. The authors pro-         to provide the skills, training, and knowledge required of
vide guideposts for improving the quality of forensic services       experts in court, are readily available. Most recently, the
to the law, consider issues related to evidentiary reliability and   APA approved forensic psychology as a specialty within the
relevance, and describe other criteria addressed by Daubert v.       field of psychology—a landmark recognition of its current
Merrell Dow Pharmaceuticals, Inc. (1993).                            status.
                                                                         It is hoped that graduate students and mental health pro-
                                                                     fessionals reading this book will develop an appreciation for
Therapeutic Jurisprudence
                                                                     the field as a whole, recognizing its uniqueness, its complex-
The emerging field of therapeutic jurisprudence (TJ) rep-             ity, and the need for specialized training and knowledge. In
resents another point at which law, public policy, and psy-          addition, each chapter should serve as a reference source on a
chology (and the social sciences in general) intersect. TJ           specific topic, reviewing the state of the art in the early
recognizes that, intentionally or unintentionally, the law af-       twenty-first century.
                                                                                                                              References    19


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CHAPTER 2


Forensic Training and Practice
IRA K. PACKER AND RANDY BORUM




TRAINING AND PRACTICE 22                                                   Postdoctoral Training in Forensic Psychology   26
GRADUATE TRAINING IN FORENSIC PSYCHOLOGY                   24              Continuing Education 27
  Models of Training 24                                                    Certification and Credentialing 28
  Levels of Training 25                                                    Models for the Future 29
  Graduate Training in Legal Psychology 26                               CONCLUSION 31
  Internships 26                                                         REFERENCES 31



At the beginning of the twenty-first century, the field of                 it from therapeutic practice in clinical psychology. It high-
forensic psychology is now sufficiently mature to be consid-              lighted the notion that the practice of forensic psychology
ered a well-defined area of specialization. Psychological                 requires a specialized orientation and mind-set and cannot
historians often trace the intellectual origins of the discipline        simply be considered a subcategory of clinical psychology.
of psychology and law to Hugo Münsterberg’s publication                  It represented an early attempt to clarify the boundary is-
of On the Witness Stand in 1908. However, coordinated and                sues and role definitions inherent in forensic psychological
formalized attempts to define and establish an area of foren-             practice.
sically specialized professional practice only began to gain                 Most significantly, in 2001, the APA formally recognized
momentum in the 1970s.                                                   forensic psychology as a specialty within psychology. This
    The first landmark in that era was the founding of the                designation signifies that a substantial body of professional
American Psychology-Law Society, and its subsequent                      literature and specialized knowledge exists that distinguishes
recognition as a division of the American Psychological                  forensic psychology from other specialties. Furthermore, it
Association (Division 41). Since then, the field of psychol-              reflects the development of specific educational programs
ogy and law has witnessed the formal recognition of forensic             throughout all levels of training, from undergraduate through
psychology as a practice specialty by the American Board of              graduate and postdoctoral levels as well as continuing educa-
Professional Psychology (ABPP); the development of “Spe-                 tion for practitioners.
cialty Guidelines for Forensic Psychologists” (Committee on                  As the field first began to emerge, the term forensic psy-
Ethical Guidelines for Forensic Psychologists, 1991); the ad-            chology was used broadly to include the many streams of re-
dition of a section on “Forensic Activities” (Section 7) within          search and practice at the intersection of psychology and law.
the American Psychological Association’s Ethical Principles              More recently, attempts have been made to refine and delin-
and Code of Conduct for Psychologists (American Psycho-                  eate the parameters of how the specialty should be defined. At
logical Association [APA], 1992); the emergence of over a                a practical level, the Committee on Ethical Guidelines for
dozen professional journals and hundreds of books, pub-                  Forensic Psychologists (1991) suggested that, for purposes of
lished nationally and internationally, focusing on forensic              applying the “Specialty Guidelines for Forensic Psycholo-
mental health issues (Borum & Otto, 2000); and growth in                 gists,” the definition should apply to “psychologists, within
the membership of the American Psychology-Law Society to                 any subdiscipline of psychology (e.g., clinical, developmen-
2,500, approximately 85% of whom identify themselves as                  tal, social, experimental) when they are engaged regularly as
forensic clinicians (Grisso, 1991).                                      experts and represent themselves, as such, in an activity
    The publication in 1980 of the edited book, Who Is the               primarily intended to provide professional psychological ex-
Client? (Monahan, 1980), was significant in laying out the                pertise to the judicial system” (p. 656). With a somewhat
contours of the field of forensic psychology and differentiating          broader view, Hess (1999) describes forensic psychology as

                                                                    21
22    Forensic Training and Practice


having three aspects: “(1) the application of basic psycholog-            in the legal system, the system itself may be viewed as an in-
ical processes to legal questions; (2) research on legal issues,          stitution whose processes can be subjected to social psycho-
such as the definition of privacy or how juries make decisions;            logical analysis, studying, for example, the relative values of
and (3) knowledge of legal issues” (p. 24).                               the adversary system versus mediation and arbitration. Social
    These definitions are sufficiently specific to designate spe-            psychological paradigms, theories, and research methods
cialists and an area of specialization, but remain sufficiently            also can be applied to legally relevant social issues such as
broad so that they may include psychologists whose special-               the impact of race and gender on decision making in the
ties are more clinically oriented (e.g., clinical, counseling,            criminal justice system (e.g., Sweeney & Haney, 1992) or the
school), as well as those that are primarily experimental                 perception of what constitutes sexual harassment (e.g., Hurt,
(e.g., social, cognitive, developmental). Although there is               Wiener, Russell, & Mannen, 1999; see the chapter by
broad recognition of the common substrates and basic con-                 Vasquez, Baker, & Shullman in this volume).
cepts that characterize the discipline (Bersoff et al., 1997), a              Developmental psychologists specializing in legal psy-
recent trend has emerged to distinguish the labels applied to             chology often conduct legally relevant consultations and
the clinical and experimental facets of the field. The term                perform research on issues related to children and adoles-
forensic psychology is becoming more readily associated                   cents in the legal system. Substantive issues of interest often
with applications of clinical specialties to the law (also                include the accuracy and suggestibility of children’s testi-
sometimes referred to as clinical-forensic psychology), and               mony (e.g., Ceci & Bruck, 1995), ability of adolescents to
the term legal psychology is being used to refer to the appli-            make legally relevant decisions and to comprehend their
cation of other areas of psychology to the law (Bersoff et al.,           rights (e.g., Grisso, 2000), and the impact of divorce, separa-
1997; Careers and Training Committee, 1998). Indeed, the                  tion, and varying custody arrangements on children’s devel-
definition of forensic psychology that was submitted to                    opment (e.g., Wallerstein & Lewis, 1998; see the chapter by
the APA as part of the application for recognition as a spe-              Otto, Buffington-Vollum, & Edens in this volume). A major
cialty is as follows                                                      field of inquiry has focused on whether, and under what cir-
                                                                          cumstances, the testimony of child witnesses should be con-
     For the purposes of this application, forensic psychology will       sidered to be credible. This has been a particularly important
     be defined as the professional practice by psychologists within       area in light of some highly publicized cases of elaborate
     the areas of clinical psychology, counseling psychology, neuro-      child abuse rings, such as the McMartin case in California
     psychology, and school psychology, when they are engaged             and the Fells Acre case in Massachusetts. Studies within this
     regularly as experts and represent themselves as such, in an         legal psychology specialty have focused, for example, on the
     activity primarily intended to provide professional psychological
                                                                          effects of age and types of questioning (e.g., direct versus
     expertise to the judicial system. (Petition for the Recognition of
                                                                          open-ended) on accuracy and suggestibility (e.g., Saywitz,
     a Specialty in Professional Psychology: Forensic Psychology,
     2000, p. 1)
                                                                          Goodman, Nicholas, & Moan, 1991; see the chapter by
                                                                          Kuehnle in this volume). Other researchers have focused on
To maintain clarity in this chapter and within the field, we               the impact of compelling children who were allegedly abused
also use this definition when referring to forensic psychology.            to testify directly at the trial of their abuser (e.g., Goodman,
                                                                          Levine, Melton, & Ogden, 1991). This body of research led
                                                                          to the submission of an amicus brief to the Supreme Court by
TRAINING AND PRACTICE                                                     the APA in the case of Maryland v. Craig (1990).
                                                                              Cognitive psychologists specializing in legal psychology
Specialists in legal psychology are represented predomi-                  are often involved in extrapolating research on perception
nantly from three areas: social, developmental, and cognitive             and memory to legally relevant issues. Several topics have
psychology. Social psychologists with this specialty often                received a great deal of attention, including eyewitness iden-
conduct research and consult with attorneys and courts re-                tification (e.g., Wells, 1978), accuracy of witness memory
garding issues such as jury selection (e.g., Johnson & Haney,             (e.g., Loftus & Davies, 1984), issues related to “recovered
1994), credibility of witnesses, (Bank & Poythress, 1982),                memories” (e.g., Alpert, Brown, & Courtois, 1998; Ornstein,
and influences on jury decision making (Bornstein, 1999).                  Ceci, & Loftus, 1998), and people’s ability to detect lying or
Research and practice often focus on identifying and under-               deception (e.g., Zaparniuk, Yuille, & Taylor, 1995).
standing group processes that affect jury deliberation and                    As is true for psychologists in all subdisciplines of legal
decision making (see chapter by Kovera, Dickinson, & Cutler               psychology, specialists are well-grounded in general theory
in this volume). In addition to studying the behavior of actors           and research, then apply these concepts and knowledge to
                                                                                                                    Training and Practice        23


questions that may be relevant to the law or legal system. For     TABLE 2.1      Sample Areas of Forensic Psychological Practice
example, empirical research regarding factors that affect          Criminal
memory—including stress, cross-racial identification, and           Competence to waive Miranda rights.
                                                                   Competence to stand trial.
decay of memory—all have implications for the criminal             Criminal responsibility (insanity defense).
justice system. One of the most significant contributions of        Diminished capacity.
cognitive psychology to the legal system has been in the area      Aid in sentencing.
                                                                   Competency of a witness.
of eyewitness identification. Wells et al. (1998) published a
                                                                   Risk assessment (e.g., for discharge from hospitals, parole, or probation).
set of recommendations and guidelines for lineups, incorpo-        Juvenile’s amenability to treatment.
rating theory about the impact of relative judgment (i.e.,         Juvenile transfer or waiver (i.e., of jurisdiction from juvenile to adult court).
eyewitnesses tend to identify the person from the lineup who       Civil
                                                                   Civil commitment.
most resembles the culprit, relative to the other members of
                                                                   Appointment of guardian.
the lineup, even when the suspect is absent) with experimen-       Personal injury.
tal studies on lineups (i.e., incorporating empirical findings      Worker’s compensation.
about factors that influence the validity of an identification)      Testamentary capacity (i.e., ability to competently compose a will).
                                                                   Eligibility for disability.
and scientific logic (i.e., treating a lineup as an experiment,     Eligibility for special education.
thereby requiring removal of confounding and influencing            Fitness for duty (e.g., police, firefighter).
variables and requiring that the experimenter, that is, the        Child custody.
                                                                   Termination of parental rights.
person conducting the lineup, be blind to the true identity of     Parental visitation rights.
the suspect). Findings and recommendations from this white
paper were incorporated into official policy by the U.S.
Department of Justice and have made a significant contribu-         families). What characterizes forensic treatment is the appli-
tion to the conduct of law enforcement lineups and the evalu-      cation to specific psycholegal issues. For instance, forensic
ation of their validity.                                           psychologists may provide treatment to defendants adjudi-
    The clinical application of mental health issues to the law    cated incompetent to stand trial, with the aim of restoring
occurs in both criminal and civil contexts. In the criminal        these individuals to competency. In this case, the psycholo-
law, the most common issues involve assessments of cogni-          gist applies not only general clinical treatment principles but
tive and psychological status and the relevance of that status     must focus the treatment on issues that are specific to the
to specially defined legal questions, such as competency to         legal context.
stand trial, criminal responsibility, amenability to treatment,       An area that is in particular demand at present involves
and violence risk (see chapters by Stafford; Goldstein, Morse,     violence risk assessment. Forensic psychologists provide
& Shapiro; Cunningham & Goldstein; and Monahan in this             valuable expertise to other practitioners, agencies, and the
volume). In civil areas, referral questions may also revolve       legal system regarding assessing risk of violence. This in-
around issues of cognitive and psychological status, but the       volves not only providing risk assessments, but also consult-
specific legal question or relevant functional capacity may be      ing on the appropriate use of specialized tests and actuarial
somewhat different (e.g., testamentary capacity, need for          instruments. With increasing public concern about school
guardianship, need for involuntary psychiatric hospitaliza-        shootings, workplace violence, and sex offending, there is in-
tion, psychological damages resulting from the act of another,     creasing demand for clarity about the reliability, validity, and
worker’s compensation suits; see the chapter by Greenberg in       generalizability of proposed instruments (McNeil et al., in
this volume). Similarly, forensic psychological consultation is    press; Otto, 2000; Otto, Borum, & Hart, 2001).
often sought in family law matters, such as child custody, vis-       As is evident from this discussion, the practice of forensic
itation, and termination of parental rights (see the chapter by    psychology spans a wide range of populations, including
Otto, Buffington-Vollum, & Edens in this volume).                   young children, adolescents, families, the elderly, people
    Although clinical forensic practice is most often associated   with severe mental illness, and criminal offenders. Accord-
with evaluations and expert witness testimony (see Table 2.1       ingly, with regard to training, a forensic specialist should
for a list of sample areas of forensic practice), forensic psy-    begin with a strong foundation of general clinical training
chologists also may provide specialized treatment services.        and skill development. Although forensic training involves
Treatment to populations involved with the legal system is         specialized knowledge and skills (described next), these
certainly provided by a broad range of psychologists (e.g.,        specialized applications require a foundation of clinical com-
correctional psychologists providing treatment to inmates,         petence in understanding psychopathology, assessment, in-
clinical psychologists working with divorced or divorcing          terviewing, conceptualization, and other general clinical
24   Forensic Training and Practice


skills. This is analogous to the sequence for legal psycholo-           TABLE 2.3     Doctoral Programs in Legal Psychology
gists, who first must be well grounded in their subdiscipline,           Florida International University, North Miami
and then subsequently apply concepts and knowledge to the               University of Illinois at Chicago
                                                                        University of Kansas, Lawrence
legal area of specialization.                                           University of Nevada–Reno
   One who engages in the practice of forensic psychology,              Simon Fraser University, Burnaby, British Columbia
however, may not necessarily have competence or expertise               University of Texas at El Paso
                                                                        University of Virginia, Charlottesville
with all populations and in all areas of forensic practice. For
example, psychologists who have been trained primarily to
work with children, adolescents, and families may then learn            offered in the two disciplines. Many of these programs offer
to apply their knowledge in child custody cases but may not             a terminal doctoral degree in psychology (typically a Ph.D.
necessarily have the requisite background to assess testamen-           or Psy.D.), with a specialization, concentration, specialty
tary capacity in mentally ill adults. In some instances, though,        “track,” or minor in forensic psychology or law and psy-
the population may be more specific to the forensic arena;               chology. The specialized concentration typically requires
one obvious example of this is forensic work with adult crim-           two or more forensic courses and often some forensically
inal offenders. Unless a psychologist has trained in a correc-          relevant clinical experience. AP-LS has identified seven
tional or forensic setting, for example, he or she may not be           graduate programs that offer specialty training in clinical-
familiar with, or competent to assess, defendants who are               forensic psychology (see Table 2.2). Many other universities
psychopathic. Therefore, training in forensic psychology                offer informal opportunities, such as individual courses in
needs to focus both on understanding the appropriate clinical           forensic psychology or practicum placements in correc-
population as well as gaining the specialized legal knowledge           tional or forensic settings. More recently, some programs
and skills in forensic methodology.                                     have begun to offer a doctoral degree specifically in forensic
                                                                        psychology or forensic clinical psychology, although the
GRADUATE TRAINING IN                                                    long-term viability or advisability of such specialized de-
FORENSIC PSYCHOLOGY                                                     grees remains an open question. Eight programs have been
                                                                        identified that offer specialty training in legal psychology
Models of Training                                                      (see Table 2.3).
                                                                           Another model of training is the joint degree program (see
As noted above, appropriate training for forensic psycholo-             Table 2.4), in which students take all coursework in psychol-
gists involves developing core competencies in applied                  ogy required for the doctoral degree (Ph.D. or Psy.D.) and all
psychology (e.g., clinical psychology), augmented by spe-               coursework in law (from an affiliated law school) required to
cialized didactic courses in areas of law and forensic                  earn a professional law degree (J.D.). Two key issues are rele-
psychology, specialized assessment techniques, and opportu-             vant to determining the appropriateness of a joint degree
nities to apply these skills and knowledge under supervision            model for a psychologist who aspires primarily to be a foren-
in clinical settings. In the current state of affairs, it is difficult   sic practitioner. The first is whether there is a significant
to find a direct path to such coherent training. Rather, there           incremental advantage in gaining a complete professional
are a number of programs that are available at each level of            legal education, if one intends only to practice psychology.
education for those interested.                                         The answer here mainly depends on what the student hopes to
    The American Psychology-Law Society (AP-LS) has                     achieve by attaining a dual degree. If one is attracted by the
identified, as of 1998, 19 accredited doctoral degree pro-               process of legal education or has a particular affinity for study-
grams in psychology that offer specialized training in psy-             ing the law, then the joint degree should be considered,
chology and law. One of the major ways to classify these                whether any concrete advantages would accrue to one’s
programs is according to the type of academic training                  clinical practice. If, on the other hand, one seeks the added

TABLE 2.2     Doctoral Programs in Forensic Psychology                  TABLE 2.4     Joint Degree Programs
University of Alabama, Tuscaloosa                                       University of Arizona, Tucson: J.D.-Ph.D.
University of British Columbia, Vancouver                               MCP Hahnemann University/Villanova College of Law, Philadelphia,
California School of Professional Psychology, Fresno                      Pennsylvania: Ph.D.-J.D.
Long Island University, Brooklyn, New York                              University of Nebraska, Lincoln: J.D.-Ph.D.
Queen’s University, Kingston, Ontario                                   Pacific Graduate School of Psychology, Palo Alto, California: Ph.D.-J.D.
Sam Houston State University, Huntsville, Texas                         Stanford University, Stanford, California: Ph.D.-J.D.
Simon Fraser University, Burnaby, British Columbia                      Widener University, Chester, Pennsylvania: Psy.D.-J.D.
                                                                                          Graduate Training in Forensic Psychology           25


degree solely to enhance professional “credibility” in clinical     existing courses, such as ethics, assessment, and clinical prac-
forensic practice, then one may be disappointed to discover its     tice, although it is possible that an added overview course on
lack of significance to judges and attorneys in most circum-         mental health law would be beneficial. Many states now re-
stances. If one does decide to pursue both degrees, the second      quire, in addition to the National Licensing Examination, that
issue is whether there is any incremental advantage in obtain-      psychologists pass a state jurisprudence examination focus-
ing these degrees from a joint degree program, as opposed to        ing on state/provincial laws relevant to psychological prac-
independently obtaining the degrees from separate programs.         tice to be licensed in that jurisdiction. Table 2.5 poses some
Even programs that consider themselves to be joint degree           examples of legally relevant situations that a clinical psy-
programs differ substantially in the level of integration that      chologist may encounter.
occurs with the psychological and legal aspects of training.           The second level of training is referred to as the profi-
   Some commentators have expressed concern that the                ciency level. The primary objective of this level of training is
graduates of joint degree programs are perceived as neither         to establish forensic competence in one or more circum-
psychologists nor lawyers (Melton, Huss, & Tomkins, 1999)           scribed areas related to some other major clinical specialty
and that practical opportunities to integrate the two disci-        with which the psychologist has primary identification and
plines may be limited. Accordingly, some would argue that           expertise (e.g., a general child psychologist who performs
this type of program may not be well suited for most students       custody evaluations as a secondary part of practice or a psy-
who are interested primarily in clinical forensic psychology        chologist with expertise in trauma who performs personal in-
careers, and that time spent in law school may detract from         jury evaluations). This would be appropriate for clinicians
time available to further one’s clinical training. This joint de-   who do not specialize in forensic psychology but wish to do
gree model may be more useful for those interested in other         some forensic work in a limited area of practice. The require-
career tracks, such as public policy development or social          ments for training at this level would be more extensive than
science research in the legal arena. The opportunity to be ed-      those for the legally informed clinician, and would likely in-
ucated in both disciplines may provide graduates with skills        clude the necessity of one or more formal academic courses
that those with single degrees may not possess. That is the         on forensic issues as well as some exposure to supervised
hope and expectation of these programs. To date, however,           clinical work in forensic settings.
the validity of this expectation is unknown.                           The third level, specialty level, is oriented toward the train-
                                                                    ing of psychologists whose professional activities focus pri-
                                                                    marily on the provision of services to courts, attorneys, law
Levels of Training
                                                                    enforcement, or corrections, and whose main specialty identi-
In 1995, 48 leading scholars, educators, and clinicians in the      fication is in forensic psychology. Training for this level of
field of psychology and law were invited to the National             specialization involves intensive didactic and supervised
Invitational Conference on Education and Training in Law            practical experience. It includes in-depth study of case law
and Psychology at Villanova Law School, chaired by Donald
Bersoff, J.D., Ph.D. This conference, known as the Villanova
                                                                    TABLE 2.5     Sample Forensic Issues for Clinicians
Conference, produced recommendations about all levels of
training in legal and forensic psychology.                          1. You have been providing psychotherapy services to a 16-year-old girl.
                                                                       After several months, her mother calls you and asks that the records
    Participants at the Villanova Conference recommended               be released to her. The girl does not want her mother to have the
that graduate training programs in forensic psychology could           information. Should you release the information to the mother?
offer any of three levels of training. The first level is referred   2. A mother brings her 10-year-old son in for treatment. You provide
to as the entry level: the legally informed clinician. The             therapy to both of them for a period of several months. The mother then
                                                                       asks if you would testify at her upcoming divorce hearing that she
primary objective for this level of training is to develop a           should be awarded custody of her son. Should you agree to testify?
working knowledge of legal issues relevant to professional          3. You receive a subpoena from an attorney of a psychiatrist who is being
psychological practice (e.g., confidentiality, privilege, third-        sued by your client for malpractice. The subpoena is for records of your
party reporting, responding to subpoenas). The impetus for             client’s treatment with you. Should you provide the records?
this proposal was a recognition that forensic issues have now       4. Your psychotherapy client informs you that he is the one who set fire to
                                                                       a house a year ago, in which two people died. The police have yet to
permeated many traditional clinical practices, and all clini-          solve the case. Do you report this information to the police?
cians, not only those who specialize in forensic psychology,        5. A father who has visitation rights but not legal custody brings his
need to be aware of certain aspects of the law that may impact         daughter in for an initial psychological evaluation, expressing concern
on their practice. It was proposed that a substantial proportion       that she has been sexually abused by his ex-wife’s new boyfriend. How
                                                                       should you proceed?
of this legally relevant information could be incorporated into
26   Forensic Training and Practice


and significant clinical experience with different forensic          internship sites conducted in 1997 (Bersoff et al., 1997),
populations and types of evaluations. Ultimately, a postdoc-        among those sites that purported to offer forensic placements
toral fellowship in forensic psychology and the attainment of       (of which there was a return rate of 31%), only 38 indicated
board certification status in forensic psychology by the ABPP        that they offered “major” forensic rotations, where interns
will likely be considered the hallmarks of the forensically         spend 50% of their time in forensic placements. Many of these
specialized psychologist.                                           settings also offer some form of forensic seminar or didactic
                                                                    training.
Graduate Training in Legal Psychology
                                                                    Postdoctoral Training in Forensic Psychology
Training for legal psychology typically occurs at the graduate
level. Most training occurs in traditional academic depart-         The postdoctoral fellowship is emerging in professional psy-
ments with a faculty member who is interested in the applica-       chology as the benchmark of specialized training. Fellow-
tion of research to issues of relevance to the law and legal        ships in forensic psychology, however, have been fairly slow
system. A few departments have now developed minors in              to develop. There are currently 11 identified postdoctoral pro-
psychology and law, providing more specific knowledge in             grams in forensic psychology (see Table 2.6), most of which
this area. Students are required to combine knowledge of psy-       accept only one or two Fellows each year. Most of these pro-
chology with an understanding of the legal system to appreci-       grams offer clinical placements that focus on criminal foren-
ate how the former can impact the latter. The purpose of such       sic assessment, particularly in the public sector and mostly
programs is to educate future scholars to apply the principles,     with adults, although some programs (e.g., Massachusetts
methodologies, and substantive knowledge of the social              General Hospital and University of Massachusetts Medical
sciences to legal problems. Recommendations from the                School) also offer specialty training in juvenile forensic psy-
Villanova Conference suggest that, in addition to the core          chology. Because there are currently so few fellowship op-
curriculum in psychology, students wishing to specialize in         portunities available, it is realistic to expect these programs
legal psychology should also obtain legal knowledge, includ-        to focus on developing leaders in the field, and it is premature
ing an understanding of legal processes, evidence, sources of       to expect completion of a postdoctoral fellowship as a pre-
law, and substantive law (i.e., basics of criminal and civil        requisite for forensic practice.
law). This knowledge may be obtained in law-related courses             In addition, because opportunities for graduate and intern-
in a university curriculum or in special courses at law schools.    ship training in forensic psychology often are limited, post-
In addition, it was recommended that the curriculum include         doctoral programs are, in some circumstances, the forum for
courses on substantive legal psychology, including research         basic forensic training. An example of the didactic curriculum
(as noted above) and relevant case law and statutes.                from one such program is listed in Table 2.7. This curriculum
                                                                    begins with a basic orientation to the law and forensic con-
Internships                                                         cepts, such as competency to stand trial and criminal respon-
                                                                    sibility, and proceeds to cover a broad range of criminal and
The internship is typically structured as one year of full-time     civil areas. The basic text for the course (Melton, Petrila,
supervised clinical practice, and is most often initiated by stu-   Poythress, & Slobogin, 1997) is one that would be considered
dents in a professional psychological specialty (e.g., clinical,    appropriate for graduate-level courses in a more coordinated
counseling, school) during the final year of graduate training
and before conferral of the doctoral degree. As with graduate
training, it is generally recommended that students use the in-     TABLE 2.6    Postdoctoral Programs in Forensic Psychology
ternship year to refine a solid foundation of clinical skills. In    Center for Forensic Psychiatry, Ypsilanti, Michigan
addition, it presents an opportunity to begin or enhance one’s      Federal Bureau of Prisons, Springfield, Missouri
                                                                    Federal Medical Center, Rochester, Minnesota
specialized forensic experiences. As it is advantageous to the      Florida State Hospital, Chattahoochee
intern to be exposed to a variety of clinical populations to aid    Kirby Forensic Psychiatric Center, New York, New York
in development of basic diagnostic and treatment skills that        Massachusetts General Hospital, Juvenile Track, Boston
                                                                    Patton State Hospital, Highland, California
subsequently can be applied to forensic issues, most intern-
                                                                    St. Louis Hospital, St. Louis, Missouri
ships, even those in correctional settings, are not (and arguably   University of Massachusetts Medical School (Adult and Juvenile),
should never be) completely “specialized.” Some sites do,              Worcester
however, offer an opportunity to concentrate one’s activities in    University of Southern California–Los Angeles
                                                                    Western State Hospital, Tacoma, Washington
forensic practice. According to a survey of APA-approved
                                                                                             Graduate Training in Forensic Psychology   27


TABLE 2.7 Sample Curriculum for a Postdoctoral Fellowship                  to expand their practice by developing at least a proficiency
in Forensic Psychology
                                                                           in one or more areas of forensic psychology.
Orientation to the Field of Psychology and Law.                                Participants at the Villanova Conference identified five
Basic Introduction to Legal Principles.
Introduction to Finding and Understanding Case Law.
                                                                           goals of CE in forensic psychology: (a) improve standards of
Review of Mental Health Statutes.                                          forensic practice and ethical decision making, (b) improve
Mandated Reporting Requirements; Duty to Protect.                          and update knowledge in specific content areas, (c) provide
Confidentiality and Privilege.
                                                                           paths for the improvement of forensic skills, (d) provide op-
Ethical Issues for Forensic Psychologists.
Psychological Testing for Forensic Issues: special considerations.         portunities for interdisciplinary interchange, and (e) stimu-
Introduction to Competence to Stand Trial (CST) Evaluations.               late research and the dissemination of new knowledge
Advanced Issues in CST: decisional competence/restoration to competence.   (Bersoff et al., 1997). They concluded, however, that many
Introduction to Criminal Responsibility.
Advanced Issues in Criminal Responsibility: diminished capacity/           existing programs were not meeting all these requirements
   dispositional issues.                                                   due to several factors, including inadequate quality control
Malingering.                                                               over presentations and presenters, failure to bridge the gap
Use of Violence Risk Assessment Instruments.
Violence Risk Assessment: clinical issues.
                                                                           between research and practice, lack of accessibility, lack of
Assessment of Sex Offenders.                                               standards to measure workshop success, and lack of clarity
Neuropsychological Issues in Forensic Evaluations.                         about the preexisting level of knowledge and experience that
Substance Abuse and Criminal Forensic Evaluations.
                                                                           the audience may possess. This last point is especially signif-
Psychopharmacology and Medication Issues in Forensic Evaluations.
Civil Competence (to consent to treatment, to care for self/property).     icant given the wide range of individuals who may attend a
Civil Commitment.                                                          forensic CE offering: very experienced forensic psycholo-
Issues in Guardianship, Conservatorship, and Testamentary Capacity.        gists, those who have had some formal training in forensic
Personal Injury and Workers’ Compensation.
Disability Evaluations.                                                    psychology, those who have learned on the job, and those
Introduction to the Juvenile Court System and Juvenile Statutes.           who have very little or no exposure to forensic concepts and
Juvenile Forensic Evaluations.                                             practice.
Child Welfare and Child Custody Evaluations.
Expert Witness Testimony.
                                                                               A series of recommendations to address these problems
                                                                           and improve CE in forensic psychology emerged from the
Source: Adapted from the University of Massachusetts Medical School
Program.
                                                                           Villanova Conference: (a) delineating CE offerings into three
                                                                           identified levels: basic, specialty, and advanced; (b) consider-
                                                                           ing credentialing of CE sponsors for forensic education (in
and integrated training environment. Because this is a post-               addition to basic APA credentialing); (c) attracting a more
doctoral seminar, the textbook is supplemented by articles                 diverse group of presenters (in terms of ethnic and gender
and books focusing on recent developments in the field and                  composition) and addressing ethnic, cultural, gender, and lin-
more advanced areas of inquiry. In addition, the curriculum                guistic differences directly in workshops; (d) developing
includes a Landmark Cases Seminar, addressing the basic                    alternatives to the one-day didactic workshop format, includ-
and fundamental cases in mental health law (e.g., Carter v.                ing summer institutes that would include supervised practical
General Motors, 1961; Dusky v. U.S., 1960; Jones v. U.S.,                  experience; and (e) making CE activities more multidiscipli-
1983; Painter v. Bannister, 1966), but also includes more                  nary and interactive.
recent cases with more complex issues (e.g., Foucha v.                         Some of these recommendations have already been incor-
Louisiana, 1992; Godinez v. Moran, 1993; Troxel v. Granville,              porated into forensic CE training. For example, in 1999, the
2000). In this manner, several levels of training are combined             APA and American Bar Association sponsored several joint
into one postdoctoral year.                                                educational activities, including a three-day conference
                                                                           entitled Psychological Expertise and Criminal Justice. In ad-
Continuing Education                                                       dition, the American Academy of Forensic Psychology, per-
                                                                           haps the foremost forensic CE provider, has recently begun to
Because the emergence of formal academic training in foren-                offer four-day intensive training workshops in forensic psy-
sic psychology is fairly recent, many practicing psychologists             chology, divided into two tracks: beginner and advanced.
have not had easy access to specialty training at the graduate             Models for incorporating direct clinical experience into CE
or postdoctoral fellowship level. Thus, for many, the opportu-             activities have not yet been successfully developed. Integrat-
nity to develop new knowledge and skills is obtained through               ing this component of training poses a significant challenge
continuing education (CE). These programs are directed                     because most training models involve direct supervised
toward licensed professional psychologists who are seeking                 experience over a sustained period of time, as is the case with
28   Forensic Training and Practice


graduate school practica, internships, postdoctoral fellow-         is expected to go beyond the report and demonstrate under-
ships, and on-the-job training.                                     standing of the clinical, ethical, and legal issues involved in
                                                                    performing those types of evaluations. For instance, the
                                                                    applicant may explain the rationale for the particular ap-
Certification and Credentialing
                                                                    proaches taken to assess the psycholegal issue.
In 1978, the American Board of Forensic Psychology                      If both work samples are deemed acceptable as a result of
(ABFP) was formed for the purpose of credentialing and cer-         this peer review, the applicant is required to participate in a
tifying forensic psychologists who were practicing at an ad-        three-hour oral examination (with three forensic diplomate ex-
vanced level of competence. This level of board certification,       aminers), the purpose of which is to examine further the can-
known as the forensic diplomate, was never intended to cer-         didate’s knowledge and practice in forensic psychology, using
tify those at a basic or journeyman level of competence, but        the work samples as a starting point. The candidate is exam-
rather to designate only advanced practitioners. In 1985,           ined to determine if he or she practices ethically, demonstrates
ABFP joined the ABPP, becoming one of its Specialty                 an ability to practice at a high level of competence, under-
Boards. Since then, the diplomate in forensic psychology has        stands relevant psycholegal principles, and can apply psycho-
been awarded by ABPP through a process developed and                logical expertise to the legal issues. Furthermore, in keeping
implemented by ABFP.                                                with the concept outlined above of having a broad knowledge
    Currently, applicants for board certification through            of the field, the candidate is expected to be familiar with other
ABFP/ABPP must be licensed psychologists who have at                areas of forensic practice in addition to those in which he or she
least five years of experience performing forensic work, in-         practices. The level of knowledge in these other areas is not ex-
cluding a minimum of 1,000 hours of forensic work over that         pected to be as high as in the areas of direct practice, although
period. In addition, applicants must have obtained at least         some basic familiarity with the major issues and case law is re-
100 hours of specialized training in forensic psychology,           quired. In this regard, forensic psychologists are expected to
which includes direct clinical supervision and/or didactic          have knowledge of legal cases that impact on forensic and
training (e.g., CE activities). This requirement of 100 hours       mental health practice, but are not expected to engage in ex-
of specialized training is deliberately modest, in recognition      egetic legal case analysis. Candidates are provided with a list
of the current state of affairs in which access to such training    of cases that are considered important for forensic practition-
is limited. The application is reviewed by ABPP and ABFP to         ers to be familiar with. They are informed that this list is not ex-
determine whether the basic requirements have been met,             haustive, as the law is continually evolving. The list is updated
and, with the applicant’s consent, an inquiry is sent to the        every few years to incorporate new case law; Table 2.8 con-
appropriate state licensing board and state psychological as-       tains a sample of the case law included in the current list. In
sociation to verify that there are no outstanding ethical           recognition of the complexity of forensic practice, applicants
complaints against the psychologist. If there is an outstanding     are provided with multiple opportunities to be examined. If a
complaint, the certification process is placed on hold pending       work sample is considered unsatisfactory, the applicant is pro-
resolution of that matter. If there is a record of disciplinary     vided with explicit feedback and invited to present another
action, the particular issue and circumstances will be consid-      sample to be reviewed. Similarly, if the applicant does not pass
ered in the decision of whether to accept the application.          the oral examination, he or she is afforded the opportunity to
    Once an applicant has been determined by the board to           submit another set of work samples, which, if approved, will
meet the basic requirements, he or she must submit two work         serve as the basis for a second oral examination.
samples for review by a panel of forensic diplomates. The               The multi-stage certification process provides an opportu-
two samples must represent two different areas of forensic          nity for applicants to demonstrate their basic understanding of
practice (e.g., competence to stand trial and personal injury;      forensic psychological principles, knowledge of the psycho-
child custody and waiver of juvenile to adult court). This re-      logical literature and relevant case law, ethical practice, and
flects the requirement that the diplomate have breadth of            quality of forensic work. Given these requirements, it is per-
knowledge within the forensic field. A psychologist who is           haps not surprising that as of the time this book went to press,
extremely skilled in performing child custody evaluations but       there were only 200 forensic psychology diplomates in the
does no other forensic work, for example, would not be a            United States. It is important to keep in mind that the diplomate
candidate for the forensic diploma. This in no way reflects on       process is a voluntary system (i.e., there is no expectation that
the quality of the individual psychologist, but rather is a func-   a psychologist obtain the diplomate to practice in the forensic
tion of the current standard for the diplomate, which requires      arena or to qualify as an expert witness). As the field develops,
breadth as well as depth of knowledge. The work samples are         though, there may be changes in the meaning of the diplomate,
not simply examples of forensic reports. Rather, the applicant      or the field may develop more basic levels of certification.
                                                                                    Graduate Training in Forensic Psychology   29


TABLE 2.8 Sample of Recommended Case Law for the Forensic            The rigor and reputation of the ABPP forensic diplomate
Diplomate (ABPP)
                                                                 status has become more significant recently, as other entities
Confidentiality and Duty to Protect                               have begun awarding their own forensic credentials, creating
——— In re Lifschutz, 467 P.2d 557 (1970)
——— Jaffee v. Redmond, 518 U.S. 1 (1996)
                                                                 some confusion among consumers of forensic services. Some
——— Tarasoff v. Board of Regents, 551 P.2d 334 (1976)            of these organizations purport to offer “board certification” or
——— McIntosh v. Milano, 403 A.2d 500 (1979)                      specialty credentials in forensic practice without credential
——— Jablonski v. U.S., 712 F.2d 391(1983)
                                                                 verification, peer review of work samples, or formal exami-
——— Lipari v. Sears, 497 F. Supp. 185 (1980)
——— Peck v. Addison County Counseling Service, 499 A.2d 422      nation in substantive specialty content (Hansen, 2000; Otto,
      (1985)                                                     1999). This obviously creates the potential for the emergence
Experts and Evidence
                                                                 of a new cadre of clinicians foraging in a new area, with cer-
——— Federal Rules of Evidence (701–705)                          tifications and credentials that may exceed their demon-
——— Frye v. United States, 293 F. 1013 (1923)                    strated competence (MacDonald, 1999). Golding (1999) has
——— Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579
                                                                 summarized the distinctions between the ABPP diplomate
        (1993)
——— Kumho Tire v. Carmichael, 526 U.S. 137 (1999)                and alternative certifications, including recommending cross-
——— Jenkins v. United States, 307 F.2d 637 (1962)                examination techniques to highlight the limitations of
Civil Commitment and Involuntary Treatment
                                                                 these alternatives. He specifically recommends focusing on
——— Rennie v. Klein, 720 F.2d 266 (1983)                         whether alternative certifications include “grandparenting”
——— Rivers v. Katz, 495 NE 2d 337 (1986)                         clauses (i.e., awarding certification with a waiver of require-
——— Rogers v. Okin, 638 F. Supp. 934 (1986)
                                                                 ments) and whether they require work sample review, oral
——— Washington v. Harper, 494 U.S. 210 (1990)
——— Riggins v. Nevada, 504 U.S. 127 (1992)                       examination, and specific training and supervision.
                                                                     Although the APA does not award certifications and diplo-
Competence to Stand Trial
——— Jackson v. Indiana, 406 U.S. 715 (1972)
                                                                 mates and does not officially endorse any of the credentialing
——— Dusky v. U.S., 362 U.S. 402 (1960)                           organizations, it is noteworthy that the ABPP diplomate is the
——— Drope v. Missouri, 410 U.S. 162 (1975)                       only one recognized by APA in terms of allowing this desig-
——— Wilson v. U.S., 391 F. 2d 460 (1968)
                                                                 nation to be included as part of a member’s credentials in the
——— Colorado v. Connelly, 479 U.S. 157 (1986)
——— Godinez v. Moran, 509 U.S. 389 (1993)                        APA directory. (A special exception exists for one diplomate
——— Frendak v. U.S., 408 A.2d 364 (1975)                         in hypnosis.) Similarly, the National Register of Health
Criminal Responsibility
                                                                 Services Providers recognizes the ABPP diplomate for listing
——— Durham v. U.S., 214 F.2d 862 (1954)                          in its registry. At present, psychologists may claim board
——— U.S. v. Brawner, 471 F.2d 969 (1972)                         certification status based on credentials from any number of
——— Jones v. U.S., 463 U.S. 354 (1983)
                                                                 private organizations. As the field of forensic psychology
——— Foucha v. Louisiana, 504 U.S. 71 (1992)
——— Ake v. Oklahoma, 470 U.S. 68 (1985)                          continues to grow and psychologists claim “board certifica-
——— Shannon v. U.S., 512 U.S. 573 (1994)                         tion” status on voir dire in court, courts will be searching for
Child Custody
                                                                 guidance regarding the meaning and value of reputed certifi-
——— Painter v. Bannister, 140 NW 2d 152 (1966)                   cation. In this context, the importance of psychology’s devel-
——— Santosky v. Kramer, 455 U.S. 745 (1982)                      oping professional standards for use of the terms board
——— Troxel v. Granville, 530 U.S. 57 (2000)
                                                                 certification and diplomate will increase.
Juvenile Justice
——— Kent v. U.S., 383 U.S. 541 (1966)
——— In re Gault, 387 U.S. 1 (1967)                               Models for the Future
——— Parham v. J.R., 442 U.S. 584 (1979)
——— Fare v. Michael C., 442 U.S. 707 (1979)                      As is evident from the above review, training in forensic psy-
Tort Law and Workers Compensation
                                                                 chology is available at all levels of education, but there is as
——— Dillon v. Legg, 441 P.2d 912 (1968)                          yet no formalized track for comprehensive training. Our ex-
——— Carter v. General Motors, 106 NW 2d 105 (1961)               pectation is that with the recognition of forensic psychology
——— Molien v. Kaiser Foundation Hospital, 27 Cal 3d 916
                                                                 as a specialty by APA, the field can move to develop a more
       (1980)
——— Griggs v. Duke Power Co., 401 U.S. 424 (1971)                integrated approach to training. Although clinicians could
——— Harris v. Forklift Systems, 510 U.S. 17 (1993)               still be conceptualized as working at either the proficiency
Prediction of Dangerousness and Sex Offender Commitment          level (having some expertise in one or more specified
——— Estelle v. Smith, 451 U.S. 454 (1981)                        forensic areas) or specialists (having more in-depth and
——— Barefoot v. Estelle, 463 U.S. 880 (1983)                     broader expertise), these differences likely would emerge not
——— Kansas v. Hendricks, 117 S. Ct. 2072 (1997)
                                                                 at the graduate level, but perhaps after licensure.
30   Forensic Training and Practice


    Recognition as a specialty will likely lead to increased op-     Doctoral students should be familiar with the applications of
portunities for developing skills at different levels of training.   such instruments to specific psycholegal issues; how to incor-
An important caveat is that forensic specialization should not       porate such instruments as part of a comprehensive evalua-
come at the expense of a broad-based clinical education. Tak-        tion; and generalizability of the instruments across different
ing the long view, forensic training would be conceptualized         populations (e.g., applicability to both sexes, different racial
as occurring from graduate school through internship through         groups, subpopulations of forensic groups).
postdoctoral training. Therefore, graduate programs would be             As noted previously, forensic psychology, although
able to focus on developing basic clinical skills and knowledge      centered largely on assessment and evaluation, also con-
in addition to providing specialty courses and some forensic         tains a treatment component. Psychological interventions
experiences. For example, graduate programs with faculty             with forensic populations require focus on ameliorating the
specializing in forensic psychology could offer basic forensic       deficits specific to the functional legal capacities required.
didactic courses and provide opportunities for supervised clin-      This includes treatment for restoration to competence to
ical experience with populations and activities relevant to          stand trial, treatment to reduce risk of violent behavior in in-
forensic work (e.g., correctional settings, families involved in     sanity acquittees as well as inmates, probationers, and
divorce). In the didactic courses, graduate students would be        parolees, and conciliation/mediation approaches in child cus-
exposed to fundamentals of law and be introduced to forensic         tody litigation. These concepts should be addressed at the
psychological issues. The training would educate students            graduate level.
about some of the basic differences between law and psychol-             At the internship level, trainees should be afforded more
ogy, including the principle of the adversarial system of law        opportunities to apply their clinical skills with forensic popu-
versus the scientific approach in psychology; legal assump-           lations and begin to perform some forensic evaluations under
tions of free will versus psychological principles of determin-      supervision. Again, however, we caution against becoming
ism; and legal categorization (e.g., guilty/not guilty, proximate    too specialized or narrowly focused at this stage of training.
cause) versus psychology’s focus on complex interactions.            The internship year provides the best opportunity for sus-
    In addition, graduate training would help students to iden-      tained clinical training, and it is important that basic clinical
tify and navigate differences between clinical and forensic ap-      skills be obtained prior to applying them to the forensic
proaches (Greenberg & Shuman, 1997), including identifying           arena. Otto, Heilbrun, and Grisso (1990) emphasize the im-
the actual client (the individual versus the court); relationship    portance of the internship for the development of clinical
to client (supportive, helping versus objective, perhaps even        skills; they discuss the advantages and disadvantages of the
confrontational); the goal of the relationship (helpful versus       specialist model (focusing clinical training almost exclu-
evaluative); sources of data (client’s perspective versus col-       sively in a forensic setting) versus the generalist-specialist
lateral data); and use of therapeutic alliance versus critical       model, which provides some forensic experience in a general
judgment. Ethics courses, which are now part of the standard         clinical internship. The disadvantage of the former is that in-
graduate curriculum, could be expanded to include a section          terns may become too narrowly focused early in their careers
on the “Specialty Guidelines for Forensic Psychologists”             and may not obtain a sufficiently broad range of experiences.
(Committee on Ethical Guidelines for Forensic Psycholo-              The disadvantage of the latter is that it may not provide ade-
gists, 1991). Although these guidelines need to be a part of all     quate opportunity to develop the requisite forensic skills.
levels of training for forensic psychologists, they should be        Currently, with the dearth of postdoctoral fellowship oppor-
introduced formally at the graduate level.                           tunities, this is indeed a dilemma. However, as more post-
    Another major component of forensic training at the grad-        doctoral programs emerge, it may no longer be necessary to
uate level would involve learning specialized assessment             obtain the depth of forensic training during the internship
techniques. Students should be trained on some basic forensic        year because such training would more appropriately be ob-
instruments, such as the Psychopathy Checklist-Revised               tained during a fellowship. In this model, the postdoctoral
(Hare, 1991), the Structured Interview of Reported Symptoms          fellowship would become a more basic requirement for spe-
(Rogers, 1992), and the HCR-20 (Webster, Douglas, Eaves, &           cialization. Rather than an opportunity to train only the lead-
Hart, 1997). They should become familiar with basic issues in        ers in the field, opportunities would expand considerably so
the field, such as construction of actuarial instruments (e.g.,       that many more psychologists could obtain a full year of in-
the Violent Recidivism Assessment Guide; Harris, Rice, &             tensive, supervised forensic experience. During this year,
Quinsey, 1993) as well as conceptual issues related to the           they would obtain advanced knowledge from seminars in
application of clinical instruments, such as the Minnesota           forensic practice and the law.
Multiphasic Personality Inventory 2, in forensic settings (e.g.,         Continuing professional education activities would provide
Lees-Haley, 1997; Megargee, Mercer, & Carbonell, 1999).              opportunities for trained forensic psychologists to keep up to
                                                                                                                        References    31


date on new developments, research, and instruments. Also,          Although recent research indicates improvement in quality of
because the field is so broad, it would provide opportunities for    forensic reports over the past 20 years (Nicholson & Norwood,
forensic psychologists to branch out from their current areas of    2000), there is still a great deal of variability in the quality of
expertise to other areas in which they are clinically qualified      these reports, across criminal as well as civil areas. A major
(e.g., moving from criminal forensic work to personal injury        factor contributing to this variability is the lack of consistent
work). It is likely that CE activities would continue to serve as   training. However, we are now at the point of having a clearer
a major source of education for those who have some training        understanding of normative practice and standards that we
in forensic psychology at the graduate level, but who choose        expect will result in agreement about core models of training,
not to become specialists. For these individuals, the types of      spanning the range from graduate school, through internship,
models suggested by the Villanova Conference (i.e., more in-        postdoctoral fellowship, and continuing professional educa-
tensive trainings, including both didactic and experiential         tion. The efforts of the American Psychology-Law Society and
components) would be most appropriate.                              the ABFP to define and articulate the specialty of forensic
    Finally, with regard to professional credentialing, as the      psychology are likely to bear fruit in terms of improving the
field develops with more formal training, there may be pres-         training and educational opportunities available and, ultimately,
sure to develop certification at the journeyman level, in            in leading to improvement in forensic psychological practice.
addition to the current certification of only highly advanced
practitioners. This could be accomplished in several ways.          REFERENCES
For example, the current diplomate could be modified to in-
clude individuals with only one area of expertise, rather than
                                                                    American Psychological Association. (1992). Ethical principles of
at least two. However, there are significant drawbacks to such         psychologists and code of conduct. American Psychologist, 47,
a change. The current system recognizes individuals who de-           1597–1611.
velop a broad-based and scholarly approach to the forensic          Bank, S., & Poythress, N. (1982). Elements of persuasion in expert
practice; the expectation of both breadth and depth of knowl-         testimony. Journal of Psychiatry and Law, 10, 173–204.
edge encourages immersion in the forensic arena and the de-         Bersoff, D. N., Goodman-Delahunty, J., Grisso, T., Hans, V. P.,
velopment of a range of skills, which can be applied flexibly           Poythress, N. G., & Roesch, R. G. (1997). Training in law and
as new legal doctrines are developed and as our clinical               psychology: Models from the Villanova conference. American
knowledge expands. Abandonment of this requirement                     Psychologist, 52, 1301–1310.
would substantially lower the standard.                             Bornstein, B. H. (1999). The ecological validity of jury simulations:
    Another approach, following the model developed by the            Is the jury still out? Law and Human Behavior, 23, 75–91.
APA, is to recognize, within the specialty of forensic psy-         Borum, R., & Otto, R. (2000). Advances in forensic assessment and
chology, proficiencies in specific areas. A proficiency is a cir-        treatment: An overview and introduction to the special issue.
cumscribed area of expertise within a broader specialty; for          Law and Human Behavior, 24, 1–8.
example, one might be proficient in performing specific types         Careers and Training Committee. (1998). Careers and training in
of evaluations in criminal, child custody, or personal injury          psychology and law. American Psychology-Law Society.
cases. A model would have to be developed to certify profi-          Carter v. General Motors, 106 N.W.2d 205 (1961).
ciencies in one of these subspecialties within forensic psy-        Ceci, S. J., & Bruck, M. (1995). Jeopardy in the courtroom: A sci-
chology. This would attest that the individual has mastered           entific analysis of children’s testimony. Washington, DC: Ameri-
the skills and knowledge necessary to practice competently            can Psychological Association.
in that area. This level of recognition likely would come ear-      Committee on Ethical Guidelines for Forensic Psychologists.
lier in the career than the current diplomate, and individuals        (1991). Specialty guidelines for forensic psychologists. Law and
might develop more than one proficiency. The diplomate still           Human Behavior, 15, 655–665.
would be reserved for generalists who have demonstrated ex-         Dusky v. United States, 362 U.S. 402 (1960).
pertise and knowledge across domains.                               Foucha v. Louisiana, 504 U.S. 71 (1992).
                                                                    Godinez v. Moran, 509 U.S. 389 (1993).
                                                                    Goodman, G. S., Levine, M., Melton, G. B., & Ogden, D. W. (1991).
CONCLUSION                                                            Child witnesses and the confrontation clause: The American
                                                                      Psychological Association brief in Maryland v. Craig. Law and
The field of forensic psychology is continuing to develop. It is       Human Behavior, 15, 13–29.
evolving from a stage of growth marked by a spurt of academic,      Greenberg, S. A., & Shuman, D. W. (1997). Irreconcilable conflict
clinical, and research activity into a more mature field that has       between therapeutic and forensic roles. Professional Psychology:
begun to set and develop standards for training and practice.          Research and Practice, 28, 50–57.
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Grisso, T. (2000). What we know about youths’ capacities as trial        Nicholson, R. A., & Norwood, S. (2000). The quality of forensic
   defendants. In T. Grisso & R. G. Schwartz (Eds.), Youth on trial:        psychological assessments, reports, and testimony: Acknowl-
   A developmental perspective on juvenile justice (pp. 139–171).           edging the gap between promise and practice. Law and Human
   Chicago: University of Chicago Press.                                    Behavior, 24, 9–44.
Grisso, T. (1991). A developmental history of the American Psy-          Ornstein, P. A., Ceci, S. J., & Loftus, E. F. (1998). More on the re-
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Hansen, M. (2000). Expertise to go. ABA Journal, 86, 44–52.                 Psychology, Public Policy, and Law, 4, 1068–1078.
Hare, R. D. (1991). Manual for the Hare Psychopathy Checklist–           Otto, R. K. (1999). Message from the president. Bulletin of the
   Revised. Toronto, Ontario, Canada: Multi-Health Systems.                 American Academy of Forensic Psychology, 20, 11.
Harris, G. T., Rice, M. E., & Quinsey, V. L. (1993). Violent recidi-     Otto, R. (2000). Assessing and managing violence risk in outpatient
   vism of mentally disordered offenders: The development of a              settings. Journal of Clinical Psychology, 56, 1239–1262.
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   20, 315–335.                                                             use of actuarial instruments in sexually violent predator evalua-
Hess, A. K. (1999). Defining forensic psychology. In A. K. Hess &            tions. Manuscript submitted for publication.
   I. B. Weiner (Eds.), Handbook of forensic psychology                  Otto, R. K., Heilbrun, K., & Grisso, T. (1990). Training and creden-
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Hurt, L., Wiener, R. L., Russell, B. L., & Mannen, R. K. (1999).            8, 217–231.
   Gender differences in evaluating social-sexual conduct in the         Painter v. Bannister, 140 N.W. 2d 152 (1966).
   workplace. Behavioral Sciences and the Law, 17, 413–433.              Petition for the recognition of a specialty in professional psychol-
Johnson, C., & Haney, C. (1994). Felony voir dire: An exploratory           ogy: Forensic psychology. (2000). Submitted by Division 41 of
   study of its content and effect. Law and Human Behavior, 18,             the American Psychological Association and the American
   487–506.                                                                 Board of Forensic Psychology.
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Lees-Haley, P. R. (1997). MMPI-2 base rates for 492 personal injury         Odessa, FL: Psychological Assessment Resources.
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   Journal of Clinical Psychology, 53, 745–755.                             Children’s memories of a physical examination involving genital
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CHAPTER 3


Ethical Principles and Professional Competencies
HERBERT N. WEISSMAN AND DEBORAH M. DEBOW




UNIQUENESS OF FORENSIC PRACTICE 33                                        IMPLICATIONS AND APPLICATIONS 48
PROFESSIONAL/ETHICAL STANDARDS AND                                        ETHICS AT THE INTERFACE OF PSYCHOLOGY
  IMPEDIMENTS TO THEIR IMPLEMENTATION 34                                    AND LAW 50
  Misunderstandings and Assumptions 34                                    FUTURE DIRECTIONS 51
  Case Examples and Discussion 42                                         REFERENCES 52
UNDERSTANDING ADMISSIBILITY OF EVIDENCE AND
  ETHICS OF FORENSIC PRACTICE 47




This chapter addresses professional standards implicit in                    Adoption of an advocacy position is suitable for and
competent forensic practice, thus ethical professional compe-             required of attorneys, but the opposite is true for experts
tencies. It is through the application of such competencies               who must remain disinterested third parties. Understanding
that legal issues are coherently addressed. Ethical profes-               of and adherence to codes of ethics and professional guide-
sional competencies are reflected in knowledge of both psy-                lines, coupled with adequate personal boundaries and self-
chological concepts and legal constructs and in the skillful              awareness, can serve as both guides and buffers against
construction of methodologies that bridge the two in the ser-             improper influences in the medicolegal context, a context
vice of answering legal questions fairly and honestly in each             that is known for its adversarial pressures. Although disinter-
area of the psycholegal domain. Expert opinions can thereby               ested in the outcome, the expert is, of course, interested in the
meet criteria for relevancy and admissibility in both psychol-            data, findings, and formulations that undergird his or her
ogy and the law.                                                          opinions that are supported vigorously in reports and in testi-
   Also addressed are impediments to sound practice and the               mony. The challenge for the forensic expert is “to do the right
influences that can interfere with ethical conduct. Such imped-            thing” and “to be a straight shooter” despite pulls and pres-
iments and influences can be internally mediated and/or exter-             sures to veer off course. Staying on course can enable the
nally caused and result from ignorance, naïveté, cynicism,                expert to enjoy a long and productive career in a most re-
avarice, and/or inadequate moral-ethical development. These               warding and intellectually complex and challenging field.
influences often derive from the adversary process implicit in
the legal system and the medicolegal context in which forensic
psychologists work. It is a system and a context in which the             UNIQUENESS OF FORENSIC PRACTICE
expert is pulled, via persuasion and other means, to adopt the
perspective and the position of the retaining party. Pressures            The uniqueness of forensic work calls for similarly unique
take the form of subtle and overt influences on the expert                 ethical/professional principles, guidelines, case law, and re-
(whether court-appointed or retained) to vary from the role of            search, usually separate and apart from those relevant in other
neutral, objective examiner. These influences then potentially             areas of psychological practice. In forensic psychology, the
can become expressed unconsciously and/or consciously in bi-              past two decades have seen a burgeoning conceptual and em-
ased methodologies, as reflected in slanted choice of clinical-            pirical literature with a growing acceptance of forensic psy-
forensic methods; selective scrutiny of data; biased reportage            chology’s participation in legal contexts. In the past decade,
of data; omission of Axis I or Axis II findings; ignoring per-             specialized forensic ethical codes and guidelines have
sonal strengths, resiliencies, or vulnerabilities; omitting infor-        emerged that build on the foundations already in place with
mation on credibility; and ignoring dynamics of deception.                such documents as the American Psychological Association’s

                                                                     33
34   Ethical Principles and Professional Competencies


(APA) “Ethical Principles of Psychologists and Code of             rather tortuous history of the psychology-law interface makes
Conduct,” whose 1992 revision includes a set of ethical prin-      it clear that ignorance has never been acceptable. It is a his-
ciples at Section 7 that is devoted specifically to “Forensic       tory characterized by marked fluctuations in the regard with
Activities.” The most comprehensive and widely accepted            which the courts have held the role of the expert and in the
set of forensic standards was developed and published              value placed on scientific evidence. It is a history of tensions
in 1991 by the Committee on Ethical Guidelines for Foren-          between needs and expectations of the courts for assistance in
sic Psychologists, a committee of APA’s Division 41, the           understanding and adjudicating very difficult and vexing
American Psychology-Law Society, in collaboration with             human problems, balanced against the scientific knowledge
the American Academy of Forensic Psychology. Entitled              base of a young science that was limited in the assistance it
“Specialty Guidelines for Forensic Psychologists” (Commit-         could provide the courts.
tee on Ethical Guidelines for Forensic Psychologists, 1991),           Early scholarly debates between Harvard Psychology
it was years in the making and provides essential guidance         Professor Hugo Münsterberg (1908) and University of Illi-
for practicing in the field of forensic psychology. Much            nois Law Professor John Wigmore (1909) foreshadowed
attention will be devoted in this chapter to this document and     these historical tensions in their arguments on evidence and
also one promulgated by the Committee on Professional              rules governing the admissibility of evidence. Professor
Practice and Standards of APA’s Board of Professional              Münsterberg’s essays overzealously promoted the value of
Affairs, “Guidelines for Child Custody Evaluations in              what psychology could reliably offer at the time. Because
Divorce Proceedings” (APA, 1994). There is also a proposed         of this, he drew the attention and criticism of Professor
revision of APA’s “Ethical Principles of Psychologists and         Wigmore, who forcefully argued that the absence of pub-
Code of Conduct,” to be published in 2002, reviewed later in       lished scientific evidence rendered psychology not ready for
this chapter. These documents provide the parameters of            the law. Wigmore’s rebuke had a chilling effect for a quarter
sound forensic practice.                                           century as regards involvements between psychology and
    Despite the availability of numerous sets of rules and         law (Blau, 1984).
guidelines, the parameters of sound practice in child custody          Professor Lewis Terman of Stanford University’s Psy-
and personal injury areas of civil litigation are fraught with     chology Department picked up the debate in 1931, address-
subjectivity and ambiguity. Child custody cases, relative to       ing Münsterberg’s exuberance and Wigmore’s critique. He
all other areas of forensic practice, yield the greatest number    placed in perspective psychology’s potential for ethical pro-
of ethics complaints lodged against psychologists with state       fessional contributions to the law. He emphasized that psy-
and provincial psychology boards and with the APA’s Ethics         chology’s value would derive from its growing scientific
Committee (Kirkland & Kirkland, 2001). The tort liability          foundation (Terman, 1931), which would ensure greater reli-
system in which personal injury evaluations take place is          ability in court testimony. Not long after this, Wigmore
psycholegally complex and is governed more by case law             (1940), in the most definitive work on evidence at the time,
than statutory law. Emphasis in this chapter is on these two       opined that “the Courts are ready to learn and to use, when-
areas of the civil litigation domain in which psycholegal eval-    ever the psychologists produce it, any method which the
uations are being requested in increasing numbers.                 latter themselves are agreed is sound, accurate and practi-
                                                                   cal. . . . Whenever the Psychologist is ready for the Courts,
                                                                   the Courts are ready for him” (pp. 367–368).
PROFESSIONAL/ETHICAL STANDARDS AND
                                                                       Both fields have done much to enhance readiness and thus
IMPEDIMENTS TO THEIR IMPLEMENTATION
                                                                   to benefit the legal process. Psychology has established in-
                                                                   creasingly sound conceptual and empirical scientific bases.
Misunderstandings and Assumptions
                                                                   The law has established sophisticated rules for the admissi-
There are many potential misunderstandings based on erro-          bility of scientific evidence. The current contours of the de-
neous assumptions found in the interface between psychol-          bate carry distinct echoes of Wigmore’s lamentations over
ogy and law. One or more of these can find their way into           and Terman’s cautious optimism for what psychology could
one’s practice and lead inadvertently to ethical breaches.         ethically and competently offer the courts.
                                                                       The U.S. Supreme Court decisions are on point. They echo
                                                                   Wigmore’s injunctions by demanding sophisticated experts.
The Beg Ignorance Argument
                                                                   The most significant cases are Frye v. U.S. (1923), and
It is mistaken to assume that it is acceptable to be ignorant of   Daubert v. Merrell Dow Pharmaceuticals (1993). Under
specialized psycholegal knowledge bases. The long and              Frye’s “general acceptance” standard, if a method, test,
                                                            Professional/Ethical Standards and Impediments to Their Implementation        35


concept, or diagnosis has not achieved general acceptance                 Ignorance thus can no longer legitimately be claimed as
within the professional-scientific community in which the tes-          justification for insufficient preparation at any level of expert
tifying expert holds membership, then evidence based on                involvement in legal matters. The courts will not permit it;
such methods, tests, concepts, or diagnoses would not be               the information is readily available; and ethical duties
admissible. In Daubert, the Court accepted the case for the            prohibit begging ignorance on matters that are legitimately
purpose of resolving whether the appropriate legal standard            within the expert’s purview. Provided that an individual
concerning the admissibility of scientific evidence in federal          expert’s competence can be established, there is now wide
courts is (a) Frye’s general acceptance standard or (b) an             acceptance of psychological testimony in state and federal
admissibility standard derived from the Federal Rules of               courts.
Evidence (FRE; 1975). The Daubert Court decided in favor
of the FRE 403 and 702 standards of relevance, reliability,            Advocacy: Gamesmanship
and the legal sufficiency of the proffered evidence (Goodman-
Delahunty, 1997).                                                      There is an accompanying issue based on a rather pernicious
    Further elaboration and clarification of the revised admis-         underlying assumption, which is governed more by cynicism
sibility standard are found in U.S. Supreme Court decisions            than ignorance. It has to do with an unfortunate myth of
subsequent to Daubert, namely, General Electric v. Joiner              “gamesmanship” perpetuated by some celebrated cases in the
(1997) and Kumho v. Carmichael (1999), and ultimately in               media, to wit, that the adversary system somehow is a
the newly revised FRE 702. The impact of Daubert has yet to            “game,” a game that lawyers play and that experts can join.
be fully felt or determined. Some judges, given more latitude          Examples of “playing the game” include such practices as
as gatekeepers by Daubert and FRE 702 than they have had               formulating biased methodologies that favor one side over
before, may opt to become more lenient rather than more                the other, failing to disclose findings in an objective and bal-
strict in their scrutiny of expert testimony for its admissibility     anced manner, conducting interviews and framing questions
(Weiner, 2001). Applying the same rules, other judges may              to fulfill advocacy agendas, and promoting positions in affi-
opt to examine closely the expert’s qualifications as well as           davits or rendering opinions in reports and when testifying
case-specific empirical literature underlying the expert’s              that lack adequate basis. Such conduct leads to advocacy by
methodology and opinions. These evidentiary rules are                  experts and other unethical, unprofessional, and sometimes
concluded in a later section (see also Chapter 4 for further           illegal or extralegal activities and involvements, which ulti-
discussion).                                                           mately serves to injure parties, compromise justice, and ruin
    In state jurisdictions, there are case and statutory laws per-     professional reputations.
mitting psychologists to testify, and rules that govern admis-             There are numerous specific rules prohibiting experts from
sibility of scientific evidence similar to the above described          participating in this kind of advocacy and bias. Principle 7.04
federal laws. Beyond each state’s laws and the federal rules           of “Ethical Principles of Psychologists and Code of Conduct”
for accepting expert testimony in court proceedings, there is          states, “(a) In forensic testimony and reports, psychologists
now a sound body of research-based knowledge in general                testify truthfully, honestly, and candidly and, consistent with
experimental and forensic psychology. Münsterberg, Terman,             applicable legal procedures, describe fairly the bases for their
and Wigmore would be impressed by the relevancy and sig-               testimony and conclusions [and] (b) Whenever necessary to
nificance of such knowledge to the courts. However, the                 avoid misleading, psychologists acknowledge the limits of
prospective expert has the duty to be aware of and to stay             their data or conclusions” (APA, 1992). “Specialty Guide-
current with such knowledge and the rules germane to the               lines for Forensic Psychologists” Section VI.C states:
jurisdiction of his or her practice. “Ethical Principles of Psy-
chologists and Code of Conduct” (APA, 1992) specifically                   In providing forensic psychological services, forensic psycholo-
                                                                          gists take special care to avoid undue influence upon their meth-
states that “psychologists base their forensic work on appro-
                                                                          ods, procedures, and products, such as might emanate from the
priate knowledge of and competence in the areas underlying
                                                                          party to a legal proceeding by financial compensation or other
such work” (Standard 7.01). Further, the “Specialty Guide-                gains. As an expert conducting an evaluation, treatment, consul-
lines for Forensic Psychologists” (Committee on Ethical                   tation, or scholarly/empirical investigation, the forensic psychol-
Guidelines for Forensic Psychologists, 1991) states, “Foren-              ogist maintains professional integrity by examining the issue at
sic psychologists are responsible for a fundamental and                   hand from all reasonable perspectives, actively seeking informa-
reasonable level of knowledge and understanding of the legal              tion that will differentially test plausible rival hypotheses.
and professional standards that govern their participation as             (Committee on Ethical Guidelines for Forensic Psychologists,
experts in legal proceedings” (p. 658).                                   1991, p. 661)
36    Ethical Principles and Professional Competencies


An expert joining an attorney’s “legal team” of other experts              are more suitable forums, such as professional associations
and attorneys, rather than maintaining neutrality, objectivity,            and legislatures.
and suitable boundaries, is an example of proscribed behavior.
                                                                           Lack of Specialized Forensic Training
Advocacy: Promoting Personal Agendas
and Political Positions                                                    A variant of the “beg ignorance” argument is the argument
                                                                           that a solid background of preparation as a clinical psycholo-
Another mistaken approach to forensic work builds on
                                                                           gist and competent clinical skills are all that is necessary and
flawed logic and is driven by the dynamics of advocacy. It is
                                                                           sufficient for the psychologist who accepts forensic-clinical
not born strictly of ignorance but rather of an idealistic desire
                                                                           referrals. This is a severely mistaken assumption. Whereas
to promote a social, political, or economic cause (e.g., re-
                                                                           competent clinical work is necessary, it is by no means suffi-
garding capital punishment, child interests, elder rights, fem-
                                                                           cient. A clinical diagnostic evaluation is not a forensic diag-
inism, gender equity). Adherents of this approach believe that
                                                                           nostic evaluation.
the ends justify the means, so do not hesitate to conduct bi-
                                                                               The psychology-law literature and professional standards
ased child custody evaluations with methodologies that are
                                                                           of practice make it clear that, to perform ethical and profes-
calculated to favor one party over the other; or to omit
                                                                           sionally competent work, the practitioner must know the ele-
reporting potentially exculpatory data and findings (evidence
                                                                           ments of the legal standards, hearsay rules, and other criteria
that clears or tends to clear from blame) in a criminal evalua-
                                                                           for admissibility of evidence. This information, in conjunction
tion; or to ignore providing a balanced portrayal of personal
                                                                           with psychological standards, defines the parameters of
strengths as well as vulnerabilities and Axis I and Axis II dis-
                                                                           everything one does in the psycholegal context, from framing
orders when testifying in personal injury, fitness-to-work,
                                                                           questions in a psychological evaluation to providing opinions
and disability evaluations.
                                                                           in expert testimony. One cannot conduct a competent child
   The way to protect against bias is to adopt an attitude of
                                                                           custody evaluation without knowing the best interest standard
neutrality, taking an objective, scientific hypothesis-testing
                                                                           and without awareness of controlling child custody case law
approach to psychological evaluations and to the reporting of
                                                                           and statutory decisions within one’s own jurisdiction. One
findings and data emanating from clinical-forensic assess-
                                                                           cannot conduct a competent personal injury assessment in a
ments. This implies reliance on and knowledge of legal stan-
                                                                           medicolegal civil context without knowing issues of causation
dards and legal test questions in each area of the forensic
                                                                           and the causal nexus of impairment. In personal injury evalu-
domain in which the expert is involved, as well as adherence
                                                                           ations, a good therapeutic clinician can provide differential
to professional standards. When working in the legal system,
                                                                           diagnostic and treatment implications but may fail to address
one must adhere to the rules of the system and its case and
                                                                           credibility/deception, causation, or prognosis. And one cannot
statutory law. When one encounters conflicts between one’s
                                                                           conduct a competent criminal evaluation without knowing the
professional ethical constraints on the one side, and rules or
                                                                           different legal standards involved when evaluating defendants
laws on the other, such conflicts must be addressed and re-
                                                                           for competency to stand trial, insanity, or other diminished re-
solved before proceeding. In situations where the expert does
                                                                           sponsibility defenses. Being a good clinician may enable one
not agree with prevailing laws (e.g., joint custody, death
                                                                           to provide a very accurate diagnosis of a criminal defendant’s
penalty), it is best not to accept referrals of such cases.
                                                                           current condition but to completely fail to address mental state
   Relevant to the matter of remaining neutral are several
                                                                           at the time of the offense. Specialty Guideline III.A. requires:
specialty guidelines. Specifically, Guideline III.E. (Compe-
                                                                           “Forensic psychologists provide services only in areas of
tence), states:
                                                                           psychology in which they have specialized knowledge, skill,
                                                                           experience, and education” (Committee on Ethical Guidelines
     Forensic psychologists recognize that their own personal values,
                                                                           for Forensic Psychologists, 1991, p. 658).
     moral beliefs, or personal and professional relationships with
     parties to a legal proceeding may interfere with their ability to
     practice competently. Under such circumstances, forensic psy-         Erroneous Assumptions Regarding Relationship
     chologists are obligated to decline participation or to limit their   with Retaining Attorney
     assistance in a manner consistent with professional obligations.
     (Committee on Ethical Guidelines, 1991, p. 658)                       A classic misunderstanding held by many mental health pro-
                                                                           fessionals is that the retaining attorney can and will provide
   Further, the courtroom is not the place for the forensic                requisite psycholegal information and accurate advice on
expert to attempt to influence public policy. For this, there               legal, ethical, and professional issues that arise in a case.
                                                           Professional/Ethical Standards and Impediments to Their Implementation         37


There are two flaws here. First, the attorney is required to be           (legally relevant behavior) had been viewed as a significant
an advocate for his or her client, not for the expert. Thus, he          factor in the formulation of his/her opinion about plaintiff’s
or she is not obligated to inform or protect the expert (unless          mental/emotional condition. . . . The expert will likely respond
it aids the client). Although it is unusual for experts to hire          here from a frame of reference that implies p .95 (95%
                                                                         certainty) in contrast to the attorney’s frame of evidentiary refer-
their own attorney to accompany them to depositions and to
                                                                         ence that implies p .51 (51% certainty). (p. 141)
other legal forums, it may be advisable on occasion. Forensic
experts usually have an attorney knowledgeable in mental
                                                                      The presence of any “significance” in the causal relationship
health law on retainer or otherwise available to provide legal
                                                                      at issue may well be denied by the psychologist for reasons
advice and counsel.
                                                                      that are unclear to the attorney and court.
    The second flaw is believing that most attorneys are suffi-
                                                                          It is important to note that experts, seeking to establish sci-
ciently knowledgeable about mental health law in general or
                                                                      entific bases for their opinions, would of course use scientifi-
about the ethical and legal burdens that control the expert’s
                                                                      cally sound tools and data that rest on the higher standards of
specialty in particular to provide accurate advice.
                                                                      proof typical of the behavioral sciences (.95 or .99). It is in
                                                                      the formulation of the expert’s opinions in the medicolegal
Assumed Similarities among Jurisdictions                              context that lower standards of proof in selective areas of the
                                                                      law (i.e., civil may be involved).
Mistakes can be made when applying psychology in legal
                                                                          The requisite standard to which the expert is held in for-
contexts due to errors of assumed similarity. Jurisdictional
                                                                      mulating opinions is generally referred to as the reasonable
differences can be critical in a case, influencing everything
                                                                      medical/scientific certainty standard. This standard must
from criteria applied to the admissibility of evidence to stan-
                                                                      have been met for each expert opinion being offered. This
dards of proof. Differences of this kind do not occur in the
                                                                      standard does not imply absolute certainty, nor does it permit
sciences, where, by convention, there are uniform standards
                                                                      conjecture or speculation, but rather a reasonable probability
(rather than regional differences) for testing hypotheses and
                                                                      and degree of certainty. The credibility and probative value of
evaluating data. The burden thus remains with the forensic
                                                                      expert testimony are assisted further by identifying and dis-
practitioner both to be aware of requisite ethical, legal, and
                                                                      cussing alternative hypotheses for one’s data. The reasonable
professional jurisdictional obligations (e.g., by reviewing
                                                                      medical/scientific certainty standard is enhanced further by
original sources of regulatory, case, and statutory laws) and
                                                                      expert testimony that expresses the degree of conviction at-
to implement them. There is an implied prior duty to have ac-
                                                                      tached to different opinions with well-reasoned bases for
quired specialized forensic education; there is an accompany-
                                                                      opinions proffered.
ing duty on accepting a case to know or to learn the pertinent
issues/laws.
                                                                      Assumptions Regarding the Economics of Private Practice
Interdisciplinary Misunderstandings Regarding
Standards of Proof                                                    The aims of psychology are very different from aims implicit
                                                                      in the law—other than earning a living. Psychology seeks
Standards of proof differ in psychology and law, which can            truth through hypothesis testing and impartial weighing of
cause serious interdisciplinary misunderstandings. For exam-          findings, whereas the law seeks just resolution of problems
ple, the confidence limits in the behavioral sciences are set at       via advocacy and strategies calculated to win, even if
higher levels (i.e., alpha levels of .05 or .01) than those in-       this may involve suppressing information/evidence “in the
herent in certain legal probative standards (i.e., alpha level of     interest of justice.” Both psychiatry and the psychology
.51 in most civil areas). This difference potentially affects         guidelines prohibit forensic examiners from contracting to
whether a piece of evidence is interpreted by the expert as           provide services on a contingency-fee basis (Melton, Petrila,
“significant” or not. Thus, in civil cases where the preponder-        Poythress, & Slobogin, 1997). Providing services on a
ance of evidence standard implies confidence limits with a             contingency-fee or other lien basis, in which the outcome of
probability greater than .51 that Event A would have consti-          the case determines whether the expert will be paid, promotes
tuted a substantial factor in causing Effect B, “more likely          biased expert testimony. The expert’s mantra becomes
than not” is acceptable. Weissman (1985) points out:                  “We will win,” obliterating any neutrality. Such arrange-
                                                                      ments are proscribed because they constitute a conflict of
   Ambiguity and conflict may enter when the expert while testify-     interest or the appearance of a conflict of interest because the
   ing is asked by the examining attorney whether a given event       expert’s side of the case must prevail to receive compensation
38   Ethical Principles and Professional Competencies


for services rendered (Committee on Ethical Guidelines for          of whether approval is anticipated for conforming to others’
Forensic Psychologists, 1991).                                      perceived expectations and for obeying authority. In contrast,
    Even with a typical fee-for-service contract, practitioners     the professional person idealistically is one who has attained
may feel that if they do not yield to persuasive pressures, they    the postconventional level of ethical reasoning, exhibiting
will not be successful in the future in receiving more refer-       relative autonomy from others’ expectations and making deci-
rals. This mentality deserves empathy but is erroneous, at          sions in terms of self-chosen principles and constraints
least in the long term. The moral pivot for practitioners of a      implicit in ethical codes.
scholarly profession with a service ethic is found in uphold-          Information derived from these studies indicates that with
ing professional standards that protect parties and that honor      maturational development there can be expected greater de-
the scientific and knowledge bases of the field. It is not found      grees of stability, consistency, and reliability of moral-ethical
in advocacy, nor in commercialism. The most suitable role           judgments. Thus, despite situational influences implicit in the
for the expert remains that of a disinterested third party as-      adversary system, an expert’s motivation to do the right thing,
sisting the trier of fact as a scientist and educator. The expert   coupled with a reasonable degree of character development,
can build a solid reputation as a rigorous professional whose       plus knowledge of professional constraints, can assist in stay-
opinions the courts can rely on (“a straight shooter”) by           ing the course. Specialized education and training is critical
adhering to standards in both psychology and law.                   here. Ethical professional competencies serve as a buffer or
    The issue of morality or personal ethics involves the qual-     defense against undue influence and protect against slipping
ity of one’s own moral development coupled with knowledge           down Kohlberg’s hierarchy on entering the forensic domain.
of ethical requirements and motivation to do the right thing.
The increased availability of knowledge bases and of rules          Violations of Boundaries and Roles
and guidelines has increased the likelihood that the majority
of experts will adhere to them the majority of the time. Some       There are critical decisions to be made from the very incep-
will do so because they know that documents containing eth-         tion of a referral, beginning with the expert’s judgment of the
ical codes, legal rules, and professional standards that are        referring attorney’s skills, attitudes, and ability to understand
available to them are equally accessible to attorneys and           psychological findings, and “the degree to which the attorney
judges. Most will do so because it is the right thing to do. A      is interested in finding the answer to a question versus merely
few may or may not do so, depending on changing external            wanting to hire an expert who will support the case, often
contingencies.                                                      termed a ‘hired gun’ ” (Hess, 1998, p. 110). Such early dis-
    Research from classic studies by Hartshorne and May             cussions enable experts to determine whether the case-related
(1928) and from a line of research on moral development and         issues and tasks called for are within their scope of compe-
moral reasoning by Kohlberg (1976) and Kohlberg, Levine,            tency, whether time frames are congenial, and whether the
and Hewer (1983) is also relevant to the matter of under-           role(s) requested (i.e., consultation or expert) are suitable as
standing reasons for substandard performance despite abun-          well as suitably defined.
dant sources of knowledge. Addressing the generality or                 It is a mistake to assume that one can serve a case in the
specificity of honesty, Hartshorne and May studied consis-           dual capacity of both expert and consultant. Hess (1998)
tency of children in different situations involving telling the     points out that whereas the expert and consultant roles fall on
truth. They found that honest-dishonest behavior varied as a        a continuum and the “expert typically serves to some mini-
function of situational influences and of the motivations and        mal extent as a consultant,” there are nonetheless significant
constraints involved.                                               differences between the roles (p. 111). On the respective ends
    Moral reasoning, according to Kohlberg (1976), evolves          of the continuum are the “expert,” whose commitment is to
over a successive series of stages, with each stage representing    finding and expressing the truth, versus the “consultant,”
a qualitatively different organization and pattern of matura-       whose commitment is to assisting attorneys in their prepara-
tional thought from the preceding one. There are three levels       tion of cases for litigation and helping attorneys understand
of moral reasoning, in Kohlberg’s view: the preconventional,        psychological evidence. The two roles can be oppositional to
the conventional, and the postconventional. In preconven-           one another. Saks (1990) addresses role conflicts and ethical
tional reasoning, rules and social expectations are not yet in-     dilemmas that can emerge in the course of involvement as a
ternalized; thus, externally mediated consequences of one’s         consultant or an expert in a case. He points out that the law
actions determine judgments of actions. In conventional rea-        cannot be relied on because it is not very clear in its defini-
soning, internalization of others’ rules and expectations has       tions or its expectations. The burden to ensure clarity again
taken place, and ethical/moral decisions are made on the basis      falls on the expert.
                                                                   Professional/Ethical Standards and Impediments to Their Implementation                39


    Another mistaken assumption is that it is permissible to                     Ethical Guidelines for Forensic Psychologists, 1991). The
serve both as therapist and expert in a given case. Doing so                     latter states:
can constitute serious role and ethical conflicts. Through the
presentation of 10 principles, Greenberg and Shuman (1997)                           Forensic psychologists have an obligation to ensure that
argue that serving both as therapist to a patient and as the pa-                     prospective clients are informed of their legal rights with respect
tient’s expert in a legal matter constitutes an impermissible                        to the anticipated forensic service, of the purposes of any evalu-
                                                                                     ation, of the nature of procedures to be employed, of the intended
dual relationship. Serving both roles threatens the efficacy of
                                                                                     uses of any product of their services, and of the party who has
psychotherapy and also threatens the accuracy of judicial de-
                                                                                     employed the forensic psychologist. (p. 659)
terminations. The patient’s therapist serving also as expert
(e.g., in a personal injury case) cannot overcome advocacy                           Ethical principles and forensic specialty guidelines
bias or the appearance of such bias. There can be no indepen-                    substantiate Greenberg and Shuman’s (1997) argument
dent or unbiased investigation by a psychotherapist into                         against such dual relationships. One provision (Guideline
factual bases of the patient’s allegations and complaints or                     IV.D.1.) states: “Forensic psychologists avoid providing
critical analysis of deception. Instead, there typically is un-                  professional services to parties in a legal proceeding with
critical reliance on the patient’s subjective report, which                      whom they have personal or professional relationships that
perforce is taken at face value. The 10 principles are found in                  are inconsistent with the anticipated relationship” (Commit-
Table 3.1.                                                                       tee on Ethical Guidelines for Forensic Psychologists, 1991,
    Greenberg and Shuman (1997) make it clear “that the                          p. 659). Prohibition against combining roles of therapist and
logic, the legal basis, and the rules governing the privilege                    expert is also found in the APA’s (1994) “Guidelines for Con-
that applies to care providers are substantially different from                  ducting Child Custody Evaluations.” It is stated at Guideline
those that apply to forensic evaluators” (p. 52). Because                        II.7: “The psychologist avoids multiple relationships,” such
of this, the duty to inform forensic examinees of the lack of                    as “conducting a child custody evaluation in a case in which
privilege and the intended use of the examination product is                     the psychologist served in a therapeutic role for the child or
embodied in case law (Estelle v. Smith, 1981) and in “Spe-                       his or her immediate family or has had other involvement that
cialty Guidelines for Forensic Psychologists” (Committee on                      may compromise the psychologist’s objectivity” (p. 678).


TABLE 3.1     Ten Differences between Therapeutic and Forensic Relationships
                                                                            Care Provision                                   Forensic Evaluation
 1. Whose client is patient/litigant?                        The mental health practitioner.                        The attorney.
 2. The relational privilege that governs                    Therapist-patient privilege.                           Attorney-client and attorney work-
      disclosure in each relationship.                                                                                product privilege.
 3. The cognitive set and evaluative attitude of             Supportive, accepting, empathic.                       Neutral, objective, detached.
      each expert.
 4. The differing areas of competency of each                Therapy techniques for treatment of the                Forensic evaluation techniques
      expert.                                                  impairment.                                            relevant to the legal claim.
 5. The nature of the hypotheses tested by each              Diagnostic criteria for the purpose of therapy.        Psycholegal criteria for the purpose of
      expert.                                                                                                         legal adjudication.
 6. The scrutiny applied to the information                  Mostly based on information from the person            Litigant information supplemented
      used in the process and the role of                      being treated, with little scrutiny of that            with that of collateral sources and
      historical truth.                                        information by the therapist.                          scrutinized by the evaluator and
                                                                                                                      the court.
 7. The amount and control of structure in each              Patient-structured and relatively less structured      Evaluator-structured and relatively
      relationship.                                            than forensic evaluation.                              more structured than therapy.
 8. The nature and degree of “adversarialness”               A helping relationship; rarely adversarial.            An evaluative relationship; frequently
      in each relationship.                                                                                           adversarial.
 9. The goal of the professional in each                     Therapist attempts to benefit the patient by            Evaluator advocates for the results
      relationship.                                            working within the therapeutic relationship.           and implications of the evaluation
                                                                                                                      for the benefit of the court.
10. The impact on each relationship of critical              The basis of the relationship is the therapeutic       The basis of the relationship is
      judgment by the expert.                                  alliance, and critical judgment is likely to           evaluative, and critical judgment is
                                                               impair that alliance.                                  unlikely to cause serious
                                                                                                                      emotional harm.
Source: Adapted with permission from S. A. Greenberg and D. W. Shuman (1997). Irreconcilable conflict between therapeutic and forensic roles. Professional
Psychology: Research and Practice, 28(1), 50–57. Copyright ©1997 by the American Psychological Association.
40    Ethical Principles and Professional Competencies


   Guideline II.7 distinguishes serving as a fact (percipient)              Best practice in forensic settings is to provide written waivers
witness concerning treatment of the child, which is permissi-               as to specific persons, timeframes, and purposes.
ble, provided that the psychologist “is aware of the limita-                   Ethical Principle 5.03 emphasizes: “In order to minimize
tions and possible biases inherent in such a role and the                   intrusions on privacy, psychologists include in written and
possible impact on the ongoing therapeutic relationship”                    oral reports, consultations, and the like, only information ger-
(p. 678). Further, “Although the court may require the psy-                 mane to the purpose for which the communication is made”
chologist to testify as a fact witness regarding factual                    (APA, 1992, 5.03). Principle 5.05 states: “Psychologists dis-
information he or she became aware of in a professional rela-               close confidential information without the consent of the in-
tionship with a client, that psychologist should generally                  dividual only as mandated by law, or where permitted by law
decline the role of an expert witness who gives a professional              for a valid purpose” (5.05).
opinion regarding custody and visitation issues . . . unless                   In legal contexts where information is obtained on litigants
ordered by the court” (p. 678).                                             through psychological assessment, there are conditions under
                                                                            which confidentiality is waived for purposes of the litigation,
Misunderstanding of Privacy Issues:                                         such as when a patient or litigant has voluntarily placed his or
Confidentiality and Privilege                                                her mental state in issue (Stromberg, 1993). Melton et al.
                                                                            (1997) discuss further limitations to confidentiality in the
Confidentiality is the duty owed the client, whereas privilege               forensic context. They point out that in the purely evalua-
is the legal right held by the client, as a function of statute (in         tive relationship, privileges designed to protect psychologist-
most states) or common law, with certain exceptions (manda-                 patient disclosures, for instance, are irrelevant: “The
tory reporting, express or implicit waiver, duty to protect,                clinician-patient privileges do not apply when the clinician-
duty to warn; Golding, 1996). The increasing complexity of                  ‘patient’ relationship is a creature of the court; as is the case
the legal requirements imposed on psychologists regarding                   with court-ordered evaluations” (pp. 77–78). Further, “The
the reporting of information has resulted in more emphasis on               law takes the position that, for purposes of evidence law,
issues of privacy and privilege. Canter, Bennett, Jones, and                the evaluator’s client is the party that requests the evaluation,
Nagy (1994) define privacy as generally referring to “the                    not the person being evaluated” (p. 78).
right of individuals not to have their physical person or men-                 However, there are two situations commonly encountered
tal or emotional process invaded or shared without their                    by forensic examiners where confidential information remains
consent,” whereas “confidentiality means that nonpublic                      protected despite the psychologist-patient privilege having
information about a person will not be disclosed without con-               been waived (Melton et al., 1997). The first is the attorney
sent or special legal authorization” (p. 105). Further, “Except             work-product privilege, which protects communications be-
in special circumstances (e.g., lawsuits, mandatory reporting               tween attorney and client and may, under this same privilege,
laws), psychologists are required by the Ethics Code and by                 protect communications between the client’s expert and attor-
law to maintain the confidentiality of communications shared                 ney, at least until such time as the expert is disclosed as an
with them. . . . The recipients of psychological services                   expert witness. The second situation pertains to raw test data,
retain the right to release the confidential information in most             which also may not be directly discoverable. The APA’s
situations” (p. 105).                                                       (1992) Ethics Code prohibits “releasing raw test results or raw
    The forensic setting severely limits the protections of con-            data to persons . . . who are not qualified to use such informa-
fidentiality. For this reason, limitations on confidentiality are             tion” (2.02). It also requires psychologists to “make reason-
disclosed from the outset to persons being evaluated. Ethical               able efforts to maintain the integrity and security of tests and
Principle 5.01 states:                                                      other assessment techniques consistent with law” (2.10).
                                                                               The concepts of confidentiality, privilege, and privacy are
     (a) Psychologists discuss with persons and organizations with
                                                                            very broad and very complex. Psychologists must turn to
     whom they establish a scientific or professional relationship (in-
                                                                            primary sources in their own jurisdiction for guidance in how
     cluding, to the extent feasible, minors and their legal representa-
     tives) (1) the relevant limitations on confidentiality . . . and        these concepts specifically apply to a particular case.
     (2) the foreseeable uses of the information generated through
     their services. (b) Unless it is not feasible or is contraindicated,   Mistaken Assumptions in Failing to Regard Uniqueness
     the discussion of confidentiality occurs at the outset of the           of Psycholegal Assessment Methodologies
     relationship and thereafter as new circumstances may warrant.
     (c) Permission for electronic recording of interviews is secured       Operations attached to formulating assessment methodolo-
     from clients and patients. (APA, 1992, 5.01)                           gies when doing forensic work can be very different from
                                                                 Professional/Ethical Standards and Impediments to Their Implementation   41


those involved in nonforensic contexts. There is a consider-                Structure
able amount of guidance available for constructing method-
ologies that meet criteria in both psychology and law (Grisso,              Assessment methodologies used in conducting psycholegal
1986; Melton et al., 1997; Meyer, 1995; Weissman, 1985,                     evaluations have historically ranged in the degree of structure
1990, 1991a).                                                               that examiners have applied to conducting them. Standard-
                                                                            ized interview protocols and objective testing measures have
                                                                            the greatest likelihood of meeting evidentiary standards in
Documentation
                                                                            both psychology and law. They are more likely to yield valid
Meyer (1995) advises keeping meticulous notes. Specifically,                 findings that are trustworthy and specifically address perti-
he advises recording both the overall impressions of the per-               nent legal standards. The greater degree of structure inherent
son being evaluated (i.e., mental status examination) and the               in an evaluation, the greater the probability that the findings
circumstances of the interviewing and testing at the time of                derived therefrom will be reliable and valid (Dawes, 1989).
the evaluation. This can be particularly important in highly                Well-structured and psychologically relevant assessment
contentious cases, and also where there is a long interval be-              methodologies can enhance one’s assistance to the court.
tween conducting the evaluation and providing testimony.                    They also can serve as a buffer against adversarial and inter-
Reconstruction of contingencies of the assessment process                   professional pressures, which protects the examiner from
can be difficult with the passage of time, yet very important                potential standard of care challenges. For example, in child
in litigation or when facing standard of care challenges. In                custody evaluations, each parent is interviewed and tested in
this context, it is relevant to note the importance of observing            the same manner to elicit information addressing the
guidelines for record keeping. Guidelines promulgated by the                elements of the best interest standard (parental competen-
APA’s (1993) Board of Professional Affairs represent general                cies). A model to explicate this process is presented later in
guidelines, whereas the “Specialty Guidelines for Forensic                  this chapter.
Psychologists” (Committee on Ethical Guidelines for Foren-                     Methodologies are designed to enhance (a) fairness and ob-
sic Psychologists, 1991) provide specific forensic guidelines.               jectivity as to the issues; (b) impartiality as to roles and
They underscore the importance of maintaining the highest                   responsibilities; (c) comprehensiveness as to data sources;
level of documentation and record keeping. Guideline VI.B                   (d) comparability in type and length of interviews and assess-
of “Specialty Guidelines for Forensic Psychologists” states:                ment methods in cases involving multiple litigants (i.e., rea-
                                                                            sonably parallel format); (e) reliability and validity of findings
   Forensic psychologists have an obligation to document and be             through relevant standardized, professionally recognized
   prepared to make available, subject to court order or the rules of       assessment measures and interview and observation protocols
   evidence, all data that form the basis for their evidence or ser-        that are as structured as is feasible; and (f ) independence
   vices. The standard to be applied to such documentation or               and neutrality by staying well bounded within predefined
   recording anticipates that the detail and quality of such docu-          professional roles.
   mentation will be subject to reasonable judicial scrutiny; this
   standard is higher than the normative standard for general clini-
   cal practice. When forensic psychologists conduct an examina-            Data Sources
   tion or engage in the treatment of a party to a legal proceeding,
   with foreknowledge that their professional services will be used         In psycholegal contexts, sources of information (data
   in an adjudicative forum, they incur a special responsibility to         sources) are more extensive than in traditional clinical con-
   provide the best documentation possible under the circum-                texts. Clinical contexts assume honesty by the patient and
   stances.                                                                 typically involve only differential diagnosis and treatment.
       1. Documentation of the data upon which one’s evidence is            Forensic contexts have a broader range of goals and are gov-
   based is subject to the normal rules of discovery, disclosure, con-      erned not only by the rules and ethics of psychology, but also
   fidentiality, and privilege that operate in the jurisdiction in which
                                                                            by the rules and ethics of the legal profession.
   the data were obtained. Forensic psychologists have an obliga-
                                                                                Forensic goals require answering psycholegal questions
   tion to be aware of those rules and to regulate their conduct in ac-
   cordance with them.
                                                                            (in addition to clinical questions) often involving causation,
       2. The duties and obligations of forensic psychologists with         apportionment, prognosis, residual impairment, responsibil-
   respect to documentation of data that form the basis for their ev-       ity, and credibility. Ethical evaluations call on the expert to
   idence apply from the moment they know or have a reasonable              use multisource, multimodal methodologies for the task of
   basis for knowing that their data and evidence derived from it are       answering such complex psycholegal questions as are in-
   likely to enter into legally relevant decisions. (p. 661)                volved in determining child custody, criminal responsibility,
42   Ethical Principles and Professional Competencies


risk assessment, factors of causation, and disability. Multiple       Attorney A had a master plan, one calculated to win cus-
data sources are necessary for corroborating findings, for as-     tody for Client A (using property and other issues as lever-
certaining genuineness and substantiality of allegations, and     age) by creating a custody dispute where there previously had
for testing alternative hypotheses. Confidence in one’s find-       not been one. This began with Attorney A insisting that the
ings and the probative value of one’s opinions are thereby        mediator and the children’s therapist formally assert their
enhanced.                                                         need for psychological testing to complete their work. They
   Data sources typically include (a) case-oriented, clinical     did so, even though their work (establishing a parenting plan
diagnostic and psychosocial/biohistorical interviewing;           in the context of stipulated joint custody) did not require this,
(b) mental status examination; (c) standardized psychologi-       and neither child custody nor fitness were at issue.
cal testing; (d) record review (pre- and postincident medical,        In so doing, the mental health professionals yielded to
mental health, academic, employment); (e) contacts with           undue influence. Failing to recognize standards of care in
relevant collateral sources (e.g., significant others, parents,    child custody matters, they continued to embark on a course
teachers, physicians, therapists, coworkers); (f) case-specific    of conduct that would violate privileges, constitute conflicts
empirical data, including base rates if available and relevant,   of interest, and compromise the welfare of the parties and the
and theoretical concepts; and (g) case and statutory law.         best interests of the children.
Depending on the area of psycholegal involvement and other            Events unfolded in the following sequence. The desig-
contingencies, there may be fewer relevant sources or addi-       nated mediator sought to meet with the parties, but failed in
tional sources to consider. Certainly, such decisions must be     this effort because Attorney A instructed Client A not to at-
made on a case-by-case basis.                                     tend joint mediation sessions. The mediator (a) failed to in-
   In child custody evaluations, for instance, additional data    form counsel that mediation was not going forward; (b) failed
sources include: (a) clinical child custody-oriented mental       to respond to Attorney B’s request for information as to status
status and psychosocial interviews, including relevant history    of mediation; (c) initiated instead an individual psychothera-
of the parties and of the minor children; (b) psychological       peutic relationship with Client A; (d) clinically supervised
testing of the parties and of the minor children; (c) assess-     the children’s therapist concerning the children’s treatment;
ment/observation of the interaction between respective            (e) met repeatedly with the psychological examiner about the
parties and the minor children; (d) assessment of significant      case, and had multiple contacts with collateral sources with-
others; and (e) contacts with relevant collaterals (APA, 1994).   out specific authorizations to do so; (f ) ultimately rendered
                                                                  diagnoses of both parties, despite the fact that doing so was
                                                                  outside the scope of this professional’s licensure; (g) made
Case Examples and Discussion                                      child custody recommendations, despite not having exam-
                                                                  ined anyone and not having conducted a formal child custody
A Case Example: Child Custody
                                                                  evaluation; and (h) took no notes and recorded nothing.
The following case illustration contains multiple examples of         The children’s therapist (a) met with the children in indi-
violations of both professional standards and ethical practice,   vidual treatment while under the supervision of the “desig-
including role boundary violations and violations of privacy,     nated mediator” (Party A’s therapist); (b) failed to respond to
privilege, and confidentiality. It also illustrates problems       Attorney B’s request for clarification of purposes of treat-
inherent in yielding unduly to adversarial influences, using       ment; (c) took no notes; (d) ultimately rendered diagnoses
biased methodologies, and being dishonest in reporting find-       of adult parties, despite the fact that rendering formal diag-
ings. The best interests of the children were ignored and         noses was outside the scope of this professional’s licensure;
subverted.                                                        (e) made custody recommendations without having exam-
                                                                  ined the parents or their interaction with the children, and
   Anatomy of Co-option. In this case study, Parties A and        despite not having conducted a formal child custody evalua-
B had stipulated, through their attorneys, to joint legal         tion; and (f) met repeatedly with the psychological examiner
custody. A mediator (mental health professional) was then         about the case, and had multiple contacts with collaterals
appointed for the sole purpose of establishing a parenting        absent specific authorizations to do so.
plan. The young children were in counseling with another              Both the designated mediator and the children’s therapist,
mental health professional for the sole purpose of ameliorat-     in response to Attorney A’s insistence, formally requested that
ing dissolution and transitional discomfiture. Then, Party A       a psychological child custody examination be conducted for
changed counsel, retaining Attorney A just prior to the first      purposes ostensibly of advancing goals of mediation, identify-
session scheduled with the mediator.                              ing the psychological examiner promoted by Attorney A.
                                                            Professional/Ethical Standards and Impediments to Their Implementation       43


    The examiner (a) met with Attorney A on multiple occa-                The APA’s (1994) “Guidelines for Child Custody Evalua-
sions prior to, during, and after the examination, never with          tions in Divorce Proceedings,” if adhered to, should prevent
Attorney B; (b) received and reviewed multiple sets of records         such violations. The standards and guidelines inform not only
provided by Attorney A, none from Attorney B; (c) failed to re-        the mental health community of what constitutes acceptable
spond to Attorney B’s request for clarification of purposes and         practice in the field, they inform the trier of fact (typically,
procedures of the psychological examination; (d) failed to ex-         judges in child custody determinations) and attorneys. Armed
amine respective parent-child interactions; (e) had multiple           with these professionally ratified standards that are readily
contacts with the designated mediator (Client A’s therapist),          accessible, attorneys are enabled to frame meaningful and
children’s therapist, and collaterals without specific authoriza-       incisive questions based on them.
tions permitting such contacts; (f ) claimed independent status           Child custody evaluations are emotionally laden and
as an examiner although communicated only with Attorney A,             involve vulnerable children and parents whose resources,
and thereafter sought to prevent an independent evaluation of          emotionally and financially, may be exhausted. These evalu-
the parties and minor children; (g) diagnosed the children as          ations carry disproportionate risk to the examiner of licensure
acutely disturbed and suicidal due to Party B, despite multiple        complaints. The “Guidelines for Child Custody Evaluations
sources of information indicating otherwise, including school          in Divorce Proceedings” (APA, 1994) provides specific and
records and the examiner’s own assessment findings; (h) diag-           also general guidelines for conducting ethical evaluations.
nosed Client B as severely disturbed and of imminent danger to         The three specific (orienting) guidelines from this document
the children despite the fact that all test findings (Minnesota         are as follows:
Multiphasic Personality Inventory [MMPI-2]; Butcher,
Dahlstrom, Graham, Tellegen, & Kaemmer, 1989; Millon                   1. The primary purpose of the evaluation is to assess the best
Clinical Multiaxial Inventory [MCMI-II]; Millon, 1987;                    psychological interests of the child.
Rorschach, 1989) placed this party entirely within normal lim-         2. The child’s (rather than the parents’) interests and well-
its and positive on indices of parental competency, which the             being are paramount.
examiner claimed were “classic test misses”; (i) interviewed           3. The focus of the evaluation is on parenting capacity, the
about nonlegally relevant material disproportionately more                psychological and developmental needs of the child, and
than about legally relevant material in child custody; ( j) con-          the resulting fit. . . . This involves (a) an assessment of the
ducted a nonparallel examination, seeking an abundant and                 adult’s capacities for parenting, including whatever knowl-
disproportionate amount of negative information about Party               edge, attributes, skills, and abilities, or lack thereof, are pre-
B from Party A and by seeking biohistorical information only              sent; (b) an assessment of the psychological functioning
from Party B; (k) failed to inquire about Party A’s background,           and developmental needs of each child and of the wishes of
despite the importance of doing so in child custody examina-              each child where appropriate; and (c) an assessment of the
tions, and despite extremely elevated validity indices on ob-             functional ability of each parent to meet these needs, in-
jective personality tests; and (l) ultimately filed a report on the        cluding an evaluation of the interaction between each adult
basis of the foregoing, resulting in an ex parte hearing that re-         and child. (p. 678)
moved the children from Party B’s home, placing sole custody
with Party A, and monitored, limited visitation with Party B.             Experts may wish to rely on the model presented in
    When Attorney B sought to petition the court to permit an          Table 3.2, which facilitates ethical and competent evalua-
independent child custody evaluation because of problems               tions. It was developed by the first author (Weissman),
inherent in the first one, the psychological examiner partici-          following Grisso’s (1986) seminal work on evaluating com-
pated in attempts to deny presentation of evidence contrary to         petencies. This model helps identify the salient functional
his own position, this time by preparing (with Attorney A) a           parenting abilities that derive from legal constructs and psy-
declaration to prevent a new evaluation, asserting that the            chological concepts. It thus guides data to be gathered and
stress associated with yet another evaluation would adversely          findings to be reported, consistent with legal relevance. In
impact the children’s best interests.                                  this model, A pertains to legal constructs in child custody, B
    A court trial one year later resulted in the children being        to psychological constructs useful to the task of compre-
returned to Party B with a finding that Party B was not per-            hending legally relevant behaviors, and C bridges the two.
sonality disordered, was otherwise within normal limits, and           Referring to functional abilities in parental competencies, C
was positive on indices of parental competency. The psychol-           defines psycholegal concepts capable of being evaluated
ogist lost his license following a complaint filed with APA’s           (using clinical and forensic assessment instruments). The
Ethics Committee.                                                      model contains a nonexhaustive list of a dozen or so
44   Ethical Principles and Professional Competencies


                TABLE 3.2     Child Custody Evaluation Model

                                       Legal Competency Construct                                      Psychological Constructs
                                                    A                                                             B


                                     Best Interest/Child:                                    Personality Functioning:
                                     Frequent and continuous contact.                        Interpersonal style, ego strength, conflict,
                                                                                             values, attitudes, and so on.



                                                                                C

                                                                  Psychological Definitions of
                                                              Legally Relevant Functional Abilities:

                                            Capacity for accurate empathy; ability to display affection; to place
                                            child’s needs before one’s own; to communicate/problem-solve; to provide
                Concept Definitions          consistent and contingency-based discipline. Capacity for commonsense
                                            judgment; reality testing; affective modulation and impulse control. Ability
                                            to respond to special needs; to promote optimism and self-esteem. Capacity
                                            to safeguard child from relational enmities; to facilitate contact with
                                            noncustodial parent; to help ameliorate pre/postdissolution adjustment
                                            problems.




                               Clinical Assessment Instruments:                              Forensic Assessment Instruments:
                Operational                                                                  Parent-child attitudes, perceptions and
                               Measures of emotional states, personality
                Definitions                                                                   quality of relationships, and so on.
                               traits, intelligence, and so on.


                Source: Adapted from T. Grisso, 1986; Herbert N. Weissman, Ph.D. (March, 1997).




concept definitions of functional abilities that an examiner                    plaintiff had been the quality assurance director for a large
might assess in a given child custody case.                                    HMO. Following “constructive discharge,” she sued for
    The use of psycholegally coherent models such as these in-                 pecuniary damages (lost wages, reduced career options) but
creases the likelihood that methodologies derived therefrom                    not for emotional distress-type damages.
will fulfill requirements for competent forensic practice as                        The defense, nonetheless, sought to have a psychiatrist
well as requirements for ethical forensic practice. A central                  conduct an independent medical examination (IME), which
theme of this chapter is that there is an essential correspon-                 required petitioning the court because plaintiff counsel
dence between competent conduct and ethical conduct.                           refused to stipulate to an IME where no medical or emotional
In practice, one cannot exist without the other. Thus, formu-                  damages were being claimed. Defense won its IME petition on
lating competent assessment methodologies (i.e., coherent,                     the basis of the defense psychiatrist “diagnosing” the plaintiff
psycholegally relevant, balanced, comprehensive) is requisite                  as “severely personality disordered” with marked borderline
to conducting ethical evaluations.                                             and narcissistic features. The psychiatrist had reviewed only
                                                                               two data sources: memoranda that the plaintiff had written
A Case Example: Personal Injury                                                several years earlier in the employment context, and a diary
                                                                               that the plaintiff had written 20 years earlier, at age 15.
Another example of the usefulness of this model is found in                        A defense IME was performed by a second psychiatrist,
the personal injury context, illustrated first by a case example                whose diagnostic opinions, not surprisingly, were identical to
and then by a conceptual framework for evaluating personal                     those of the first psychiatrist, this time on the basis of the above
injury cases (see Table 3.3).                                                  data sources plus record review, collateral contacts, a mental
   In an employment discrimination case involving wrong-                       status examination, as well as results from the MMPI-2
ful discharge secondary to whistle-blowing, the physician                      and MCMI-III. The second psychiatrist had stated that the
                                                                      Professional/Ethical Standards and Impediments to Their Implementation            45


     TABLE 3.3     Personal Injury Evaluation Model

                        Legal Competency Construct                                                       Psychological Construct
                                       A                                                                            B

       Emotional distress damages (mental/emotional disorder)                       Depression/elation/emotional lability; anxiety; posttraumatic
       proximately caused secondary to breach of duty, associated with              reactions, personality, disorganization; thought disorder;
       a wide range of events legally cognizable as torts, i.e., sexual             intellectual functioning; cognitive competence; pain and somatic
       harassment, assault, negligent or intentional infliction of                   concern; state- versus trait-level conditions. Deception/
       emotional distress, professional standard of care violations,                malingering. Subjective complaints versus objective findings.
       wrongful discharge, wrongful death, accidents (e.g., motor                   Multiaxial diagnostic concepts (i.e., the 5 DSM-IV axes).
       vehicle accident, toxic spill, slip and fall). Liability.                    Validity/reliability; Standards for psychological tests; Ethical
       Forseeability. Reasonable person; Reasonable Woman Standard.                 principles and professional standards; Frye-Kelly; Daubert rules;
       Cause-Substantial Factor Test; Nexus; Preponderance of                       Forensic Specialty Guidelines.
       evidence; Admissibility of scientific evidence standards.


                                                                             C


                                   Assessment of legally relevant functional abilities and/or impairments in context of cause
                                   of action in tort. Overall psychological functioning in terms of strengths/deficits relevant
           Concept Definitions      to ascertaining genuineness and substantiality of (proximate, legally relevant) impairments
           (linking A to B)        (vis-à-vis cause of action in tort). Factors in the causal nexus of impairment. Pre- versus
                                   postincident levels of functioning. Vulnerability versus resiliency. Levels of impairment
                                   (i.e., 0–10). Quality of adaptive functioning in personal, social, vocational areas of life.




                      Clinical assessment instruments; Measures of                  Forensic assessment instruments: Measures of pre/post
                      emotional states, personality traits, intellectual            functioning. State versus trait inventories. Life stress/
                      and neuropsychological factors, chronic pain,                 resource inventories. Chronologies, mental health, medical,
                      interests and aptitudes, deception. Mental status             academic, and employment performance records. Case-
                      examination. Case and clinical interviews.                    oriented interviews. Forensic mental status examination.




                                               Data. Psycholegal formulations (clinical, forensic). Opinions.


     Source: Adapted from T. Grisso, 1986; © H. N. Weissman, Ph.D. (February, 1998).



plaintiff’s severe Axis II pathology (which he opined had                         psychiatrist (who had performed the IME) and successfully
caused her to become a whistle-blower because of hostility and                    substituted a third psychiatrist (reporting that the prior one
personal instability and maladjustment) was due to anger at                       had taken ill) and retained a clinical psychologist who would
management (observed in memoranda). He argued that her                            perform a wide range of cognitive and personality assessment
recent angry behavior corresponded to anger many years earlier                    measures. All objective measures again yielded findings
toward her father (diary). Further, he based his diagnosis                        within normal limits, yet both the psychiatrist and the psy-
of Axis II pathology on collateral contacts, which consisted of                   chologist concluded that the plaintiff was severely personality
a subset of defense-selected interested parties rather than a                     disordered, borderline, narcissistic, and now also antisocial.
balanced set of collateral sources. A critical review of findings,                 They opined that the plaintiff had successfully “tricked” the
however, revealed all objective data to be entirely within nor-                   tests, which required them to rely not on standardized, objec-
mal limits, based on data from the mental status examination,                     tive test data but instead on such subjective and biased
MMPI-2, and MCMI-III.                                                             sources as memos, an adolescent’s diary, and statements by
   Disappointed because all objective findings were                                highly selected collaterals. All examiners had accepted their
within normal limits, defense counsel sought to dismiss the                       respective referrals on a contingency-payment basis.
46    Ethical Principles and Professional Competencies


   This example, which actually occurred, is nonetheless a                      of the individual adequate to the scope of the statements, opin-
caricature of the unfortunate games, tricks, and manipula-                      ions, or conclusions to be issued. Forensic psychologists make
tions that can result from ill-conceived and regrettable collu-                 every reasonable effort to conduct such examinations. When it is
sions between legal and mental health professionals. There                      not possible or feasible to do so, they make clear the impact of
                                                                                such limitations on the reliability and validity of their profes-
are many violations of APA ethical principles and “Specialty
                                                                                sional products, evidence, or testimony. (Committee on Ethical
Guidelines for Forensic Psychologists” in this case example
                                                                                Guidelines for Forensic Psychologists, 1991, p. 663)
that are useful to reference.
   The preamble to the “Ethical Principles of Psychologists
                                                                             Further on this point (Guideline VII.A):
and Code of Conduct” (APA, 1992), states as “its primary
goal”                                                                           Forensic psychologists make reasonable efforts to ensure that the
                                                                                products of their services, as well as their own public statements
     the welfare and protection of the individuals and groups with
                                                                                and professional testimony, are communicated in ways that will
     whom psychologists work. It is the individual responsibility of
                                                                                promote understanding and avoid deception, given the particular
     each psychologist to aspire to the highest possible standards of
                                                                                characteristics, roles, and abilities of various recipients of the
     conduct. Psychologists respect and protect human and civil
                                                                                communications. (p. 663)
     rights, and do not knowingly participate in or condone unfair
     discriminatory practices. (p. 3)
                                                                             Finally, Guideline VII.D states:
   Psychiatry guidelines (Ethical Guidelines for the Practice
of Forensic Psychiatry) carry similar language:                                 When testifying, forensic psychologists have an obligation to all
                                                                                parties to a legal proceeding to present their findings, conclu-
     The forensic psychiatrist functions as an expert within the legal          sions, evidence, or other professional products in a fair manner.
     process. . . . Although he may be retained by one party to a dis-          This principle does not preclude forceful representation of the
     pute in a civil matter or the prosecution or defense in a criminal         data and reasoning upon which a conclusion or professional
     matter, he adheres to the principles of honesty and striving for           product is based. It does, however, preclude an attempt, whether
     objectivity. His clinical evaluations and the application of the           active or passive, to engage in partisan distortion or misrepre-
     data obtained to the legal criteria are performed in the spirit of         sentation.
     such honesty and striving for objectivity. . . . His opinion reflects           Forensic psychologists do not, by either commission or
     this honesty and striving for objectivity. (American Academy of            omission, participate in a misrepresentation of their evidence,
     Psychiatry and the Law, 1993, p. 329)                                      nor do they participate in partisan attempts to avoid, deny, or
                                                                                subvert the presentation of evidence contrary to their own
   Practitioners in the case example on personal injury made
                                                                                position. (p. 664)
use of uncorroborated, third-party material. “Specialty Guide-
lines for Forensic Psychologists” cautions against doing so.
                                                                             Clear bias of the experts in the case example was no doubt
Guideline VI.F. states:
                                                                             promoted by their financial interest in the outcome (see
     Forensic psychologists are aware that hearsay exceptions and            discussion on prohibition of contingency-fee contacts at
     other rules governing expert testimony place a special ethical          II.A.8).
     burden upon them. When hearsay or otherwise inadmissible evi-               The framework presented in Table 3.3 illustrates the essen-
     dence forms the basis of their opinion, evidence, or professional       tial correspondence between psycholegally sound methodolo-
     product, they seek to minimize sole reliance upon such evidence.        gies and ethically sound forensic professional practice in the
     Where circumstances reasonably permit, forensic psychologists           personal injury context. Implicit in this conceptual framework
     seek to obtain independent and personal verification of data re-         is the goal of answering legal questions by constructing
     lied upon as part of their professional services to the court or to a   methodologies that bridge legal competency constructs
     party to a legal proceeding. (Committee on Ethical Guidelines           (A) and psychological constructs (B). The results are the
     for Forensic Psychologists, 1991, p. 662)
                                                                             comprehensive assessment of legally relevant functional abil-
   Specialty Guideline VI.H prohibits use by experts of                      ities and/or impairments (C) using general clinical as well
inadequate information. It states:                                           as specialized forensic assessment instruments. Concept
                                                                             definitions (C) uniquely pertain in this case to causes of action
     Forensic psychologists avoid giving written or oral evidence            in tort in which the comparison of pre- and postincident func-
     about the psychological characteristics of particular individuals       tioning is central to ascertaining whether or not “damages”
     when they have not had an opportunity to conduct an examination         resulted proximately from the instant incident.
                                                                  Understanding Admissibility of Evidence and Ethics of Forensic Practice     47


UNDERSTANDING ADMISSIBILITY OF EVIDENCE                                     “Ethical Principles of Psychologists and Code of Conduct”
AND ETHICS OF FORENSIC PRACTICE                                             (APA, 1992) states: “Psychologists provide services, teach,
                                                                            and conduct research only within the boundaries of their com-
Having discussed erroneous assumptions and misunderstand-                   petence, based on their education, training, supervised experi-
ings in the first portion of this chapter, the emphasis now                  ence, or appropriate professional experience” (1.04) and do so
turns to elements of ethically competent practice in forensic               “only in the context of a defined professional or scientific rela-
psychology. Rules both in psychology and law that help                      tionship or role” (1.03). Also, they must “rely on scientifically
define and control admissible evidence are discussed. Infor-                 and professionally derived knowledge when making scientific
mation is presented on admissibility of evidence in law and                 or professional judgments or when engaging in scholarly or
on assessment methodologies in psychology. Such informa-                    professional endeavors” (1.06).
tion increases the likelihood that psychological findings can                    Further, “Psychologists’ forensic assessments, recom-
be relied on as scientific evidence by the courts and that they              mendations, and reports are based on information and tech-
conform to ethical standards.                                               niques . . . sufficient to provide appropriate substantiation
    The central issue here revolves around evidence: how it is              for their findings” (7.02). “Psychologists who develop, ad-
gathered and how it is presented. Unless ethical principles and             minister, score, interpret, or use psychological assessment
specialized forensic guidelines are used in designing unbiased              techniques, interviews, tests, or instruments do so in a man-
assessment methodologies, the findings that ultimately result                ner and for purposes that are appropriate in light of the
cannot be reliable. Any opinions based on biased sets of find-               research on or evidence of the usefulness and proper applica-
ings would themselves be flawed and also would fail to meet                  tion of the techniques” (2.02).
the evidentiary criteria in law for admissibility of scientific                  “Specialty Guidelines for Forensic Psychologists” (Com-
evidence as specified in FRE 702.                                            mittee on Ethical Guidelines for Forensic Psychologists,
    FRE 702 was modified as of December 1, 2000, for use by                  1991) are consistent with principles articulated in APA’s “Eth-
the federal courts. The new version supersedes prior case law               ical Principles of Psychologists and Code of Conduct” and
as to the specific issues FRE 702 addresses. It continues to be              provide further refinement consistent with legal gatekeeping
subject to interpretation and modification by case law pub-                  controls: “Forensic psychologists are responsible for a funda-
lished after December 1, 2000. FRE now reads as follows:                    mental and reasonable level of knowledge and understanding
                                                                            of the legal and professional standards that govern their par-
   If the scientific, technical, or other specialized knowledge will         ticipation as experts in legal proceedings” (p. 658).
   assist the trier of fact to understand the evidence or to determine          Further:
   a fact in issue, a witness qualified as an expert by knowledge,
   skill, experience, training, or education, may testify thereto in           Because of their special status as persons qualified as experts to
   the form of an opinion or otherwise, if (1) the testimony is                the court, forensic psychologists have an obligation to maintain
   based upon sufficient facts or data; (2) the testimony is the prod-          current knowledge of scientific, professional and legal develop-
   uct of reliable principles and methods; and (3) the witness has             ments within their area of claimed competence. They are oblig-
   applied the principles and methods reliably to the facts of the             ated also to use that knowledge, consistent with accepted clinical
   case. (O’Connor & Krauss, 2001, p. 4)                                       and scientific standards, in selecting data collection methods
                                                                               and procedures for an evaluation, treatment, consultation or
Although not bound by FRE 702, state courts often model their                  scholarly/empirical investigation. (p. 661; emphasis added)
own rules for admitting expert testimony on this rule. Experts
must be aware of rules in their jurisdiction and subsequent case            In doing so, “the forensic psychologist maintains profes-
law that may interpret and modify the local rules and the FRE.              sional integrity by examining the issue at hand from all rea-
    Noteworthy here are the legal gatekeeping controls histor-              sonable perspectives, actively seeking information that will
ically articulated in Daubert and its progeny and now applied               differentially test plausible rival hypotheses” (p. 661). Addi-
in the new FRE 702. A major purpose of the rule is to prevent               tional parallels between legal and psychological gatekeeper
unqualified experts from testifying in the courtroom on the                  controls are found in Forensic Specialty Guideline VII.F.,
basis of irrelevant or inadequate evidence.                                 which explicitly defines forensic experts’ role as providing
    Noteworthy also are the corresponding psychological gate-               assistance to “the trier of fact to understand the evidence or to
keeping controls articulated in psychology’s ethical principles             determine a fact in issue . . . and to explain the relationship
(APA, 1992) and forensic guidelines (Committee on Ethical                   between their expert testimony and the legal issues and facts
Guidelines for Forensic Psychologists, 1991). For example,                  of an instant case” (p. 665).
48   Ethical Principles and Professional Competencies


    When discussing evidence in a legal setting, “forensic            with methods, concepts, and diagnoses that have a scientific
psychologists avoid offering information from their investi-          foundation and enjoy general acceptance in psychology.
gations or evaluations that does not bear directly upon the               This is the reason for using well-standardized assessment
legal purpose of their professional services and that is not          measures whose psychometric properties are known versus
critical as support for their product, evidence or testimony,         untested assessment devices created in a local clinic or lab-
except where such disclosure is required by law” (Committee           oratory whose properties are unknown. The former are more
on Ethical Guidelines for Forensic Psychologists, 1991,               likely to have gained general acceptance among clinical-
p. 662). This guideline, like the others, is critical to protecting   forensic psychologists, to be reliable, to have known error
the legal rights of litigants and defendants. It encourages           rates, and to assist the court in answering relevant psychole-
competent practice by underscoring the importance of de-              gal questions (Daubert v. Merrell Dow Pharmaceuticals,
signing sound methodologies that go to the legal issues in a          1993; FRE, 1975, p. 702; Frye v. United States, 1923). This
case, by seeking to answer relevant legal questions directly          same logic applies to the choice of diagnostic concepts for
and coherently, rather than indirectly and diffusely.                 describing mental disorders. Specifically, it is the Diagnos-
    There is an additional benefit to be derived by staying            tic and Statistical Manual of Mental Disorders (DSM-IV)
focused on the issues in a case. Report writing, often consid-        that is the authoritative source that has achieved general ac-
ered a daunting task, can become more reasonable because              ceptance in the scientific and professional community
the data-gathering stage (assessment) is more efficiently              (American Psychiatric Association, 1994) and must be used
connected to the information-disseminating stage (report              in the legal setting.
writing). By recognizing the essential correspondence be-                 For example, there is less tendency to misapply the
tween competent clinical-forensic methodologies of assess-            overly used posttraumatic stress disorder diagnosis when
ment and ethical practice, the expert can meet the mandates           appropriate models are applied to the assessment of emo-
of the courts regarding admissibility.                                tional complaints secondary to allegations of stress and
                                                                      trauma. This is an example of the role competent, ethically
                                                                      based methodologies can play in helping the mental health
IMPLICATIONS AND APPLICATIONS                                         expert resist undue influence by attorneys who have come
                                                                      to prefer this diagnosis above all others when representing
Ideally, there would be a close and smooth correspondence             plaintiffs in personal injury litigation. The reason attorneys
between psycholegal rules (e.g., principles, codes, guidelines)       prefer the posttraumatic stress disorder diagnosis may have
and their application, ensuring ethically competent profes-           nothing to do with the merits of the case. Rather, it rests
sional conduct. As is the case with societal rules of normative       on the belief that both liability and damages are implicit
conduct, for which the correspondence between the actual and          within the very definition of the disorder, thus implying
the expected is less than perfect, so too is the case with pro-       known causation. Many cases fail, on critical legal scrutiny
fessional rules. There is also a significant difference, however,      (i.e., cross-examination), to meet the criteria for this disor-
between what is expected of the reasonable citizen versus the         der. The retained psychologist will be subjected to ethical,
reasonable professional. Professional covenants require more          professional, and legal challenges by misapplying the post-
disciplined commitments to upholding ethical competencies             traumatic stress disorder diagnosis when the evidentiary
and to safeguarding individual rights and legal justice. Fur-         bases are deficient.
thermore, there are legal and fiduciary responsibilities to                Concepts drawn from legal rules and psychological princi-
honor, whose breach or violation can have obvious and seri-           ples define broad competency-based methodologies. These
ous consequences at numerous levels.                                  have a greater likelihood of yielding reliable and replicable
    Legal objections to the scientific reliability of psychologi-      findings that the court can rely on as trustworthy evidence, and
cal testimony are less frequent, but tensions remain, as does         they stand up to critical scrutiny and to ethical and profes-
skepticism regarding the value of what psychology has to              sional standard of care challenges. At each stage of the
offer the courts. As discussed earlier, both psychology and law       process, the same logic applies, as we have already seen:
have taken important steps by establishing ethical guidelines,        (a) by choosing standardized, proven clinical-forensic meth-
codes of conduct, and rules that govern the admissibility of          ods versus untested devices; (b) by rigorous application of the
evidence. Credible and probative forensic work requires un-           DSM-IV’s multiaxial diagnostic system versus alternative
derstanding these rules and the motivation to adhere to them.         nonconsensual approaches; (c) by using conceptually and em-
It also requires knowing how to apply the rules in a manner           pirically grounded methodological approaches for assessing
that assists the court by addressing relevant legal questions         parental competencies, or criminal responsibility; and (d) by
                                                                                                  Implications and Applications   49


determining proximate versus alternative factors of causation,         On cross-examination, opposing counsel sought to disas-
rather than accepting parties’ complaints, excuses, or allega-     semble the multifactorial biopsychosocial formulation by
tions at face value.                                               asking the expert to offer opinions on the basis of alternative
    A relevant example of a conceptually grounded and em-          hypothetical scenarios in which each factor was selectively
pirically sound framework that would qualify under legal           eliminated. For example, what would be the degree of dis-
rules (i.e., FRE, state court rules of evidence, other statutes,   ability/residual damage if evidence for the biological vulner-
case law) and under psychological rules (i.e., ethical princi-     ability factor were removed, if evidence for a somatoform
ples, forensic guidelines) is the biopsychosocial frame of ref-    (psychological) factor were eliminated, or if the factor of pro-
erence that has achieved general acceptance in psychology as       tracted litigation (psychosocial) did not exist? The expert
a useful principle for analyzing and formulating interactive       responded by asserting that to offer separate opinions about a
bases of causative events. This framework can be useful in         disorder that is multifaceted and interactive both in its causa-
elucidating specific factors, for example, those factors re-        tion and in its effects would misrepresent the evidence and
sponsible for a defendant’s mental state at the time of com-       therefore would be a disservice to the court. Further, to offer
mitting a criminal act, or responsible for causing a plaintiff’s   opinions on the basis of separate versus interactive factors
acute low-back pain to convert into chronic low-back pain. A       would violate FRE 702 for the admissibility of scientific evi-
psycholegal formulation that involves multiple interactive         dence. Such an approach would also distort the application of
causative factors (i.e., biopsychosocial) versus a formulation     the generally accepted biopsychological model and its scien-
that involves merely a single explanatory factor is more           tific foundations. It would thus fail to assist the court’s efforts
likely to have gained general acceptance in the scientific          at just decision making.
community, to have acquired a greater scientific basis, and to          Another time-tested, useful, and relevant multifactorial
be more capable of providing reliable and probative bases for      conceptual framework is the scientist-professional model.
psycholegal opinions.                                              Kuehnle (1998) effectively applies it to the examination of
    In a case in which the biopsychosocial framework was ap-       child sexual abuse allegations. According to Kuehnle, this dual
plied, the expert found that low-back pain persisted more          model’s value to the court rests on (a) its reliance on em-
than six months after the occurrence of a soft tissue back in-     pirically derived evidence; (b) base rates of behavior for distin-
jury (thus, chronic versus acute). The expert explained that at    guishing differences between nonsexually abused and sexually
a biological level, records indicated the presence of a preex-     abused children; (c) measurement instruments with proven
isting degenerative spine disease process and an absence of        sensitivity and specificity; and (d) safeguards to avoid mis-
evidence of acute trauma. At the psychological level, there        taken cause-effect relationships between a child’s responses
was a somatoform propensity; at the psychosocial level, there      (e.g., symptoms, figure drawings, reactions to anatomically de-
was an incentive structure that favored disability over health.    tailed dolls), and the occurrence of an event (e.g., sexual
Thus, the injury resulted proximately in brief acute pain in a     abuse). Comprehensive understanding of the impact of child
person biologically vulnerable to suffering such pain on the       sexual abuse requires elucidation of a complex matrix of inter-
basis of preexisting susceptibility. Subjective complaints and     acting biopsychosocial factors, including (a) biological risk
pain behaviors significantly exceeded objective findings, and        factors; (b) chronological age and developmental stage;
there was no evidence found for organic medical factors            (c) competency/credibility; (d) personality characteristics;
responsible for protracted pain complaints. A preexisting          (e) interpretation of the event by the child; (f) degree of
tendency to internalize negative affects (depression, anger,       parental support received; (g) nature of the abuse; and (h) liti-
distress) and to convert intense affective states into somatic     gation pressures on children susceptible to influence (Kendall-
complaints suggested a strong somatoform component.                Tackert, Williams, & Finkelhor, 1993; Weissman, 1991b).
There was further evidence for psychosocial factors serving            Kuehnle (1998), based on extensive review of the child
to protract pain complaints and disability status, such as         sexual abuse literature, supports the point that with complex
pending litigation/compensation, avoidance of onerous tasks        psychological evaluations such as these, simple univariate
at work, and opportunity to spend time at home with family.        methodologies/analyses do not provide reliable information.
Dynamics of deception and malingering were examined.               She writes that, “while there is no simple test, marker, or
Whereas there was abundant evidence showing exaggeration           mathematical equation for determining whether a child
of symptoms along with rationalization of their cause and          has experienced sexual abuse, the empirical data, historical
displacement of responsibility for their remedy and remedia-       information, test results, and children’s statements must
tion, these dynamics were operating mostly at unconscious          all be evaluated against a complex matrix of interrelated
and involuntary levels.                                            factors” (p. 18). Doing so increases the likelihood that an
50   Ethical Principles and Professional Competencies


ethically competent psychological evaluation will have been        medicolegal cases involving the assessment of alleged psy-
conducted.                                                         chological trauma. In such cases, multifactorial concepts,
    Ethically sound forensic practice considers rival hypothe-     including the biopsychosocial framework, find greatest ac-
ses to avoid hindsight and other biases. By way of illustration,   ceptance and reliable scientific foundation for analyzing the
testing rival hypotheses in a personal injury case involves        multiple dimensions associated with psychological trauma. A
considering the differential impact on the plaintiff’s damages     multifactorial methodology involves analyzing and assessing
of the role of (a) preexisting factors, (b) coexisting factors,    details of (a) the event itself; (b) the person who is impacted
(c) protracted litigation, (d) the dynamics of deception, and      by the event, using biopsychosocial logic; and (c) the ex-
(e) chronic, preexisting underlying disorders. The expert          tended context in which the event takes place (Briere,
should be aware that the same clinical picture could be            1997; Pynoos, Steinberg, & Goenjian, 1996; van der Kolk,
present even in the absence of proximate (personal injury)         McFarlane, & Weisaeth, 1996). Deception is assessed as well
factors of causation. If findings from one’s comprehensive          because of the subjectivity commonly associated with self-
evaluation yield evidence indicating that proximate factors,       reports of psychological trauma (Lees-Haley, 1997; Resnick,
all or in part, are the most compelling, one needs to address      1995; Rogers, 1997; Simon, 1995). It would be inadequate to
possible alternative causes. The expert would explain that         assess only one or another of the factors (i.e., person, event)
alternative causes of the plaintiff’s mental/emotional impair-     and to then render a diagnosis and offer opinions based on the
ments were evaluated as well as alleged proximate factors of       plaintiff’s subjective self-report. Doing so would violate
causation, to ascertain genuineness and substantiality of each     gatekeeping controls in both psychology and law. By
factor in the causal nexus of the plaintiff’s impairment. On       contrast, ethically competent professional practices fulfill
considering the respective impact of each in the plaintiff’s       time-honored criteria and provide the court with reliable
damages, a confluence of evidence indicates, for example,           evidence on which it can safely rely.
that only proximate factors were substantial enough to be re-
sponsible for the plaintiff’s damages. The expert would offer
these opinions on the basis of reasonable medical/scientific        ETHICS AT THE INTERFACE OF
certainty. If there is evidence pointing to substantial impact     PSYCHOLOGY AND LAW
by other factors as well, then the differential contribution to
the plaintiff’s disorder that these respective factors consti-     What is the suitable role for the psychologist when serving in
tuted would also be described.                                     the capacity of forensic expert? The role is a multifaceted one,
    Take, for example, a case in which a plaintiff fell from a     due to (a) often unclear perceptions and expectations between
second-story window on his head at age 5 years. The plaintiff      lawyer and expert, as discussed above; (b) the economics of
sustained multiple skull fractures and a severe cerebral con-      independent practice where fee-for-service is involved; and
cussion. Now age 19, he filed a lawsuit for damages against         (c) conflicts associated with role boundaries that, from the
the apartment house owner on the liability theory that if the      outset of a case, may be ambiguous and then shift or change
window frames and screens had been more secure, they               over the course of the relationship. The difference between
would not have broken on impact by a young child’s playful         the goals and aims of psychology and those of law adds to
behavior. Proximate factors involved skull fractures, cerebral     communication difficulties. Marked differences in terms of
concussion, and learning disabilities (reading and informa-        art and frames of reference between psychology and law can
tion processing) throughout his school career (from ages 5         add additional layers of misunderstanding and disappoint-
through 19). Alternative factors of causation involved preex-      ment. The psychologist, needing to practice ethically and
isting history (prior to age 5) of verbal slowness, family         professionally, must exercise judgment in choosing cases.
history of verbal slowness, bilingualism, parental discord and         From the attorney’s point of view as an advocate, stakes
divorce, and multiple academic and residential changes. A          can be enormous at many levels, including professional lia-
confluence of evidence (based on site of impact on the head,        bility, financial risk, and significant fiduciary responsibility.
nature of physical injuries, type and quality of learning dis-     Further, there can be responsibility for defending life and
abilities) pointed to proximate factors (the fall) constituting    liberty, protecting victims’ rights, obtaining damages for
the substantial factor. There was evidence as well for the role    wrongs, or seeking custody visitation in a child’s best inter-
of preexisting and coexisting influences, which in this case        ests. The attorney often believes that choice of an expert can
represented mitigating elements.                                   make the difference between winning and losing a case. So
    A final example of relevant application of legal and psy-       the process of applying criteria to selecting experts becomes
chological rules and gatekeeping controls is drawn from            a high-risk and complex dynamic. The balance is a delicate
                                                                                                                Future Directions   51


one in which the attorney wants to retain a competent expert          sent findings, conclusions, and evidence in a fair manner, the
that he or she can work with, who has solid credentials, and          Guidelines also state: “This principle does not preclude
who the judge and/or jury will find credible, understandable,          forceful representation of the data and reasoning upon which
and likeable. Attorneys are deserving of empathy for the              a conclusion or professional product is based” (Committee
enormous burden they must carry as an advocate.                       on Ethical Guidelines for Forensic Psychologists, 1991,
    The expert is equally deserving of empathy for efforts to         p. 664).
strive for professional objectivity and technical indepen-
dence. The attorney needs to feel comfortable with an expert
who, from the outset, must be capable of clearly communi-             FUTURE DIRECTIONS
cating the scope of his or her practice, areas of expertise,
methodologies of assessment, and general philosophy and               The APA’s Ethics Committee has its Ethics Code Task Force
points of view about the psycholegal areas involved in the            currently drafting a proposed revision to the 1992 Ethics
case at hand. The attorney needs to know in advance about             Code. The draft is scheduled to be submitted to APA’s
potential conflicts of interest that may compromise an ex-             Council of Representatives for review and action in 2002
pert’s usefulness, as well as the values and biases of the            (APA, 2001).
expert that might influence opinions. In this context, (a) ethi-           Of particular relevance here is the section entitled “Foren-
cal and standard of care concerns should be addressed;                sic Activities,” which differs from the 1992 version in some
(b) role definitions, role boundaries, and scope of the assign-        respects. The proposed revision to the former Principle 7 car-
ment should be defined; and (c) professional fees should be            ries similar language as regards prior relationships and clari-
clarified. Once these matters are addressed, the elements              fication of role. Its new section on forensic competence is
should be incorporated into a written contract to avoid later         similar to the former section on professionalism, the latter
misunderstandings.                                                    emphasizing the importance of possessing a reasonable level
    Communication between attorney and expert is critical.            of knowledge of both psychological and legal bases of foren-
For example, the expert needs to inquire about receiving              sic activities. Also proposed is a new section on informed
medical and legal records and to request clarification of the          consent for forensic services, which highlights the require-
legal standards pertinent to the case at hand. The expert also        ments that consent, to be legitimately obtained, must have
needs to inform the attorney of his or her findings, thus en-          been truly informed. This reflects a refreshing emphasis on
abling use of those findings by the attorney in efforts to settle      (a) candor as to methods and procedures; (b) transparency as
or to try the case.                                                   to purposes and intended uses of results; and (c) the limits of
    Serious problems can result when either the expert or the at-     confidentiality that may exist.
torney “blind-sides” the other. Examples include an attorney              There is a continuing trend toward developing special-
failing to provide full sets of records the expert needs to rely on   ized sets of guidelines in respective areas of the psycholegal
for competent formulation of opinions and provision of testi-         domain. As we have seen, “Specialized Guidelines for
mony; by a psychologist misleading the attorney about the             Forensic Psychologists” was published in 1991 (Committee
psychological merits of a case; and by an expert misrepresent-        on Ethical Guidelines for Forensic Psychologists, 1991), fol-
ing or failing to be clear about how far he or she is able to go in   lowed soon thereafter by child custody guidelines (APA,
the opinions he or she will be offering. The more that can be ad-     1994), and then by guidelines for psychological evaluations
dressed and clarified early in the process of being retained, the      in child protection matters (APA Committee on Professional
less room for misunderstandings at later stages of the process.       Practice and Standards, 1998). The APA’s (1992) “Ethical
This translates into the expert providing sound opinions              Principles” carries a separate section devoted to forensic ac-
supported only by sound data and reasoning. This approach is          tivities, which also will be included in its projected revision
both more professionally comfortable as well as ethical.              for 2002.
    Given the complexities and all the cautionary reminders,              New specialized sets of guidelines should articulate ethi-
experts can potentially become overly cautious and thus ren-          cally competent methodologies that coherently bridge psy-
dered ineffectual by being unable or unwilling to express             chological and legal concepts to enhance the reliability and
conviction in their findings. The “Specialty Guidelines for            validity of resulting findings. The 1994 child custody docu-
Forensic Psychologists” (at VII.D) make it clear that experts         ment attempts to accomplish this by enunciating the parame-
have the right, and even the obligation, to testify with an ap-       ters and components of ethical child custody evaluations.
propriate degree of conviction regarding their findings and            Future specialized sets of guidelines should include explica-
opinions. While underscoring the expert’s obligation to pre-          tion of legal controls drawn from Federal Rules of Evidence
52   Ethical Principles and Professional Competencies


and from case and statutory law. Competency-based ethics             Estelle v. Smith, 451 U.S. 454 (1981).
guidelines serve to facilitate training in forensic practice.        Ethical Guidelines for the Practice of Forensic Psychiatry.
   Ethical behavior in the individual, although subserved by            (1993). AAPL Guidelines, in AAPL Membership Directory,
personal motivations and characterological features, nonethe-           XI-XIV.
less can be understood as a set of learnable functional skills.      Federal Rules of Evidence for United States Courts and Magis-
When properly implemented (e.g., in the formulation of as-              trates. (1975). St. Paul, MN: West.
sessment methodologies that address psycholegal issues and           Frye v. United States, 293 F. 1013, 1014 (D.C. Cir 1923).
protect rights and privileges of all the parties to a legal          General Electric v. Joiner, 118 S. Ct. 512 (1997).
action), these ethical skills constitute an essential component      Golding, S. (1996). American Academy for Forensic Psychology,
of competent forensic practice.                                        Workshop Syllabus, p. 38.
                                                                     Goodman-Delahunty, J. (1997). Forensic psychological expertise in
                                                                       the wake of Daubert. Law and Human Behavior, 21, 121–140.
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                                                                        between therapeutic and forensic roles. Professional Psychol-
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  Author.                                                               and instruments. New York: Plenum Press.
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  Instructor, 32, 77–89.                                             Hess, A. K. (1998). Accepting forensic case referrals: Ethical and
American Psychological Association. (1994). Guidelines for child       professional considerations. Professional Psychology: Research
  custody evaluations in divorce proceedings. American Psycholo-       and Practice, 29, 109–114.
  gist, 49, 677–680.                                                 Kendall-Tackert, K. A., Williams, L. M., & Finkelhor, D. (1993).
American Psychological Association. (1993). Record keeping             Impact of sexual abuse on children: A review and synthesis of
  guidelines. American Psychologist, 48, 984–986.                      recent empirical studies. Psychological Bulletin, 113(1),
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American Psychological Association Committee on Professional            the association of state and provincial psychology boards. Profes-
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   Wiley.                                                              Holt, Rinehart and Winston.
Briere, J. (1997). Psychological assessment of adult posttraumatic   Kohlberg, L., Levine, C., & Hewer, A. (1983). Moral stages: A cur-
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Butcher, J. N., Dahlstrom, W. B., Graham, J. R., Tellegen, A., &       Karger.
   Kaemmer, B. (1989). Minnesota Multiphasic Personality Inven-      Kuehnle, K. (1998). Child sexual abuse evaluations: The scientist-
   tory (MMPI-2). Manual for administration and scoring.               practitioner model. Behavioral Sciences and the Law, 16, 5–20.
   Minneapolis: University of Minnesota Press.                       Kumho Tire Company Ltd. et al. v. Carmichael et al., 526 U.S. 137
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  Ethics for psychologists: A commentary on the APA ethics code.     Lees-Haley, P. R. (1997). MMPI-2 base rates for 492 personal injury
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  (1993).                                                              Press.
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CHAPTER 4


Expert Testimony: Law and Practice
CHARLES PATRICK EWING




THE HISTORICAL ROOTS OF MODERN                                          EFFECTIVE PRACTICE OF EXPERT TESTIMONY               62
  EXPERT TESTIMONY 55                                                     Expert Qualifications 62
THE LAW OF EXPERT TESTIMONY 58                                            Discrediting the Expert 63
  Who Is an Expert? 58                                                    Impeaching the Expert 64
  Why a Special Rule for Experts? 59                                      Expert Witness Immunity 64
  Proper Subjects for Expert Testimony 59                               SUMMARY 65
  Other Limitations on Expert Testimony 60                              REFERENCES 65




A major aspect of the practice of forensic psychology                   own pioneering experiences as an expert witness in a number
involves providing expert testimony in trials, hearings, and            of celebrated trials, Professor Münsterberg asserted that the
administrative proceedings. As is clear from many of the                legal process would be well served by greater use of psycho-
other chapters in this volume, today, expert testimony is               logical principles and expertise.
heard from psychologists on a host of issues, including, but               Clearly anticipating the development of what is now
far from limited to, child custody, personal injury, disability,        known as forensic psychology, Münsterberg (1908) made nu-
substituted judgment, competency to waive rights, compe-                merous optimistic claims for psychology’s value to the courts
tency to stand trial, insanity, and diminished capacity.                and to the legal system as a whole. For example, in describ-
   This chapter briefly examines the history of expert                   ing an instrument he and his psychological colleagues used to
testimony by psychologists, explains the general legal rules            measure minute time intervals, he wrote that “the chrono-
governing expert testimony, and then details selected practi-           scope of the modern psychologist has become, and will be-
cal aspects of the current process of giving such testimony,            come more and more, for the student of crime, what the
with specific emphasis on the types of expert testimony                  microscope is for the student of disease” (p. 77). Münsterberg
given by forensic psychologists and related mental health               also wrote that the psychology of associations (the relation-
professionals.                                                          ships among thoughts and other mental processes) “has be-
                                                                        come, indeed, a magnifying-glass for the most subtle mental
                                                                        mechanism, and by it the secrets of the criminal mind may be
THE HISTORICAL ROOTS OF MODERN                                          unveiled” (p. 108).
EXPERT TESTIMONY                                                           While praising his own discipline, Münsterberg (1908)
                                                                        harshly criticized the legal system for failing to rely more
Expert testimony that today would be regarded as within the             heavily on the developing science of psychology. He noted,
province of forensic psychology was given in U.S. courts as             for example, that “while the court makes the fullest use of all
early as 1846 (see, e.g., Gravitz, 1995). But modern-day ex-            the modern scientific methods when for instance a drop of
pert testimony by forensic psychologists and other psycho-              dried blood is to be examined in a murder case, the same
logical experts probably owes its birth most clearly to Hugo            court is completely satisfied with the most unscientific and
Münsterberg, a Harvard University professor, experimental               haphazard methods of common prejudice and ignorance
psychologist, and contemporary of Freud and Watson.                     when a mental product . . . is to be examined” (pp. 44–45).
   In 1908, Münsterberg published the first textbook of                  Münsterberg found it “astonishing that the work of justice is
forensic psychology. In his now classic On the Witness Stand,           ever carried out in the courts without ever consulting the
a collection of chapters in which he recounted many of his              psychologist . . .” (p. 194).

                                                                   55
56    Expert Testimony: Law and Practice


    Given the existing state of psychology as a science and                   By 1923, when a second edition of Münsterberg’s book
profession in the early twentieth century, Münsterberg’s                  was published, it included a foreword by Attorney Charles S.
claims for the benefits of psychology in the courtroom were                Whitman. Former Governor of New York, past District Attor-
undoubtedly premature, if not grandiose. Thus, not surpris-               ney of New York County, and a man of unquestionable
ingly, his words clearly irritated judges, lawyers, and legal             stature in the American legal community, Whitman described
scholars, many of whom complained—and not without good                    Münsterberg’s treatise as “an instructive exposition of what
cause—that psychology had yet to develop the data and                     may be termed ‘legal psychology’ ” (p. xii). Noting that the
methods needed to back up his claims.                                     articles in the book had initially been published 14 years ear-
    In a scathing, satirical law review article published in              lier, Whitman concluded that “they have lost none of their
1909 in the Illinois Law Review, Professor John Henry                     timeliness, interest or helpfulness [and] contain lessons in
Wigmore, the leading evidence law scholar of the day,                     experimental psychology which are invaluable to any one
described an imaginary legal proceeding in which a jury                   interested in the administration of justice” (p. xii).
examined Münsterberg’s assertions about the value of psy-                     Münsterberg was a psychologist trying to educate the
chology to the legal system. Wigmore’s fictional trial took                legal system regarding psychology. The next major influence
place on April 1, 1909 (April Fool’s Day) in the Superior                 in the history of forensic psychology came not from psychol-
Court of Wundt County, a jurisdiction undoubtedly named                   ogy but from within the legal establishment.
for Wilhelm Wundt, the father of experimental psychology.                     American legal theory, from the mid-eighteenth century
Münsterberg’s views were advanced by an attorney named                    through the dawn of the twentieth, largely accepted without
X. Perry Ment and almost instantly rejected by the jury. In               question the conception of law as “a set of rules deduced by
Professor Wigmore’s caricature, Münsterberg is ridiculed as               logic from eternal principles” (Aichele, 1990, p. 23). Oliver
the author of “The Psychology of the Wastebasket” (a study                Wendell Holmes (1881), who once wrote “The life of the law
relating personality characteristics to “the number of times              has not been logic; it has been experience” (p. 1), joined sev-
the letter M occurred on the scraps thrown into the basket”),             eral other prominent jurists and legal scholars in challenging
“Studies in Domestic Psy-collar-gy,” and “The Psychology                  this conception as early as the late nineteenth century. But it
of the Collar Button (the results of over 9000 observations               was not until the early twentieth century that legal scholars
of the behavior of the ordinary collar button)” (p. 402). In              began to consider empirically testing the many behavioral
Wigmore’s fictional cross-examination of the “defendant,”                  assumptions and propositions of law.
the examining attorney caustically derides Münsterberg’s un-                  Early in the century, Roscoe Pound, the Harvard Law
duly optimistic view of psychology and his unwarranted crit-              School Dean, armed with both a law degree and a Ph.D. in
icism of the legal system. After reviewing the works of other             botany, helped establish what would come to be called “socio-
psychologists less positive than Münsterberg about what psy-              logical jurisprudence.” In 1910, Pound urged those in the legal
chology could offer the courts, the plaintiff’s attorney asks             profession to “look to economics and sociology and philoso-
the psychologist-defendant the following long-winded but                  phy, and cease to assume that jurisprudence is self-sufficient”
telling question:                                                         (pp. 35–36).
                                                                              Still, Pound and other early adherents to sociological
     Now then, professor, I want you to be good enough to explain to      jurisprudence were essentially jurists and legal philosophers.
     this jury how anyone could have predicted . . . that precisely you   It was not until the 1920s and 1930s that there developed
     would commit the whimsical mistake of bearing testimony
                                                                          what has come to be called a school of legal realism. The
     against our innocent profession . . . for neglecting to use new
                                                                          legal realists, a group of law professors at a handful of elite
     and “exact” methods which were and still are so little “exact”
                                                                          Eastern law schools, not only attacked traditional legal theory
     and so incapable of forensic use that even their well-wishers con-
     fess that thousands of experiments and years of research will be     and emphasized the social and political functions of the law,
     required before they will be practicable, if ever? (p. 414)          but attempted to impose both an objectivity and an empiri-
                                                                          cism on the study of law.
To this, as well as to the succeeding barrage of tough ques-                  Most significantly, many of the legal realists not only saw
tions, the humiliated “Münsterberg” has “no answer.”                      principles of law as essentially psychological but believed
   Though Wigmore’s biting parody was widely read, well                   that legal assumptions could and should be tested empirically
received by judges and lawyers, and probably reflected the                 in keeping with the then infantile but rapidly developing
sentiments of most knowledgeable legal professionals and                  techniques of psychology and the other behavioral sciences.
scholars of the day, it was Münsterberg who really had the                That attitude is perhaps nowhere better or more strongly cap-
last laugh.                                                               tured than in a 1935 book, Law and the Lawyers, written by
                                                                                   The Historical Roots of Modern Expert Testimony   57


Edward Stevens Robinson, a psychologist who was then on                 in the mental health field more generally: Psychologists
both the psychology and law faculties at Yale University.               were regarded as adjuncts to the dominant profession of
   Robinson’s (1935) book, which the author proudly pre-                psychiatry.
sented as “part of the realistic movement in American                       That role was well described in 1955 by Guttmacher and
jurisprudence,” begins with this sentence: “This book at-               Weihofen, two psychiatrists who wrote the classic text,
tempts to show that jurisprudence is certain to become one of           Psychiatry and The Law. According to Guttmacher and
the family of social sciences—that all of its fundamental con-          Weihofen: “The clinical psychologists are those most fre-
cepts will have to be brought in line with psychological                quently confused with psychiatrists, and understandably so.
knowledge” (p. v). Later in the volume, Robinson wrote,                 They have special training in evaluating the intelligence and
“The law is concerned with the regulation, mitigation and               personality structure of healthy and mentally disordered indi-
composition of human disputes. The fundamental stuff with               viduals” (p. 9). These authors then went on to explain how
which it deals is therefore psychological” (p. 72). Then, al-           and why clinical psychologists were already becoming
most echoing Münsterberg, Robinson took the legal system                “dissatisfied with mere testing” and were clamoring for a
to task for its reliance on theories and assumptions that can-          larger professional role “under the guidance of the psychia-
not withstand the empirical scrutiny of psychology and the              trist” (p. 9). To their credit, Guttmacher and Weihofen
other social sciences:                                                  seemed open to the thought of clinical psychologists playing
                                                                        an expanded role in the evaluation and treatment of cases
   Of all the social studies jurisprudence has collected perhaps the    involving legal issues. Their colleagues in the American Psy-
   largest assortment of theories which, though obviously in dis-
                                                                        chiatric Association, however, were not so open-minded.
   agreement with the facts, are said to be convenient. Falsifications
                                                                            In the watershed case of Jenkins v. United States, decided
   of history, economics, and sociology as well as psychology, are
   the devices by means of which juristic thought simplifies a
                                                                        by the D.C. Circuit Court of Appeals in 1962, the issue was
   baffling world. (p. 73)                                               whether a clinical psychologist could give expert testimony
                                                                        that a criminal defendant had a mental disease when he
    The promise of legal realism was never fully met, and               committed the crimes charged. Three highly qualified Ph.D.
the pronouncements of Robinson, like those of Münsterberg               clinical psychologists had so testified, but the trial court
before him, were greeted with grave skepticism by many ju-              had instructed the jury to totally disregard their testimony
rists and legal scholars. Still, it must be acknowledged that           because they were not physicians.
the realist movement of the 1920s and 1930s set the stage                   On appeal of the defendant’s conviction, both the Ameri-
for much of the modern interface between law and psychol-               can Psychiatric Association and the American Psychological
ogy and helped pave the way for forensic psychology by                  Association weighed in with amicus briefs. The Psychologi-
framing many legal issues as concerns that psycholo-                    cal Association argued that clinical psychologists were pro-
gists would later be well equipped to address. Certainly, the           fessionally qualified to diagnose mental illness and should
early jury studies and other pioneering psycholegal research            not be barred from presenting testimony regarding such a di-
on issues such as eyewitness testimony were stimulated in               agnosis (American Psychological Association, 1962). In its
large measure by the critiques of the realists and their                amicus brief, the Psychiatric Association repeatedly empha-
successors.                                                             sized that, although they might be good testers, psychologists
    Until the advent of the field of clinical psychology, psy-           were not medical doctors, functioned merely as assistants to
chological contributions to the legal system came mostly in             psychiatrists, and did not qualify as experts in the diagnosis
the form of research, consultation, and occasional expert tes-          or treatment of mental illness (American Psychiatric Associ-
timony on issues related to memory, perception, intellect,              ation, 1962).
and other cognitive issues. However, even once clinical psy-                A ruling in favor of the psychiatrists’ position would un-
chology was clearly established as a recognized profession              doubtedly have been a serious setback to the development of
and psychological specialization, psychologists rarely were             the barely emerging field of forensic psychology. Fortunately
involved in the kinds of legal issues that are the bread and            for this nascent profession, the court held in favor of psy-
butter of today’s forensic psychologists. Until as recently as          chology and against psychiatry. Writing for the majority of
the early 1960s, forensic issues such as insanity, competence           the court, Judge David Bazelon recounted the extensive train-
to stand trial, psychological injury, and other major psy-              ing and qualifications of Ph.D. clinical psychologists and
cholegal concerns were defined by the courts as almost ex-               held that such psychologists were not, as a matter of law,
clusively the province of psychiatrists. The role played by             precluded from testifying in court regarding mental illness
psychologists in the legal system was similar to what it was            simply because they were not medical doctors.
58    Expert Testimony: Law and Practice


   Although the Jenkins case is now a mere footnote—if it is              Perhaps foremost among several exceptions to this “no opin-
mentioned at all—in most law and psychology texts, its                    ion” rule is that permitting certain specially qualified
importance to the history of forensic psychology cannot be                witnesses to state opinions and/or conclusions in their testi-
underestimated. While this decision dealt solely with the                 mony. In all jurisdictions, witnesses recognized by the courts
admissibility of forensic psychological testimony regarding               as “experts” are generally allowed to testify not only to facts
criminal responsibility, it opened the courtroom doors for                and perceptions but to opinions and conclusions.
psychologists more generally and helped pave the way for
modern rules that clearly permit psychologists to provide
                                                                          Who Is an Expert?
expert testimony on a host of issues.
                                                                          Who are these “experts” granted this exception to the general
                                                                          “no opinion” rule that governs lay witnesses, and why are
THE LAW OF EXPERT TESTIMONY                                               these witnesses allowed this exceptional latitude in their
                                                                          testimony?
Expert testimony in all courts is generally governed by well-                The rules in most American courts set a fairly low stan-
defined rules of evidence. Many jurisdictions have formal                  dard in determining who qualifies as an expert witness.
codes of evidence. California and the federal system are two              Under California Evidence Code Section 720, for example,
notable examples. The California evidence rules are con-                  “A person is qualified to testify as an expert if he has special
tained in the California Evidence Code, and the rules for the             knowledge, skill, experience, training or education sufficient
federal courts can be found in the Federal Rules of Evidence.             to qualify him as an expert on the subject to which his testi-
The Federal Rules of Evidence govern the admissibility of                 mony relates.” Under Federal Rule of Evidence 702, “If sci-
expert testimony in the federal courts of the United States,              entific, technical, or other specialized knowledge will assist
regardless of their location, and have served as a model for              the trier of fact to understand the evidence or to determine a
many state evidence codes. In some states, such as New York,              fact in issue, a witness qualified as an expert by knowledge,
for example, there is no code of evidence; in those states, the           skill, experience, training or education, may testify thereto in
rules of evidence, including those governing expert testi-                the form of an opinion or otherwise.” As explained by the
mony, are embodied in case law (the published decisions of                Advisory Committee of Congress, which enacted this federal
the state’s appellate courts).                                            standard:
   Whether found in codes or cases, the rules of evidence al-
ways provide the legal structure for expert testimony. That                  The rule is broadly phrased. The fields of knowledge which
structure obviously varies somewhat among jurisdictions. To                  may be drawn upon are not limited merely to the “scientific” or
simplify matters, this chapter relies heavily on the Federal                 “technical” but extend to all “specialized” knowledge. Similarly,
                                                                             the expert is viewed, not in a narrow sense, but as a person qual-
Rules of Evidence and the California Code of Evidence.
                                                                             ified by “knowledge, skill, experience, training or education.”
Thus, readers must bear in mind that the rules discussed
                                                                             Thus, within the scope of the rule are not only experts in the
below may not be those governing testimony in their particu-
                                                                             strictest sense of the word, e.g., physicians, physicists, and
lar states. Any doubt about local rules should always be re-                 architects, but also the large group sometimes called “skilled”
solved by seeking the advice of legal counsel.                               witnesses, such as bankers or landowners testifying to land
   In most courts of law, the rules of evidence permit wit-                  values. (Federal Rules of Evidence Handbook, 2000–2001 Ed.,
nesses to testify only to that which they have personally                    2000, p. 104)
perceived (i.e., seen, heard, touched, tasted, or smelled). Wit-
nesses are generally limited to testifying regarding facts                   Whether a witness has the necessary knowledge, skill, ex-
about which they have firsthand knowledge and are generally                perience, training, or education to testify as an expert is gen-
barred from offering opinions or conclusions. For example,                erally left to the sound discretion of the trial judge. As a rule,
under Federal Rule of Evidence 701:                                       before being recognized by the court as an expert, unless
                                                                          there is no objection, the party calling the witness to testify
     If the witness is not testifying as an expert, the witness’ testi-
     mony in the form of opinions or inferences is limited to those       will have to present the witness’s qualifications. California
     opinions or inferences which are (a) rationally based on the         Evidence Code Section 720 provides, for example: “Against
     perception of the witness and (b) helpful to a clear understand-     the objection of a party, such special knowledge, skill, expe-
     ing of the witness’ testimony or the determination of a fact in      rience, training or education must be shown before the wit-
     issue.                                                               ness may testify as an expert.”
                                                                                                        The Law of Expert Testimony      59


   Courts are generally lenient in determining whether a                mony was controlled by the Frye test. This test was first
witness qualifies as an expert. Indeed, the Advisory Commit-             enunciated in Frye v. United States (1923), a District of
tee to the U.S. Congress, which recently amended Federal                Columbia Court of Appeals decision on the admissibility of
Rule of Evidence 702, specifically noted:                                evidence derived from an early version of the polygraph. In
                                                                        Frye, the court established a general acceptance test for sci-
   Nothing in this amendment is intended to suggest that experi-        entific testimony:
   ence alone—or experience in conjunction with other knowl-
   edge, skill, training or education—may not provide a sufficient          Just when a scientific principle or discovery crosses the line be-
   foundation for expert testimony. To the contrary, the text of           tween the experimental and demonstrable stages is difficult to
   Rule 702 expressly contemplates that an expert may be quali-            define. Somewhere in this twilight zone the evidential force of
   fied on the basis of experience. In certain fields, experience is         the principle must be recognized, and while courts will go a long
   the predominant, if not sole, basis for a great deal of reliable        way in admitting expert testimony deduced from a well recog-
   expert testimony.                                                       nized scientific principle or discovery, the thing from which
                                                                           the deduction is made must be sufficiently established to have
                                                                           gained general acceptance in the particular field in which it
Why a Special Rule for Experts?
                                                                           belongs. (p. 1014)
The rule allowing expert witnesses to offer opinions and con-
                                                                        In Frye, the court essentially held that to be admissible, ex-
clusions stemmed initially from the concern that some issues
                                                                        pert testimony must be based on generally accepted scientific
of fact were too complex, difficult, or technical for lay jurors
                                                                        theories and methods. Thus, for example, expert testimony
to resolve without assistance from witnesses allowed to state
                                                                        would be inadmissible as a matter of law unless the judge
opinions or conclusions. Indeed, the common law standard
                                                                        concluded that the majority of experts in the relevant scien-
for expert testimony was, and remains in some jurisdictions,
                                                                        tific discipline subscribed to the theory and/or methods on
that such testimony be concerned with subject matter or is-
                                                                        which the testimony was based.
sues “beyond the ken” (i.e., outside the understanding) of the
                                                                            Although the Frye test remains the standard in some state
average lay juror. Under that standard, the role of the expert
                                                                        courts to this day, in federal courts, its use came to an end in
was to provide the jury with guidance in the form of an opin-
                                                                        1993, when the U.S. Supreme Court rendered its decision in
ion or conclusion.
                                                                        Daubert v. Merrell Dow Pharmaceuticals. In Daubert, the
    Gradually, this common law rule has given way, in the
                                                                        Court held that expert testimony in the federal courts is gov-
federal courts and many others, to a “helpfulness” standard.
                                                                        erned by Federal Rule of Evidence 702, which the Court said
As the Advisory Committee of Congress, which enacted the
                                                                        superseded Frye when adopted in 1975. According to the
Federal Rules of Evidence, has explained:
                                                                        court, the Federal Rules of Evidence require the judge to de-
   Whether the situation is a proper one for the use of expert testi-   termine whether proffered scientific evidence is “relevant,”
   mony is to be determined on the basis of assisting the trier.        “reliable,” and likely to assist the trier of fact (as required by
   “There is no more certain test for determining when experts may      Federal Rule of Evidence 702).
   be used than the common sense inquiry whether the untrained              To meet those criteria, the Court said, testimony must be
   layman would be qualified to determine intelligently and to the       “grounded in the methods and procedures of science” and
   best possible degree the particular issue without enlightenment      “scientifically valid.” The Court held that although such tes-
   from those having a specialized understanding of the subject in-     timony need not be “certain,” it must have “a valid scientific
   volved in the dispute.” When opinions are excluded, it is because
                                                                        connection to the pertinent inquiry” or issue at stake in the
   they are unhelpful and therefore superfluous and a waste of time.
                                                                        trial. Offering some “general observations” to trial courts that
   (Federal Rules of Evidence Handbook, 2000–2001 Ed., 2000,
                                                                        would be called on to serve as “gatekeepers” under this new
   p. 104)
                                                                        rule, the Court suggested that trial judges may, but are not re-
                                                                        quired to, consider the following factors in deciding whether
Proper Subjects for Expert Testimony
                                                                        to admit expert testimony with a purportedly scientific basis:
On what subjects may a witness offer expert testimony?
Most expert testimony, particularly that given by forensic              1. Whether the principles and methodology underlying the
psychologists and those in related professions, rests at least             testimony have been or can be tested.
partially on science. From 1923 to 1993 in the federal                  2. Whether they have been subjected to peer review and
courts, the admissibility of scientifically based expert testi-             publication.
60    Expert Testimony: Law and Practice


3. Whether the known or potential error rate is acceptable.                    expert, whether basing testimony upon professional studies or
4. Whether the underlying principles have gained general                       personal experience, employs in the courtroom the same level of
                                                                               intellectual rigor that characterizes the practice of an expert in
   acceptance in the scientific community.
                                                                               the relevant field. (1999, p. 152)

Although the fourth of these Daubert criteria clearly echoes
the Frye test, neither that standard nor any of the three                   Other Limitations on Expert Testimony
others is by itself a necessary or sufficient basis for admitting
scientifically based expert testimony. Indeed, none of these                 In addition to the rules above, expert testimony is also gov-
suggested criteria is, in itself, dispositive. Instead, as the              erned by several other general legal doctrines.
Daubert Court noted:

     The inquiry envisioned by Rule 702 is, we emphasize, a flexible         Notice and Discovery Requirements
     one. Its overarching subject is the scientific validity—and thus
                                                                            In virtually all instances, applicable law requires that the
     the evidentiary relevance and reliability—of the principles that
                                                                            giving of expert testimony be preceded by some sort of no-
     underlie a proposed submission. The focus, of course, must be
                                                                            tice to opposing parties and, in many instances, the opportu-
     solely on principles and methodology, not on the conclusions
     that they generate. (1993, pp. 594–595)                                nity for opposing parties to discover the substance if not the
                                                                            basis of the proposed testimony. These requirements vary
   The flexibility of the determination, as well as the broad                from state to state. Prior to presenting expert testimony, a
discretion of the judge in deciding whether to admit expert                 litigant must notify opposing counsel of the intent to do so
testimony, was reinforced by the U.S. Supreme Court in two                  and usually specify the name of the expert who will testify.
important decisions that followed Daubert.                                  Additionally, opposing counsel virtually always will be enti-
   In General Electric Co. v. Joiner (1997), the Court held                 tled to be informed in advance of the substance of the pro-
that a trial judge’s decision to allow or reject expert testimony           posed expert testimony. Depending on the nature of the case
under Rule 702 may not be overturned on appeal unless the                   and the jurisdiction’s discovery rules, such advance notice
judge’s ruling constituted a clear abuse of discretion—a very               may require nothing more than a brief written notice. How-
difficult standard to meet. More recently, in Kumho Tire Co.                 ever, in many cases, especially civil matters, would-be ex-
v. Carmichael (1999), the Supreme Court held:                               pert witnesses may be required, prior to trial testimony, to
                                                                            respond to questions posed by opposing counsel. Generally,
     Daubert’s general holding—setting forth the trial judge’s general      such examination before trial is done in the form of a depo-
     “gatekeeping” obligation—applies not only to testimony based           sition, a procedure in which opposing counsel has the op-
     on “scientific” knowledge, but also to testimony based on “tech-
                                                                            portunity to question the proposed expert witness directly,
     nical” and “other specialized knowledge.” We also conclude that
                                                                            under oath, and with the questions and answers recorded
     a trial court may consider one or more of the more specific
     factors that Daubert mentioned when doing so will help deter-
                                                                            verbatim.
     mine that testimony’s reliability. But, as the court stated in
     Daubert, the test of reliability is “flexible,” and Daubert’s list of
                                                                            Sworn Testimony
     specific factors neither necessarily nor exclusively applies to all
     experts or in every case. Rather the law grants a district court the   Any testimony, including expert testimony, whether given at
     same broad latitude when it decides how to determine reliability       trial or deposition, regardless of jurisdiction, virtually always
     as it enjoys in respect to its ultimate reliability determination.     will have to be given under oath or affirmation. Generally,
     (p. 142)
                                                                            there is no prescribed language for an oath or affirmation; the
   In a passage from the Kumho decision perhaps most rele-                  witness must simply promise to tell the truth. Bibles often are
vant to the expert testimony of forensic psychologists, whose               used and the name of God sometimes invoked, but neither is
testimony is often based on a combination of science and pro-               required. For example, as Federal Rule of Evidence 603 com-
fessional experience, the Court reemphasized “the impor-                    mands: “Before testifying, every witness shall be required to
tance of Daubert’s gatekeeping requirement”:                                declare that the witness will testify truthfully, by oath or affir-
                                                                            mation administered in a form calculated to awaken the wit-
     The objective of that requirement is to ensure the reliability of      ness’ conscience and impress the witness’ mind with the duty
     and relevancy of expert testimony. It is to make certain that an       to do so.”
                                                                                                    The Law of Expert Testimony       61


Cross-Examination                                                  Voir Dire

The law in every jurisdiction provides for what is called the      A final aspect of questioning related to cross-examination is
order of examination. Witnesses, including experts, first are       the process of voir dire. Generally, experts are questioned
questioned by the attorney who calls them to testify; they         about their credentials by the attorney who calls them to
then are subject to questioning, known as cross-examination,       testify. These questions serve two purposes, one practical, the
by opposing counsel. Cross-examination is always limited to        other legal. As a practical matter, these questions on direct
the scope of the questions asked on direct examination, but        examination are used to enhance the expert’s credibility in
the issue of scope is often liberally interpreted. Consequently,   the eyes of the trier of fact. More important, as a legal matter,
experts may expect to be cross-examined about any issue            the questions are aimed at qualifying the witness as an expert,
related to their direct testimony.                                 so that he or she may offer opinion testimony.
   Federal Rule of Evidence 611(b) states, for example,                To prevent a witness from giving expert testimony before
“Cross-examination should be limited to the subject matter of      opposing counsel has the chance to question the witness re-
the direct examination and matters affecting the credibility of    garding his or her credentials, the law in most jurisdictions
the witness. The court may, in the exercise of discretion, per-    provides for voir dire. Voir dire is an opportunity for oppos-
mit inquiry into additional matters as if on direct exami-         ing counsel to interrupt the direct examination and essentially
nation.” That last phrase, “as if on direct examination,” is       cross-examine the witness regarding his or her qualifications
significant for reasons to be explained shortly.                    as an expert. If questions on voir dire raise sufficient doubt as
   After cross-examination, there may be redirect examina-         to the basis for the witness’s claimed expertise, the judge has
tion, that is, questioning again by the attorney who called the    the discretion to refuse to allow the witness to offer expert
witness. Redirect is limited to the scope of the preceding         testimony.
cross-examination; that is, attorneys may not use redirect to
simply ask questions they have forgotten or failed to ask on       Proper Basis for Expert Opinion
direct examination.
   After redirect examination, there may be further recross,       Traditionally, American courts required that expert opinions
more redirect, more recross, and so on, until the attorneys        be based on facts in evidence (i.e., evidence that has previ-
have exhausted their questions. Sometimes, the questioning         ously been introduced and admitted at trial). In practice, of
will go back and forth for several rounds, each successive         course, few expert witnesses, particularly forensic psycho-
round of questions becoming shorter because of the scope           logical experts, base their opinions on any such artificially
requirement. Once the attorneys have completed their ques-         limited realm of data. Recognizing that experts often rely on
tioning, the witness is generally excused. It should be noted,     data that has not been, indeed, may never be admitted in
however, that in most jurisdictions, judges also have the          court, the modern trend has been toward a more liberal rule
prerogative to question witnesses. Though rare, when judi-         allowing experts to rely on facts or data of the sort normally
cial questioning of a witness occurs, it opens up at least the     relied on in their field of expertise, whether or not those facts
possibility of more redirect and cross-examination by the          or data are admissible in court. This modern approach is re-
attorneys.                                                         flected most clearly in Federal Rule of Evidence 703:
   In addition to specifying the order of examination of
                                                                      The facts or data in the particular case upon which an expert
witnesses, the rules of most courts dictate what type of ques-
                                                                      bases an opinion or inference may be those perceived by or made
tioning is allowed on cross-examination as opposed to direct          known to the expert at or before the hearing. If of a type reason-
examination. In both the federal and state courts, leading            ably relied upon by experts in the particular field in forming
questions, those essentially calling for a yes or no answer, are      opinions or inferences upon the subject, the facts or data need not
generally prohibited on direct examination but allowed on             be admissible in evidence in order for the opinion or inference to
cross-examination. An exception, at least in federal courts,          be admitted.
occurs when, for example, Federal Rule of Evidence 611(b)
permits cross-examination to deal with matters other than          Disclosing Basis for Opinion
those dealt with during direct examination. Recall that,
according to 611(b), in that case, the questioning will proceed    Most rules of evidence, whether statutory or common law, re-
“as if on direct examination.” That means without leading          quire experts to specify the bases for their opinions. Interest-
questions.                                                         ingly, however, many jurisdictions leave that option to the
62    Expert Testimony: Law and Practice


cross-examining attorney. In these jurisdictions, which in-                   of the crime charged or of a defense thereto. Such ultimate issues
clude the federal courts and those in California, an expert is                are matters for the trier of fact alone.
not required to state the basis for his or her opinion unless
asked to do so on cross-examination. Under Federal Rule of                 EFFECTIVE PRACTICE OF EXPERT TESTIMONY
Evidence 705, “The expert may testify in terms of opinion or
inference and give reasons therefor without first testifying to             In keeping with the various rules of evidence, expert testi-
the underlying facts or data, unless the court requires other-             mony generally follows a fairly predictable pattern. Under-
wise. The expert may in any event be required to disclose the              standing this pattern and its dynamics enables forensic
underlying facts or data on cross-examination.” Pursuant to                psychologists and related professionals to better prepare and
California Code of Evidence Section 721(a)(3), an expert wit-              deliver their testimony.
ness may be “fully cross-examined as to . . . the matter upon
which his or her opinion is based and the reasons for his or her           Expert Qualifications
opinion.”
   There remains, however, the problem of what to do with                  As noted earlier, expert witnesses must be qualified by
facts or data that underlie an expert’s opinion but are not                knowledge, skill, experience, training, or education, yet
themselves admissible. To allow an expert to reveal otherwise              courts have wide discretion and are often lenient in qualify-
inadmissible facts or data to the trier of fact, it has been ar-           ing witnesses as experts. In practice, opposing attorneys
gued, is to circumvent the general rules of evidence and to                sometimes stipulate to a witness’s qualifications, thus obviat-
allow a litigant to use an expert witness as a conduit of infor-           ing the legal need for any extensive recitation of qualifica-
mation that may be untrustworthy and/or otherwise barred                   tions. Even then, however, as a practical matter, it is often
from consideration. One remedy has been to instruct the trier              important for the witness to present his or her credentials so
of fact that the data or “facts” in question are not to be re-             that they are heard by the trier of fact, who will be judging not
garded as factual, but only as part of the basis for the expert’s          only the content of the expert testimony but the credibility of
opinion. Although that approach remains valid in some juris-               the individual giving that testimony.
dictions, the modern trend, as reflected in Federal Rule of                    Thus, even when a judge readily agrees to qualify a wit-
Evidence 703, is not to allow an expert to testify to inadmis-             ness as an expert or the opposing attorney agrees to stipulate
sible facts or data unless the judge determines that “their pro-           that the witness is an expert, it is ordinarily preferable to pre-
bative value in assisting the jury to evaluate the expert’s                sent the witness’s full qualifications on direct examination.
opinion substantially outweighs their prejudicial effect.”                 The nature of the case as well as the actual qualifications of
                                                                           the witness generally dictate precisely what questions are
Ultimate Issue Rule                                                        asked, but as a general matter, forensic psychological experts
                                                                           should be asked many of the following questions:
Traditionally, until mid-twentieth century, courts generally
proscribed expert opinions that went to what the courts called                What is your profession?
the ultimate issue: the specific question before the trier of                  What is your current employment?
fact. These proscriptions were based on the argument that ex-                 What positions have your held previously?
perts who testified to the ultimate question were invading the                 Do you specialize in any particular areas of psychology?
province of, or usurping the function of, the trier of fact. That
                                                                              What has been your experience in these areas of profes-
reasoning has now been largely rejected and most jurisdic-
                                                                              sional practice?
tions allow ultimate opinion testimony.
                                                                              Describe your education.
   This modern trend was reflected fully in the Federal Rules
of Evidence until 1984, when Congress amended Federal                         Are you licensed?
Rule of Evidence 704, adding subdivision (b):                                 When were you first licensed?
                                                                              What does it mean to be a licensed psychologist?
     (a) Except as provided in subdivision (b), testimony in the form         Are you board certified?
     of an opinion or inference otherwise admissible is not objection-        When did you become board certified?
     able because it embraces an ultimate issue to be decided by the
                                                                              What does board certification mean?
     trier of fact. (b) No expert witness testifying with respect to the
     mental state or condition of a defendant in a criminal case may          By what process did you become board certified?
     state an opinion or inference as to whether the defendant did or         Are you a member or fellow of any professional organi-
     did not have the mental state or condition constituting an element       zations?
                                                                                             Effective Practice of Expert Testimony       63


   Have you published any books, papers, or articles?               testimony is no bar to that testimony. However, courts almost
   Do you hold any editorial positions?                             invariably allow cross-examination of an expert to include
   Have you conducted any independent research in the field          questions about his or her fee in the matter. Indeed, in
   of psychology?                                                   some jurisdictions, this issue is made explicit in the rules of
                                                                    evidence. For example, California Evidence Code Section
   Have you received any grants to support your research?
                                                                    722(b) provides: “The compensation and expenses paid to an
   Have you received any awards or honors in the field of            expert witness by the party calling him is a proper subject of
   psychology?                                                      inquiry by any adverse party as relevant to the credibility of
   Have you previously qualified as an expert witness?               the witness and the weight of his testimony.”
   In what courts?                                                      The more difficult issue arises when the witness has a
   On what subject matter?                                          relationship—other than that of expert witness—with one or
                                                                    more of the parties. Perhaps the most common conflict of this
   The witness should be well aware of what questions are to
                                                                    sort occurs when a psychologist (or other mental health pro-
be asked in the qualification process and prepared to answer
                                                                    fessional) is called on to serve as an expert witness with
them fully and, of course, truthfully. This is not a time for
                                                                    regard to a patient or client he or she has been treating. There
modesty; neither is it a time for exaggeration. The witness
                                                                    is significant ethical debate as to the propriety of the treating
should anticipate that his or her qualifications may be ques-
                                                                    professional assuming the role of expert in such a case, but
tioned if not challenged on voir dire.
                                                                    courts are rarely bothered by such apparent conflicts. Instead
   Most aspects of qualification are straightforward. One that
                                                                    of seeing such conflicts as a bar to expert testimony, courts
has begun to cause problems in many proceedings, however, is
                                                                    generally regard them as fodder for cross-examination and
the issue of board certification. With rare exceptions, there is
                                                                    issues to be considered by the trier of fact in judging the
no explicit requirement in any court that a witness be board cer-
                                                                    expert’s credibility.
tified (or have any other particular credential) to offer expert
                                                                        As an example of how extreme a conflict of interest would
testimony. However, because some psychologists, including
                                                                    have to be before a court would view it as a bar to expert tes-
forensic psychologists, are in fact board certified by the Amer-
                                                                    timony, consider the decision of a federal court in Illinois. In
ican Board of Professional Psychology (and its affiliated
                                                                    Baskerville v. Culligan (1994), the plaintiff in a sex discrimi-
boards, including the American Board of Forensic Psychol-
                                                                    nation case sought to present expert testimony regarding her
ogy), many psychologists who have not been so certified re-
                                                                    “psychological condition, treatment, and prognosis.” The
cently have begun to seek certification from so-called vanity
                                                                    proposed expert witness was not only the plaintiff’s treating
boards. These vanity boards, for the most part, have few if any
                                                                    psychologist but also her sister. The defendant argued that the
real standards and lack the rigorous evaluative procedures of
                                                                    psychologist’s expert testimony should be disallowed be-
the American Board of Professional Psychology and its affili-
                                                                    cause it “would violate the American Psychology Association
ated boards. In some cases, little more than a check or credit
                                                                    [sic] (‘APA’)’s ethical code” because under “APA’s code of
card payment is required for “certification” by these boards.
                                                                    ethical principles, psychologists must refrain ‘from entering
Witnesses who attempt to present themselves as board certified
                                                                    into [a] personal, scientific, professional, financial, or other
when all they possess are certificates from one or more of these
                                                                    relationship . . . if it appears likely that such a relationship
vanity boards increasingly are finding themselves embar-
                                                                    reasonably might impair the psychologist’s objectivity’ ”
rassed by effective voir dire and/or cross-examination aimed at
                                                                    (pp. 9–10). The defendant also argued that the court should
revealing the process by which they became “board certified.”
                                                                    preclude this expert testimony “to preserve the public confi-
                                                                    dence in the fairness and integrity of the judicial proceed-
Discrediting the Expert
                                                                    ings” (p. 10). The court disagreed:
Expert witnesses are occasionally discredited on the basis of
                                                                       If at trial the court determines that Dr. Bell may testify as an ex-
their credentials, or lack thereof. More commonly, their cred-
                                                                       pert, the court would not be sponsoring her testimony or vouching
ibility is attacked on the basis of bias or conflict of interests.
                                                                       for its objectivity. Rather, it would be the jury’s function to assess
These attacks are most frequently based on two concerns: the           the credibility of Dr. Bell’s opinions and to determine the weight
expert’s fee and any other relationship the expert may have            to be given her testimony. Culligan shows that Dr. Bell’s profes-
with one or more of the parties.                                       sional relationship with Baskerville is unorthodox and raises seri-
    The fee issue is a simple one. Most expert witnesses are           ous questions regarding Dr. Bell’s objectivity. However, these are
compensated for their professional time. Clearly, being                appropriate subjects for Culligan’s cross-examination of Dr. Bell.
compensated for the time preparing for and delivering expert           The testimony is not excluded. (pp. 10–11)
64    Expert Testimony: Law and Practice


Impeaching the Expert                                                      for the content of his or her testimony. This privilege, which
                                                                           pertains to all witnesses, including experts, has generally pro-
Like all witnesses, experts are subject to impeachment on                  tected any other communications preliminary to a proposed
cross-examination. The most common and often most effec-                   judicial proceeding in which the witness may anticipate
tive form of impeachment is that using prior inconsistent                  testifying, if those communications have some relation to the
statement (i.e., statements previously made by an expert                   proceeding.
that conflict with statements made in his or her current                        Recently, however, several cases have cast doubt on what
testimony). Experts are particularly vulnerable to this kind of            was once considered an absolute privilege, at least as that
impeachment for two reasons. First, their testimony in                     privilege is applicable to expert witnesses. The first of these
prior cases has been recorded and is a matter of public                    cases involved a psychologist who was disciplined by a state
record available to opposing attorneys. Second, many experts               licensing board on the basis of work he performed as an
have published books and articles in which they have made                  expert witness in child custody cases.
known their positions on various issues related to their                       In Deatherage v. State of Washington Examining Board of
professions.                                                               Psychology (1997a, 1997b), the licensing board brought dis-
    Clearly, an expert’s previous testimony and writings may               ciplinary proceedings against a psychologist, alleging that he
be used to impeach him or her, but they are not the only                   “failed to meet professional ethical standards in work that
sources of ammunition available to opposing attorneys. An-                 formed the basis of his expert testimony in several child cus-
other important impeachment technique often used with                      tody suits” (1997a, p. 1269) by his “failure to qualify state-
expert witnesses is the so-called learned treatise method. The             ments, his mischaracterization of statements, his failure to
learned treatise method involves confronting expert wit-                   verify information, and his interpretation of test data”
nesses on cross-examination with authoritative published                   (1997b, p. 829). After a hearing, the board found the psy-
works that contradict or otherwise tend to undermine their                 chologist “had committed misconduct . . . and suspended his
opinions. For example, a psychologist who has testified to an               license for 10 years” (p. 829).
interpretation of a certain psychological test result might be                 The psychologist then sought judicial review of the
confronted with one or more books or articles indicating                   board’s decision, claiming that witness immunity prevented
that such a result should lead to an interpretation other than             the board from disciplining him on the basis of his testimony
that reached by the psychologist. Traditionally, learned trea-             in the child custody cases in question. The Supreme Court of
tises used in such a fashion must either have been relied on in            Washington concluded that the doctrine of witness immunity
formulating the expert’s opinion or acknowledged by the                    could not be used as a defense in a state licensing board’s pro-
expert as authoritative.                                                   fessional disciplinary proceeding.
    Modern evidence law, however, is much less restrictive.                    More recently, courts in two other states, Connecticut and
The California Evidence Code, for example, specifies three                  Louisiana, have considered placing additional limitations on
instances in which a learned treatise may be used in cross-                the doctrine of absolute immunity for expert witnesses.
examining an expert witness. Rule 721(b) states:                           Most previous cases dealt with the question of whether an
                                                                           expert could be sued by an opposing party for testimony or
     If a witness testifying as an expert testifies in the form of an       other pretrial involvement in litigation against that party.
     opinion, he or she may not be cross-examined in regard to the         These cases dealt with whether litigants may sue their own
     content or tenor of any scientific, technical, or professional text,   expert witnesses for malpractice in trial preparation or testi-
     treatise, journal, or similar publication unless any of the follow-   mony. This question, which has important implications for
     ing occurs: (1) The witness referred to, considered, or relied        all expert witnesses, was answered differently by two trial
     upon such publication in arriving at or forming his or her opin-      courts.
     ion. (2) The publication has been admitted in evidence. (3) The
                                                                               In Pollock v. Panjabi (2000), a Connecticut Superior
     publication has been established as a reliable authority by the
                                                                           Court denied a motion to dismiss a lawsuit against a med-
     testimony of the witness or by other expert testimony or by ju-
                                                                           ical biomechanics expert. This expert had been retained by
     dicial notice.
                                                                           the quadriplegic plaintiff in a police brutality suit to help
                                                                           determine the cause of the plaintiff’s paralysis. The expert
                                                                           concluded that a police officer’s wrestling hold on the plain-
Expert Witness Immunity
                                                                           tiff was the cause of the paralyzing injury. Three times,
In most jurisdictions, it has long been the law that a witness             however, a trial court barred the expert from testifying,
in a judicial proceeding may not be subjected to civil liability           finding that he had based his expert opinion in part on
                                                                                                                             References   65


improperly conducted analyses. Despite winning a                            In a similar lawsuit, however, the Supreme Court of the
$783,000 judgment against the police department, the in-                 State of Washington reached the opposite conclusion. In
jured plaintiff filed a breach of contract lawsuit, alleging              Bruce v. Byrne-Stevens & Associates (1989), that court
that the expert improperly conducted the tests he had been               held that witness immunity applies not only to an expert’s
hired to perform. In allowing the lawsuit to continue, the               testimony but to actions taken by the expert in preparation
Connecticut judge ruled that the point of contention was not             for testimony. Acknowledging some merit to the plaintiff’s
the expert’s testimony but his alleged failure to meet his               claim that “the threat of liability would encourage experts to
contractual obligation to provide scientifically supportable              be more careful, resulting in more accurate, reliable testi-
conclusions.                                                             mony” (p. 670), the court offered two justifications for refus-
    In Marrogi v. Howard (2000), the defendants were experts             ing to exempt experts from the traditional witness immunity
in medical billing retained by a physician to assist in his law-         rule:
suit against a former employer. The physician, who claimed
he had been underpaid by the employer, retained the defen-                  First, unless expert witnesses are entitled to immunity, there
dants to analyze billing records and testify on his behalf.                 will be a loss of objectivity in expert testimony generally. The
When the physician’s lawsuit against the employer was dis-                  threat of civil liability based on an inadequate final result in
                                                                            litigation would encourage experts to assert the most extreme
missed, he blamed the experts, alleging that the dismissal was
                                                                            position favorable to the party for whom they testify. . . . Sec-
the result of their “substandard expert performance” (p. 2).
                                                                            ond, imposing civil liability on expert witnesses would discour-
In dismissing the physician’s lawsuit against the experts, a                age anyone who is not a full-time professional expert witness
U.S. District Court cited “a line of Louisiana cases that uni-              from testifying. Only professional witnesses will be in a posi-
formly recognize absolute immunity to witnesses in judicial                 tion to carry insurance to guard against such liability. The
or quasi-judicial proceedings” (p. 7).                                      threat of liability would discourage the 1-time expert—the uni-
    Although the issue has rarely been litigated in the past, a             versity professor, for example—from testifying. Such 1-time
small number of courts have ruled, as the court did in Pollock              experts, however, can ordinarily be expected to approach their
v. Panjabi, to allow lawsuits to be brought against expert wit-             duty to the court with great objectivity and professionalism.
nesses by the litigants who hired them. Others, however, have               (p. 670)
refused to so limit the doctrine of expert immunity and have
dismissed similar lawsuits.                                              SUMMARY
    For example, in Murphy v. A. A. Mathews (1992), the
plaintiff hired the defendant engineering firm to investigate
                                                                         The law governing expert testimony changed significantly
and provide testimony about the plaintiff’s claims for addi-
                                                                         over the last decade of the twentieth century (see, e.g.,
tional compensation in an arbitration proceeding. Following
                                                                         Daubert v. Merrell Dow Pharmaceuticals, 1993; revised Fed-
the testimony, Murphy sued, “alleging that Mathews was
                                                                         eral Rule of Evidence 702, Deatherage v. State of Washington
negligent in its performance of professional services involv-
                                                                         Examining Board of Psychology, 1997a, 1997b; Kumho Tire
ing the preparation and documentation of [the plaintiff’s]
                                                                         Co. v. Carmichael, 1999; Pollock v. Panjabi, 2000), and exert
claims” and that, as a result, the plaintiff “was unable to sup-
                                                                         testimony by psychologists and other mental health profes-
port its claims for all of the additional compensation”
                                                                         sionals remains controversial. However, nearly a century
(p. 672). The Missouri Supreme Court ultimately sided with
                                                                         after Münsterberg published his groundbreaking treatise On
the plaintiff, holding that “witness immunity does not bar suit
                                                                         the Witness Stand, and four decades after a federal court’s
if the professional is negligent in providing the agreed
                                                                         watershed decision in Jenkins v. United States, the role of
services” (p. 672). As the court explained:
                                                                         forensic psychology in the American courtroom remains not
   Witness immunity is an exception to the general rules of liability.   only secure but, in many realms, indispensable.
   It should not be extended unless its underlying policies require it
   be so. In Missouri, this immunity generally has been restricted to
   defamation, defamation-type, or retaliatory cases against ad-         REFERENCES
   verse witnesses. This narrow restriction is consistent with the
   historical development of immunity. . . . While witness immu-         Aichele, G. J. (1990). Legal realism and twentieth-century American
   nity might properly be expanded in other circumstances, we do            jurisprudence: The changing consensus. New York: Garland
   not believe that immunity was meant to or should apply to bar a          Press.
   suit against a privately retained professional who negligently        American Psychiatric Association. (1962). Brief Amicus Curiae,
   provides litigation support services. (p. 680)                          Jenkins v. United States (U.S. App., D.C. Circuit, 1962).
66   Expert Testimony: Law and Practice


American Psychological Association. (1962). Brief Amicus Curiae,         Holmes, O. W. (1881). The common law. London: Macmillan.
  Jenkins v. United States (U.S. Court of App., D.C. Circuit, 1962).     Jenkins v. United States, 307 F.2d 637 (U.S. App. D.C., 1962).
Baskerville v. Culligan International Company, 1994 U.S. Dist.           Kumho Tire Company Ltd. et al. v. Carmichael et al., 526 U.S. 137
   LEXIS 5296 (1994).                                                      (1999).
Bruce et al. v. Byrne-Stevens & Associates Engineers, Inc. et al.,       Marrogi v. Howard et al., 2000 U.S. Dist. LEXIS 8525 (2000).
   776 P.2d 666 (Washington, 1989).                                      Münsterberg, H. (1908). On the witness stand: Essays on psychol-
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).               ogy and crime. New York: Clark, Boardman.
Deatherage v. State of Washington Examining Board of Psychology,         Münsterberg, H. (with Whitman, C. S.). (1923). On the witness
  932 P.2d 1267 (Washington, 1997a).                                       stand: Essays on psychology and crime (2nd ed.). New York:
Deatherage v. State of Washington Examining Board of Psychology,           Clark, Boardman.
  943 P.2d 662 (Washington, 1997b).                                      Murphy v. A. A. Mathews, 841 S.W.2d 671 (Mo. 1992).
Federal Rules of Evidence Handbook 2000–2001. (2000). Cincinnati,        Pollock v. Panjabi, 47 Conn. Supp. 179, 781 A.2d 518 (Superior
   OH: Anderson.                                                            Court, Conn., 2000).
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).                     Pound, R. (1910). Law in books and law in action. American Law
General Electric Company et al. v. Joiner et ux., 522 U.S. 136 (1997).      Review, 12, 44–46.
Guttmacher, M. S., & Weihofen, H. (1952). Psychiatry and the law.        Robinson, E. S. (1935). Law and the lawyers. New York:
  New York: Norton.                                                        Macmillan.
Gravitz, M. A. (1995). First admission (1846) of hypnotic testi-         Wigmore, J. H. (1909). Professor Münsterberg and the psychology
   mony in court. American Journal of Clinical Hypnosis, 37,               of testimony: Being a report of the case of Cokestone v.
   326–330.                                                                Münsterberg. Illinois Law Review, 3, 399–445.
             PA R T T W O


APPROACHES TO FORENSIC ASSESSMENT
CHAPTER 5


Third Party Information in Forensic Assessment
KIRK HEILBRUN, JANET WARREN, AND KIM PICARELLO




IMPORTANCE OF THIRD PARTY INFORMATION IN                               OBTAINING THIRD PARTY INFORMATION 78
  FORENSIC ASSESSMENT 69                                                 Sources of Third Party Information 78
RELEVANT RESEARCH ON THIRD PARTY                                         How to Obtain Third Party Information 80
  INFORMATION 72                                                         Specific Measures Using Third Party Information 81
  Empirical Studies on the Use and Valuation of Third Party            COLLECTING AND APPLYING THIRD PARTY
     Information in Forensic Assessment 72                               INFORMATION 81
  Third Party Information in Measuring Violence and                    COMMUNICATING THIRD PARTY INFORMATION 83
     Psychopathology 74
                                                                       CONCLUSION 84
RELEVANT LAW ON THIRD PARTY INFORMATION 76
                                                                       REFERENCES 84
RELEVANT ETHICS ON USING THIRD PARTY
  INFORMATION 77
RELEVANT PRACTICE LITERATURE ON THIRD PARTY
  INFORMATION 77




The contributions of the mental health professions and be-             (Heilbrun, 1992), or offer a number of broader observations
havioral and medical sciences to legal decision making have            regarding the history, symptoms, or functional behavior of a
expanded and matured significantly during the past two                  particular plaintiff or defendant as it informs the legal stan-
decades. Such contributions have been documented by a va-              dard being explored.
riety of scholars and commentators during the past several                In this chapter, we address a number of areas relevant to
years (e.g., Greenberg & Brodsky, in press; Grisso, 1998;              the use of TPI in FMHA. First, we describe the particular im-
Heilbrun, in press; Melton, Petrila, Poythress, & Slobogin,            portance of TPI in forensic assessment. In the next four sec-
1997; Roesch, Hart, & Ogloff, 1999; Rogers, 1997). Despite             tions of the chapter, we address the relevant research, law,
important conceptual and empirical advances, however, there            ethical standards, and practice literature in this area. We fol-
are a number of areas in which there remains a gap between             low with sections devoted to obtaining TPI, applying it (both
the practice and the promise of forensic mental health assess-         through evaluating its accuracy and integrating it with other
ment (FMHA; Nicholson & Norwood, 2000).                                data), and communicating it in reports and testimony. Finally,
    The present chapter addresses one such area: third party           we offer concluding comments about the current state of the
information (TPI) as it is applied to and informs FMHA. For            art and science in this area, and offer suggestions for im-
present purposes, we define third party information as any in-          provement that encompass both areas for additional research
formation that is not obtained directly from the party being           and broad guidelines for practice.
evaluated as part of criminal adjudication or civil litigation.
There are two primary sources of such TPI: documents and
interviews with collateral informants. Such collateral inter-          IMPORTANCE OF THIRD PARTY INFORMATION
views are considered broadly to include unstructured,                  IN FORENSIC ASSESSMENT
semistructured, and structured questioning. These may en-
compass standard measures designed for observations by                 An important assumption underlying mental health evalua-
third parties (e.g., the Child Behavior Checklist [CBCL],              tion of various kinds is the notion that information about an
Achenbach, 1991), address a case-specific set of questions de-          individual is best obtained directly from that individual. This
signed to elicit observations regarding a particular individual        is particularly true for assessment that is done for diagnosis

                                                                  69
70   Third Party Information in Forensic Assessment


as well as for treatment planning, which we call “therapeutic”            involve retrospective inquiries that examine behavior and
assessment. With some noteworthy exceptions, encompass-                   events that have occurred months and years earlier, sources of
ing cases in which the individual being evaluated is too                  information that were obtained closer to the time in question
young or impaired to function as an accurate informant, an                may help to reconstruct the event more clearly and accurately.
important expectation in such therapeutic evaluation is that                  For present purposes, we focus on the differences de-
information will be obtained directly from that individual.               scribed in the final five areas of Table 5.1: data sources, re-
For the most part, it is reasonable to expect that individuals            sponse style of examinee, clarification of reasoning and
who are consulting a mental health professional in the begin-             limits on knowledge, the nature of the written report, and the
ning of a treatment process will attempt to provide accurate              expectation of testimony. The sources of data used in both
information that will facilitate effective treatment. The confi-           kinds of evaluation are comparable, with the exception of
dentiality surrounding the therapeutic relationship strength-             “observations made by others” and “relevant legal docu-
ens the expectation that the patient can provide important,               ments” that are described as part of forensic assessment. Why
highly personal information without concern that this com-                this difference?
munication will be harmful.                                                   One reason is summarized under “response style” in
   However, there are a number of important differences                   Table 5.1: Such response style is “not assumed to be reliable”
between therapeutic and forensic assessment. These differ-                in forensic assessment. Response style has been described as
ences have been described by a number of individuals                      including four particular styles: (a) reliable/honest (a genuine
(e.g., Greenberg & Brodsky, in press; Heilbrun, in press;                 attempt is made to be accurate; factual inaccuracies result
Melton et al., 1997) and are summarized in Table 5.1. Each of             from poor understanding or misperception); (b) malingering
these underscores the importance of broadening the scope                  (conscious fabrication or gross exaggeration of psychological
of the evaluation beyond the individual and his or her self-              and/or physical symptoms, understandable in light of the
report. As summarized in Table 5.1, the goal of the forensic              individual’s circumstances and not attributable merely to the
evaluation is to inform some aspect of criminal adjudication or           desire to assume the patient role, as in factitious disorder);
civil litigation. It is ultimately oriented to enhancing fairness         (c) defensive (conscious denial or gross minimization of psy-
and justice, rather than specifically helping a particular indi-           chological and/or physical symptoms, as distinguished from
vidual. As such, it requires verifying the information that is            ego defenses, which involve intrapsychic processes that
collected and synthesized into an opinion by the evaluating               distort perception); and (d) irrelevant (failure to become
expert. In this framework, the defendant/plaintiff is only one            engaged in the evaluation; responses are not necessarily rele-
of many potential sources. As many forensic questions also                vant to questions and may be random; Rogers, 1984, 1997; see



TABLE 5.1 Differences between Treatment and Forensic Roles for Mental Health




                                                [Image not available in this electronic edition.]
                                                                    Importance of Third Party Information in Forensic Assessment    71


also the chapter by Rogers & Bender in this volume, on ma-          results across sources. TPI includes material that is specific to
lingering and dissimulation). Two additional categories of          the case being litigated and, therefore, particularly relevant. It
response seem relevant to forensic assessment. The first we          can potentially increase the accuracy of findings and conclu-
term uncooperative, in which the individual responds mini-          sions through its integration with other sources of data, as part
mally or not at all to assessment questions. We call the second     of a multitrait, multimethod approach to FMHA. It also in-
additional response style impaired; it involves experiencing        variably increases the face validity of FMHA, one of the most
communication deficits resulting from young age, thought and         important forms of validity in legal decision making (Grisso,
speech disorganization, intellectual deficits, and/or memory         1986). TPI can enhance communication with judges and
problems. If the individual being evaluated responds in any         attorneys regarding such assessment. The perception that in-
style other than honest, the information being provided may be      dividuals selectively exaggerate or minimize certain kinds of
inaccurate or incomplete, and other sources of information—         information about themselves to avoid negative consequences
from third parties and documents—can help to provide a more         is accurate in some cases, but it is difficult to refute effectively
accurate picture.                                                   without TPI when it does not apply. Outlining the various
    An important part of FMHA involves forming and testing          sources of information that were requested and obtained (or
hypotheses about an individual’s motivations and capacities         withheld) also provides a strong basis for responding to attor-
(Greenberg & Brodsky, in press; Heilbrun, in press). TPI can        neys on cross-examination by countering the implication that
be used both to help develop possible explanations in these         the evaluator was biased, naïve, or seriously limited in the in-
areas and to test hypotheses that have already been devel-          formation that he or she considered and integrated into the
oped. In this process, the forensic clinician functions more as     findings. Finally, the use of TPI may help the evaluator distin-
an objective truth seeker (comparable to an investigative           guish between deliberate distortion and genuine memory loss
journalist; see Levine, 1980) than as a therapeutic change          by serving as a source of prompts or cues that can facilitate
agent who seeks, and accepts, a more subjective view of             recall in cases of genuine amnesia (Schacter, 1986).
the individual’s reality. In this kind of inquiry, the forensic         TPI is essential when using some of the more recently de-
clinician strives to develop and describe a comprehensive           veloped tools that are particularly applicable in forensic con-
outline of an event and its relevant features. Like the gradual     texts, such as the Psychopathy Checklist-Revised (PCL-R;
unfolding of an image in a developing photograph, an event          Hare, 1991). Incorporating TPI when using such tools is im-
takes shape as information from various sources depicts an          portant to protect against deception by the individual being
increasingly detailed outline. This type of broad-based explo-      evaluated; there is some evidence that lying is not accurately
ration is most typical in capital mitigation cases (in the crim-    detected by mental health professionals and other profes-
inal context) and in personal injury cases (in civil litigation).   sional groups (Ekman & O’Sullivan, 1991). It should be
It is developed through contact with a variety of individuals       noted that the Ekman and O’Sullivan research has somewhat
and reviews of third party sources into a framework of expla-       limited applicability to FMHA interviewing, however. These
nation and description.                                             investigators showed participants brief video vignettes of in-
    Consistent development of a multimethod approach to             dividuals, some of whom had been instructed to lie about
information collection and consistency assessment also pro-         their feelings and others to describe their feelings accurately,
vides the evaluator with a logical framework for the formu-         and asked participants to use cues such as facial expression
lation of opinions. It addresses the concern that criminal          and voice tone in judging who was lying. This can be con-
defendants will minimize the degree of their culpability and        trasted with typical FMHA procedures, in which the evalua-
civil litigants will exaggerate the extent of their distress and    tor has the opportunity to review TPI and conduct a detailed
impairment. Through the information and observations ob-            interview and relevant testing. Comparing the consistency of
tained from diverse sources, the forensic evaluator is able to      results from different sources, the evaluator can then ask
present an opinion that is logical and minimizes jargon. The        clarifying follow-up questions. It would be fairest to say,
consumer of the report is provided an opportunity to consider       therefore, that Ekman and O’Sullivan have demonstrated
the various sources contributing to the findings and to evalu-       that stylistic cues observed from brief contact cannot be in-
ate the reasoning used in reaching a particular conclusion.         terpreted very accurately in deciding who is being deceptive,
    FMHA has the potential to be used as evidence in litigation     but the use of longer exposure and substantive questioning is
every time one is conducted. Legal decision making is better        more likely to allow the evaluator to determine (at least) that
informed when there is explicit clarification of the reasoning       the individual being evaluated is providing information that is
and limits on knowledge that are part of FMHA. Such clarifi-         inconsistent with multiple other sources. The need for integrat-
cation is facilitated by citing both the different sources of in-   ing information from third party sources is so important that
formation that are used in FMHA and the consistency of              evaluation using the PCL-R, for example, can be conducted
72   Third Party Information in Forensic Assessment


using file information only but not using self-report alone         TABLE 5.2 Use of Third Party Information in Criminal
                                                                   Forensic Reports
(Hare, 1991).
   Finally, the use of TPI can facilitate the effective com-
munication of results in FMHA. Most often, such commu-
nication occurs in a written report; in a minority of cases,
testimony in a deposition, hearing, or trial may supplement
the report. These observations suggest that TPI is one of the                   [Image not available in this electronic edition.]
most essential components of a high-quality forensic assess-
ment, enhancing the integrity of the process, the impartiality
of the evaluator, and the weight given the results by the trier
of fact. In the remainder of this chapter, we describe in more
detail the applications of TPI to FMHA.

                                                                   Note: Studies providing these data were, from left to right by state, Heilbrun
RELEVANT RESEARCH ON                                               & Collins (1995), Otto et al. (1996), Nicholson et al. (1995), Heilbrun et al.
                                                                   (1994), and Skeem et al. (1998). Although Robbins et al. (1997) reported
THIRD PARTY INFORMATION                                            findings for the citation of “any” third party information in their sample of
                                                                   forensic reports, they did not report findings for specific types of third party
In this section, we review research in two areas. First, we de-    information. Hence, Robbins et al. is not included in the table. Studies in
                                                                   Florida sampled community-based reports for incompetent/insane defen-
scribe empirical studies that address how TPI is used in crim-
                                                                   dants only. Multiple values reported for the first Florida, Oklahoma, and
inal and civil FMHA, or how mental health professionals            Utah studies reflect findings for hospital- and community-based evaluations,
value its use. Second, we address the use of TPI in the assess-    respectively. NR indicates that the information was not reported in the study.
                                                                   a
ment of various kinds of psychopathology (e.g., substance           In Oklahoma, an information sheet, which lists the charge and provides
                                                                   basic data regarding the alleged offense (e.g., approximate time, location,
abuse, psychopathy, dementia, personality characteristics)         witnesses), typically accompanies the court order for pretrial competence as-
and behavior (e.g., violence) to provide a basis for consider-     sessment. Examiners presumably review this information, although they
ing its applicability to forensic issues. As will become clear     rarely cite it in reports submitted to the court.
                                                                   b
                                                                     The reported percentage reflects citation of interviews with victims or other
from this review, research on the application of TPI in foren-     witnesses, rather than review of statements by victims or witnesses. Because
sic contexts is in its infancy. It is our view that operational-   such statements often are incorporated into or appended to arrest reports in
ization, standardization, and quantification (Grisso, 1986) are     Florida (R. Otto, personal communication, March 29, 1999), the percentage
                                                                   of criminal forensic reports using this type of third party information is prob-
important elements of any mental health assessment domain;
                                                                   ably comparable to that listed for arrest report (i.e., about 40%).
the review of how TPI is used in related areas should make it      c
                                                                    Findings were reported separately for medical staff and detention officers.
clearer how such goals can be promoted.                            The reported values reflect minimum and maximum percentages.
                                                                   Source: Nicholson and Norwood (2000). Reprinted with permission from
                                                                   Kluwer Academic/Plenum.
Empirical Studies on the Use and Valuation of
Third Party Information in Forensic Assessment
                                                                   these reports focused on the legal questions of competence to
According to a recent review of forensic assessment                stand trial, and some on sanity at the time of the offense, it is
(Nicholson & Norwood, 2000), there have been six empirical         not surprising that the majority of the reports in three studies
studies describing the characteristics of criminal FMHA            (Heilbrun & Collins, 1995; Heilbrun et al., 1994; Skeem et al.,
reports: Heilbrun and Collins, 1995 (Florida); Heilbrun,           1998) cited having reviewing the arrest report as part of the
Rosenfeld, Warren, and Collins, 1994 (Virginia and Florida);       evaluation. However, other documents were reviewed far less
Nicholson, LaFortune, Norwood, and Roach, 1995 (Okla-              frequently, judging from what was cited in the reports or re-
homa); Otto, Barnes, and Jacobson, 1996 (Florida); Robbins,        ported by the evaluators. Records of prior mental health eval-
Walters, and Herbert, 1997 (New Jersey and Nebraska); and          uation and treatment, for example, were cited as being
Skeem, Golding, Cohn, and Berge, 1998 (Utah). Although             reviewed in fewer than half the cases in a number of samples
each study encompasses a broader range of variables applica-       (Heilbrun & Collins, 1995 [community sample]; Heilbrun
ble to FMHA, all except Robbins et al., specifically describe       et al., 1994; Nicholson et al., 1995; Otto et al., 1996; Skeem
different aspects of FMHA. These are summarized in                 et al., 1998 [hospital sample]). Other records were reviewed
Table 5.2. As may be seen, there is a wide range of findings        even less frequently. Collateral interviews were conducted
regarding how various aspects of TPI are applied in forensic       with other hospital staff members by 70% of the hospital eval-
evaluation reports. Because the evaluations studied in each of     uators in one study (Heilbrun & Collins, 1995), but apparently
                                                                                   Relevant Research on Third Party Information     73


very rarely conducted in other samples. With the exception of        was not used at all. (This problem may be resolved conceptu-
the arrest report, therefore, it appears that both relevant          ally if the forensic report itself, rather than the forensic eval-
records and collateral interviews are infrequently used in           uation, is viewed as the unit of analysis. Certainly, the legal
criminal FMHA.                                                       consumer is better informed by research focusing on what is
    This finding contrasts sharply with the value placed on           actually used, rather than what may have occurred.) There is
TPI by mental health professionals who specialize in forensic        even greater potential for factual error in surveys, however,
work. Borum and Grisso (1996) surveyed forensic psycholo-            as evaluators asked to rate the frequency with which a certain
gists and forensic psychiatrists regarding their views on ap-        kind of TPI is used may be grossly inaccurate—unless the
propriate content for criminal forensic reports on competence        TPI is used routinely, or never. While forensic report review
to stand trial (N 102 respondents) and criminal responsi-            seems more likely to be factually accurate, the survey ap-
bility (N 96 respondents). Participants were asked to rate           proach ought to yield results that are more generalizable, if
various report components as “essential,” “recommended,”             the percentage of those responding is reasonably high.
“optional,” or “contraindicated.” For evaluations of compe-              In the first study, a total of 302 psychologists, psychia-
tence to stand trial, the investigators asked participants to rate   trists, and master’s-level practitioners were surveyed, with
the value of two elements of TPI: mental health records and          usable responses received from 27% (N 82), with another
police information. Mental health records were rated as ex-          13% (N 39) declining to participate and 23% (N 69) ex-
tremely important (93% of psychologists and 82% of psychi-           cluded due to lack of experience with child custody (Keilin &
atrists rated this element as either essential or recommended).      Bloom, 1986). Only one element that is clearly within the
Police information was valued somewhat lower, with 57% of            scope of this chapter was described; 48.8% of those respond-
psychiatrists and 44% of psychologists describing it as essen-       ing indicated that they spent an average of 1.32 hours per
tial or recommended. These elements of TPI were seen as              evaluation on “conversations with significant others (friends
even more important in criminal responsibility reports. A            and relatives).”
total of 100% of psychologists and 98% of psychiatrists rated            The second study (Ackerman & Ackerman, 1997) updated
mental health records as essential or recommended, and 98%           much of the Keilin and Bloom (1986) material a decade later.
of psychiatrists and 94% of psychologists described police           However, the Ackermans provided more detail about the par-
information as essential or recommended. An additional ele-          ticular categories of TPI in child custody evaluation. Survey-
ment for criminal responsibility (a collateral description of        ing 800 doctoral-level psychologists in the United States,
the circumstances of the alleged offense) was also rated as          they received usable responses from 25% (N 201). Overall
quite valuable, with 96% of psychologists and 93% of psy-            means for time spent in various components of child custody
chiatrists rating it as essential or recommended.                    evaluation were calculated for the following TPI areas:
    Three surveys addressing the use of TPI (and other proce-        “reviewing materials” (M 2.6 hours), “collateral contacts”
dures) in child custody evaluation have been conducted. It is        (referring to interviews with teachers, therapists, and the like;
worth noting that each of the six studies cited earlier in the       M 1.6 hours), and “interviewing significant others” (i.e.,
area of criminal forensic assessment involved a review of            those who live in the children’s home; M 1.6 hours). (Clar-
the actual work product—the report—with the exception                ification of the distinction cited in this chapter between
of the Virginia sample from one study (Heilbrun et al., 1994),       “collateral contacts” and “interviews with significant others”
which used a database composed of questions about the eval-          in the Ackerman and Ackerman [1997] study was obtained
uation answered by evaluators when they submitted a form             from the senior author; Marc J. Ackerman, personal commu-
requesting payment. By contrast, each of the following stud-         nication, December 5, 2000.) The mean number of hours
ies surveyed mental health professionals regarding their prac-       for the entire evaluation was reported as 21.1, suggesting
tice in child custody: Ackerman and Ackerman (1997);                 that TPI collection was responsible for a substantial part of
Keilin and Bloom (1986); and LaFortune (1997). It is unclear         the total mean time involved in performing child custody
whether comparable results would be obtained using the               evaluations. A small number of respondents in this study (3%
two different methods—reviewing reports and surveying                to 4%) also reported that they sometimes administered
evaluators—on the same sample, as there apparently have              measures using third party informants, such as the CBCL
been no studies using both to facilitate such a comparison.          (Achenbach, 1991; Achenbach & Edelbrock, 1983).
There is potential for error using either method. Some evalu-            Finally, a third survey (LaFortune, 1997) was sent to 268
ators may review material but not cite it in their reports;          mental health professionals from Georgia, Nebraska, New
although this would be problematic for other reasons, the re-        York, North Carolina, and Oklahoma who indicated a com-
view of such a report would mistakenly conclude that TPI             petence in conducting child custody evaluations. LaFortune
74   Third Party Information in Forensic Assessment


received responses from 53% (N 141), a higher response             used in other recent studies as well (e.g., Steadman et al.,
rate than either of the two studies just described. A total of     1998; Swanson, Borum, Swartz, & Hiday, 1999). The latter
90% of respondents were licensed psychologists who had             investigation, funded by the John D. and Catherine T.
completed a median of 24.5 child custody evaluations. Con-         MacArthur Foundation, comes as close to a state-of-the-art
sistent with the findings of Ackerman and Ackerman (1997),          study of violence prediction as can be achieved presently. It
she reported that respondents “often” interviewed significant       included 1,136 male and female patients with mental disor-
others and reviewed school records as part of evaluation.          ders between the ages of 18 and 40, monitored for violence
                                                                   toward others every 10 weeks during the first year following
                                                                   discharge from psychiatric hospitalization; these results were
Third Party Information in Measuring Violence
                                                                   compared with violence toward others by a comparison
and Psychopathology
                                                                   group (N 519) randomly sampled from the same census
Judging from the limited available data, it would appear that      tracts as the discharged patient group. Outcome behavior was
both record review and collateral interviews are used and          measured at two levels of seriousness: violence (battery re-
cited more often in FMHA today than they were 10 to 15 years       sulting in physical injury, sexual assaults, and threats with a
ago. This is consistent with a research trend in several differ-   weapon) and other aggressive acts (battery that did not result
ent areas during this period. Research on the risk of violent      in a physical injury). Information sources included self-
behavior, for example, increasingly uses the report of a desig-    report (every 10 weeks); collateral report of an individual
nated collateral observer as a dependent variable, particularly    designated in the beginning of the study by the participant,
when combined with self-report and records of arrest and           chosen because of anticipated reasonably frequent opportu-
hospitalization, to address the question of the nature and         nity for observation (every 10 weeks); and agency records
frequency of violent behavior during a designated outcome          (arrest and hospitalization). The investigators reported a sig-
period. In a detailed conceptual discussion of such violence       nificant addition of self-report and collateral report to the
research, Mulvey and Lidz (1993) identified a number of             identified frequency of violence and other aggressive acts be-
sources of information relevant to violence measurement.           yond the frequency reflected in official records. More specif-
These sources include police and court records, treatment          ically, the overall frequency of violence reflected by agency
records, unit incidence and seclusion reports, collateral inter-   records was 4.5% over a one-year period; the addition of self-
views, and direct interviews with the individual being             and collateral report increased this frequency to 27.5%. The
assessed. It is noteworthy that each of these sources, with the    increase for other aggressive acts was even greater: from
exception of the last, would be considered TPI within the          8.8% (reflected by agency records) to 56.1% (reflected by
definition used in this chapter.                                    any of the three sources). These findings offer tangible evi-
   The use of collateral sources such as these has become a        dence of the impact of collateral sources of information on
standard part of violence research during the past decade.         increasing the sensitivity and accuracy of measuring violent
Both self-report and collateral observer report were em-           behavior.
ployed in a large-scale study on the contribution of clinical          The accurate measurement of psychopathy has been
judgment to accuracy in risk assessment (Lidz, Mulvey, &           greatly facilitated by the development of the Psychopathy
Gardner, 1993; Newhill, Mulvey, & Lidz, 1995), involving a         Checklist, its revised version, the PCL-R (Hare, 1991), and
six-month follow-up on 357 patients treated in a psychiatric       its screening version (PCL-SV; Hart, Cox, & Hare, 1995).
emergency room and assessed by clinicians to be violent, and       (For an extensive discussion of psychopathy, see the chapter
357 controls (assessed by clinicians not to be violent). Partic-   by Hemphill & Hart in this volume.) The standard adminis-
ipant groups were matched for age, race, and sex. The inves-       tration of the PCL-R incorporates two major sources of in-
tigators reported that violence (defined as touching another        formation: self-report on a semistructured interview and a
person with aggressive intent, or threatening with a weapon        review of existing records (Hare, 1991). (Much of the vali-
in hand) occurred in 36% of controls and 53% of the                dation work on the PCL-R has been performed with individ-
violence-concern group. This overall rate of violence is           uals in correctional and secure forensic settings, for whom
higher than reported in most previous studies; one possible        there is typically a detailed institutional record that includes
explanation for this higher rate is the more sensitive mea-        social, vocational, criminal, medical, and mental health
surement of violence that is possible through the systematic       histories.) It is possible to deviate from the standard proce-
incorporation of collateral information.                           dure by using a “file only” rating based on only collateral
   This approach to measuring violence by combining self-          information, which can be done “if there is sufficient high-
report with collateral report and official records has been         quality information available” (Hare, 1991, p. 6; see also
                                                                                Relevant Research on Third Party Information    75


Wong, 1988). However, Hare clearly cautions against mak-          there is little motivation for participants to exaggerate or
ing PCL-R ratings under any circumstances in the absence of       minimize their reports of alcohol use, there is good agree-
“adequate collateral information” (p. 6). While the Screening     ment between self- and collateral reports, or self-report actu-
Version of the PCL-R requires somewhat less collateral in-        ally yields more detailed (and presumably more accurate)
formation (Hart et al., 1995) and functions as an effective       information. For example, among patients who have been di-
short form of the PCL-R (Cooke, Michie, Hart, & Hare,             agnosed with bipolar disorder and substance abuse, a total of
1999), the principle remains the same: the PCL-SV items           132 instances of collateral description of substance use un-
cannot be scored without the incorporation of relevant collat-    covered only three instances in which collateral informants
eral information.                                                 described substance abuse for patients who denied it and who
   The role of TPI in evaluating other forms of psy-              had negative urine screens (Weiss, Greenfield, Griffin,
chopathology has also been addressed. The assessment of           Najavits, & Fucito, 2000). In participants who were tracked
Alzheimer’s disease and related dementias was addressed           for alcohol consumption and smoking during pregnancy,
by a group (CPG 19) developing clinical practice guidelines       there was strong agreement between self- and collateral
on the recognition and initial assessment of Alzheimer’s dis-     report on smoking, but poorer agreement on alcohol con-
ease and related dementias (Costa et al., 1996; Somerfield &       sumption, with participants describing more drinking than
Costa, 1999). Using meta-analysis of existing measures,           collaterals (Chang, Goetz, Wilkins-Haug, & Berman, 1999).
they identified the Functional Activities Questionnaire            Participants responding to standard questions about drinking
(FAQ; Pfeffer, 1995) as the best discriminator between de-        in another study (Chermack, Singer, & Beresford, 1998)
mented and nondemented groups, with an effect size of 2.46        yielded results showing that participants generally reported
(which corresponds to sensitivity and specificity in the           more drinking consequences than collaterals, although par-
range of 85% to 90%; Hasselblad & Hedges, 1995). The              ticipant and collateral reports of the participant’s alcohol
FAQ, an informant-based structured measure of functional          consumption did not differ significantly. It is noteworthy,
performance, has the collateral observer rate the perfor-         however, that none of these studies addressed circumstances
mance of the target person on 10 complex, higher-order            that are typical in forensic assessment. An individual may
functional activities, such as writing checks and preparing a     stand to gain or lose a great deal through litigation, and there-
balanced meal. On the basis of the meta-analysis, the CPG         fore may be more inclined to respond to the litigation-
19 panel recommended using the FAQ in the initial assess-         induced incentive to distort the accuracy of self-reported
ment of dementia, in conjunction with noting patients’ signs      symptoms or patterns of behavior.
and symptoms and evaluating their performance on mental               Finally, we located one interesting study that may have
status examinations.                                              implications on rating accuracy based on how long and how
   Additional research using TPI to assess older participants     well a collateral observer has known the individual being
has investigated disagreement between self- and collateral re-    rated, and what is being rated. Personality characteristics of
port on the Geriatric Depression Scale (GDS; Burke et al.,        177 participants in four groups of varying length and depth
1998). A total of 198 participants with possible or probable      of relationships were assessed using the Eysenck Personality
Alzheimer’s disease and 64 cognitively intact participants        Inventory (EPI; Udofia, Etuk, & John, 1996). Participants
completed the 30-item GDS; the collateral version of the GDS      themselves completed the EPI, which was also completed by
was completed by an observer who knew the participant. A          either a friend or a spouse. Results suggested that third parties
noteworthy difference was found in the reporting of depres-       who had known the participants for more than three years
sive symptoms by the participants, when contrasted with the       were able to give a more accurate account of variables such
same kinds of symptoms reported by collateral observers; the      as introversion and extroversion. The lowest levels of agree-
investigators suggested that both “level of insight” and degree   ment between self- and collateral accounts were for the neu-
of physical illness in those with Alzheimer’s significantly        roticism dimension of the EPI. These findings would support
influenced this difference. Collateral observers consistently      the commonsense notion that an observer who has known the
reported more depressive symptoms experienced by partici-         participant longer and has experienced more opportunity to
pants than were reported by the participants themselves,          observe the individual under a variety of circumstances
particularly those participants with limited awareness of their   would provide more accurate information about the partici-
cognitive impairment.                                             pant’s behavior. They might also suggest that ratings depen-
   The application of TPI has also been considered in the as-     dent on inferences about internal experience will be less
sessment of substance abuse and other kinds of addictive be-      accurate than those that can be operationalized by the
havior. Several studies have suggested that, at least when        straightforward observation of behavior.
76    Third Party Information in Forensic Assessment


RELEVANT LAW ON THIRD                                                        In Daubert jurisdictions, the issue becomes more com-
PARTY INFORMATION                                                        plex. There are two distinct ways in which TPI can be used in
                                                                         forensic assessment: as a primary measure of relevant capac-
We were not able to locate specific appellate cases involving             ities, and as a secondary source of information to “check” the
TPI in FMHA. As a result, our comments in this section focus             accuracy of more primary measures. It seems clear that using
on the admissibility of TPI under the two standards for ad-              relevant records and collateral interviews to assess the con-
mitting expert evidence that currently exist in the United               sistency of conclusions drawn from interview and testing
States: Frye and Daubert. Under Frye v. United States                    data could very well enhance the accuracy of such interview
(1923), the standard for admissibility of expert evidence is             and testing data; in this single case, it provides one kind of a
given in terms of “general acceptance”:                                  “test” described among the Daubert criteria. Moreover, using
                                                                         TPI in this way is consistent with how it is applied in research
     Just when a scientific principle or discovery crosses the line be-   on various aspects of psychopathology and behavior, as dis-
     tween the experimental and demonstrable stages is difficult to       cussed earlier.
     define. Somewhere in this twilight zone the evidential force of
                                                                             However, employing TPI as a primary measure of relevant
     the principle must be recognized, and while courts will go a long
                                                                         capacities could be more problematic under Daubert. There
     way in admitting expert testimony deduced from a well-
                                                                         are existing behavioral science data for using TPI in this way
     recognized scientific principle or discovery, the thing from
     which the deduction is made must be sufficiently established to      for some measures (e.g., a “file only” Psychopathy Checklist,
     have gained general acceptance in the particular field in which it   a teacher version of the Child Behavior Checklist). Without
     belongs. (p. 1014)                                                  the research available to support such application, however,
                                                                         the use of TPI as a primary source of information in FMHA
Under Daubert v. Merrell Dow Pharmaceuticals (1993), the                 (particularly without other sources of information, such as
standard for admissibility of expert scientific evidence was              personal interview and possibly testing) could potentially be
expanded to include the following criteria: (a) The proposi-             challenged and excluded under Daubert.
tion to which the evidence pertains is testable; (b) it has been             Heilbrun (in press) observed that there are competing con-
tested; (c) the technique used to test it has a known error rate;        siderations in the law on the potential application of TPI.
(d) there are accepted standards for operation of the tech-              There is the prospect that forensic assessment may be more
nique; and (e) the evidence has been subjected to peer review            relevant and more reliable when TPI is integrated, which is
and publication (Giannelli & Imwinkelried, 1993).                        certainly a desirable combination of goals that could enhance
   Although Daubert was a case in which the nature of the                both the admissibility of forensic evidence and the credibility
expert evidence was clearly scientific, and the question has              with which it is regarded by the legal decision maker. (For an
been raised as to whether FMHA might more appropriately                  example of a deposition arguing for the use of TPI in a single
be considered “technical” or “other specialized knowledge”               case, see Appendix A.)
under Federal Rule of Evidence 702, it has also become clear                 However, there are legally limiting considerations in the
that a Daubert-type analysis can be applied to the admissibil-           application of TPI as well. Some sources of TPI described in
ity of any expert evidence (Kumho Tire Company, Ltd. v.                  this chapter might be challenged as hearsay on the grounds
Carmichael, 1999; for a more extensive discussion, see the               that they constitute out-of-court statements being presented
chapter by Weismann & Debow in this volume).                             to prove the truth of the in-court statement, and hence inad-
   Under Frye, there seems to be no real question that TPI               missible. Under Federal Rule of Evidence 703, it is not nec-
should be admissible as part of FMHA. It is consistently                 essary for facts or underlying data to be admissible if they are
described as a generally accepted, important part of forensic            of a kind “reasonably relied on by experts . . . in forming
assessment, as will be discussed in more detail later in this            opinions or inferences upon the subject.”
chapter and summarized in Appendix A (Greenberg &                            States are not consistent on this point, however; some
Brodsky, in press). The empirical evidence shows that record             have evidentiary rules similar to Rule 703, while others (see,
review is probably used more than collateral interviews, but             e.g., Mayer v. Baiser, 1986) require that expert testimony use
that both are applied in both criminal and civil forensic eval-          only sources of information that would be independently ad-
uations. Moreover, if there is a trend to be identified from              missible (Melton et al., 1997). In some cases, therefore, in a
research in this area, it would involve the increasing identifi-          jurisdiction with the latter kind of requirement, it seems
cation of TPI as a distinct source of information in FMHA                possible that certain TPI or its content could be ruled
and the more frequent application of such information in this            inadmissible, and the entire forensic assessment (if it had
context.                                                                 relied significantly on this TPI) also held inadmissible. As
                                                                        Relevant Practice Literature on Third Party Information       77


Melton et al. noted, however, this is not likely to happen         collateral interviews, could affect the accuracy of the findings
often. Rather than considering the admissibility of each           in FMHA and the nature of the reservations about such
source of data, the trial court typically may rule on the ad-      findings.
missibility of the forensic assessment more broadly. It                The use of TPI in FMHA is approached somewhat differ-
would be extremely labor-intensive to do otherwise, and (at        ently in the “Specialty Guidelines for Forensic Psychologists”
least judging from appellate case law) does not seem to            (Committee on Ethical Guidelines for Forensic Psycholo-
occur often. A review of appellate cases citing FMHA and           gists, 1991). An important aspect of forensic assessment de-
Daubert (1993) suggests that specific sources of data in            scribed in the Specialty Guidelines involves “differentially
FMHA are rarely singled out for admissibility scrutiny, and        test[ing] rival hypotheses” (p. 661), such as whether symp-
none of them (in the 276 appellate cases cited) used               toms of psychopathology are genuine, factual information is
Daubert as grounds for admitting or excluding document             accurate, and legally relevant capacities are presented in a
review or collateral interviews (Heilbrun, 1996). We also          way that describes their potential well. TPI can help to formu-
note that two of the present authors (Heilbrun and Warren)         late relevant hypotheses and to test them.
have collectively performed or supervised approximately                Although the Principles of Medical Ethics with Annota-
3,000 forensic mental health assessments in the past 20            tions Especially Applicable to Psychiatry (American Psychi-
years and testified about 250 times. Neither of us has ever         atric Association, 1998) does not contain language that helps
had a court exclude TPI from testimony or, to our knowl-           to weigh the use of TPI in a forensic assessment context, the
edge, from a report that has been admitted into evidence in        Ethical Guidelines for the Practice of Forensic Psychiatry
a hearing or trial. We are aware of one instance involving a       (AAPL, 1995) also considers the potential contribution of
colleague (which occurred almost 15 years ago) in which            TPI to both enhancing the accuracy of observations and facil-
the mental health history obtained in part from a third party      itating the reasoning about their meaning:
source was excluded as hearsay. It was reasoned that the de-
fense had failed to provide the proper foundation for the rel-        Practicing forensic psychiatrists enhance the honesty and objec-
evance of history to diagnosis, and had not established the           tivity of their work by basing their forensic opinions, forensic
relevance of TPI to forensic assessment.                              reports and forensic testimony on all the data available to them.
                                                                      They communicate the honesty of their work and efforts to attain
                                                                      objectivity, and the soundness of their clinical opinion by distin-
                                                                      guishing, to the extent possible, between verified and unverified
RELEVANT ETHICS ON USING                                              information as well as between clinical “facts,” “inferences,”
THIRD PARTY INFORMATION                                               and “impressions.” (1995, p. 3)

There are four sources of ethics authority that are particularly   This is another way of considering the applicability of TPI.
relevant in FMHA: the American Psychological Associa-              One way of distinguishing between verified and unverified
tion’s (APA) “Ethical Principles of Psychologists and Code         information is to describe the extent to which data that are
of Conduct” (1992), the “Specialty Guidelines for Forensic         consistent across interview, medical tests, and TPI are rea-
Psychologists” (Committee on Ethical Guidelines for                sonably consistent in pointing toward the same conclusion.
Forensic Psychologists, 1991), The Principles of Medical           When they are not, the Ethical Guidelines for the Practice of
Ethics with Annotations Especially Applicable to Psychiatry        Forensic Psychiatry suggests that they might be described
(American Psychiatric Association, 1998), and the Ethical          using cautionary language such as partially verified impres-
Guidelines for the Practice of Forensic Psychiatry (Ameri-         sions or other ways of communicating the absence of strong
can Academy of Psychiatry and the Law [AAPL], 1995).               or consistent findings.
These four have been cited in a broad discussion of the prin-
ciples of FMHA (Heilbrun, in press) and are commonly cited
in the psychological and psychiatric literature on forensic as-    RELEVANT PRACTICE LITERATURE ON
sessment. The APA Ethics Code notes that the interpretation        THIRD PARTY INFORMATION
of assessment results by psychologists involves a consid-
eration of the various “characteristics of the person being        There is some inconsistency in the extent to which empirical
assessed that might . . . reduce the accuracy of their interpre-   research and legal and ethical authorities address the use of
tations. They indicate any significant reservations they have       TPI in forensic assessment. There is greater consistency,
about the accuracy or limitations of their interpretations”        however, in the relevant literature on standards of practice.
(1992, p. 1603). TPI, in the form of both records and              Recent texts (e.g., Appelbaum & Gutheil, 1991; Greenberg &
78    Third Party Information in Forensic Assessment


Brodsky, in press; Heilbrun, in press; Melton et al., 1997) on             (Goodman-Delahunty & Foote, 1995), personal injury litiga-
forensic assessment have devoted significant space to TPI.                  tion (Borum, Otto, & Golding, 1993; Greenberg & Brodsky,
We review this material in this section.                                   in press; Melton et al., 1997; Resnick, 1995), child custody
   One of the most important reasons to obtain TPI involves                evaluation (Ackerman, 1999; Otto, Edens, & Barcus, 2000),
the need to verify the accuracy of symptoms and behavior                   and civil commitment of sexual offenders (Hoberman, 1999).
reported by the individual being evaluated. Melton et al.                  The incorporation of TPI into criminal FMHA generally has
(1997) observed:                                                           been a recognized practice for years (Melton et al., 1997;
                                                                           Shapiro, 1984), and it has recently been concluded (through a
     Obtaining information contradicting the client’s version of           review of the relevant empirical, legal, ethical, and standard
     events is probably the most accurate means of detecting fabrica-      of practice literature) that the use of TPI is a broad principle
     tion and may be the only viable one with clients who sabotage         with application to FMHA generally (Heilbrun, in press). An
     interview and testing efforts. (pp. 57–58)                            example of a sample affidavit summarizing the support for
                                                                           using one kind of TPI (collateral interviews) in FMHA is pro-
A second important reason involves hypothesis formation                    vided by Greenberg and Brodsky (in press) and reprinted in
and testing in FMHA. In discussing the use of psychological                Appendix A.
testing in forensic assessment, Heilbrun (1992) observed:

     Because of premium on the accuracy of information provided to         OBTAINING THIRD PARTY INFORMATION
     the factfinder, the results of psychological tests should not be
     used in isolation from history, medical findings, and observa-         There are a variety of potential sources of TPI in forensic as-
     tions of behavior made by others. This point has been made em-
                                                                           sessment. In this section, we offer a description of a number
     phatically by Matarazzo (1990) in his discussion of forensic
                                                                           of such sources. We also address questions related to how
     assessment of neuropsychological issues involved in personal
     injury and child custody litigation. It has also been made by
                                                                           such information is obtained (e.g., in person versus by tele-
     others. . . . Impressions from psychological testing in the foren-    phone). Finally, we comment on the nature of TPI needed for
     sic context should most appropriately be treated as hypotheses        specific measures that were designed to use TPI, and how the
     subject to verification through history, medical tests, and third-     collection of TPI can be structured very specifically to meet
     party observations . . . [this can] significantly reduce . . . prob-   the demands of a particular case.
     lems in relevance and accuracy. (p. 263)

                                                                           Sources of Third Party Information
Using TPI for either or both of these reasons is widely cited by
a number of commentators. The diagnosis of dissociative dis-               As summarized in Table 5.3, the two broad categories of
orders in forensic contexts, for example, should not be made               TPI—collateral interviews and records—may vary consider-
in the absence of collateral data from records and third party             ably in their relevance and availability in a particular case.
interviews (Coons, 1989). Clinicians’ accurate detection of                This list is clearly not exhaustive. The collection of TPI must
deception through clinical judgment alone is not supported by              be guided to some extent by case-specific questions, and will
the research (Faust, 1995), although it is apparently not sig-             thus be somewhat different in each case. TPI collection also
nificantly worse than in other professional groups (Ekman                   should facilitate hypothesis formulation and testing, which
& O’Sullivan, 1991), so collateral information is important                should not be completed until the needed TPI is obtained.
to supplement interview and testing impressions regarding                     The individuals who have had the greatest degree of con-
symptoms, history, and behavior. A review of instruments                   tact with the person being evaluated are potentially the most
used by clinical neuropsychologists to detect malingering                  valuable collateral informants. These are described in the first
suggested no consistent support for any tool (Frazen, Iverson,             section of Table 5.3, under “Personal Contact.” In approxi-
& McCracken, 1990). Although this has improved somewhat                    mate order of exposure, these include spouses or partners,
in the 10 years since Frazen published this review (see, e.g.,             roommates, family members, employers and coworkers,
Frederick, 1997; McCann, 1998; Rogers, 1997), it still ap-                 neighbors, and other collateral observers. The importance
pears advisable to incorporate TPI into the assessment of                  of each of these sources depends on the nature of the case
response style.                                                            and the evaluative questions that are raised. For example, if a
    The use of TPI can also be viewed through the com-                     defendant is charged with a sex crime or a capital case that
ments of those addressing FMHA in different areas. It                      involves a rape/murder, the wife or consensual partner of
has been encouraged in employment discrimination cases                     the defendant will be an important source of information
                                                                                                    Obtaining Third Party Information     79


TABLE 5.3 Sources of Third Party Information in Forensic Assessment           In determining which individuals will be contacted, it is
Interviews                                                                important to be sensitive to the potential biases of each third
Personal Contact                                                          party. In the majority of instances, those individuals who
  Spouses or partners.                                                    know a defendant or plaintiff well are generally interested in
  Roommates.
  Family members.                                                         talking to the evaluator and in ensuring that their input will be
  Employers, supervisors, and fellow workers.                             identified and considered. There is, however, still significant
  Neighbors.                                                              potential for distortion in this type of report. Due to their prox-
  Other collateral observers with familiarity with litigant.
  Victims.
                                                                          imity to a person or an event, many respondents will be in-
                                                                          terested in convincing the evaluator of the guilt, innocence, or
Professional Contact
  Police.                                                                 incapacity of a particular individual in the criminal context or
  Jail staff.                                                             in maximizing or minimizing the distress a person is experi-
     Nurses.                                                              encing or the degree of responsibility a particular person had
     Officers.
     Social workers.
                                                                          for making a certain decision in the civil context. These biases
     Consultants.                                                         must be anticipated and neutralized as much as possible by in-
  Community case managers.                                                formed interviewing and the consideration of interview data
  Probation/parole officers.
                                                                          from individuals with varying perspectives and interests. Re-
  Emergency room, psychiatric hospital, or correctional facility staff.
  Teachers.                                                               spondents might also be suggestible, uninformed, lacking in
  Medical and mental health professionals who previously have been        specific knowledge, or unable to recall important information.
     involved in assessing or treating the individual being evaluated.    In addition, there may be a particular focus on a specific time
Documents                                                                 in the past (e.g., around the time of the alleged offense) or the
Personal Documentation                                                    present. Collateral observers may have been familiar with the
  Statements.
    Litigants.
                                                                          individual for most of his or her life, but unable to provide
    Victims.                                                              specific information about the particular time in question. All
    Witnesses.                                                            of these problems must be considered and the information ob-
  Letters, journals, diaries.
                                                                          tained weighed accordingly. The assessment of influences that
Professional Documentation                                                have the potential to affect the accuracy of third party inter-
  Transcripts of previous hearings, depositions.
  Previous FMHA reports.
                                                                          viewees is addressed later in this section.
  Police reports.                                                             The next group of collateral observers are those who have
  Crime scene evidence.                                                   had professional contact with the individual being evaluated.
  Autopsy reports.
                                                                          Similar considerations apply. The greater the exposure, par-
  Presentence investigations.
  Probation and parole records.                                           ticularly during relevant periods, the more valuable may be
  Jail and prison records.                                                the information obtained from a collateral interview. The
  Juvenile placement records.                                             simultaneous consideration, however, is whether the collat-
  Mental health records.
  Medical records.                                                        eral interviewee experiences the problems described in the
  Criminal and juvenile history records.                                  previous paragraph. Those whose contact with the individual
  School records.                                                         was professional may be less inclined to be uncooperative
  Employment and personnel records.
  Military records.
                                                                          (assuming appropriate authorization has been obtained) and
  Department of Social Service records.                                   offer greater specific expertise (e.g., treating therapists would
  Financial records.                                                      be expected to be familiar with various levels of psycho-
                                                                          pathology; arresting officers should have some training and
                                                                          experience observing the impact of substance abuse on be-
regarding the sexual interests and preferences of the particular          havior). Problems with memory can sometimes be improved
individual being evaluated. Alternatively, if the issue in-               through referral to documentation, which is more likely to be
volves some type of workplace allegation or incident, fellow              present in a professional context.
employees might be central to determining the patterns of a                   It is important when determining which collateral inter-
particular individual’s relationships and performance in the              views will be conducted that professional status not be used
work setting. In cases in which there is a viable insanity de-            to prioritize the importance of various respondents. Trained
fense, family members often are valuable adjuncts in docu-                mental health professionals may have useful information to
menting a history of mental illness and possible patterns of              provide regarding diagnosis and treatment, but observations
noncompliance with medication.                                            derived from health care providers who have more sustained
80   Third Party Information in Forensic Assessment


day-to-day contact with an individual or law enforcement           in the investigation and evaluations of certain types of repet-
officers who have conducted thorough investigations of a cer-       itive sex offenders (Warren, Hazelwood, & Dietz, 1996). In
tain crime series may prove to be more relevant in some            cases of alleged serial murder, videotapes, photographs, and
cases. For example, orderlies, cafeteria staff, physical thera-    pornographic drawings have been located by police investi-
pists, home help assistants, and others in similar roles may       gators and can be used by the forensic evaluator to assess sex-
have important observations, particularly in cases of malin-       ual preferences, relevant interactions between coperpetrators,
gered psychosis and exaggerated claims of psychic distress         and commonalities in the preparation for and perpetration of
and impairment. In other instances, skilled police investiga-      particular crimes. Letters between spouses or romantic part-
tors may describe commonalties across a series of offenses         ners can be important in determining the nature of the rela-
that is clearly inconsistent with an impulsive, unplanned          tionship and any particular events that may have preceded the
offense. The importance of any professional source thus            violent behavior. Moreover, office notations or reading mate-
arises from the collateral’s proximity to certain behavior         rial can be relevant in assessing the risk and needs of particu-
rather than the source’s professional status.                      lar individuals in a workplace violence context.
    TPI personal documentation in Table 5.3, such as state-            Professional documentation can be considered on two
ments made by litigants, witnesses, or alleged victims, has        levels. As sources of behavioral observations, such docu-
the advantage of already existing in written form and, in          ments can be quite valuable, particularly when they are de-
many instances, being available to both sides through recip-       tailed in their description of relevant behavior. However,
rocal discovery. Often, however, such documents provide            professional documents sometimes reflect the conclusions of
only limited information relevant to the questions being           the writer in the very areas being evaluated in the present
assessed by the forensic clinician. A review of all available      FMHA. Forensic clinicians are responsible for drawing their
documents prior to scheduling collateral interviews can be         own conclusions and should not be overly influenced by con-
advantageous for several reasons, therefore. First, the infor-     clusions drawn by other professionals. Unless there is some
mation available in collateral documents can provide a con-        reason to regard observations by other professionals as inac-
text for the interviews and help shape the questioning.            curate, it is reasonable to accept such observations. However,
Second, and more specifically, when a collateral interviewee        conclusions (such as those regarding diagnosis or specific
has difficulty recalling an event, the forensic clinician can use   forensic capacities) should not be accepted as accurate, al-
third party documents to provide details that might help to        though they should be recorded as documented in the
facilitate such recall. Of course, the forensic clinician doing    records.
this must be extremely careful to avoid providing information          TPI documentation can provide valuable information in
that might affect the nature of the interviewee’s description of   both criminal and civil cases when unusual defenses or issues
“sensitive” information; generally, such memory prompts            are raised. For example, it was once not uncommon for crim-
should be entirely limited to nonsensitive details such as date,   inal defendants who were Vietnam veterans to report that
time, location, and the like. (Sensitive information refers to     they committed a certain offense while experiencing flash-
information that is directly relevant to the forensic capacities   backs related to Post Traumatic Stress Disorder (PTSD). In
being evaluated, and usually includes thoughts, feelings, be-      some such cases, while the individual’s presentation was
havior, and skills. Nonsensitive information can typically be      quite credible, it was determined through collateral sources
distinguished when there is a focus on a particular event or       that they had never actually served in Vietnam or had served
time period; nonsensitive details in such cases include date,      in a capacity in which they were not exposed to combat.
time, location, and activities unrelated to the legally relevant   Without confirmation of significant trauma, either through
events or forensic capacities being assessed.) Third, when in-     military records or third party interview, the viability of a
formation provided by collateral informants is not consistent      PTSD diagnosis and the associated defense in such cases was
with that contained in third party records, the forensic clini-    greatly diminished.
cian can attempt to clarify the reasons for such inconsistency.
It is particularly important to determine whether such incon-      How to Obtain Third Party Information
sistency seems to result from recall problems or bias.
    In certain cases, it is important to review personal docu-     An important question in obtaining collateral interviews is
mentation that has been created by the defendant or plaintiff.     whether such interviews should be conducted in person, over
Personal diaries can contain information about events that         the telephone, or through written questions submitted
can be highly relevant to criminal adjudication or civil litiga-   through an attorney, through the mail, or even via e-mail.
tion. Collections have been found to be of central importance      There is virtually no research guidance to assist in answering
                                                                             Collecting and Applying Third Party Information   81


any of these questions, so our comments are largely limited to   (PCL-R). The application of TPI with these respective mea-
our perceptions regarding the advantages and disadvantages       sures is guided by the questions that are asked and the ad-
of these different approaches.                                   ministration instructions contained in their manuals. These
    One recent study suggests that telephone interviews are      are examples of how structured use of TPI can not only be in-
comparable to face-to-face interviews in the quality of the      cluded as a valuable source of input, but can also fill a partic-
information obtained regarding diagnostic information            ular niche. In the case of the PCL-R, record-based TPI must
(Rohde, Lewinsohn, & Seeley, 1997). A total of 60 adults         be incorporated to ensure that deception in self-report does
were interviewed in person and by telephone concerning           not unduly influence the ratings that are assigned. Teachers
Axis I disorders, and another 60 adults were interviewed         and parents who serve as informants on the CBCL have the
twice regarding Axis II disorders. Agreement between tele-       advantage of presumably greater accuracy in some cases than
phone and in-person interviews was contrasted with inter-        children, for whom developmental immaturity might inter-
rater agreement, obtained through a second rating of the         fere with accurate self-reporting.
original interview. The following kappa (chance-corrected           A second approach to collecting TPI involves providing
agreement) values were obtained between face-to-face and         structure that is tailored to a specific case. In one such case
telephone interviews: anxiety disorders (.84), substance use     (see Heilbrun, 1990), a defendant in an inpatient forensic
disorders (.73), alcohol use disorders (.70), and major de-      setting whom we suspected of malingering was entirely un-
pressive disorder (.67). A lower kappa was observed for          cooperative with any attempts to evaluate him. Because he
adjustment disorder with depressed mood (.31). Judging           consistently refused to meet with an evaluator, we tried to
from these very limited data, it is possible to achieve compa-   obtain extensive behavioral observation data on him by de-
rable results when asking structured questions by telephone      veloping a “checklist” consisting of every symptom he had
or in person. The disadvantage of using telephone interview-     ever reported to a hospital staff member or attributed to him
ing involves losing access to cues obtained from observing       in evaluation reports written prior to his hospitalization. We
the individual who responded, although auditory cues would       attempted to translate each symptom into the observable
still be available. Our view is that whatever slight advantage   behavior that would be expected from someone who gen-
may be lost in the telephone interview would be outweighed       uinely experienced such a symptom; for example, an individ-
by the facilitation of ease of access and greater mutual con-    ual who was hearing voices might appear distracted or talk to
venience for both interviewee and forensic clinician. It is      himself. When we had reduced this list to a total of 20 items,
always possible to schedule an in-person interview for a         we asked a ward staff member from day shift (7:00 to 3:00)
longer or less structured interview, at the discretion of the    and another from evening shift (3:00 to 11:00) to indicate yes
forensic clinician, or to schedule such an interview at the      or no on each item, reflecting whether the behavior had been
preference of the collateral individual being interviewed.       observed at any time during the eight-hour shift. Over the
    Conducting a third party interview in written form,          course of 400 ratings (each over an eight-hour shift, for a
whether through mail or e-mail, presents a different context.    total of 3,200 hours of observation time), “no symptom was
The advantages of structured interviewing are retained—          observed in more than 2% of the rating periods and many
specific, preplanned questions are asked—but all prospects        were not reported at all” (p. 194). Although it would have
for follow-up questioning based on substance of response or      been useful to incorporate self-report and testing data into
visual or auditory cues provided by the interviewee are sacri-   this evaluation, this approach demonstrates how collateral
ficed. This format might remain useful when trying to             observers can be used in a specific way, performing observa-
confirm or disconfirm previously developed material, but           tions that have been carefully structured, to yield data that
would be less helpful when exploring or trying to develop        were useful in considering the question of whether his re-
newer material.                                                  ported symptoms were genuine.


Specific Measures Using Third Party Information
                                                                 COLLECTING AND APPLYING
There are two kinds of measures that deserve mention for         THIRD PARTY INFORMATION
their incorporation of TPI. Some established psychological
tests, such as the CBCL (Achenbach, 1991) and the PCL-R          In some important respects, the forensic clinician is like an
(Hare, 1991), have been designed and validated using the ob-     investigative journalist. The use of multiple sources, the as-
servations of collaterals such as parents and teachers (CBCL)    sessment of consistency across sources, and the attribution of
or existing records in the form of a prison or hospital file      information to source are all shared methods of gathering and
82     Third Party Information in Forensic Assessment


interpreting relevant information (Levine, 1980; Melton                             the forensic clinician, the individual(s) being evaluated,
et al., 1997). In this section, we offer some specific comments                      and the attorney representing that individual; (b) the volun-
about how TPI can be collected and applied in FMHA,                                 tary nature of participation in the collateral interview; (c) a
focusing particularly on collateral interviewing.                                   description of the legal question(s) that triggered the evalua-
    We address two considerations in collecting and applying                        tion; (d) who requested the forensic clinician’s involvement
TPI from collateral interviews. The first concerns individuals                       (typically, the prosecution or defense attorney in criminal
who are reluctant to participate in such an interview. The sec-                     cases, defense or plaintiff’s attorney in civil cases, or the
ond broad area involves influences that can limit the accuracy                       court in either); (e) the purpose(s) for which the evaluation
of information obtained through collateral interviews: bias,                        could be used; (f ) how the information collected in this infor-
lack of specific expertise, suggestibility, and memory loss                          mation will be used, including citation of the name of the
(see Table 5.4).                                                                    interviewee in the report and testimony, and attribution of
    Individuals who are asked to participate in FMHA by pro-                        the information obtained in the interview specifically to its
viding collateral information may be reluctant or simply un-                        source; and (g) an offer to answer any questions that the indi-
willing to do so. Such unwillingness to participate should be                       vidual may have before he or she decides whether to partici-
respected. However, there are instances in which an individ-                        pate. This notification should allow the individual to make an
ual’s reluctance to participate may change when further infor-                      informed choice about participation, and may facilitate in-
mation is provided. This information should be provided in                          volvement when reluctance is based on general apprehension
the form of a notification of purpose, which should address                          about the legal process. More specific concerns may not
the following: (a) the names of relevant individuals, including                     be overcome, however. For individuals who are concerned


TABLE 5.4        Problems Limiting Collateral Interview Accuracy and Suggested Strategies for Problem Management
         Problem                                    Problem Description                                             Suggested Strategy
Reluctance to participate         • Apprehensive about process.                                  • Notification of purpose and limits of confidentiality.
                                  • Concerned about personal consequences                        • Informed about voluntary nature of participation.
                                    of participating.                                            • Informed that unattributed information cannot be used.
                                  • Unwilling to have information attributed.
Bias                              • Lack of impartiality.                                        • Consider potential bias from the beginning.
                                  • Strong positive or negative feelings about                   • May be assessed near the end of the interview with
                                    the litigant.                                                  question such as “What do you think should happen
                                  • Preference for outcome.                                        with ______?”
                                                                                                 • Third party information should be obtained from
                                                                                                   multiple sources, particularly when bias is suspected.
                                                                                                 • Conclusions should be developed from trends rather
                                                                                                   than single-source observations.
Lack of specific expertise         • Interviewee is without training or experience                • Initial questions should elicit broad observations
                                    in specific area (e.g., psychopathology,                        (What did the defendant say? do? act like?).
                                    substance abuse).                                            • Later questions should focus on specific, preselected
                                  • May not detect subtle indicators of disorder                   observations of symptoms and behavior (Did the
                                    or capacity being assessed.                                    individual show X? act like Y?).
                                                                                                 • No questions should elicit conclusions (Was she
                                                                                                   psychotic?).
Suggestibility                    • May be prone to influence from leading questions.             • Initial questions should elicit broad observations (What
                                                                                                   did the defendant say? do? act like?).
                                                                                                 • Later questions should focus on specific, preselected
                                                                                                   observations of symptoms and behavior (Did the
                                                                                                   individual show X? act like Y?).
                                                                                                 • Allows comparison between uncontaminated description
                                                                                                   (given with little guidance from the interviewer)
                                                                                                   and specific but possibly less impartial version given
                                                                                                   when asked about specific relevant areas.
Memory loss                       • May have difficulty remembering relevant details              • Beginning with general questions and moving to more
                                    if saw individual only once.                                   specific areas.
                                  • Influences such as stress, different race of observer         • Providing nonsensitive memory aids, such as date
                                    and individual, gun focus, and others factors interfering      and location.
                                    with eyewitness identification may operate.
                                                                                        Communicating Third Party Information       83


about the perceived consequences to them or those close to          relevant details (e.g., date, location), particularly for intervie-
them, this notification may be less than reassuring. Some            wees who often see the litigant, to facilitate a more focused
individuals may express a willingness to provide information        account. However, we must emphasize the extreme impor-
on “background,” with the assumption that they would not be         tance of not providing details that could affect the intervie-
identified as the source. This is not possible, however, as the      wee’s account of legally relevant behavior or capacities.
forensic clinician is ethically obligated to identify the respec-
tive sources of data used in FMHA.
   The second broad area concerns attributes of those inter-        COMMUNICATING THIRD PARTY INFORMATION
viewed that might yield inaccurate information. Many indi-
viduals who might be interviewed as part of FMHA are not            There are two primary ways to communicate TPI in FMHA:
impartial; they may have strong feelings about the individual       in reports and in testimony. We offer comments on each.
being evaluated and an associated wish for a certain kind of        Each FMHA report should contain a specific, comprehensive
outcome to the litigation. Potential bias must be considered a      listing of the sources of information used in the evaluation.
possibility for every collateral observer interviewed. Part of      Such a listing is particularly important because of the recom-
our recommended approach to managing the influence                   mended approach to writing an FMHA report, with all factual
of bias would be carried out in the course of FMHA for a            information attributed to its source(s). Some form of organi-
number of reasons: multiple sources should be used and con-         zation of the source listing can be very useful, particularly in
clusions should be developed based on trends across sources         cases that have a large number of documents to be reviewed.
rather than from a single observation.                              Because each source citation should include the name of the
   Professional expertise is usually not present in those who       source, its author, and its date, the sources could be organized
are interviewed as collaterals in FMHA. Because the forensic        alphabetically, by date, or by broader section, with subse-
clinician should be seeking observations, not conclusions,          quent organization within the section.
from collateral interviewees, this is less of a problem than it         When reviewing third party documents, it is useful to
might appear. The questioning should begin by eliciting             identify the source and content by date. If this is done during
broad observations and subsequently move to more specific            the review process, it greatly facilitates writing the report in
areas when the general observations have been completed.            terms of the sequence of events as documented by third
More specific areas can be preselected by the forensic clini-        party records. A summary of each event can be recorded
cian for relevance and importance and the questions asked in        in the report and will automatically be placed in the order
a way that calls for behavioral observations and does not           in which it has occurred. It is a straightforward task to trans-
presuppose expertise.                                               fer material to specific sections of the report once this is
   The same approach to questioning (initially broad, subse-        accomplished.
quently more specific) is useful to prevent the interview itself         Many times, information from different third party
from giving the interviewee suggestions about what is being         sources is inconsistent. Such inconsistent material should be
sought. Caution should be used with information provided by         cited fully in the text, perhaps with language pointing out the
a collateral interviewee who does not describe noteworthy           inconsistency (e.g., “James and his mother both indicated
aspects of, for example, mental health symptomatology               that he has been arrested once for trespassing; by contrast,
during a broad description of the litigant, but responds affir-      his juvenile arrest history reflected two arrests: one for tres-
matively to questions about whether a number of specific             passing and the second for possession with intent to distrib-
symptoms have been observed. The greater this discrepancy,          ute”). The meaning of all material, including that which is
we suggest, the more the information should be scrutinized          inconsistent with other sources, should be reflected in a
for consistency with that provided by other sources.                formulation of findings (whether this is a separate section
   Finally, there is the very real problem of difficulty remem-      or integrated with other sections), but this meaning should
bering what occurred at a specific time (for collateral inter-       not be addressed while describing the results of each source
viewees who see the litigant frequently) or recalling what          of TPI.
occurred in cases in which the interviewee was the victim or            Some of the organizational aspects of TPI communication
witness of an alleged offense. Influences such as extreme            in reports are useful for testimony. When multiple sources are
stress and weapon focus, for example, can further limit the         listed in a way that allows quick location of a specific source,
accuracy of an account that may have already been based             and when all information is attributed by source, it facili-
on fairly brief observation (Tooley, Brigham, Maass, &              tates providing testimony that is precise and efficient. The at-
Bothwell, 1987). We recommend providing nonsensitive but            tribution of “truth” or “validity” to a given source can be
84   Third Party Information in Forensic Assessment


problematic in forensic contexts, for two reasons. First, it is     REFERENCES
ultimately the job of the trier of fact to determine what is true
in a legal case. Second, it is typically not feasible to system-    Achenbach, T. (1991). Manual for the Child Behavior Check-
atically assess the accuracy of one’s findings in a given case.        list/4–18 and 1991 profile. Burlington: University of Vermont
Thus, we prefer to speak about sources being “inconsistent”           Department of Psychiatry.
or “consistent” rather than indicating that one source “veri-       Achenbach, T. M., & Edelbrock, C. (1983). Manual for the Child
fies” or “confirms” what another has indicated. Finally, being          Behavior Checklist and Revised Child Behavior Profile. Burling-
comprehensive and using multiple sources of information to            ton: University of Vermont, Department of Psychiatry.
support findings are very important in both testimony and            Ackerman, M. (1999). Essentials of forensic psychological assess-
report writing. Critical thinking, which should be reflected           ment. New York: Wiley.
in the writing of the report, may be demonstrated in other          Ackerman, M. J., & Ackerman, M. C. (1997). Custody evalua-
ways (such as in response to hypothetical questions) during           tion practices: A survey of experienced professionals (revis-
testimony.                                                            ited). Professional Psychology: Research and Practice, 28,
    Finally, it is important to document all attempts to obtain       137–145.
TPI, whether successful or not. Whatever format is used to          American Academy of Psychiatry and the Law. (1995). Ethical
identify the respondents and sources of information that              guidelines for the practice of forensic psychiatry. Bloomfield,
were received, a similar format should be used to reference           CT: Author.
information or collateral interviews that an unsuccessful at-       American Psychiatric Association. (1998). The principles of med-
tempt was made to obtain. For example, if an evaluator at-            ical ethics with annotations especially applicable to psychiatry.
                                                                      Washington, DC: Author.
tempts to obtain a police report but this document is not
provided, this should be noted and referenced by time and           American Psychological Association. (1992). Ethical principles of
date in the sources of information. If a particular collateral        psychologists and code of conduct. American Psychologist, 47,
                                                                      1597–1611.
respondent declines to participate in an interview, this
should be similarly noted. This type of record encourages           Appelbaum, K. (1990). Criminal defendants who desire punish-
                                                                      ment. Bulletin of the American Academy of Psychiatry and the
the evaluator to contact all relevant sources without pre-
                                                                      Law, 18, 385–391.
dicting who will and will not participate. By noting these
                                                                    Appelbaum, P., & Gutheil, T. (1991). Clinical handbook of psychia-
failed efforts or contacts in the report, the forensic clinician
                                                                      try and the law (2nd ed.). Baltimore: Williams & Wilkins.
demonstrates the effort that was made to obtain compre-
                                                                    Borum, R., & Grisso, T. (1996). Establishing standards for criminal
hensive, relevant TPI.
                                                                      forensic reports: An empirical analysis. Bulletin of the American
                                                                      Academy of Psychiatry and the Law, 24, 297–317.
                                                                    Borum, R., Otto, R., & Golding, S. (1993). Improving clinical judg-
CONCLUSION
                                                                      ment and decision making in forensic evaluation. Journal of
                                                                      Psychiatry and Law, 21, 35–76.
There have been some important advances in the conceptual
                                                                    Burke, W., Roccaforte, W., Wengel, S., McArthur-Miller, D., Folks,
consideration of using TPI in FMHA during the past decade.
                                                                       D., & Potter, J. (1998). Disagreement in the reporting of depres-
Unfortunately, research in this area has lagged behind prac-           sive symptoms between patients with dementia of the Alzheimer
tice. In some respects, the application of TPI may remain              type and their collateral sources. American Journal of Geriatric
something of an art, similar to that seen in investigative             Psychiatry, 6, 308–319.
journalism. In other ways, however, the behavioral and              Chang, G., Goetz, M., Wilkins-Haug, L., & Berman, S. (1999). Pre-
medical sciences have important contributions to make in              natal alcohol consumption: Self versus collateral report. Journal
documenting the use, structuring the applications, and vali-          of Substance Abuse Treatment, 17, 85–89.
dating the approaches used in collecting and applying TPI.          Chermack, S., Singer, K., & Beresford, T. (1998). Screening for
We hope this chapter both promotes needed research and                alcoholism among medical inpatients: How important is corrob-
contributes to better practice in this area. We also expect           oration of patient self-report? Alcoholism: Clinical and Experi-
that the appropriate use of TPI in forensic assessment will           mental Research, 22, 1393–1398.
improve the actual and perceived quality of the evaluations         Committee on Ethical Guidelines for Forensic Psychologists.
and testimony provided to the courts. On that basis, we               (1991). Specialty guidelines for forensic psychologists. Law and
strongly encourage the use of TPI as forensic clinicians ad-          Human Behavior, 15, 655–665.
dress the diverse aspects of human nature that are seen in          Cooke, D., Michie, C., Hart, S., & Hare, R. (1999). Evaluating the
this area of practice.                                                screening version of the Hare Psychopathy Checklist–Revised
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CHAPTER 6


Forensic and Clinical Issues in
the Assessment of Psychopathy
JAMES F. HEMPHILL AND STEPHEN D. HART




THE NATURE OF PSYCHOPATHY 88                                             Training 98
  Clinical Features 88                                                   Consider Other Assessment Findings 99
  Diagnostic Issues 88                                                   Categorical versus Dimensional Models of
  Assessment Issues 89                                                      Personality Disorder 99
REVIEW OF ASSESSMENT PROCEDURES 90                                       The High Prevalence of Personality Disorder 100
  Structured Diagnostic Interviews 90                                    Complexity of Personality Disorder Symptomology 100
  Self-Report Questionnaires and Inventories 91                          Comorbidity with Acute Mental Disorder 100
  Expert Rating Scales 93                                                Causal Role of Psychopathy 100
IMPORTANT ISSUES 95                                                      The Diagnostic Significance of Antisocial Behavior 101
  Psychopathy as a Legal Concept 95                                      Recommendations 101
  Psychopathy in Childhood and Adolescence 95                          AREAS FOR FUTURE RESEARCH 101
  Psychopathy and Violence Risk 96                                       Examine Stability of PCL Scores 101
  Precision of Measurement 96                                            Examine Incremental Validity 102
  Association among Assessment Procedures 97                             Study Clinical Settings 102
  Psychopathy among Various Cultural Groups 97                           Evaluate Treatment Efficacy 103
RECOMMENDATIONS FOR PRACTICE 98                                        SUMMARY 103
  Failure to Use Accepted Assessment Procedures 98                     REFERENCES 104
  Improper Reliance on Scientific Literature 98




Psychopathy—also known as psychopathic, antisocial, or                 populations (Hart & Hare, 1997). Psychopathy now is recog-
dissocial personality disorder—has been the focus of inten-            nized as a critical factor in risk assessment (Hart, 1998) and
sive research investigations for the past two decades (Hare,           can affect decisions involving civil commitment, parole from
1996). A large body of research has examined the assessment            prison, access to treatment, detention under dangerous of-
of the disorder, evaluated different etiological models, de-           fender legislation, and even capital sentencing (Hart, 2001;
scribed its patterns of comorbidity with other mental disor-           Lyon & Ogloff, 2000; Zinger & Forth, 1998). Accordingly, the
ders, and investigated its association with antisocial behavior        assessment of psychopathy is a fundamental skill for clinical-
(Cooke, Forth, & Hare, 1998; Hare, Cooke, & Hart, 1999).               forensic psychologists.
An important factor in the growth of interest concerning psy-              This chapter begins with a discussion of the nature of psy-
chopathy was the development of the original and revised               chopathy, focusing on current clinical conceptualizations of
versions of the Psychopathy Checklist (PCL and PCL-R;                  the disorder. The second section reviews the most commonly
Hare, 1980, 1991). Unless otherwise stated, the term PCL will          used methods for assessing psychopathy, focusing on the
be used to refer to both psychological instruments because             PCL-R. The third section identifies important professional
findings obtained from the original PCL and the PCL-R are               and clinical issues that practitioners should keep in mind when
generalizable to the other version (see Hare, 1991, p. 4).             assessing psychopathy. The fourth section examines practice
   Research using these tests has revealed clear associations          recommendations concerning the assessment of psychopathy
between psychopathy and criminal behavior, especially                  in clinical-forensic settings. The chapter concludes with a dis-
specific forms of interpersonal violence, in a variety of               cussion of issues that are priorities for future research.


                                                                  87
88   Forensic and Clinical Issues in the Assessment of Psychopathy


THE NATURE OF PSYCHOPATHY                                            TABLE 6.1 ICD-10 Criteria for Dissocial Personality Disorder
                                                                     A. Callous unconcern for the feelings of others and lack of the capacity for
Clinical Features                                                        empathy.
                                                                     B. Gross and persistent attitude of irresponsibility and disregard for social
Psychopathy is a specific form of personality disorder. Like              norms, rules, and obligations.
                                                                     C. Incapacity to maintain enduring relationships.
all personality disorders, it is characterized by a disturbance      D. Very low tolerance to frustration and a low threshold for discharge of
in relating to one’s self, others, and the environment. It is            aggression, including violence.
chronic in nature, typically is evident in childhood or adoles-      E. Incapacity to experience guilt and to profit from experience, particularly
                                                                        punishment.
cence, and persists into middle or late adulthood (American          F. Marked proneness to blame others or to offer plausible rationalizations
Psychiatric Association, 1980, 1987, 1994; World Health                 for the behavior bringing the subject into conflict with society.
Organization, 1992).                                                 G. Persistent irritability.
    Symptoms of personality disorders are rigid, inflexible,          Source: Adapted from World Health Organization (1992). International
and maladaptive personality traits: tendencies to act, think,        Classification of Diseases (10th ed.). Geneva, Switzerland: Author.
perceive, and feel in certain ways that are stable across
time, across situations, and in interactions with different          for psychopathic or dissocial personality disorder typically
people. What distinguishes psychopathy from other person-            include a broad range of interpersonal, affective, and behav-
ality disorders is the specific symptom pattern, detailed             ioral symptoms (e.g., Cleckley, 1941; Hare, 1980, 1991; Hart,
in now classic works by Arieti (1963), Cleckley (1941),              Cox, & Hare, 1995; World Health Organization, 1992). As an
Karpman (1961), and McCord and McCord (1964). Inter-                 example, Table 6.1 summarizes the ICD-10 diagnostic criteria
personally, psychopathic individuals are arrogant, superfi-           for dissocial personality disorder. In contrast, diagnostic crite-
cial, deceitful, and manipulative. Affectively, their emotions       ria for antisocial or sociopathic personality disorder tend to
are shallow and labile; they are unable to form strong               focus more narrowly on overt delinquent and criminal behav-
emotional bonds with others and are lacking in empathy,              ior (e.g., American Psychiatric Association, 1980, 1987, 1994;
anxiety, and guilt. Behaviorally, they are irresponsible, im-        Feighner et al., 1972; Robins, 1966). As an example, Table 6.2
pulsive, sensation seeking, and prone to delinquency and             summarizes the DSM-IV criteria for antisocial personality dis-
criminality.                                                         order. The differences between these two diagnostic traditions
                                                                     are discussed at length elsewhere (Cunningham & Reidy,
                                                                     1998; Hare, Hart, & Harpur, 1991; Hart & Hare, 1997;
Diagnostic Issues                                                    Lilienfeld, 1994; Widiger & Corbitt, 1995). Perhaps the most
Laypeople sometimes conclude that psychopathy does not
exist, confused by the fact that it is not listed in the fourth      TABLE 6.2 DSM-IV Criteria for Antisocial Personality Disorder
edition of the Diagnostic and Statistical Manual of Mental           A. Antisocial behavior since age 15, as indicated by three or more of the
Disorders (DSM-IV; American Psychiatric Association,                    following:
                                                                            1. Repeated criminal acts.             5. Recklessness.
1994) or the 10th edition of the International Classification                2. Deceitfulness.                      6. Irresponsibility.
of Diseases (ICD-10; World Health Organization, 1992).                      3. Impulsivity.                        7. Lacks remorse.
This is, of course, incorrect. As noted previously, at a con-               4. Irritability and aggressiveness.
ceptual or linguistic level, psychopathic personality disorder       B. Current age at least 18.
is synonymous with antisocial, dissocial, and sociopathic            C. Conduct disorder before age 15, as indicated by clinically significant
                                                                        impairment in social, academic, or occupational functioning resulting
personality disorder; they are simply different terms for the           from three or more of the following:
same disorder (this is explicitly recognized in the DSM-IV;                1. Bullied.                             9. Destroyed property.
see American Psychiatric Association, 1994; p. 646). Numer-                2. Fought.                            10. Break and enter.
                                                                           3. Used weapons.                      11. Lied.
ous other terms have been used to refer to the same disorder,
                                                                           4. Cruel to people.                   12. Stole.
and Werlinder (1978, Appendix) has identified more than 175                 5. Cruel to animals.                  13. Stayed out late (before
of them. So, psychopathy is listed in the DSM-IV, where it is              6. Robbed.                                 age 13).
referred to as antisocial personality disorder, and in the ICD-            7. Forced sex on others.              14. Ran away from home.
                                                                           8. Set fires.                          15. Truant.
10, where it is referred to as dissocial personality disorder.
                                                                     D. Occurrence of antisocial behavior not exclusively during the course of
   At an operational level, it must be emphasized that various          Schizophrenia or manic episodes.
diagnostic criteria sets for psychopathic, antisocial, dissocial,
                                                                     Source: Adapted from American Psychiatric Association (1994). Diagnos-
and sociopathic personality disorder definitely are not equiva-       tic and Statistical Manual of Mental Disorders (4th ed.). Washington, DC:
lent. Perhaps the biggest difference is that diagnostic criteria     Author.
                                                                                                     The Nature of Psychopathy   89


important consequence of the focus on delinquent and crimi-         required to obtain informed consent from substitute decision
nal behavior in diagnostic criteria sets for antisocial or socio-   makers. In other cases, individuals who have the mental ca-
pathic personality disorder is that they lack specificity (i.e.,     pacity to consent may refuse for a variety of reasons to par-
misconduct can be a manifestation of other forms of disorders       ticipate in the clinical assessments. Individuals who refuse to
as well), and this can lead to overdiagnosis in forensic settings   participate in the assessments but who will nonetheless be as-
and underdiagnosis in other settings. (This point is discussed      sessed from collateral information should be told of this so
explicitly in the DSM-IV; see American Psychiatric Associa-         that they can be informed of the assessment procedures be-
tion, 1994, p. 647; see also Hare, 1983, 1985; Hare et al., 1991;   fore they refuse to participate. Informed consent requires that
Widiger & Corbitt, 1995.)                                           potential participants be informed of the nature and purpose
                                                                    of the assessment, the risks and benefits associated with par-
                                                                    ticipating and not participating in the assessment, the alterna-
Assessment Issues
                                                                    tives available to them, and who has access to the assessment
The nature of assessment procedures should reflect the               findings (Ogloff, 1995).
decision-making purpose for which the assessments will be               Although clinicians typically should obtain informed con-
used and the nature of the disorder being assessed. Such            sent from the persons being assessed, informed consent is not
“goodness-of-fit” has been referred to as method-function            always legally required (e.g., in some court-ordered assess-
match and method-mode match, respectively (Haynes,                  ments or reviews of correctional files; see Ogloff, 1995;
Richard, & Kubany, 1995).                                           Schuller & Ogloff, 2001, pp. 19–20). Second, assessment
   Clinical or expert ratings of psychopathy have a better          procedures for psychopathy should require minimal levels of
goodness-of-fit than other assessment methods when used in           insight. Almost by definition, people suffering from personal-
forensic decision making, as they permit the integration of         ity disorders do not have sufficient insight into the impact of
diverse sources of information. The use of self-report meth-        their behavior on others. This is particularly true for psycho-
ods (e.g., questionnaires, structured diagnostic interviews) or     pathic individuals, whose symptoms may include affective
projective methods to assess psychopathy is potentially prob-       deficits, including a severe lack of empathy. Third, assess-
lematic, unless findings are subsequently confirmed through           ment procedures for psychopathy should require minimal
a review of information from other sources, such as collateral      literacy skills. Forensic populations are characterized by low
informants and official records.                                     levels of educational achievement and a high prevalence of
                                                                    deficits in intellectual and neuropsychological functioning
                                                                    (e.g., Wilson & Herrnstein, 1985). Assessment procedures
Method-Function Match
                                                                    that rely on reading ability or require sustained attention are
Assessment procedures for psychopathy should take into              problematic for this reason.
account the special needs and requirements of forensic deci-
sion making. These have been discussed at length by others,         Method-Mode Match
both generally (e.g., Committee on Ethical Guidelines for
Forensic Psychologists, 1991; Heilbrun, 1992; Melton,               There are at least four important features of psychopathy that
Petrila, Poythress, & Slobogin, 1997) and with respect to the       should be taken into account when assessing the disorder
assessment of personality disorders (e.g., Hart, 2001). One         (Hart et al., 1995). First, psychopathy is associated with
important legal issue is that assessment procedures should          symptoms that fall into three distinct domains: interpersonal,
not rely unduly on uncorroborated statements made by the            affective, and behavioral (Cooke & Michie, 2001; Hare,
person being evaluated.                                             1991). A corollary of this is that assessment procedures sam-
   Three practical issues should also be kept in mind. First,       ple systematically and comprehensively from these symptom
assessment procedures should require minimal levels of co-          domains, ideally providing separate measures of each. Sec-
operation. Contextual pressures encourage response distor-          ond, psychopathy as a personality disorder is assumed to be
tion, particularly minimization and denial of psychopathic          reasonably stable throughout adulthood. One corollary of
symptomatology. Acute and chronic mental disorders are              this assumption is that assessment procedures for psychopa-
common in forensic settings and it is not always possible to        thy should have moderate to high temporal stability (i.e.,
obtain informed consent from the individuals being assessed.        test-retest reliability), even over lengthy periods of time.
   Of course, in cases where informed consent cannot be             Another corollary is that assessment procedures for psy-
obtained from individuals to be assessed because they lack          chopathy should not be sensitive to the affective state of
the mental capacity, clinicians may be legally and/or ethically     persons being evaluated (i.e., their mood at the time of
90   Forensic and Clinical Issues in the Assessment of Psychopathy


assessment). Third, an important symptom of psychopathy is           administered by trained and experienced clinicians. The in-
deceitfulness. A corollary of this is that assessment proce-         terview schedule contains a series of questions designed to
dures for psychopathy should evaluate the extent to which a          tap each symptom of the various personality disorders. The
person characteristically lies and manipulates. Another is that      questions are phrased so that they encourage respondents to
procedures should attempt to minimize the extent to which            acknowledge relatively minor adjustment problems; accord-
deceitfulness interferes with the assessment of other psycho-        ingly, clinicians ask the standard questions and, if the person
pathic symptomatology. Fourth, psychopathy is associated             admits to problems, they are free to probe or ask follow-up
with delinquency and criminality. There is, however, lack            questions to confirm the presence and severity of symptoms.
of consensus regarding the nature of this association. Accord-       Consistent with this approach, evaluators can administer a
ing to some, delinquency and criminality are a primary               self-report questionnaire to the person before the interview
symptom of psychopathy; to others, they are an important             and then probe only those areas in which the person admits
secondary symptom or associated feature—perhaps even a               problems. Clinicians are expected to be familiar with the per-
consequence—of the disorder. Regardless, a corollary is that         son’s psychiatric history in advance, which assists in the dif-
assessment procedures should be useful for making distinc-           ferential diagnosis of DSM-IV Axis I and II disorders. It is
tions among offenders or patients in forensic settings; another      possible, although not a requirement, to incorporate collateral
is that assessment procedures should be related systemati-           information in a SCID-II assessment.
cally to, but be distinct from, measures of criminality and             The SCID-II does not yield scores per se. Severity ratings
delinquency.                                                         for individual symptoms are used to diagnose the presence or
                                                                     absence of each personality disorder and can also be used to
                                                                     create symptom counts for each disorder. Including time
REVIEW OF ASSESSMENT PROCEDURES                                      spent taking a psychosocial history, overviewing mental dis-
                                                                     order, and administering the self-report screening question-
In this section, we review some commonly used procedures             naire, a SCID-II assessment requires approximately two to
for the clinical-forensic assessment of psychopathy in adults.       three hours to complete.
The procedures we discuss fall into three general categories:
structured diagnostic interviews, self-report questionnaires         International Personality Disorder Examination
and inventories, and expert rating scales. A comprehensive re-
view of these procedures is beyond the scope of this chapter.        The IPDE was designed to permit the diagnosis of both
These and other assessment methods are elaborated in detail          DSM-IV and ICD-10 personality disorders, including DSM-IV
in Volume 10 (Assessment Psychology) of this Handbook.               antisocial and ICD-10 dissocial personality disorder. The
The goal in the present discussion is to highlight their impor-      IPDE is intended to be administered by trained and experi-
tant strengths and weaknesses in light of the assessment             enced clinicians. The interview schedule contains a series of
issues discussed previously.                                         general questions, organized thematically, that are designed to
                                                                     tap symptoms of the various personality disorders. Clinicians
                                                                     ask the standard questions and must follow up with a series of
Structured Diagnostic Interviews
                                                                     probes to confirm the presence and severity of symptoms.
These procedures use interview schedules to gather informa-          Each question is posed to every respondent. Prior to the inter-
tion from the person being evaluated to make a diagnosis             view proper, clinicians obtain an overview of the respondent’s
according to fixed and explicit criteria (e.g., Rogers, 1995).        psychosocial history. The format of the IPDE encourages clin-
Commonly used structured diagnostic interviews for the as-           icians to incorporate collateral information in their symptom
sessment of psychopathy include the Structured Clinical              ratings. The IPDE severity ratings for individual symptoms
Interview for DSM-IV, Axis II (SCID-II; First et al., 1995)          can be used to diagnose the presence or absence of each per-
and the International Personality Disorder Examination               sonality disorder and to create symptom counts and dimen-
(IPDE; Loranger et al., 1994).                                       sional ratings for each disorder.


Structured Clinical Interview for DSM-IV                             Commentary

As its name implies, this interview was intended to assist in        With respect to the assessment issues discussed previously, it
the diagnosis of DSM-IV personality disorders, including             is obvious that structured diagnostic interviews rely heavily
antisocial personality disorder. The SCID-II is intended to be       on statements made by the respondent. This is particularly
                                                                                                 Review of Assessment Procedures    91


true for SCID-II assessments that use the self-report ques-           influenced by mood at the time of assessment (e.g., First et al.,
tionnaire as a screen. It is possible, though, to corroborate the     1995; Loranger et al., 1994). The SCID-II/ DSM-IV criteria in-
respondent’s statements by incorporating a review of collat-          clude an item related to deceitfulness, but the IPDE/ICD-10
eral information in the assessment.                                   criteria do not. SCID-II and IPDE assessments may be suscep-
    Structured diagnostic interviews require cooperation by           tible to response distortions on the part of the person being
the respondent. Most respondents who consent to undergo as-           evaluated, especially when the self-report questionnaire is
sessments are willing and able to answer questions about              used as a preinterview screen in the case of the SCID-II. This
their psychosocial history. It is impossible to complete such         susceptibility can be minimized, however, through the system-
interviews when the person refuses consent. Administration            atic integration of collateral information in the assessment
of a structured diagnostic interview requires relatively little       process.
insight on the part of the respondent. The ability of inter-              Finally, there is relatively little information concerning
viewers to ask extensive probe or follow-up questions to de-          the association between criminality and SCID-II/DSM-IV or
termine the severity of symptoms minimizes the chances that           IPDE/ICD-10 diagnoses. As noted previously, the DSM-IV
clinicians will overidentify individuals who satisfy the crite-       criteria for antisocial personality disorder have been criticized
ria. A greater concern is the possibility of failing to correctly     for their lack of specificity in forensic settings. Epidemiologi-
identify individuals who satisfy the criteria due to simple de-       cal research in correctional and forensic psychiatric facilities
nial of symptomatology, especially when the SCID-II self-             using criteria on which the DSM-IV criteria were based indi-
report questionnaire is used as a screen. Review of collateral        cates that a very high proportion of offenders and patients,
information can help to avoid this problem. Administration of         typically between 50% and 80%, fulfill the criteria for antiso-
a structured diagnostic interview does not require much in the        cial personality disorder (e.g., Hare, 1983; Robins, Tipp, &
way of literacy or intellectual ability on the part of the re-        Przybeck, 1991). Consequently, it is not possible to differen-
spondent (except for the self-report questionnaire of the             tiate meaningfully among offenders or patients with respect
SCID-II). A strength of the interviews is that administration         to psychopathy in forensic settings using the SCID-II or
can be spread across several sessions in cases where the              IPDE. There is no systematic evidence that either diagnosis
respondent’s attention or concentration is impaired without           has prognostic significance with respect to future criminality
affecting the validity of the assessment results.                     or violence.
    The content of structured diagnostic interviews is limited
in the same way as the diagnostic criteria sets they are trying to    Self-Report Questionnaires and Inventories
evaluate. As measures of the DSM-IV antisocial personality
disorder criteria and ICD-10 dissocial personality disorder, for      These procedures require the person being evaluated to re-
example, the SCID-II and IPDE fail to comprehensively as-             spond to a series of specific questions using a fixed response
sess many of the characteristics of psychopathy that clinicians       format. Usually, they are administered in written form, al-
and laypersons find central to the disorder (e.g., Davies &            though it is possible in many cases to administer them orally or
Feldman, 1981; Hare et al., 1991; Rogers, Dion, & Lynett,             by means of audiocassettes. Commonly used questionnaires
1992; Rogers, Duncan, Lynett, & Sewell, 1994; Tennent,                and inventories for the assessment of psychopathy include the
Tennent, Prins, & Bedford, 1990; Widiger & Corbitt, 1993).            second edition of the Minnesota Multiphasic Personality In-
In particular, as measures of DSM-IV criteria, the SCID-II and        ventory (MMPI-2; Butcher, Dahlstrom, Graham, Tellgen, &
IPDE underemphasize interpersonal characteristics such as             Kaemmer, 1989), the third edition of the Millon Clinical Mul-
manipulativeness and egocentricity and affective characteris-         tiaxial Inventory (MCMI-III; Millon, Davis, & Millon, 1997),
tics such as callousness and lack of empathy. As a measure of         and the Personality Assessment Inventory (PAI; Morey,
ICD-10 criteria, the IPDE neglects characteristics of self-           1991). Several promising questionnaires specifically de-
absorption, grandiosity, and smooth interpersonal style that is       signed to assess psychopathy have been developed (e.g.,
characterized by deceit, manipulation, and pathological lying.        Blackburn & Fawcett, 1999; Gustaffson & Ritzer, 1995; Hare,
Neither the SCID-II nor the IPDE yields separate scores or in-        1985; Levenson, Kiehl, & Fitzpatrick, 1995; Lilienfeld & An-
dices for the individual symptom clusters, although both yield        drews, 1996), but they are not reviewed here because they are
some kind of dimensional score related to global psycho-              not extensively used in clinical-forensic contexts. Some evi-
pathic symptomatology.                                                dence suggests that, among forensic samples, self-report mea-
    An important strength of diagnoses made using the SCID-II         sures of psychopathy are not related to measures of physical
and IPDE is that they have adequate reliability, including test-      violence (e.g., Edens, Poythress, & Lilienfeld, 1999) and
retest reliability, and there is no indication that they are unduly   crime severity (e.g., Rogers, Gillis, & Dickens, 1989).
92   Forensic and Clinical Issues in the Assessment of Psychopathy


Minnesota Multiphasic Personality Inventory                          p. 5). It was constructed using a combination of rational/
                                                                     theoretical and empirical approaches. The MCMI-III con-
The MMPI-2 is a multiscale self-report inventory intended to         tains 175 items, all declarative statements phrased in the first
be a broad-band measure of personality and psychopathology.          person singular. Respondents are asked to rate the degree to
All 567 items on the MMPI-2 are declarative statements               which they agree with the statements using a true/false
phrased in the first person singular. Respondents are asked to        response format. Administration of the MCMI-III takes ap-
indicate whether the statements are true or false, or mostly true    proximately 30 minutes, and self-administration requires at
or false, as applied to them. The MMPI-2 takes approximately         least an eighth-grade reading ability.
1 to 1.5 hours to complete (see Pope, Butcher, & Seelen, 1993,          The items form a number of overlapping scales and in-
p. 14), and according to the MMPI-2 manual, requires “an             dices. Four scales are used to assess response styles that may
eighth grade reading level to comprehend the content of all          potentially invalidate MCMI-III profiles: the Validity Index
the MMPI-2 items and to respond to them appropriately”               (Scale V), which measures “bizarre or highly improbable”
(Butcher et al., 1989, p. 14; see also p. 1). The MMPI-2 has         (p. 118) responses; the Disclosure Index (Scale X), which
been translated into a variety of languages, and norms               measures the tendency to provide self-revealing or secretive
are available for large, representative samples of community         responses; the Desirability Index (Scale Y), which measures
residents.                                                           the tendency to provide overly favorable responses; and the
    Two clinical scales from the MMPI-2—the Psychopathic             Debasement Index (Scale Z), which measures the tendency to
Deviate (Pd) scale and the Hypomania (Ma) scale—have                 overreport personal difficulties. Scales 6A and 6B were de-
been used singly and in combination to assess characteristics        signed to assess, respectively, antisocial personality disorder
of psychopathy. The MMPI-2 has a number of validity scales,          and sadistic (or aggressive) personality disorder. Norms for
in addition to the clinical scales, that are relevant for con-       the MCMI-III were derived from a large sample of people as-
ducting clinical-forensic assessments. Scores on the Variable        sessed or treated in a wide range of inpatient and outpatient
Response Inconsistency Scale (VRIN) and True Response                mental health settings. Norms for community residents are
Inconsistency Scale (TRIN) validity scales, for example, be-         not available.
come elevated when many pairs of items similar in content
are answered inconsistently. The L, F, and K validity scales
are also useful for assessing protocol credibility and response      Personality Assessment Inventory
bias in forensic contexts (Pope et al., 1993). Items were se-        The PAI is a multiscale self-report inventory intended to mea-
lected for most MMPI-2 clinical scales by statistically con-         sure “critical clinical variables” (Morey, 1991, p. 1). It com-
trasting for each item the response rate from a clinical group       prises 344 items, all declarative statements phrased in the first
of interest with the response rate from a comparison group or        person singular. Respondents are asked to rate the degree to
groups (Hathaway & McKinley, 1940). The clinical group               which the statements are true of them on a 4-point scale (1
that was used to construct the original MMPI Pd scale was            very true, 2      mainly true, 3      slightly true, 4   false).
composed of adolescents, most of whom were females with a            Administration of the PAI takes approximately one hour.
long history of minor delinquency, diagnosed as “psycho-             Self-administration requires approximately grade 4 reading
pathic personality, asocial and amoral type.” McKinley and           ability; a Spanish translation is available. The items form a
Hathaway (1944) acknowledge that “no major criminal                  number of nonoverlapping scales, including 4 to assess
types” (p. 167) were involved in the construction of the             response bias, 11 to assess clinical syndromes, 5 to assess
MMPI Pd scale. It should be recognized that, in addition to          treatment-related characteristics, and 2 to assess interper-
characteristics of clinical interest, this empirical approach to     sonal style. Norms for the PAI were based on a large, repre-
scale construction selects items that reflect sample character-       sentative sample of community residents and supplemented
istics such as socioeconomic background and education                with norms from clinical settings.
(Wiggins, 1973).                                                        One scale, Antisocial Features (ANT), was designed to
                                                                     assess “personality and behavioral features relevant to the
                                                                     constructs of antisocial personality and psychopathy”
Millon Clinical Multiaxial Inventory
                                                                     (Morey, 1991, p. 18). Three subscales measure distinct facets
The MCMI-III is a multiscale self-report inventory intended          of psychopathic symptomatology. Antisocial Behaviors
“to provide information to clinicians . . . who must make as-        (ANT-A) taps a history of conduct problems and criminality.
sessments and treatment decisions about individuals with             Egocentricity (ANT-E) measures self-centered, callous, and
emotional and interpersonal difficulties” (Millon et al., 1997,       remorseless behavior, or “the pathological egocentricity
                                                                                               Review of Assessment Procedures   93


and narcissism often thought to lie at the core of this disor-      such as malingering of specific mental disorder or minimiza-
der” (p. 72). Stimulus Seeking (ANT-S) reflects “a tendency          tion of responsibility for antisocial behavior. Furthermore,
to seek thrills and excitement and low boredom tolerance”           self-reports may be unable to control for the impact of
(p. 72).                                                            response distortion on the assessment of psychopathy. As a
                                                                    consequence, evaluators may be able to determine that
                                                                    respondents were engaging in response distortion, but are
Commentary
                                                                    unable to use this information to assist in their assessment of
Self-reports, by definition, rely only on statements made by         psychopathy.
the respondent. There is no opportunity to use collateral in-          The MMPI-2, MCMI-III, and PAI were not designed for
formation to corroborate the respondent’s statements when           use in forensic settings, but correctional norms of some type
scoring self-reports.                                               either exist or are in development for all three inventories.
    Self-reports require considerable cooperation. Respon-          There is not a large and systematic literature involving self-
dents who consent must be willing and able to answer a large        report measures that has consistently found associations with
number of specific questions, some of which may strike               antisocial, criminal, and violent behaviors among offenders
them as odd or irrelevant to the assessment. Administration         or patients in forensic settings. Despite this, some research
of self-reports requires some, albeit limited, insight on the       concerning the validity of self-report measures has accumu-
part of the respondent. This is particularly true for self-report   lated in forensic samples (e.g., Bayer, Bonta, & Motiuk,
tests that include items that tap interpersonal and affective       1985; Hart, Forth, & Hare, 1991; Salekin, Rogers, & Sewell,
symptoms, which are less concrete and specific than items            1997). For example, Edens and colleagues (Edens, Hart, John-
that tap behavioral symptoms. Administration (especially            son, Johnson, & Olver, 2000) examined the correlation
self-administration) of self-report measures requires substan-      between ANT total scores on the PAI and total scores on the
tially intact literacy or intellectual ability on the part of the   PCL-R and the PCL-SV in two different forensic samples.
respondent. Self-report measures vary according to recom-           Even though the correlations were among the highest found
mended minimum level of reading ability (e.g., fourth grade         in a clinical setting between a self-report measure of psy-
for the PAI, eighth grade for the MMPI-2) and to the degree         chopathy and the PCL (i.e., r .54 with the PCL-SV; r .40
of sustained attention (e.g., 175 items on the MCMI-III, 567        with the PCL-R), diagnostic agreement was only low to
items on the MMPI-2) necessary to complete them.                    moderate. Similarly, Hart and colleagues (1991) examined
    The content of self-reports typically is restricted, focus-     the correlation between total scores on Scale 6A of the
ing primarily on behavioral features of psychopathy. The            MCMI-II (Millon, 1987) and total scores on the PCL-R in a
exception is the PAI ANT scale, which contains multiple             large sample of offenders. Again, even though the correlation
subscales to assess various symptom domains. Some self-             was high (r .45), diagnostic agreement between the mea-
reports, in particular, the MMPI-2 Pd scale, contain items          sures was low (κ .25).
whose content seems either irrelevant to or negatively asso-
ciated with psychopathy. Self-report scales have temporal           Expert Rating Scales
stability that ranges from adequate to impressive. From data
presented in the test manuals, however, it appears that             These procedures are multi-item rating scales. Trained ob-
scores on psychopathy-related scales often are moderately or        servers rate the severity of symptoms based on all available
moderately-to-highly correlated with scales of negative af-         clinical data (e.g., interview with the respondent, review of
fect on the same inventory. This raises the possibility that ob-    case history information, interviews with collateral infor-
served temporal unreliability on the psychopathy scales is the      mants). The PCL and PCL-R fall into this category, as does
result of contamination by mood state at the time of assessment     the Screening Version of the PCL-R (PCL-SV; Hart et al.,
rather than true fluctuations in psychopathic symptomatology.        1995).
    Most self-reports contain questions related to deceitful-
ness, although they may be quite simplistic in nature (e.g., “As
                                                                    Revised Psychopathy Checklist
a teenager, did you lie a lot?”). Many self-reports, including
all those reviewed here, contain scales or indices to evaluate      The original PCL (Hare, 1980) was a 22-item rating scale,
response distortion. Such scales evaluate only the most com-        later revised and shortened to 20 items (PCL-R; Hare, 1991).
mon forms of response distortion, such as malingering of gen-       The PCL-R was designed for use in adult male forensic pop-
eral psychopathology or unduly positive self-presentation;          ulations, with some items being scored entirely or primarily
they do not evaluate more specific or sophisticated distortion,      on the basis of criminal records. Items are scored on a 3-point
94     Forensic and Clinical Issues in the Assessment of Psychopathy


TABLE 6.3 Items and Factors in the Hare Psychopathy                      in progress, and research supports its cross-cultural validity
Checklist-Revised
                                                                         (Cooke & Michie, 1999; Hare, Clarke, Grann, & Thornton,
                                                   Factor Solutions      2000). Conducting a psychosocial history interview and re-
Item                 Description                 Twoa      Threeb        viewing case history information to facilitate scoring of the
 1.     Glibness/superficial charm.                1     Interpersonal.   PCL-R typically requires at least 90 to 120 minutes; however,
 2.     Grandiose sense of self worth.            1     Interpersonal.   if the PCL-R is added to a standard assessment battery, which
 3.     Need for stimulation/proneness to         2     Behavioral.
                                                                         typically includes an interview and review of case history,
           boredom.
 4.     Pathological lying.                       1     Interpersonal.   completion may require 10 or 15 minutes. Although it is stan-
 5.     Conning/manipulative.                     1     Interpersonal.   dard clinical practice to complete the PCL-R from both inter-
 6.     Lack of remorse or guilt.                 1     Affective.       view and collateral file information, it is possible to complete
 7.     Shallow affect.                           1     Affective.
 8.     Callous/lack of empathy.                  1     Affective.       without an interview if extensive collateral information of
 9.     Parasitic lifestyle.                      2     Behavioral.      high quality is available (see Hare, 1991, p. 6). File-only
10.     Poor behavioral controls.                 2           —          ratings are sometimes conducted if the person refuses or is
11.     Promiscuous sexual behavior.              —           —
12.     Early behavioral problems.                2           —
                                                                         unable to consent and if all appropriate ethical and legal
13.     Lack of realistic, long-term goals.       2     Behavioral.      requirements have been satisfied. When individuals refuse to
14.     Impulsivity.                              2     Behavioral.      be interviewed for court-mandated assessments but nonethe-
15.     Irresponsibility.                         2     Behavioral.
                                                                         less are assessed exclusively from collateral file information,
16.     Failure to accept responsibility for      1     Affective.
           own actions.                                                  they should be told of this in advance of the assessments.
17.     Many short-term marital relationships.    —          —           This procedure allows individuals to be fully informed when
18.     Juvenile delinquency.                     2          —           they refuse to participate in clinical interviews.
19.     Revocation of conditional release.        2          —
20.     Criminal versatility.                     —          —
                                                                         Psychopathy Checklist-Screening Version
Note: — item does not load on any factor.
a
 See Hare et al. (1990).
b                                                                        The PCL-SV is a 12-item scale derived from the PCL-R. It was
  See Cooke & Michie (2001).
Source: Adapted from Hare (1991).                                        designed for use in adult populations, regardless of gender,
                                                                         psychiatric status, or criminal history. Table 6.4 lists the PCL-
                                                                         SV items, which are defined in detail in the test manual. Scor-
scale (0 item doesn’t apply; 1 item applies somewhat;
                                                                         ing of the PCL-SV requires less information, and less detailed
2 item definitely applies). Table 6.3 lists the PCL-R items,
                                                                         information, than does the PCL-R; further, the PCL-SV can be
which are defined in detail in the test manual. Total scores can
                                                                         scored even when the person does not have a criminal record
range from 0 to 40; scores of 30 or higher are considered di-
                                                                         or when the complete record is not available. Items are scored
agnostic of psychopathy. Earlier analyses identified two fac-
                                                                         on the same 3-point scale used for the PCL-R. Total scores can
tors underlying the PCL-R items, one reflecting interpersonal
                                                                         range from 0 to 24; scores of 12 or higher indicate “possible
and affective features, and the other reflecting impulsive and
                                                                         psychopathy,” and scores of 18 or higher indicate “definite
antisocial behavior (Hare et al., 1990). More recent research
                                                                         psychopathy.” Psychometric analyses indicate that the PCL-
using confirmatory factor analysis has identified distinct in-
                                                                         SV has excellent structural properties and is strongly related to
terpersonal, affective, and behavioral factors whose mea-
                                                                         the PCL-R (Cooke, Michie, Hart, & Hare, 1999; Hart et al.,
surement is uncontaminated by items reflecting antisocial
                                                                         1995). Also, the PCL-SV has a factor structure strongly paral-
behavior (Cooke & Michie, 2001). There are now hundreds
                                                                         lel to that of the PCL-R (Cooke & Michie, 2001).
of published articles reporting research using the PCL-R,
                                                                             Normative data presented in the PCL-SV manual com-
ranging from basic research on etiology to applied research
                                                                         prise ratings from numerous samples of male and female
examining the use of the test in violence risk assessment (for
a summary, see Cooke et al., 1998). Psychometric analyses
based on classical test theory and item response theory indi-
                                                                         TABLE 6.4       PCL-SV Criteria for Psychopathy
cate that the PCL-R has excellent psychometric properties
(Cooke & Michie, 1997; Hare et al., 1990).                                             Part 1                                  Part 2
    Normative data presented in the PCL-R manual (Hare,                  1.   Superficial.                       7.   Impulsive.
1991) comprise ratings from seven samples of offenders                   2.   Grandiose.                        8.   Poor behavioral controls.
                                                                         3.   Deceitful.                        9.   Lacks goals.
(N 1,192) and four samples of forensic patients (N 440),                 4.   Lacks remorse.                   10.   Irresponsible.
all adult men (age 16 or older) from institutions in Canada,             5.   Lacks empathy.                   11.   Adolescent antisocial behavior.
the United States, and the United Kingdom. Translations of               6.   Doesn’t accept responsibility.   12.   Adult antisocial behavior.
the PCL-R into more than a dozen languages are completed or              Source: Adapted from Hart et al. (1995).
                                                                                                                 Important Issues    95


offenders, forensic psychiatric patients, civil psychiatric pa-     according to DSM-III or DSM-III-R criteria is between 50%
tients, and university students. Translations of the PCL-SV         and 80%, the prevalence of psychopathy according to PCL-R
into several languages are completed or in progress. Con-           criteria is approximately 20% to 25% (Hare, 1991). Also,
ducting a psychosocial history interview and reviewing case         there is a large body of research indicating that psychopathy
history information to facilitate scoring of the PCL-SV typi-       is a robust risk factor for criminality and violence (Hart,
cally takes at least 60 to 90 minutes; however, if it is added to   1998; Hart & Hare, 1997; Hemphill, Hare, & Wong, 1998;
a standard assessment battery, which typically includes an          Salekin, Rogers, & Sewell, 1996).
interview and review of case history, completion may require
5 or 10 minutes. As with the PCL-R, it is possible to complete
the PCL-SV without an interview, provided that all ethical
                                                                    IMPORTANT ISSUES
and legal requirements have been satisfied.
                                                                    Psychopathy as a Legal Concept
Commentary
                                                                    The term psychopathy has been used throughout this chapter
Expert rating scales do not rely heavily on uncorroborated          to refer to a psychological, not a legal, concept (Lyon &
statements made by the respondent. Indeed, under some con-          Ogloff, 2000; Ogloff & Lyon, 1998). This distinction is im-
ditions, it is possible to score the PCL-R and PCL-SV with-         portant because, although the term psychopathy may be used
out conducting an interview.                                        in a variety of legal statutes (e.g., in “sexual psychopath” leg-
    Expert rating scales require relatively little cooperation.     islation), these statutes often define and use the term in a
Most respondents who consent to undergo assessment are              manner that bears little relationship to the concept discussed
willing and able to answer questions about their psychosocial       here. Simply diagnosing someone as a “psychopath” does not
history. Administration of expert rating scales requires rela-      necessarily mean that the person will satisfy the legal criteria
tively little insight on the part of the respondent. Heavy re-      for psychopathy or that the diagnosis will be relevant for the
liance on collateral information and the ability of interviewers    purposes of the assessment (Hart, 2001). It is therefore im-
to ask extensive probe or follow-up questions to determine          portant that clinicians first identify the purpose of the assess-
the severity of symptoms minimize the chances that clinicians       ment; that they be familiar with the relevant law, legal issues,
will over- or underidentify individuals who satisfy the crite-      and legal standards for the task at hand; and that they deter-
ria. Administration of expert rating scales does not require        mine whether—and if so, how—an assessment of psychopa-
much in the way of literacy or intellectual ability on the part     thy is relevant to the legal issue or issues. Ogloff and Lyon
of the respondent. A strength of the interviews is that, in cases   have stated: “In many cases the precise ‘label’ given to a de-
where the respondent’s attention or concentration is impaired,      fendant is irrelevant because it is the person’s behavior and
administration can be spread across several sessions without        cognitive processes and their implications for the specific
affecting the validity of the assessment results.                   legal issues in question that is critical for the law” (p. 411).
    Expert rating scales have good coverage of all symptom          Put another way, diagnoses of psychopathy typically are not
domains of psychopathy. They can be used to obtain separate         relevant to the law, but a consideration of the cognitive and
scores or indices for symptom clusters, as well as dimen-           behavioral processes of psychopaths that bear on the legal
sional and categorical scores related to global psychopathic        issues are.
symptomatology. Expert rating scales have reliability that is
adequate or better, including test-retest reliability, and there
                                                                    Psychopathy in Childhood and Adolescence
has been no indication that they are unduly influenced by
mood at the time of assessment (e.g., Cooke & Michie, 1997;         For most people, the major features of personality, normal or
Cooke et al., 1999; Hare, 1991; Hare et al., 1990; Hart et al.,     abnormal, are evident in childhood or adolescence. This is as
1995). The PCL-R and PCL-SV contain items directly related          true for traits related to psychopathy as it is for those related to
to deceitfulness. Their susceptibility to response distortion is    other personality disorders. Indeed, there has been some re-
minimal as a result of the systematic integration of collateral     search on psychopathy-related traits in childhood and adoles-
information in the assessment process. Finally, there is good       cence (e.g., Barry et al., 2000; Forth, Hart, & Hare, 1990;
information concerning the association between criminality          Lynam, 1997), sometimes using measures derived from or
and expert ratings scales. The PCL-R and PCL-SV can be              inspired by the PCL. It is important to recognize that there is
used to make meaningful distinctions among people, even in          no clear consensus among developmental psychopathologists
samples of serious and persistent offenders. In samples in          that personality disorder in general, or psychopathy in partic-
which the prevalence of antisocial personality disorder             ular, exists in childhood or adolescence (see Edens, Skeem,
96   Forensic and Clinical Issues in the Assessment of Psychopathy


Cruise, & Cauffman, 2001; Vincent & Hart, in press). First, it          psychopathy may be sufficient in some cases to conclude that
has been argued that one’s “true” personality does not crystal-         an individual is at high risk for future violence, but it is never a
lize or stabilize for some years after the maturational changes         necessary factor. That is, there are many ways that someone
(both biological and social) that follow puberty. Second, even          can be at high risk for violence that are unrelated to psychopa-
if personality disorder does exist in childhood or adolescence,         thy (Hart, 1998). This is especially true when examining risk
it will not be manifested as it is in adulthood. For example, it is     for specific forms of violence, such as spousal assault, stalking,
not until late adolescence or early adulthood that people enter         and sexual violence, where violence may be related more to
into important social roles and obligations, such as employ-            disturbances of normal attachment processes rather than the
ment, marital relationships, and parenthood, and have the               pathological lack of attachment associated with psychopathy.
opportunity to succeed or fail in them. Similarly, how would                It is also important to note that there is no good scientific
one assess a symptom such as “glibness and superficial                   evidence (contrary to some claims; e.g., Harris, Rice, &
charm” among children? Third, it is difficult to determine the           Quinsey, 1993) that diagnoses or traits of psychopathy,
extent to which a personality feature is traitlike—that is, stable      including scores on the PCL-R, can be used either on their own
across time and contexts—in people who are still young.                 or in combination with other variables to estimate the absolute
    Research to date has confirmed that it is possible to assess         likelihood of future violence for a given individual with any
psychopathy-related traits in childhood and adolescence with            reasonable degree of scientific or professional certainty. This is
adequate interrater reliability, and that the associations              particularly important given the practice of some professionals
among these traits may have important parallels to those                to use diagnoses of psychopathy or antisocial personality dis-
observed in adults; the psychopathy-related traits are also as-         order to support the conclusion that an individual is “more
sociated with antisocial behavior in ways parallel to that              likely than not” (i.e., more than 50% likely) to commit acts of
found in adults (for a review, see Forth & Burke, 1998). So,            future violence or sexual violence. In some jurisdictions, such
there are reasonable grounds to suspect that we can assess              a conclusion can be used to justify indeterminate civil commit-
something in childhood or adolescence that looks, at least su-          ment as a sexual predator (e.g., Janus, 2000) or even capital
perficially, similar to psychopathy in adulthood. We cannot,             punishment (Cunningham & Reidy, 1998, 1999). Such a prac-
however, confirm this suspicion absent a clear demonstration             tice is simply unfounded and unethical at the present time.
from longitudinal research that the traits persist into adult-
hood. It may be that psychopathy-related traits disappear by            Precision of Measurement
adulthood as a result of maturation or other factors, and it is
also possible that these traits emerge in early adulthood for           All diagnoses and test scores are imprecise, that is, associated
some individuals. There is simply no good evidence that we              with measurement error. For example, with respect to the
are able to identify “psychopathic children” or “fledgling               PCL-R, the standard error of measurement (SEM) is a statis-
psychopaths” (see Lynam, 1996).                                         tical index of the extent to which raters would be expected to
    It is critical to continue research in this area. If it turns out   disagree concerning a particular individual’s score. The SEM
that we are able to identify children or adolescents on a devel-        on the PCL-R is approximately 3.25 points (see Hare, 1991,
opmental trajectory toward adult psychopathy, then perhaps it           p. 36). This means that when two reasonably competent
will be possible to develop early intervention programs that            raters conduct independent assessments of the same people at
prevent or reduce symptomology (e.g., Frick & Ellis, 1999;              around the same time, we expect that in approximately 68%
Gresham, Lane, & Lambros, 2000). Investigators should keep              of cases their scores will be within 3 points of each other (i.e.,
in mind, however, potential ethical problems (e.g., Edens et            1 SEM), and in approximately 95% of cases their scores will
al., 2001; Ogloff & Lyon, 1998). The procedures for assessing           be within 6 points (i.e., 1.96 SEM). Factors such as the lack
psychopathy among children have received little validation              of an interview, inadequate collateral information, and even
among independent investigators.                                        poor training of evaluators may increase measurement error.
                                                                           The important point here is that psychologists should
                                                                        qualify their conclusions in light of measurement error. For
Psychopathy and Violence Risk
                                                                        example, the cutoff for diagnosing psychopathy on the PCL-R
The association between psychopathy and criminal behavior,              is 30 and higher (Hare, 1991, p. 17). When an individual’s
as well as the appropriate use of psychopathy in violence               total score on the PCL-R is, say, 31 or 28, then the evaluator
risk assessments, has been discussed at length elsewhere                should be careful in any report to admit that there is some
(Hart, 1998; Hart & Hare, 1997; Hemphill, Hare, & Wong,                 possibility that other competent evaluators might disagree
1998; Salekin et al., 1996). Here, we remind readers that               about the individual’s diagnosis (Salekin et al., 1996).
                                                                                                              Important Issues   97


Because of the uncertainty associated with categorical diag-       reliability, validity, and psychometric properties of the PCL
noses, evaluators should consider interpreting PCL-R scores        (see also Cunningham & Reidy, 1998). Kosson, Smith, and
dimensionally, that is, by characterizing the individual’s trait   Newman (1990) conducted one of the earliest studies exam-
strength relative to some comparison group.                        ining the influence of race on PCL scores. These authors, who
                                                                   used the original 22-item version and not the 20-item version
Association among Assessment Procedures                            of the PCL currently in use, concluded that “the overall pat-
                                                                   tern of results [among African American and White offend-
Even though we have emphasized throughout this chapter the
                                                                   ers] contains more parallels than disparities” (p. 257). There
conceptual differences among criteria sets for assessing psy-
                                                                   were some differences between African Americans and
chopathy, readers should keep in mind that the empirical as-
                                                                   Whites, however. Compared with Whites, African Americans
sociations between them are nonetheless quite strong. The
                                                                   obtained PCL scores that were on average 2.3 points higher
correlations between PCL-R Total scores and antisocial per-
                                                                   and displayed smaller corrected item-to-total correlations for
sonality disorder diagnoses or symptom counts typically are
                                                                   2 of the 22 items (Previous diagnosis as a psychopath [or sim-
large in magnitude (approximately r .55 to .65), and diag-
                                                                   ilar], Pathological lying and deception), and the congruence
nostic agreement between the procedures typically is fair to
                                                                   coefficient between African Americans and Whites was low
good, even in forensic settings (e.g., Hare, 1980, 1985;
                                                                   for PCL Factor 1, suggesting the factor structure found among
Widiger et al., 1996). However, the disorders have different
                                                                   samples of White male offenders (Harpur, Hakstian, & Hare,
prevalence rates. According to DSM criteria, anywhere be-
                                                                   1988) did not parallel those found in their sample. Despite
tween 50% and 80% of offenders and forensic patients are
                                                                   these differences, readers should recognize that Kosson et al.
diagnosed with antisocial personality disorder, whereas only
                                                                   could not rule out the influence of rater bias on their results
approximately 15% to 30% of the same people meet the
                                                                   because all of their raters were White. Further, the authors had
PCL-R criteria for psychopathy (Cunningham & Reidy, 1998;
                                                                   a reasonably small sample (i.e., n 124) of African American
Hare, 1983, 1985; Hare et al., 1990; Robins et al., 1991). An-
                                                                   offenders with which to make psychometric comparisons.
other important finding is that the link between psychopathy
                                                                       More recently, researchers have been using item response
and antisocial personality disorder is asymmetric. Most peo-
                                                                   theory (IRT) analyses to investigate the psychometric proper-
ple (approximately 90%) diagnosed as psychopaths by PCL
                                                                   ties of the PCL (e.g., Cooke & Michie, 1997). IRT is a statis-
criteria meet the criteria for antisocial personality disorder,
                                                                   tical procedure for examining psychometric properties of test
whereas a minority (approximately 30%) of those with anti-
                                                                   items that theoretically results in analyses independent of the
social personality disorder meet PCL criteria for psychopathy
                                                                   particular items administered and samples studied (Henard,
(e.g., Hart & Hare, 1989).
                                                                   2000). Cooke et al. (1999) outline a number of important ad-
    Several studies have found low to moderate correlations
                                                                   vantages of IRT analyses, and Cooke (1996) argues that IRT
(typically between r .30 and r .45) between PCL diag-
                                                                   approaches are particularly well suited for conducting cross-
noses and popular self-report measures of psychopathy (e.g.,
                                                                   cultural research with the PCL. Cooke, Kosson, and Michie
Cooney, Kadden, & Litt, 1990; Hare, 1985, 1991; Hart et al.,
                                                                   (2001) applied IRT analyses to a sample of White and African
1991). These results are not simply the result of method vari-
                                                                   American adult male inmates. They concluded that, although
ance, as the correlations among self-reports are as low as the
                                                                   5 of the 20 PCL-R items had significant differences in item
correlations between self-reports and clinical diagnoses. Fur-
                                                                   performance between the African American and the White
ther, self-report scales of psychopathy tend to be biased in
                                                                   offenders, these differences were small in magnitude and
their assessment of psychopathy, correlating more highly
                                                                   tended to cancel each other out when PCL items were
with social deviance aspects of psychopathy (as measured by
                                                                   summed together to form total scores. Cooke et al. also con-
Factor 2 of the PCL) than with the interpersonal and affective
                                                                   ducted confirmatory factor analyses and failed to find the dif-
features (as measured by Factor 1; e.g., Harpur, Hare, &
                                                                   ference in factor structure between African Americans and
Hakstian, 1989; Hart et al., 1991). This may reflect a bias in
                                                                   Whites reported earlier by Kosson et al. (1990). Taken to-
the content of self-reports, as suggested above, but may also
                                                                   gether, these authors concluded that there are few differences
represent a tendency for psychopaths to be poor observers or
                                                                   between African American and White offenders in terms of
reporters of their interpersonal and emotional styles.
                                                                   item functioning and that the PCL-R has similar psychomet-
                                                                   ric properties among both African American offenders and
Psychopathy among Various Cultural Groups
                                                                   White offenders. Of course, in addition to these psychometric
Until recently, there has been little systematic and sustained     analyses of PCL items, validation studies need to be done to
research examining the influence of race and culture on the         establish the clinical utility of the PCL among a variety of
98   Forensic and Clinical Issues in the Assessment of Psychopathy


cultural groups. Recent research concerning recidivism               Wiggins, 1973). Further, items that are purportedly “subtle”
among African American offenders yields findings that are             in content (i.e., that reliably differentiate clinical from com-
similar to those among White offenders. That is, inmates with        parison groups but that do not clearly reflect characteristics of
high PCL scores are convicted at higher and faster rates than        the clinical group of interest) may be less clinically discrimi-
are inmates with low PCL scores, and these results are partic-       nating, and hence clinically useful, than items that are “obvi-
ularly marked for violent offences (Hemphill, Newman, &              ous” in content (i.e., that clearly reflect characteristics of the
Hare, 2001).                                                         clinical group of interest; for a discussion, see Graham, 1999,
                                                                     pp. 186–187). Taken together, these findings suggest that in-
                                                                     dependent corroboration of responses may be clinically im-
                                                                     portant when interpreting the meaning of MMPI/MMPI-2
RECOMMENDATIONS FOR PRACTICE
                                                                     scales, particularly in forensic settings.
                                                                         The scales designed to detect response distortion incorpo-
In this section, we identify a number of issues that arise as
                                                                     rated in most self-report inventories do not obviate this fact.
part of the clinical-forensic assessment of psychopathy and
                                                                     Finally, there is no body of research supporting the concur-
make recommendations for dealing with them. Some of the
                                                                     rent validity of self-report inventories with respect to clinical
points raised are relevant to the clinical-forensic assessment
                                                                     diagnoses of psychopathy in forensic settings. The little evi-
of all personality disorders (e.g., Hart, 2001); others are
                                                                     dence that does exist suggests their concurrent validity is
unique to psychopathy (e.g., Hare, 1998). Note that some sec-
                                                                     moderate at best (e.g., Edens et al., 2000; Hare, 1991; Hart
tions below have been adapted or excerpted from Hart (2001).
                                                                     et al., 1991).


Failure to Use Accepted Assessment Procedures                        Improper Reliance on Scientific Literature
Because forensic mental health testimony can have signifi-            Forensic psychologists should make clear when their testi-
cant impact on individual and collective freedoms, the stan-         mony is based on established scientific principles and findings
dards of practice in forensic psychology must be higher than         and when it is based on professional experience. Unfortu-
in regular clinical practice. One common mistake in clinical-        nately, it is common for psychologists to fail to cite, or to cite
forensic practice is the failure to use, or the misuse of, ac-       improperly, relevant scientific literature when forming their
cepted assessment procedures. Forensic psychologists who             opinions. For example, the consistent body of literature that
testify about the assessment of psychopathy should expect to         supports the use of psychopathy assessments as a reliable in-
be confronted with opinions from other experts or with au-           dicator of a variety of antisocial, criminal, and violent behav-
thoritative treatises regarding recommended practice. For ex-        iors is based on research conducted using the PCL (Hart &
ample, it would be easy for a competent lawyer to attack the         Hare, 1997; Hemphill, Hare, et al., 1998; Salekin et al., 1996).
credibility of an expert who assessed psychopathy in a crim-         It is therefore inappropriate to cite research based on the PCL
inal defendant relying solely on self-report inventories. There      to support a professional opinion in which the patient was as-
are at least three concerns here. One is that a clinical inter-      sessed using some other measure or set of diagnostic criteria
view is the basic method for assessing any form of mental            (Hare, 1998). Findings generated from PCL assessments may
disorder, and triers of fact may be justifiably concerned by di-      not generalize to other assessment procedures, and a lack of
agnoses that are not based on standard procedures. The second        generalizability from the PCL to other procedures seems
is that, arguably, self-report inventories constitute a series of    likely given the low to moderate correspondence among dif-
uncorroborated statements made by the accused.                       ferent measures of psychopathy.
    Some investigators argue, because of the way the
MMPI/MMPI-2 was constructed (i.e., items were selected if            Training
they statistically differentiated clinical from comparison
groups), that independent corroboration of responses is              Psychopathy assessments involve considerable clinical judg-
irrelevant to the interpretive significance of MMPI/MMPI-2            ment. To adequately rate most PCL items, clinicians typically
scale elevations. It should be emphasized, however, that it is       must conduct a comprehensive interview, review extensive
impossible to know whether items included in each clinical           collateral information, consider behaviors across time and
scale were statistically selected because they reflect charac-        multiple domains, assess the credibility of and differentially
teristics of clinical interest or instead reflect sample character-   weigh many sources of information, reconcile discrepancies,
istics largely irrelevant to clinical interpretation (e.g., see      and arrive at a single score. Adequate training and experience
                                                                                               Recommendations for Practice   99


concerning the proper use of the PCL is essential for clini-      the PCL are not necessarily associated with low risk to vio-
cians who conduct forensic assessments.                           lently reoffend. It is not uncommon for some groups of sex-
   Although this point seems obvious, particularly in foren-      ual offenders who might be at high risk to reoffend to receive
sic contexts, where important clinical decisions are made         PCL scores and prevalence rates that are substantially lower
and lives may be greatly affected, Hare (1998) has amply          than those typically found among normative samples of adult
documented a number of egregious examples concerning              male offenders. Porter et al. (2000), for example, found that
the misuse of the PCL. It is important to recognize that clin-    6.3% of extrafamilial child molesters received PCL-R
icians who wish to refer to the large body of empirical liter-    scores 30. This percentage contrasts with 22.9% of a nor-
ature concerning the PCL to support their decision to use         mative sample of male prison inmates (Hare, 1991), 35.9% of
this instrument must complete the PCL in a manner consis-         rapists, and 64% of mixed rapists and child molesters (Porter
tent with the way in which the reliability and validity infor-    et al., 2000). Despite having PCL scores that are low on aver-
mation was obtained. Clinicians who fail to adhere to the         age, many child molesters still pose a significant risk of sex-
scoring procedures outlined in the respective manuals or who      ual recidivism decades after release (Rice & Harris, 1997).
routinely obtain scores that are markedly inconsistent with       To summarize, we argue that clinicians who conduct risk as-
those obtained by experienced raters may be subject to ethi-      sessments and other types of forensic assessments should
cal complaints and professional liability. Given that the PCL     routinely administer the PCL but should not uncritically rely
is a psychological test, users should be careful to use and       solely on PCL scores to guide their decision making.
interpret the instrument for the purposes for which it was in-
tended and validated (American Educational Research As-           Categorical versus Dimensional Models
sociation, American Psychological Association, & National         of Personality Disorder
Council on Measurement in Education, 1999). This means
that test users constantly need to keep apprised of recent        There is considerable debate in the scientific literature con-
developments, research studies, and the appropriate uses of       cerning the appropriateness of categorical versus dimen-
the PCL.                                                          sional models of personality disorder (Widiger & Sanderson,
                                                                  1995), including psychopathy (e.g., Harris, Rice, & Quinsey,
                                                                  1994; Lilienfeld, 1994; Rogers & Dion, 1991). To summa-
Consider Other Assessment Findings
                                                                  rize, the categorical model assumes that personality disorder
Psychopathy is only one factor, albeit an important one, that     symptomatology can be defined in terms of a small number
is often considered when conducting a comprehensive foren-        of “types” that are more or less independent of each other.
sic assessment. In addition to interpreting the meaning of        Each type is characterized by a specific set of symptoms, and
PCL ratings, decision-makers routinely should consider other      people with a given type of personality disorder are assumed
psychological test scores and collateral information from a       to be a relatively homogeneous group. Both the DSM-IV and
broad range of sources. Inmates, correctional employees, and      the ICD-10 rely on a categorical model for the diagnosis of
parole board members sometimes comment on the heavy               personality disorder. In contrast, the dimensional model as-
weight that is attached to PCL scores when clinical decisions     sumes that personality disorder symptomatology can be well
are made. The practice of giving excessive weight in clinical     described in terms of relative standing on a small number of
decision-making contexts to PCL scores may be undesirable         global traits. The PCL-R and related tests are based on the
and concerning if it is widespread.                               dimensional model.
    It is true that the PCL is among the most robust measures        Forensic psychologists should be prepared to acknowl-
currently available in the area of risk assessment of violence    edge both the strengths and the limitations of the measure-
and that it consistently emerges among the strongest risk         ment models on which their assessments of psychopathy are
variables in recidivism studies conducted in a variety of         based and the consequent impact on their opinions. The cate-
forensic (e.g., Harris et al., 1993) and civil psychiatric        gorical model is commonly used in clinical practice and has
(Steadman et al., 2000) settings. Hart (1998) has even argued     been a focus of considerable research. This widespread ac-
that “psychopathy is such a robust and important risk factor      ceptance is compelling to laypeople when they attempt to
for violence that failure to consider it may constitute profes-   judge the credibility of a professional opinion, even if it is
sional negligence” (p. 133). Nonetheless, to make decisions       considered weak evidence of credibility in the scientific com-
based solely on PCL scores sometimes can lead to misleading       munity. As a consequence, forensic psychologists whose
conclusions because, although high scores on the PCL are as-      opinions regarding psychopathy are based solely on dimen-
sociated with high risk to violently reoffend, low scores on      sional models should be prepared to defend their “unusual”
100   Forensic and Clinical Issues in the Assessment of Psychopathy


practice by outlining the clear advantages of the dimensional         personality disorders (e.g., Stuart et al., 1998). Even people
approach.                                                             with the same personality disorder diagnosis vary consider-
                                                                      ably with respect to the number and severity of symptoms
                                                                      they exhibit. Psychologists who rely on dimensional models
The High Prevalence of Personality Disorder
                                                                      are no better off, as the same level of trait severity can be
Regardless of whether forensic psychologists adopt a categori-        manifested at the behavioral level in many different ways.
cal or a dimensional model, their assessments are complicated         Regardless of which model they use, psychologists must rely
by the high prevalence of personality disorders in forensic set-      on information provided by the patient or from other sources
tings. According to epidemiological research, between 50%             to reach a judgment regarding the presence or absence of
and 80% of all incarcerated adult offenders meet the diagnos-         symptomatology, a judgment that is inherently subjective.
tic criteria for antisocial personality disorder (Hare, 1983;            Forensic psychologists should be prepared to admit—
Robins et al., 1991); if one considers all the personality disor-     without making a personal apology for the limitations of sci-
ders contained in the DSM-IV or ICD-10, the prevalence rate           entific knowledge—that assessing personality can be a messy
may be as high as 90% (Neighbors, 1987). Even using the               business; the types or dimensions used in assessment are
more conservative PCL-R criteria, the prevalence of psy-              somewhat fuzzy and imprecise concepts. Of course, this does
chopathy averages approximately 15% in forensic psychiatric           not necessarily render invalid the inferences psychologists
patients and approximately 25% in offenders (Hare, 1991).             can draw from the assessment of psychopathy. Also, it should
Of course, from the dimensional perspective, things are even          be remembered that acknowledging the limitations of one’s
worse. Every offender has traits of personality disorder; the         opinions might help to establish the credibility of those opin-
only question is, How severe are the traits?                          ions in the eyes of the triers of fact.
    Triers of fact may be unaware that personality disorder is
pandemic in forensic settings and place undue weight on or            Comorbidity with Acute Mental Disorder
draw unwarranted conclusions from the diagnosis. Accord-
ingly, forensic psychologists should attempt to provide a con-        In forensic settings, personality disorder frequently is comor-
text for diagnoses of psychopathy in three ways. First, they          bid with acute mental disorders such as substance use, mood,
should explicitly acknowledge its high prevalence (e.g., “Mr.         and anxiety disorders (more generally, Trestman, 2000; with
X meets the DSM-IV diagnostic criteria for antisocial person-         respect to psychopathy, e.g., Hart & Hare, 1989; Hemphill,
ality disorder, which is found in approximately 50% to 80%            Hart, & Hare, 1994). Acute mental disorders can complicate
of all incarcerated adult offenders”). Second, they should            the assessment of personality disorder, leading to uncertain or
characterize it in terms of relative severity (e.g., “My assess-      even incorrect inferences about personality (e.g., poverty of
ment of Mr. X using the PCL-R indicates that he has traits of         affect in a person with schizophrenia mimicking the shallow
psychopathic personality disorder much higher than those              emotion often associated with psychopathy). Also, the exis-
found in healthy adults, but only average in severity relative        tence of acute mental disorder can be obscured by comorbid
to incarcerated adult male offenders”). Third, they should ex-        personality disorder. If the acute mental disorder has an im-
plain what they believe to be its legal relevance in the case at      pact on psychological functioning or behavior that is
hand (e.g., “In my opinion, Mr. X poses a high risk for future        independent of but mistakenly attributed to personality disor-
sexual violence relative to other sexual offenders that is due        der, the evaluator may reach inaccurate conclusions regarding
at least in part to a mental disorder, specifically, a severe anti-    the severity and forensic relevance of the personality disorder.
social personality disorder characterized by extreme impul-              Forensic psychologists should conduct comprehensive as-
sivity and lack of empathy”). This last point is discussed in         sessments of acute mental disorder before making diagnoses
more detail later in this chapter.                                    of psychopathy. They should also clearly indicate the existence
                                                                      of any acute mental disorder and discuss the extent to which it
                                                                      may have influenced any opinions related to psychopathy.
Complexity of Personality Disorder Symptomatology

It is difficult to describe in simple terms a person’s function-       Causal Role of Psychopathy
ing with respect to a domain as broad as personality. Foren-
sic psychologists who rely on categorical models are forced           An evaluator’s opinion that a person suffers from psychopa-
to grapple with the issue of comorbidity (Zimmerman,                  thy is, in itself, not of much interest in forensic decision
1994). Research indicates that people who meet the diagnos-           making. In the law, personality disorder generally is relevant
tic criteria for a given DSM-IV or ICD-10 personality disor-          only if the evaluator’s opinion is that it causes, at least in
der also typically meet the criteria for two or three other           part, some impairment of competency or elevated risk for
                                                                                                       Areas for Future Research   101


criminality and violence for this individual (i.e., the psychol-     provided to decision makers, and facilitating discussion of
ogist establishes a “causal nexus”). The unwarranted as-             the limitations of the testimony.
sumption of causality may render an opinion inadmissible
because it is deemed to be irrelevant, not probative, or more        • Psychopathy should be assessed using methods that inte-
prejudicial than probative.                                            grate information obtained from collateral sources with
   Forensic psychologists should make explicit their opin-             (whenever possible) information from direct interviews;
ions regarding the causal role played by psychopathy with re-          methods based solely on oral or written self-report should
spect to the relevant legal issue, whether impairment or risk.         not be used.
They also should acknowledge that such opinions are, ulti-           • Psychopathy should be assessed using methods that pro-
mately, professional rather than scientific in nature, that is,         vide dimensional information regarding symptoms and/or
based on inference and speculation, not on the direct applica-         symptom dimensions (e.g., severity ratings and symptom
tion of scientific principles or findings.                               counts), either in addition to or instead of categorical diag-
                                                                       noses made according to established or accepted criteria.
                                                                     • When communicating their opinions, psychologists should
The Diagnostic Significance of Antisocial Behavior
                                                                       acknowledge the limitations of the assessment methods
A history of antisocial behavior may be of considerable diag-          they used and the information on which the assessment was
nostic significance in civil psychiatric settings, where only a         based and discuss the likely impact of these limitations on
minority of patients has been charged with or convicted of             their conclusions.
criminal offenses. In the DSM-IV, the diagnostic criteria for an-    • Psychologists should conduct comprehensive assessments
tisocial personality disorder are based largely on such a history.     of acute mental disorder before making diagnoses of
Obviously, antisocial behavior is of little diagnostic signifi-         psychopathy.
cance in many forensic settings, in which virtually everyone         • Psychologists should provide a context for their assess-
has arrest records (American Psychiatric Association, 1994).           ment of psychopathy by discussing its prevalence in
    Forensic psychologists should be careful not to overem-            forensic settings.
phasize antisocial behavior, especially isolated criminal acts,
                                                                     • When communicating their opinions, psychologists
when diagnosing psychopathy. By definition, personality
                                                                       should outline the (putative) causal connection between
disorders should be manifested across various domains of
                                                                       psychopathic symptomatology and any legally relevant
psychosocial functioning, across time, and across important
                                                                       impairment from which the person suffers or risk the per-
personal relationships (American Psychiatric Association,
                                                                       son presents.
1994; World Health Organization, 1992). A person who en-
                                                                     • Psychologists should avoid overestimating the significance
gages in antisocial behavior only of a specific type, only
                                                                       of antisocial behavior in the assessment of psychopathy.
against a specific person, or only at specific times may not suf-
fer from a personality disorder at all. For example, consider a
50-year-old man who suffers from a sexual deviation and ex-          AREAS FOR FUTURE RESEARCH
poses his genitals to teenage girls in public places several
times per year, but who is otherwise well adjusted (i.e., has a      Despite the popularity of the PCL in forensic settings and the
relatively stable marriage, holds a steady job, has good peer        large body of rapidly accumulating research supporting its
relationships). In this case, the sexual deviation accounts for      reliability and validity, there are some important areas that
the patient’s antisocial behavior; there is no need to infer the     have been inadequately studied. Here, we consider some
presence of psychopathy or even traits of psychopathy. Other         areas that we believe are research priorities. In addition to
mental disorders commonly associated with specific patterns           these areas, researchers should continue to examine the relia-
of antisocial behavior include impulse control disorders such        bility and validity of the PCL in a variety of contexts, sam-
as kleptomania (stealing) and pyromania (fire-setting).               ples, and cultural groups.

Recommendations                                                      Examine Stability of PCL Scores

Following is a list of specific recommendations for practice          As discussed previously, psychopathy is presumed to be first
regarding the clinical-forensic assessment of psychopathy.           evident early in life and to remain stable across the lifespan.
The recommendations are intended to improve the usefulness           A corollary of this is that PCL scores should demonstrate
of expert testimony by clarifying the foundation of profes-          high test-retest reliability across time. Another is that individ-
sional opinions, increasing the richness of information              uals identified with psychopathic characteristics early in life
102   Forensic and Clinical Issues in the Assessment of Psychopathy


should be the same individuals as those identified with psy-           Examine Incremental Validity
chopathic characteristics later in life. This line of research is
important for both conceptual and practical reasons. From a           It is often useful in applied settings to examine the unique
conceptual perspective, the stability of PCL scores supports          and shared contributions that psychopathy and other
the view that psychopathy reflects a stable constellation of           variables make to the clinical task at hand. Sechrest (1963)
personality and behavioral characteristics. The PCL is ex-            has argued that “validity must be claimed for a test in terms
pected to display high test-retest reliability because of the         of some increment in predictive efficiency over the infor-
emphasis during assessment on lifetime functioning across             mation otherwise easily and cheaply available” (p. 154;
many domains of functioning. From a practical perspective,            emphasis in original). In the area of risk assessment, for ex-
the stability of PCL scores allows practitioners to use the           ample, researchers would examine not only predictive va-
PCL as an important clinical construct relevant to a broad            lidity coefficients between the PCL and recidivism, but also
range of clinical tasks that require stability of scores. The         the additional contribution, if any, that the PCL makes to
clinical application of the PCL for conducting risk assess-           the prediction of recidivism beyond that offered by other
ment, for example, assumes that PCL scores are reasonably             variables.
stable across time; if the scores were not stable, the PCL                Hemphill, Hare, and Wong (1998) reviewed the evidence
would not be expected to accurately identify individuals at           concerning the incremental predictive validity of the PCL
risk for committing future antisocial and violent behaviors.          and other sets of variables with respect to recidivism. They
The stability of the PCL is suggested by the finding that it           conducted a series of statistical analyses across studies to test
consistently is among the most powerful risk factors for anti-        the incremental predictive validity of the PCL with these
social and violent behavior (Harris et al., 1993; Steadman            other sets of variables, and they concluded that the PCL con-
et al., 2000), and that the PCL is still a potent predictor of        tributed unique information to the prediction of recidivism
future criminal behavior with follow-up periods that exceed a         beyond that offered by key criminal history and demographic
decade (e.g., Hemphill, Templeman, Wong, & Hare, 1998;                variables and by personality disorder diagnoses; the reverse
Rice, Harris, & Cormier, 1992).                                       was not true. PCL scores also were as strongly correlated
   With few exceptions, surprisingly little research has been         with general recidivism as were actuarial risk scales designed
conducted to examine the test-retest stability of PCL scores.         specifically to predict reoffending, but PCL scores were more
Schroeder, Schroeder, and Hare (1983), who conducted the              strongly correlated with violent recidivism than were these
first study of this type, obtained a generalizability coefficient       same actuarial risk scales. Researchers might extend this
of .89. Their sample was composed of 42 inmates who had               body of research by routinely testing the incremental validity
each been assessed on the original 22-item PCL and then re-           of the PCL with variables that are theoretically relevant or
assessed on the same instrument approximately 10 months               practically related to the task at hand. By amassing a litera-
later. Test-retest reliability of PCL-R scores at one month           ture that examines the incremental validity of different mea-
have been r .85 among male methadone patients (Alterman,              sures, clinicians will be in a better position to identify the
Cacciola, & Rutherford, 1993) and r .79 among female                  unique and shared contributions of different measures and
methadone patients (Rutherford, Cacciola, Alterman, &                 to select measures that each contribute unique information to
McKay, 1996). Of course, PCL-R scores conceptually should             the clinical task.
be stable for periods of time, with long intervals between the
first and second set of assessments. Rutherford, Cacciola,             Study Clinical Settings
Alterman, McKay, and Cook (1999) conducted a study with a
test-retest interval of two years, and these researchers again        Practicing clinicians do not always score and use the PCL and
found that the PCL-R demonstrated reasonably high test-               PCL-SV according to the procedures outlined in the test man-
retest reliability among male and female methadone patients.          ual (Hare, 1991; Hart et al., 1995). For example, despite
Nonetheless, these studies conducted with methadone patients          Hare’s (1998) cautions that “the PCL-R does not provide an
should be replicated in forensic samples with long test-retest        appropriate index of change . . . at least not over periods of less
intervals to establish the stability of PCL-R scores over time,       than 10 years or so” (p. 116), we have found that some clini-
because the psychometric properties of PCL-R scores among             cians consider the PCL to be a dynamic measure whose scores
substance-dependent patients may differ in important ways             are sensitive to short-term psychotherapeutic interventions.
from the psychometric properties of PCL-R scores typically            This misuse of the PCL-R reflects a poor understanding of a
found among forensic samples (e.g., Darke, Kaye, Finlay-              basic scoring rule clearly described in the administration sec-
Jones, & Hall, 1998; McDermott et al., 2000).                         tion of the test manual (e.g., see Hare, 1991, p. 6), namely, that
                                                                                                                     Summary    103


the PCL-R items should be rated on the basis of the person’s          Many readers may be surprised, therefore, to learn that virtu-
lifetime functioning.                                                 ally no methodologically sound treatment study has been
    Given that PCL assessments can have considerable impact           conducted evaluating the treatment efficacy of a contem-
on the lives of those assessed, it is important to determine          porary treatment program for psychopaths. Most of the evi-
whether clinicians or raters are using the PCL consistent             dence concerning poor treatment outcomes ascribed to
with the manner in which it was validated. Do raters in               criminal psychopaths is based on anecdotal case studies or
clinical practice have the requisite training, experience, and        weak research designs (e.g., see Dolan & Coid, 1993;
education? Do they obtain scores similar to those of experi-          Hemphill & Hart, in press; Wong & Elek, 1989; Wong &
enced raters? Audits of clinical files would be useful for             Hare, in press). Perhaps the most methodologically rigorous
investigating the accuracy of ratings in clinical practice.           and oft-cited research study to date concerning the efficacy of
Absolute (and not simply relative) scores obtained on the             treatment for psychopaths was conducted by Rice et al.
PCL are of particular interest in clinical settings, where di-        (1992). These authors concluded that treated psychopaths
agnoses often form the basis of important clinical deci-              were more violent than were untreated psychopaths during a
sions. In this regard, it would be instructive to determine           10.5-year follow-up. It is important to recognize that this
what specific cutpoints, if any, are used in clinical practice;        treatment program, although considered innovative in the
how clinicians interpret PCL scores; whether psychopathy              late 1960s and 1970s, is a nontraditional treatment program
is viewed as a mitigating or an exacerbating factor, or as a          that “would not meet current ethical standards” (Harris, Rice,
treatable or an untreatable condition; the extent to which            & Cormier, 1991; p. 628).
clinicians separately consider and differentially interpret              Research that evaluates the efficacy of treatment among
PCL factor scores; and so forth.                                      psychopaths and that addresses a number of basic method-
    Another issue concerning the assessment of psychopathy            ological concerns is clearly a priority. Methodologically su-
that is important in clinical practice but that has received little   perior studies would include large groups of clearly defined
research attention is the ability of those being evaluated to         psychopaths who have received well-established treatments
intentionally influence or manipulate their PCL scores. The            that have been delivered consistently and evaluated systemat-
impetus to present oneself in a particular way would seem to          ically across long follow-up periods using several measures
be considerable in forensic contexts. The public has easy ac-         of treatment outcome. Although research methodologies
cess via popular books (e.g., Hare, 1993) to detailed accounts        have improved greatly across time (e.g., Hare et al., 2000;
of the procedures used to assess psychopathy and to descrip-          Hobson, Shine, & Roberts, 2000; Seto & Barbaree, 1999),
tions of the key symptoms of psychopathy substantively sim-           there is still considerable room for improvement concerning
ilar to the criteria outlined in the PCL-R manual. Given that         studies that examine the efficacy of treatment among offend-
PCL assessments are based on lifetime functioning and rely            ers in general and among psychopaths in particular.
heavily on collateral sources, it seems unlikely that PCL
scores could be markedly distorted. Research might nonethe-
less clarify the parameters under which PCL scores could be           SUMMARY
distorted (e.g., when collateral information is limited) and the
PCL items most susceptible to distortion.                             The procedures for assessing psychopathy can be grouped
                                                                      into three broad categories: structured diagnostic inter-
                                                                      views; self-report questionnaires and inventories; and ex-
Evaluate Treatment Efficacy
                                                                      pert rating scales. This chapter critically examined each of
It makes good sense to believe that psychopaths will change           these three broad procedures while keeping in mind the
little as a consequence of treatment or other interventions (at       unique assessment issues with respect to forensic contexts
least, not in the short term). Psychopaths, by definition, expe-       and psychopathy assessments. Expert rating systems are
rience little remorse or guilt that might propel them into            considered superior to the other two categories for assess-
treatment. They are not motivated to actively participate in          ing psychopathy. A variety of professional and clinical is-
treatment once enrolled because they see little wrong with            sues that clinicians should keep in mind when conducting
themselves, they lack insight and do not recognize the                psychopathy assessments were discussed, as were practical
adverse impact that their behaviors have on others, and they          recommendations for dealing with many of these issues.
habitually lie and manipulate others. These characteristics           The chapter concluded with an examination of inadequately
are generally the antithesis of those that have been found to         studied areas concerning psychopathy that should be a
be important for effecting positive therapeutic change.               focus of future research.
104   Forensic and Clinical Issues in the Assessment of Psychopathy


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  Academy of Psychiatry and Law, 19, 21–31.                                  and the Law, 30, 39–44.
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CHAPTER 7


Evaluation of Malingering and Deception
RICHARD ROGERS AND SCOTT D. BENDER




CONCEPTUAL ISSUES 109                                                        Featured Measures 114
  Definitions of Response Styles 109                                        DEFENSIVENESS AND MENTAL DISORDERS 118
  Perspectives of Malingering in the Forensic Context 110                    Overview 118
  Explanatory Models of Malingering 110                                      Minnesota Multiphasic Personality Inventory 118
  Explanatory Models of Defensiveness 111                                    Paulhus Deception Scales 119
  Misassumptions about Malingering and Dissimulation 111                   FEIGNED COGNITIVE IMPAIRMENT 119
  Applications to Forensic Practice 112                                      Detection Strategies 120
EMPIRICAL ISSUES 112                                                         Guidelines for the Classification 123
  Basic Designs 112                                                          Featured Measures 124
  Incremental Validity 113                                                 SUMMARY 126
MALINGERING AND MENTAL DISORDERS 114                                       REFERENCES 126
  Detection Strategies 114




CONCEPTUAL ISSUES                                                              Tests of cognitive abilities and achievement are premised
                                                                           on optimal effort by evaluatees. Less than optimal effort may
The validity of most psychological measures is predicated on               vitiate the accuracy of test results and lead to concerns about
the cardinal assumption that evaluatees are responding in a                deliberate underperformance. A largely neglected considera-
forthright manner and putting forth a sincere effort. Is this as-          tion is the effect of genuine disorders on test performance.
sumption warranted in forensic practice? External influences                For example, major depression may reduce performance on
on self-reporting and effort may include the adversarial effects           cognitive tasks that require sustained attention and concen-
of litigation and pressures exerted by interested others, such             tration. Forensic psychologists are cautioned against facile
as attorneys and family members. Internal influences may in-                and unwarranted assumptions that suboptimal efforts are
clude (a) reactions to questioned credibility, (b) stigmatization          always equated with malingering.
of mental disorders or disability status, (c) effects of a genuine             This section provides an overview of response styles with
disorder, or (d) efforts to obtain undeserved benefits. Forensic            a summary of accepted terminology. Three general perspec-
psychologists tend to focus on the last as it relates to malinger-         tives of malingering are explicated. Explanatory models are
ing and de-emphasize other internal and external influences.                reviewed with a discussion of inferred motivations for why
   Forensic psychologists may wish to address openly internal              persons engage in malingering and defensiveness. In addi-
and external influences that potentially arise from their evalua-           tion, misassumptions about response styles are examined in
tions.As part of the informed consent process, they may choose             the context of forensic evaluations.
to ask evaluatees about their understanding of the purposes of
the evaluation and what they have been told about the evalua-              Definitions of Response Styles
tion by others. Disclosures from the forensic psychologist
about the purpose of the evaluation and his or her role may allay          Rogers (1997) summarized the basic terminology used to de-
some concerns about partiality. Especially in civil cases, an un-          scribe response styles. Basic definitions are provided with
hurried and respectful discussion of the evaluation, its purpose,          several updated references:
and parameters is needed to address strong negative reactions
regarding perceived coercion (e.g., “I had to come”) or ques-              • Malingering (American Psychiatric Association, 2000)
tioned legitimacy (e.g., “You think I am making this up”).                   is the deliberate fabrication or gross exaggeration of
                                                                     109
110   Evaluation of Malingering and Deception


  psychological or physical symptoms for the fulfillment of          competency to stand trial evaluations. Despite nearly three
  an external goal.                                                 decades of research on competency evaluations (Rogers,
• Defensiveness is the polar opposite of malingering; it is         2001), malingering and related response styles have been
  the deliberate denial or gross minimization of symptoms           virtually ignored. Even the most recent and best-funded
  in the service of an external goal.                               competency measure, MacArthur Competency Assessment
• Irrelevant responding is a disengagement from the assess-         Tool–Criminal Adjudication (Poythress et al., 1999), implic-
  ment process typically reflected in inconsistent responding        itly adopted an intuitional perspective for malingering. While
  that is unrelated to the specific content (e.g., not reading       acknowledging that response styles may confound compe-
  test items).                                                      tency evaluations, no indices of any kind are provided (see
                                                                    Poythress et al., 1999, p. 5).
• Feigning is the deliberate fabrication or gross exaggera-
                                                                        The standard perspective routinely evaluates malingering
  tion of psychological or physical symptoms (Rogers &
                                                                    and defensiveness on the basis of traditional tests and mea-
  Vitacco, in press) without any assumptions about its goals.
                                                                    sures. The advantages of this approach are twofold: (a) highly
  Available tests typically assess feigning, because they
                                                                    efficient use of customary measures for dual purposes
  are unable to evaluate supposed goals required for the
                                                                    (e.g., psychopathology and feigning), and (b) application
  classification of malingering or the diagnosis of factitious
                                                                    of empirically tested strategies. The major shortcoming of the
  disorders.
                                                                    standard perspective is that traditional testing lacks the diag-
• Secondary gain is an imprecise clinical term that should          nostic utility for making clinical determinations. The most
  be avoided in forensic evaluations (Rogers & Reinhardt,           common examples of the standard perspective involve
  1998). In nonforensic settings, the term is used to describe      multiscale inventories (e.g., the Minnesota Multiphasic
  the perpetuation and possible augmentation of symptoms            Personality Inventory 2 [MMPI-2; Butcher, Williams,
  based on unintentional responses to internal (i.e., psycho-       Graham, Tellegen, & Kaemmer, 1989]) and intelligence
  dynamic models) or external (i.e., behavioral-medicine            testing (i.e., predominantly the Wechsler Adult Intelli-
  models) forces.                                                   gence Scale–Revised [WAIS-R; Weschler, 1981] rather than
• Suboptimal effort (also called “incomplete effort”) is a de-      WAIS-III; Weschler, 1997).
  scriptive inference that maximum performance was not                  The specialized perspective supplements traditional test-
  achieved. Suboptimal effort may be the result of internal         ing with measures that are specifically designed for the as-
  states (e.g., fatigue or frustration) or comorbidity (e.g., de-   sessment of response styles. Common forensic examples
  pression subsequent to a head injury). Only when subopti-         include the Structured Interview of Reported Symptoms
  mal effort is extreme in its presentation should feigning be      (SIRS; Rogers, Bagby, & Dickens, 1992) for feigned
  considered, although internal states and comorbidity must         mental disorders and the Portland Digit Recognition Test
  still be addressed.                                               (PDRT; Binder & Willis, 1991) for feigned cognitive im-
• Dissimulation is a general term to describe an inaccurate         pairment. Despite the additional expenditure time, the spe-
  portrayal of symptoms and associated features. It is typi-        cialized perspective is generally superior to the standard
  cally used when more precise terms (e.g., malingering and         perspective in its classificatory accuracy. The specialized
  defensiveness) are inapplicable.                                  perspective is recommended as the necessary model for
                                                                    the determination of feigning in both clinical and forensic
                                                                    practice.
Perspectives of Malingering in the Forensic Context

A heuristic typology is proposed to explain differences in how      Explanatory Models of Malingering
forensic psychologists approach the evaluation of response
styles. Three main perspectives are identified: intuitional,         When conducting evaluations and rendering conclusions,
standard, and specialized. These perspectives are considered        forensic psychologists are likely to be influenced by explana-
in the context of malingering.                                      tory models of malingering. Explanatory models attempt
    The intuitional perspective presupposes that malingering        to explain why individuals strive to malinger psychological
and other response styles will be recognizable based on             and physical impairment. Rogers (1990a, 1990b) outlined
clinical acumen without the need for empirically validated          three explanatory models of malingering: pathogenic, crimi-
strategies, scales, and indicators. Despite its lack of empirical   nological, and adaptational. Several prototypical analyses
validation, we suspect that the intuitional perspective is wide-    (Rogers, Sewell, & Goldstein, 1994; Rogers, Salekin, Sewell,
spread in forensic practice. A key example is found with            Goldstein, & Leonard, 1998) provide general support for
                                                                                                            Conceptual Issues   111


these explanatory models as distinct explanations for malin-       Explanatory Models of Defensiveness
gering. A synopsis of the three explanatory models of malin-
gering is provided.                                                Rogers and Dickey (1991) proposed that explanatory models
    The pathogenic model assumes that the underlying moti-         of defensiveness could be extrapolated from the malingering
vation is an ineffective attempt to control the symptoms           literature, at least in the case of sex offenders. The pathogenic
and clinical presentation of a chronic and progressive men-        model is the least persuasive; psychodynamic formulations
tal disorder. With increased impairment, intentionally pro-        have suggested that loss of ego functions may result in uncon-
duced symptoms become gradually less deliberate, until             scious denial. More persuasive explanations were the crimi-
they are involuntary and unintended. The pathogenic model          nological and adaptational models, suggesting that denial and
predicts that feigning is an ineffectual attempt at adjust-        gross minimization might result from either a general criminal
ment that eventually is resolved by the patient’s further          orientation or an attempt to cope with highly adversarial cir-
deterioration.                                                     cumstances. As noted by Rogers and Dickey, sex offenders
    The criminological model is championed by the Diagnos-         often are placed in an irresolvable bind: Honesty, disclosing
tic and Statistical Manual of Mental Disorders (DSM-IV-TR;         the true extent of their paraphilac behavior, is likely to result
American Psychiatric Association, 2000); it assumes that the       in negative sanctions based on the extent of criminal activity;
primary motivation is characterological. Namely, antisocial        defensiveness, grossly minimizing the true extent of their
persons faced with legal difficulties will attempt to garner un-    paraphilac behavior, is likely to result in negative sanctions
warranted advantages either in circumstances (e.g., a hospital     because nondisclosure is viewed as a barrier to treatment.
rather than a prison) or material gain (e.g., financial settle-         Sewell and Salekin (1997) expanded on Rogers and
ment). Antisocial persons are presumed to be generally de-         Dickey’s (1991) framework and proposed a socioevaluative
ceptive. With malingering viewed as a variant of deception,        model of defensiveness. For offenders, especially sex offend-
the criminological model predicts an intermittent use of           ers, evaluations are consistently linked with punishment and
malingering based on situational opportunities.                    ostracism. The socioevaluative model posits that evaluatees
    The adaptational model assumes that the person perceives       react to the likely threat of a negative outcome and attempt to
the circumstances as adversarial and considers malingering         protect themselves. The socioevaluative model is similar to
to be a feasible alternative. This model avoids the monistic       the adaptational model in its appraisal of a highly adversarial
notions of “mad” (pathogenic) or “bad” (criminological) and        context. It is distinguished from the adaptational model in its
views malingering in terms of a cost-benefit analysis. The          generalized reaction. Even when “there is nothing to lose,”
adaptational model views malingering as a situational re-          the socioevaluative model predicts a generalized response of
sponse based on an appraisal of alternatives.                      defensiveness based on past learning.
    Rogers, Salekin, et al. (1998) found that the pathogenic           Under the rubric of cognitive distortions, the notion of
model was low in prototypicality for both males and females        self-deception has been considered, especially with sex
in forensic evaluations. In contrast, both the adaptational and    offenders. According to Vanhouche and Vertommen (1999),
criminological models achieved moderately high prototypi-          cognitive distortions involve “learned assumptions” and “sets
cal ratings for forensic cases. A potential danger of the crim-    of beliefs and attitudes” (p. 164) that serve in the denial and
inological model is that forensic psychologists may attempt        minimization of criminal behavior. In the course of the eval-
to use this explanatory model as a detection model.                uation, denials of responsibility may be influenced by “self-
    The DSM-IV-TR indices only raise the suspicion of malin-       deceptive” beliefs (e.g., educative goals of incest). However,
gering; they do not constitute formal criteria for the classifi-    such denials are unlikely to explain the overall defensiveness
cation of malingering. Even for suspicions of malingering,         expressed by many offenders.
these indices (i.e., antisocial personality disorder, medicole-        The understanding of defensiveness in forensic practice is
gal evaluation, uncooperativeness, and results inconsistent        constrained by the focus on sex offenders. Although extrapo-
with objective findings) falter on both conceptual and empir-       lations to other forensic populations are possible, explanatory
ical grounds. Rogers (1997) provides a conceptual analysis         models of defensiveness remain in their initial stages of
of their major shortcomings. Even in defending the DSM-IV-         development and validation.
TR indices, LoPiccolo, Goodkin, and Baldewicz (1999) con-
ceded most of these shortcomings. Empirically, DSM-IV-TR           Misassumptions about Malingering and Dissimulation
indices fail entirely even for screening purposes. Their use in
a criminal forensic setting resulted in a false-positive rate of   Forensic psychologists are not immune to common misas-
approximately 80% (Rogers, 1990a).                                 sumptions about malingering and other response styles.
112   Evaluation of Malingering and Deception


Moreover, forensic psychologists must be prepared to ad-         person is malingering, this opinion is likely to invalidate all
dress erroneous assumptions made by others in the legal sys-     claims by that person, destroying his or her credibility.
tem. Five key misassumptions, common to forensic practice,       Because of its overshadowing importance, forensic psycholo-
are outlined:                                                    gists carry a further responsibility to ensure the accuracy
                                                                 of their conclusions with respect to malingering. We recom-
• Malingering is very rare. Equating infrequency with in-        mend that the classification of malingering should never rely
  consequentiality, some clinicians neglect the evaluation of    on a single indicator. In addition to confirmation by multiple
  malingering except in very obvious cases. Estimates            sources, forensic psychologists should systematically exclude
  (Rogers et al., 1994, 1996) based on more than 500 foren-      alternative explanations (e.g., factitious disorders or irrelevant
  sic experts suggest that malingering is not rare, but likely   responding) in their determinations of malingering. To avoid
  occurs in 15% to 17% of forensic cases.                        misclassifications based solely on idiosyncratic data, Rogers
• Malingering is very common. Fueled by fears of fraud and       and Shuman (2000) put forth the following forensic guideline:
  injustice, certain attorneys (e.g., defense counsel in civil   No determination of malingering should rest solely on tradi-
  litigation and prosecutors in criminal matters) suspect that   tional interviews.
  malingering and dissimulation are very prevalent. Despite          The classification of malingering often appears dispositive
  speculation that the majority of forensic evaluatees may       of the verdict. Given this observation, what are the responsi-
  be malingering, the best estimates (Rogers et al., 1994,       bilities of a forensic psychologist who believes that another
  1996) indicate this is not the case.                           expert’s conclusions about the presence of malingering were
• Malingering occurs at a predictable rate. If stable base       inaccurate? That psychologist bears the onerous responsibil-
  rates could be achieved, the classification of malingering      ity of comprehensively evaluating the issue of malingering. If
  and other response styles could be improved. In a desire to    the data continue to support his or her conclusion (i.e., the
  improve classification, clinicians often ignore the fact that   absence of malingering), then great care must be taken to
  malingering does not occur at predictable rates. The best      marshal this evidence in a manner to convince the trier of
  available data (Rogers et al., 1996) found highly variable     fact. In general, forensic psychologists should assume an un-
  rates (SD 14.44). Even within the same setting, rates          even playing field, with a much heavier burden of disproving
  are likely to vary markedly based on referral issues (see      than proving malingering.
  Rogers & Salekin, 1998).                                           In sentencing and postverdict criminal evaluations, defen-
                                                                 siveness is often the preeminent issue. Courts and other adju-
• Malingering is most likely to occur in persons with antiso-
                                                                 dicative bodies are concerned that dangerous persons not be
  cial personality disorder (APD). Psychopaths and persons
                                                                 released prematurely based on minimization of their psycho-
  with APD likely engage in deception (Rogers & Cruise,
                                                                 logical impairment. Forensic psychologists must exercise
  2000), but no data indicate an increased likelihood for
                                                                 a rigorous standard in conducting these evaluations, compa-
  malingering in forensic settings. This unsupported as-
                                                                 rable to malingering determinations.
  sumption likely is based on a methodological artifact:
  Because most forensic studies are conducted in criminal
  settings, the facile connection between malingering and
                                                                 EMPIRICAL ISSUES
  APD is understandable.
• Malingering and mental disorders are mutually exclusive.       The clinical assessment of response styles rests solidly on
  Neither malingering nor mental disorders offer any natural     their validation. As demonstrated in this section, no single re-
  immunity to the other. Some individuals with valid psy-        search design is sufficient to validate measures of response
  chopathology “gild the lily” by adding feigned symp-           style. With respect to preparing for testimony, Rogers (1997)
  toms. Most clinicians are willing to acknowledge the           provided a thorough review of these research designs. The
  co-occurrence of malingering and mental disorders; how-        purpose of this section is to provide forensic psychologists
  ever, many forensic reports do not address the mental dis-     with a brief summary of research designs and their relevance
  orders after malingering has been determined.                  to the assessment of response styles.


Applications to Forensic Practice                                Basic Designs

Determinations of malingering often supersede all other clini-   Three designs predominate the validation of clinical mea-
cal issues. When a forensic psychologist concludes that a        sures for the evaluation of malingering and defensiveness.
                                                                                                             Empirical Issues   113


Simulation Design                                                 comparisons, because these studies are frequently omitted
                                                                  from the test validation.
Simulation studies use an analog design in which participants
are randomly assigned to simulator and control conditions.
For feigning studies, the addition of a clinical comparison       Incremental Validity
sample is essential; otherwise, researchers cannot ascertain      Psychologists often believe that a convergence of findings
whether differences are attributable to feigning or to gen-       across different measures contributes to incremental validity.
uine disorders. With appropriate debriefing, the simulation        As a counterposition, Sechrest (1963) demonstrated in his
design excels at internal validity but has limited external       seminal article that the single best measure often is not im-
validity.                                                         proved by adding additional measures. As a forensic exam-
                                                                  ple, Kurtz and Meyer (1994) found that the SIRS was more
Known-Groups Comparison                                           accurate for the classification of feigning than either the
                                                                  MMPI-2 alone or the combination of the SIRS/MMPI-2.
Known-groups studies are conducted with independently             Forensic psychologists must decide whether to use the single
classified malingerers who are compared with genuine pa-           best measure or a convergence of measures in establishing
tients. The challenge is the identification of actual malinger-    classificatory accuracy for response styles.
ers in sufficient numbers for research. The known-groups               We recommend that forensic psychologists employ multi-
comparison excels at external validity but has limited internal   ple indices from different measures when malingering is sus-
validity.                                                         pected. Because the determination of malingering carries
                                                                  such grave consequences, its assessment should be compre-
Differential Prevalence Comparison                                hensive. The results should be analyzed on two parameters:
                                                                  domain and detection strategies. Feigning can be divided into
Differential prevalence studies assume that certain groups        at least three broad domains (i.e., mental disorders, cognitive
will have a higher prevalence of a specific response style         impairment, and medical illness) that differ substantially in
(e.g., forensic patients for feigning and job applicants for      clinical presentation. For each domain, detection strategies
defensiveness). Group differences have little practical sig-      can be identified for the clinical classification of malingering;
nificance without knowing what is the proportion of dis-           these detection strategies vary in the extent of their validation
simulation in different groups, or whether deviant scores         and accuracy of classification. To facilitate this analysis,
represent dissimulation. Differential prevalence comparison       subsequent sections of this chapter address domains and their
fails to establish internal validity and has limited external     respective detection strategies. Clinicians must be ready to
validity.                                                         grapple with both convergent and divergent results.
                                                                      What about convergent results? With consistent results
                                                                  from well-validated strategies derived from dissimilar mea-
Bootstrapping Comparisons
                                                                  sures, forensic psychologists likely will have confidence in
A fourth design, bootstrapping comparisons, recently has          their conclusions about response styles. Such confidence
been observed in studies of feigned cognitive impairment.         should not be confused with increased accuracy (i.e., incre-
Persons identified by deviant scores on other measures of          mental validity); unless empirically demonstrated, psycholo-
feigning are compared to those without these deviant scores.      gists cannot conclude a higher level of accuracy.
The key issue with bootstrapping comparisons is the selec-            What about generally consistent results? The most com-
tion of measures with nearly perfect specificity, so that the      mon finding in forensic evaluations is that most of the indica-
“feigning” group does not contain genuine patients. Experi-       tors agree; however, one or more indices of response styles
mental rigor can be increased through the classification           do not fit with the other indicators. One temptation is to
based on several measures representing different detection        ignore or explain away the discrepant findings. A more pru-
strategies.                                                       dent course is to evaluate the results, taking into account the
   The best validation for measures of response styles is a       accuracy of the measures and the validity of the detection
combination of studies representing simulation design and         strategies. For example, a “nonfeigning” classification on the
known-groups comparisons. This combination maximizes              SIRS has an excellent positive predictive power that is likely
both internal (simulation design) and external (known-            to outweigh a more nebulous elevation on an MMPI-2
groups comparison) validity. Forensic psychologists should        validity scale. In addition, some detection strategies (e.g.,
take particular care to select measures with known-groups         symptom validity testing) are much more robust than others
114   Evaluation of Malingering and Deception


(e.g., forced choice testing); their comparative validity can be          would need to have a sophisticated understanding of
taken into account in making determinations.                              psychopathology.
    What about inconsistent findings? The first possibility is         4.   Symptom Severity. Even severely impaired patients expe-
that the results are domain-specific. For example, an evalua-              rience only a discrete number of symptoms as “unbear-
tee with major depression (a mental disorder domain) may                  able.” Malingerers often are unable to estimate which
feign problems with attention, concentration, and immediate               symptoms and how many symptoms should have extreme
memory (a cognitive impairment domain) in the context of a                severity.
disability evaluation. Sometimes, these cases can be resolved        5.   Indiscriminant Symptom Endorsement. When asked about
based on the accuracy of measures and relative validity of                a broad array of psychological symptoms, some malinger-
detection strategies. In other cases, the only logical decision           ers do not respond selectively but endorse a large propor-
is that the results are inconclusive.                                     tion of symptoms.
    Forensic psychologists should be aware that some clinicians
                                                                     6.   Obvious versus Subtle Symptoms. Malingerers tend to en-
adopt a “fall-through-the-ice” mentality: Any failure (e.g., an
                                                                          dorse a high proportion of obvious symptoms (i.e., clearly
indicator of feigning) is viewed as decisive evidence of a per-
                                                                          indicative of a mental disorder). Obvious symptoms are
vasive response style. Like falling through the ice, the results
                                                                          either considered alone or in relation to subtle symptoms
are immediately catastrophic and summarily generalized. This
                                                                          (i.e., “everyday” problems, not necessarily indicative of a
mentality is empirically unwarranted and is probably more
                                                                          mental disorder). When compared to genuine patients,
illuminating about the clinician than the evaluatee.
                                                                          malingerers often report a higher proportion of obvious
                                                                          symptoms.
                                                                     7.   Erroneous Stereotypes. Many persons have misconcep-
MALINGERING OF MENTAL DISORDERS
                                                                          tions about symptoms associated with mental disorders.
                                                                          When displaying erroneous stereotypes, persons feigning
Detection Strategies
                                                                          mental disorders can sometimes be detected.
Rogers (1997) and Rogers and Vitacco (in press) provide ex-          8.   Reported versus Observed Symptoms. Marked discrepan-
tensive descriptions of detection strategies for feigned mental           cies between the person’s own account and clinical obser-
disorders. The purpose of this section is to highlight these pri-         vations appear useful in the detection of malingerers when
mary strategies. These strategies are important for under-                standardized measures are used. The risk of this approach
standing how scales and specific indicators are utilized in the            is that many genuine patients lack insight about their psy-
assessment of malingering. Using detection strategies, a con-             chopathology.
ceptually based approach combines theory and empiricism. It
offers judges and juries more than simply numbers and cut               These eight detection strategies account for most of the
scores; it supplies the underlying logic and rationale for how the   systematic approaches to feigned mental disorders and
scales were constructed and the classification was reached.           constitute the framework for the evaluation of malingered
   A distillation of eight detection strategies for feigned psy-     symptomatology. Several additional strategies have been ex-
chopathology is enumerated:                                          plored. Morel (1998) used forced-choice testing (see section
                                                                     on Malingering and Cognitive Impairment) to test for feigned
1. Rare Symptoms. Items in this strategy are very infre-             posttraumatic stress disorder; the bogus effects of emotional
   quently endorsed by clinical populations. Malingerers             numbing were evaluated in a two-choice paradigm. Wildman
   often are unaware that certain symptoms are infrequently          and Wildman (1999) explored whether malingerers might be
   experienced. Rare symptoms represent one of the most              detected by their overly virtuous self-descriptions.
   robust detection strategies.
2. Improbable Symptoms. A minority of malingerers report
                                                                     Featured Measures
   or endorse symptoms that have a fantastic or preposterous
   quality. When a pattern of improbable symptoms is en-             A single chapter cannot comprehensively review the broad
   dorsed, the credibility of the evaluatee’s reporting is           array of psychological measures adapted or developed for
   brought into question.                                            the assessment of feigned mental disorders. Therefore, this
3. Symptom Combinations. Many symptoms commonly                      section addresses three featured measures that have been ex-
   occur alone but rarely are paired together (e.g., grandios-       tensively validated. Featured measures include two multi-
   ity and increased sleep). To foil this strategy, malingerers      scale inventories and one structured interview.
                                                                                                                     Malingering of Mental Disorders         115


   As a general caution, forensic psychologists should                                 Minnesota Multiphasic Personality Inventory-2
closely inspect test manuals and validation studies prior to
using any test for feigned mental disorders. For example, we                           A large array of validity indices has been developed to evalu-
have observed numerous forensic reports attempting to use                              ate whether MMPI-2 protocols have been feigned. Table 7.1
the Millon Clinical Multiaxial Inventory III (MCMI-III;                                provides a summary of indices for the detection of both
Millon, 1994; Millon, Davis, & Millon, 1997) to assess feign-                          feigning and defensiveness. Summary data include the range
ing. Is this use warranted based on a careful examination of                           of cut scores, available data on effect sizes, and a brief de-
the MCMI-III’s validation? The answer is clearly negative.                             scription of scale development.
For example, the debasement index is promoted as a fake-bad                               Forensic psychologists are likely to be in a quandary about
scale for detecting persons attempting to appear psychologi-                           which MMPI-2 indices should be employed for the evalua-
cally impaired. Close inspection reveals the following:                                tion of malingering. Standard MMPI-2 texts provide con-
(a) both the 1994 and 1997 MCMI-III test manuals neglected                             flicting conclusions. Championing the traditionalist model,
the validation of the MCMI-III debasement index; (b) the                               Butcher and Williams (1992) advocated the use of the F and
MCMI-III debasement index appears confounded by psy-                                   Fb scales, virtually ignoring specialized scales for feigning.
chopathology (i.e., 9 clinical scales correlate .75 in the                             Graham (2000) also emphasized the use of traditional
normative sample); and (c) extrapolations from MCMI-II                                 MMPI-2 indicators. However, he endorsed one specialized
research would be inappropriate because only 19 of 46                                  indicator (Fp) and discommended the use of other specialized
(41.3%) MCMI-II items were retained on the MCMI-III                                    indices. In stark contrast, Greene (1997, 2000) embraces a
debasement index. More than five years after the MCMI-III’s                             comprehensive model, with the use of both traditional and
publication, research (Daubert & Metzler, 2000; Thomas-                                specialized indices of malingering. Both models are critically
Peter, Jones, Campbell, & Oliver, 2000) is now beginning to                            evaluated in subsequent sections.
emerge on the debasement index and feigning; more exten-                                  The traditionalist model of malingering, beyond history and
sive research is needed before its use in forensic evaluations.                        convention, has several advantages that must be considered. In
Importantly, validational problems are not limited to the                              an MMPI-2 meta-analysis, Rogers, Sewell, and Salekin (1994)
MCMI-III; forensic psychologists are urged to scrutinize                               found the F and Fb had several of the largest effect sizes (2.56
closely the validation of all response style measures.                                 and 1.85, respectively) for feigning when compared to clinical


TABLE 7.1     Description of MMPI-2 Validity Indices for Feigning and Defensiveness
                                                                          Effect Sizesa

     Scale Items                  Cut Scores               ra                 Feigning          Defensive                        Scale Development
                 b
Feigning Indices
F                                     60                  8–30                 1.00                2.56               Infrequency in normative samples.
Fb                                    40                  9–25                  .86                1.85               Infrequency in normative samples.
Fp                                    27                   NA                   .75                NA                 Infrequency in inpatient samples.
Dsr2                                  32                 13–28                  .61c               1.54               Stereotypes of mental disorders.
FBS                                   43                   NA                  NA                   NA                Rational: personal injury claims.
LW                                   107                 40–67                  .84                1.38               Rational: urgent clinical issues.
O-S                                  NAd                 74–190                 .81                2.30               Rational: obvious versus subtle symptoms.
Defensiveness Indicese
L                                      15                 6–9                   .43                 .94               Rational: borrowed from earlier scales.
K                                      30                17–22                 1.00                 .90               Empirical: 30% for defensive patients.
Mp                                     34                16–20                  .48f               1.42               Empirical: identify best impression.
Wsd                                    33                21–23                  .28                1.60               Empirical: socially desirable items.
Esd                                    39                35–36                  .76                 .67               Rational: socially desirable items.
S                                      52                  NA                   .88                 NA                Differential prevalence with pilots.g
Note: NA not available.
a
  Correlations are reported in Greene (2000) for clinical samples between (a) feigning indices and Scale F and (b) defensiveness indices and Scale K.
b
  Effect sizes and range of cut scores reported in MMPI-2 meta-analyses of feigning (Rogers, Sewell, & Salekin, 1994).
c
  Dsr2 is not reported in Greene (2000); this estimate is based on the original 58-item Ds2 from which the Dsr2 was extracted.
d
  Uses T-score transformations of subscales.
e
  Effect sizes and range of cut scores reported by Baer, Wetter, and Berry (1992). Please note that this meta-analysis is based on the original MMPI and should be
  viewed only as a general benchmark for MMPI-2 performance.
f
 Based on slightly modified Od scale.
g
  Pilot applicants were assumed to have a high proportion of defensive persons; they were compared to a normative sample.
116   Evaluation of Malingering and Deception


populations. Other research (Bagby, Buis, & Nicholson, 1995;        forensic psychologists, who must explain their uncertainties
Timbrook, Graham, Keiller, & Watts, 1993) has used hierar-          to the court.
chical multiple regression to evaluate whether the use of addi-         The incremental validity of MMPI-2 indices remains
tional validity indices would add incremental validity (i.e.,       unresolved. Forensic psychologists will opt for either the
account for more of the variance). These studies concluded that     simple traditionalist model or the more complex comprehen-
the F scale alone appeared to be the most predictive of malin-      sive model. They must weigh the risks of overlooking valu-
gering. A final advantage of the traditionalist model is its sim-    able data (traditionalist model) against the possibilities of
plicity; forensic psychologists do not have to explain to the       unexplainable discrepancies (comprehensive model). For
courts potentially conflicting MMPI-2 data.                          either choice, forensic psychologists must have a clearly
   The traditionalist model also has significant limitations         articulated rationale.
in the evaluation of feigning. Its primary constraints are              For clinicians seeking guidance with this decision, one
outlined:                                                           recommended course of action is a two-phase approach. Con-
                                                                    sistent with the traditionalist model, the first phase comprises
• Both F and Fb are based on the same strategy (rare symp-          standard indicators, which are routinely evaluated in all
  toms); this overreliance on a single strategy is a weakness       forensic cases. When standard indicators are marginally or
  of the traditionalist model. This shortcoming is accentu-         markedly elevated, the second phase consists of 3 to 4 spe-
  ated by the flawed development of both F and Fb scales.            cialized indices, which likely include the Fp, Dsr2, LW, and
  Items on both were selected if they were infrequently en-         O-S. In marginal cases, a second phase may resolve ambigu-
  dorsed by normative (nonclinical) samples. The critical           ities. In marked cases, additional data are sought to confirm
  comparison between genuine and bogus disorders was                or disconfirm the initial findings.
  omitted. The fact that patients with genuine disorders                Forensic psychologists should be aware of common
  often have marked F and Fb elevations is directly attribut-       MMPI-2 missteps. An important responsibility of forensic
  able to its flawed development.                                    psychologists is to evaluate the conclusions drawn by other
• Studies indicating that specialized MMPI-2 indices do not         clinicians from test data, including the MMPI-2. A careful
  add incremental validity to scale F have serious method-          scrutiny of MMPI-2 reports reveals three common missteps
  ological constraints. Because of unaddressed issues with          in using the MMPI-2 for the assessment of feigning:
  multicolinearity (e.g., 25% of items on F also appear on
  O-S), results likely are skewed toward nonsignificance.            • Inconsistent Profiles. A random or otherwise inconsistent
                                                                      profile is likely to have extreme elevations of MMPI-2
  Also, forensic psychologists are primarily interested in
                                                                      feigning indices. Although malingerers may deliberately
  whether the use of specialized indices improves accuracy of
                                                                      respond inconsistently, psychologists generally cannot
  classification for feigning and genuine disorders. This matter
                                                                      rule out other common reasons for inconsistent profiles,
  was left unaddressed by these multiple regression studies.
                                                                      including a haphazard completion of the answer sheet with-
   The comprehensive model provides, in unambiguous cases,            out carefully reading the test items. The very rare exception
an array of empirically validated strategies for the classifica-       occurs when the MMPI-2 feigning indices are consistently
tion of feigned and genuine disorders. Forensic psychologists         above chance endorsement (e.g., raw F 40).
can present data to the court based on multiple detection strate-   • Incompatible Profiles. Clinicians sometimes observe that
gies: (a) rare symptoms (i.e., F, Fb, and Fp); (b) erroneous          an MMPI-2 profile is incompatible with other documented
stereotypes (i.e., Dsr2); (c) overendorsement of obvious symp-        findings and erroneously conclude that the client is feign-
toms (i.e., O-S); and (d) indiscriminant endorsement of severe        ing. This grave error is based on the misassumption that
symptoms (i.e., LW). Convergent data from multiple strategies         certain profiles or scale elevations are nearly always
are often compelling, especially because they minimize the            linked with certain diagnoses or symptoms. The simplest
limitations found with any particular scale, such as multiple         rebuttal of this error is that a within normal limits (WNL)
interpretations for marked elevations on the F scale.                 profile with no clinical elevations is the most common
   The challenges of the comprehensive MMPI-2 model are               profile among inpatients and outpatients (Greene, 2000).
how to understand discordant data and how to explain appar-         • Validity Scale Configurations. Historically, the relative
ent discrepancies to the court. Validity indices on forensic          elevation of scale F in relationship to scales L and K was
protocols sometimes range from low to marginally elevated             interpreted as indicative of feigning. The validity of this
to extremely elevated. Occasionally, the pattern of scores is         interpretation has not been established. Interestingly,
clearly understandable in light of other clinical data. In many       Greene (2000) suggested that this configuration is desir-
cases, the range of validity indices presents a conundrum to          able for psychological intervention.
                                                                                           Malingering of Mental Disorders   117


Personality Assessment Inventory                                 (a) a very low proportion of false-positives (NIM .02;
                                                                 Malingering index .01), and (b) high (NIM, PPP .82) to
The PAI now rivals the MMPI-2 as a multiscale inventory
                                                                 very high (Malingering index, PPP .92) classifications
for the evaluation of malingering and other response styles.
                                                                 when these cut scores are met. The problem is that relatively
Although more malingering studies have been conducted
                                                                 few feigners achieve such extreme elevations; the sensitivity
with the MMPI-2, the PAI has several important advantages:
                                                                 estimates are .10 and .09, respectively. Therefore, these ex-
                                                                 treme scores are likely to miss 9 out of 10 feigners.
• The PAI validity scales are nonoverlapping. In contrast,
                                                                     The PAI discriminant function is not recommended for
  specific MMPI-2 validity scales overlap with each other
                                                                 forensic evaluations. Although highly effective in clinical
  and with clinical scales, thereby confounding their inter-
                                                                 evaluations, its accuracy was substantially diminished when
  pretation and classificatory utility.
                                                                 applied to forensic patients in a known-groups comparison.
• The PAI validity scales typically use a standardized cut       Its sensitivity plummets from .84 to .51, and its specificity
  score for feigning. In contrast, MMPI-2 validity scales uti-   declines from .89 to .72. Even in clinical settings, psycholo-
  lize a broad range of cut scores. This range diminishes the    gists are cautioned to inspect the PAI clinical profile before
  effectiveness of the MMPI-2’s classification of feigned         using the discriminant function. A case has been identified in
  and nonfeigned profiles.                                        which all the clinical scales were unelevated and the individ-
• The PAI validity indices were tested with both simulation      ual was not feigning, despite a positive finding on the dis-
  and known-groups designs. In contrast, the MMPI-2              criminant function.
  validity scales have very limited testing with actual cases
  of suspected malingerers.
                                                                 Structured Interview of Reported Symptoms
   Three PAI indices are used to evaluate feigning. The stan-    The SIRS is a structured interview for the systematic as-
dard indicator, NIM scale ( 11), is based on items infre-        sessment of feigned mental disorders. Rogers, Bagby, and
quently endorsed by normative and patient samples. More          Dickens (1992) outline its general validation; forensic psy-
recently, Morey (1996) developed the Malingering index           chologists may wish to consult Rogers (2001) for the most
( 5), composed of eight configural rules using PAI scales         recent update of SIRS validity studies. Unlike the MMPI-2
and subscales. Finally, Rogers, Sewell, Morey, and Ustad         and PAI, the SIRS was developed specifically for the assess-
(1996) cross-validated a discriminant function, which was        ment of feigning and related response styles. This focus has
derived from 20 loadings on PAI scales and subscales. Pri-       resulted in extensive research for both the development of
mary references for the feigning on the PAI include a recent     strategy-based scales and their clinical implementation.
review by Morey and the known-groups comparison by                   The SIRS’s primary scales employ all detection strategies
Rogers, Sewell, Cruise, Wang, and Ustad (1998).                  described previously, with the exception of “erroneous stereo-
   The following guidelines are based on a synthesis of data     types.” Persons feigning mental disorders typically are classi-
from simulation research and known-group designs. In foren-      fied based on three or more scales in the probable feigning
sic evaluations, the guidelines are provided:                    range. Less frequently, feigners will have extreme elevations
                                                                 (i.e., definite feigning range) on one or more primary scales.
• Rule out Feigning. A NIM score 77T (raw score 8)               Forensic psychologists classify SIRS profiles into one of three
  indicates a low probability that the evaluatee is feigning.    general categories: feigning, indeterminate, and nonfeigning.
• Screen for Feigning. Marked elevations on NIM (77T to              The principal features of the SIRS are summarized:
  109T) indicate the need to evaluate thoroughly issues of
  feigning. Forensic psychologists should examine the PAI        • Validation. The SIRS has been extensively validated not
  Malingering index and specialized measures (e.g., the            only by its developers but also by independent researchers
  SIRS) for the assessment of feigning.                            (see Rogers, 2001; Rogers et al., 1992). Importantly, the
• Likely Feigning. Extreme elevations on NIM ( 110T) or            SIRS combines both simulation design and known-groups
  the Malingering index ( 5) indicates a strong likelihood         comparisons to optimize its validation. The SIRS has also
  of feigning.                                                     been validated with clinical, forensic, and correctional
                                                                   populations.
   The PAI should not be used as the primary measure to          • Clinical Applications. A major emphasis on the SIRS is
evaluate feigning, although low scores may be effective at         the individual classification of evaluatees with respect to
eliminating cases unlikely to be malingering. For “likely          response styles. To reduce misclassifications, an indeter-
feigning,” the strengths of extreme elevations are twofold:        minate category was implemented for marginal cases. In
118   Evaluation of Malingering and Deception


  the classification of feigners, the positive predictive power     Three major reasons contribute to our limited knowledge of
  is very high to minimize misclassifications. Classification        defensiveness:
  rules are also available for nonfeigning profiles.
• Coaching. A particular concern of forensic evaluators is         • Defensiveness is difficult to assess because clients simply
  whether evaluatees are coached by others or otherwise              deny or minimize their symptomatology.
  “educated” about a response style measure and its scales.        • Defensiveness is often difficult to distinguish from “lack
  Coaching participants on the SIRS strategies does reduce           of insight.” Many chronic patients, especially those with
  elevations; however, most participants still have marked           psychotic disorders, do not recognize their symptoms and
  elevations on the SIRS primary scales.                             therefore do not report them.
• Generalizability. Available research (see Rogers, 2001)          • Defensiveness has been largely neglected by recent foren-
  indicates that the SIRS appears to function equally well           sic research.
  across gender, ethnicities commonly encountered in foren-
  sic settings, and type of setting.                                  This section focuses on two measures that have been used
                                                                   with varying degrees of success in the assessment of defen-
    An important caution is that the SIRS has not been vali-       siveness. These measures consist of the MMPI-2 and Paulhus
dated for repeat administrations, especially across brief inter-   Deception Scales (PDS; Paulhus, 1998).
vals. We have observed several forensic cases in which an
expert, apparently dissatisfied with the results from an ear-       Minnesota Multiphasic Personality Inventory
lier expert, readministered the SIRS. One grave concern is
                                                                   The MMPI-2 has two traditional scales and a handful of spe-
whether the evaluatee had access to the results of the previ-
                                                                   cialized scales for the evaluation of defensiveness (Baer,
ous report (written or oral) or reasonably inferred this feed-
                                                                   Wetter, & Berry, 1992). Beyond the traditional scales (L and
back from general comments made by his or her attorney.
                                                                   K), this review focuses on two highly effective specialized
This type of specific feedback on past SIRS performance may
                                                                   scales (Wsd and Mp) as well as a recently developed and
invalidate subsequent administrations.
                                                                   highly touted scale (S). Table 7.1 summarizes the pertinent
    In summary, the SIRS is probably the best-validated mea-
                                                                   information about these five scales.
sure for the assessment of feigned mental disorders. In foren-
                                                                      Baer et al. (1992) conducted a meta-analysis on 25 studies
sic cases in which malingering is suspected, the SIRS should
                                                                   with a first-rate review of defensiveness on the original
be a standard component of the assessment. Given the accu-
                                                                   MMPI. As an important and unexpected finding, Baer and her
racy of its individual classifications, results of the SIRS
                                                                   colleagues found that Wiggins’ Social Desirability (Wsd)
should be weighted heavily when discrepancies occur in the
                                                                   scale and the Positive Malingering scale (Mp) outperformed
assessment of malingering.
                                                                   the traditional defensiveness scales, L and K. More recent
                                                                   MMPI-2 studies have highlighted the importance of special-
                                                                   ized scales in the determination of defensiveness. Key find-
DEFENSIVENESS AND MENTAL DISORDERS
                                                                   ings are summarized:
Overview
                                                                   • Baer, Wetter, and Berry (1995) found that traditional
Defensiveness, involving the denial and minimizing of men-           scales are vulnerable to coaching; tips on how to avoid de-
tal disorders, is often cast into a secondary role in forensic       tection foiled scales L and K (i.e., negligible effect sizes of
evaluations. Cases of potential malingering take center stage          .06 and .04, respectively). In contrast, Wsd produced
because of concerns within the criminal justice system that          a moderate effect size with coaching (.86).
criminal defendants may evade their punishments or that civil      • Studies have indicated that specialized indices of defen-
litigants may reap undeserved rewards. Less attention is paid        siveness add incremental validity. Specialized indices in-
to defensive clients who may be deliberately underreporting          clude Wsd, S, Edwards Social Desirability (Esd), and
their symptomatology, possibly motivated by the stigmatiza-          Other Deception (Od), which add incremental validity to
tion of mental illness. As an extreme example, some criminal         the traditional scales (Baer, Wetter, Nichols, Greene, &
defendants would rather face the death penalty than admit            Berry, 1995; Bagby et al., 1997). As a concrete example,
that they are mentally disordered.                                   Baer et al. (1995) found that a discriminant function based
    Methods of assessing defensiveness in forensic evaluations       on scales L and K produced a 78% classification, while the
are not nearly as well developed as those for malingering.           addition of Wsd and S improved this classification to 90%.
                                                                                              Feigned Cognitive Impairment   119


   A critical issue for forensic psychologists is whether         formidable challenge for the unconscious formulation for
MMPI-2 indices are effective in forensic cases in which           the SDE scale.Although the test manual reports factor analytic
defensiveness is likely to occur. Bagby, Nicholson, Buis,         results supporting two dimensions, it does not provide evi-
Radovanovic, and Fidler (1999) addressed this issue indi-         dence that the second dimension was unconscious. In citing his
rectly by comparing the clinical profiles of defensive and non-    earlier research, this factor was described as a portrayal of
defensive parents in custody and access evaluations. Using a      “exaggerated mental control or dogmatic overconfidence”
variation of standard indicators (i.e., L K), they found vir-     (Paulhus, 1998, p. 23). This description leaves open the ques-
tually no difference between defensive and nondefensive           tion of unconscious motivation.
profiles (M effect size 0.00). With specialized indices               Results of Pebles and Moore (1998) further question the
(Wsd and S), very modest effect sizes were found (M effect        validity of the SDE scale. When simply asked to “make a
size .17). The use of single cut scores may have modest util-     good impression,” participants easily doubled their scores on
ity when most parents are engaging in some level of defen-        SDE from 5.5 to 11.6. The ability of uncoached participants
siveness (i.e., overall M elevations for clinical scales 51.2).   to achieve an extreme elevation (T score 85) casts doubt on
Alternative explanations are that most parents in child cus-      the SDE as an unconscious measure of self-deception.
tody litigation do not have psychological impairment, or their       Salekin (2000) provided a useful summary of the PDS in
psychological impairment is not captured by the MMPI-2.           relation to forensic practice. He observed problems in under-
   The basic recommendation for forensic practice is that         standing the SDE scale in relation to psychopathy (e.g.,
psychologists routinely score Wsd in all cases. In addition to    grandiosity and superficial charm) and narcissism. He also
robust effect sizes, the Wsd has two major advantages: it is      noted the absence of cross-validated cutting scores and the
less vulnerable to coaching than other indices, and it has a      lack of research with clinical-forensic samples. Amplifying
narrow range of cut scores. Other specialized indices (S and      on this latter point, an inspection of the test manual suggests
Mp) are likely to be used selectively in cases where defen-       that the PDS validation does not include any identified clini-
siveness is suspected.                                            cal sample; instead, Paulhus (1998) relied on general popula-
                                                                  tion, college students, prison entrants, and military recruits.
                                                                  Without formal comparisons to Axis I and Axis II disorders,
Paulhus Deception Scales
                                                                  forensic psychologists have no way of knowing whether
Paulhus (1998) developed the PDS, composed of two scales          scale elevations signify defensiveness or simply reflect a nor-
for measuring defensiveness. The purpose of each scale is         mative pattern in patient populations.
examined in detail.
    The Impression Management (IM) scale is intended to
measure deliberate efforts at social desirability, although the   FEIGNED COGNITIVE IMPAIRMENT
scale correlates moderately with personality traits of con-
scientiousness and agreeableness. Under “high-demand”             Feigned cognitive impairment shares a similar definition and
circumstances, scores on the IM scale tend to increase. Com-      concomitant goals with other types of malingering. However,
plicating the interpretation of the IM scale is the finding that   it differs fundamentally from the malingering of mental dis-
highly religious persons tend to have very high scores (see       orders in two crucial ways: tasks required of the malingerer
Paulhus, 1998, p. 9, note 1); the question remains whether re-    and detection strategies. As observed by Rogers and Vitacco
ligious persons deliberately engaged in social desirability or    (in press), the principal task for feigned cognitive impairment
the IM scale is confounded by devout beliefs.                     is “effortful failure.” In other words, would-be malingerers
    The Self-Deceptive Enhancement scale (SDE) is intended        must convince the examiner that their efforts to succeed are
to measure “an unconscious favorability bias closely related to   sincere and that their ostensible impairments are genuine.
narcissism” (Paulhus, 1998, p. 9). High SDE scores are associ-    Effortful failure is strikingly different from fabrication of
ated with self-described personal adjustment; observers vary      symptoms and associated features typically required for
in their descriptions from confident and well-adjusted to arro-    feigned mental disorders. Because of these differences,
gant and domineering. Perhaps the most controversial part of      forensic psychologists must use detection strategies that
the SDE scale is its designation of an “unconscious” bias.        focus specifically on cognitive feigning. As a concrete exam-
Some forensic psychologists are likely to be unwilling to adopt   ple, strategies such as “rare symptoms” make little concep-
the PDS’s explicit psychoanalytic framework. Moreover,            tual sense for the detection of purported deficits on the
the admissibility of expert evidence following Daubert must       WAIS-III. Therefore, detection strategies specific to feigned
take into account the falsifiability of scale interpretations, a   cognitive impairment must be considered.
120   Evaluation of Malingering and Deception


    The definition of malingering does not change, despite              How should forensic psychologists describe suboptimal
differences in presentation and detection strategies. The ma-      effort in the great majority of cases in which feigning cannot
lingering of cognitive impairment must involve the gross           be isolated as the predominant reason? To avoid any serious
exaggeration or fabrication of intellectual and neuropsycho-       misunderstandings, we recommend that forensic psycholo-
logical deficits for an external goal. This point must be em-       gists employ two safeguards: address the possible reasons
phasized. Many studies have attempted to substitute other          for suboptimal effort, and proactively clarify the lack of
terms, such as “incomplete effort,” “suboptimal effort,” and       known relationship between this diminished effort and
“poor motivation.” These terms cannot be equated with either       feigning. An example of this recommendation is provided
feigning or malingering.                                           for a female client evaluated following a motor vehicle ac-
    Most clients are required to participate in forensic evalua-   cident: “The client did not appear to put forth her best pos-
tions. The level of perceived coercion is likely to vary widely    sible effort during several tests of her cognitive ability.
by circumstances of the evaluation and the individual charac-      Reasons for this could include cognitive and emotional im-
teristics of the clients. The far-reaching implications of these   pairment as a result of her car accident, her expectations of
evaluations are not overlooked. For instance, the client’s         failure, stresses related to the evaluation, or deliberate at-
financial well-being is often at stake in civil proceedings.        tempts to appear more impaired. These test findings cannot
Although generally adequate, forensic evaluations do not           be used to establish feigning or any other reason for subop-
represent the optimal conditions for the assessment of cogni-      timal effort.”
tive functioning. To expect clients to put forth optimal efforts       Evaluations of feigned cognitive deficits pose several im-
under suboptimal conditions appears naïve.                         portant ethical issues for forensic psychologists. Because
    The concept of “poor motivation” is both imprecise and         many cognitive feigning measures are single-purpose scales
inferential. What are the standards for judging certain motiva-    (i.e., only intended for dissimulation), what type of informed
tion as “poor,” “adequate,” or “good”? The simple designa-         consent is required ethically? Youngjohn, Lees-Haley, and
tion of poor motivation may have devastating consequences          Binder (1999) argue that informing clients about cognitive
for a client. The process of assessing gradations of motivation    feigning measures may reduce their effectiveness; instead,
is poorly understood and highly inferential. Forensic psychol-     they advocate instructing clients to put forth maximum effort.
ogists will want to avoid this level of imprecision and the po-    Although maintaining the effectiveness of cognitive feigning
tential ethical concerns of drawing unwarranted conclusions.       measures is a laudable goal, it should not be achieved via the
    An important distinction must be drawn. Forensic psychol-      neglect of informed consent. In describing the nature of psy-
ogists certainly encounter clients who put forth an incomplete     chological services (American Psychological Association,
or suboptimal effort. The reasons for this suboptimal effort are   1992, Ethical Standard 1.07a), a basic obligation occurs to
typically unknown but may include (a) decreased interest and       describe their broad objectives, including response styles.
effort as a result of genuine cognitive impairment; (b) de-        This obligation can be satisfied by a general statement at the
creased interest and effort as a result of a comorbid condition    onset of the evaluation; this statement may also serve a bene-
(e.g., depression secondary to head injury); (c) expectations      ficial purpose in diminishing the likelihood of malingering
of failure based on recent performance; (d) stress and preoc-      (Johnson & Lesniak-Karpiak, 1997). A second ethical issue is
cupation with the potential consequences of the evaluation         posed by deliberate misrepresentations to the evaluatee. For
(e.g., loss of disability income); (e) reaction to inferences      example, the Rey 15-item test (see Lezak, 1995) is sometimes
from the examiner’s questions that the impairment is trivial;      intentionally misdescribed as a “difficult” memory task, when
and (f ) attempts to feign cognitive impairment. Psychologists     this is known to be inaccurate. Forensic psychologists should
must address these six reasons for suboptimal effort. Two          categorically avoid any misrepresentations to persons being
types of conclusions are possible:                                 evaluated.
                                                                       The next section outlines the detection strategies for feigned
1. In a minority of cases, forensic psychologists may feel         cognitive impairment. It summarizes the recent literature on
   confident that they are able to address effectively each of      the effectiveness of specific strategies and presents an over-
   these reasons for suboptimal effort. In very rare cases,        view of specific measures.
   they may have sufficient data to conclude that the subopti-
   mal effort was a result of feigning and systematically rule
                                                                   Detection Strategies
   out other explanations.
2. In most cases, forensic psychologists lack the data to          Rogers, Harrell, and Liff (1993) identified six basic detection
   address systematically the various reasons for suboptimal       strategies for feigned cognitive impairment. These strategies
   effort.                                                         have been augmented by forced-choice testing and reaction
                                                                                                                    Feigned Cognitive Impairment          121


time (Rogers & Vitacco, in press) and pairwise comparisons                       error). In general, detection strategies using unexpected pat-
of comparable items (Frederick, 1997). In general, detection                     terns are less transparent than excessive impairment and
strategies can be grouped into two domains: detection by ex-                     likely to be robust indicators of feigning.
cessive impairment and detection by unexpected patterns.                            Three common detection strategies are subsumed within
Examples of excessive impairment are failures on very easy                       the “excessive impairment” domain, with feigned perfor-
items (i.e., floor effect) and failures below chance on forced-                   mance overreaching the level of impairment typically found
choice formats (i.e., symptom validity testing or SVT). Exam-                    in brain-injured patients. These strategies include floor effect,
ples of unexpected patterns include similar performance on                       SVT, and forced-choice testing (FCT). Table 7.2 summarizes
easy and difficult items (i.e., performance curve) and unex-                      these detection strategies and provides representative exam-
pected answers on forced-choice formats (i.e., magnitude of                      ples of the sample cognitive measures.


TABLE 7.2       Detection Strategies on Feigned Cognitive Impairment: Measures and Validation
  Strategy                  Scale                                                          Clinical Usefulness
Floor effect          Rey 15-Item           Many studies found good specificity but modest sensitivity; it is limited by varying cut scores and possible
                                              false-positives with specific conditions.
Floor effect          TOMM                  Several studies found high classification rates; it is not tested with comorbid mental disorders.
Floor effect          HDMT                  Guilmette, Hart, & Giuliano (1993) found that lower than 90% correct yielded high classifications; it needs
                                              cross-validation.
Floor effect          Digit Span            Two studies found cut score 7 had good specificity but modest sensitivity; research has relied on differential
                                              prevalence design.
Floor effect          LMT                   Inman et al. (1998) reported 3 studies supporting the use of the LMT as a screen.
Perfor. Curve         TONI-S                Frederick & Foster (1991) found very positive results when restricted to higher scores; it is limited by the small
                                              number of memory-impaired patients and needs replication.
Perfor. Curve         Ravens-S              Gudjonsson & Shackleton (1986) found moderately high classification rates; it was partially replicated by
                                              McKinzey, Podd, Krehbiel, Mensch, & Trombka (1997).
Perfor. Curve         DCT                   Several studies yield moderately high classifications, but studies use different cut scores.
Perfor. Curve         LNNB-S                McKinzey et al. (1997) found high rates on cross-validation; it appears clinically useful for LNNB
                                              administrations.
Mag. of Error         WMS-R-S               Martin, Franzen, & Orey (1998) found moderately high classification; it needs replication.
Atypical              WAIS-R-S              Mittenberg, Theroux-Fichera, Zielinski, & Heilbronner (1995) found moderate classification but with a
                                              substantial false-positive rate.
Atypical              CVLT-S                Sweet et al. (2000) found moderately high classification but did not report sensitivity or specificity estimates.
Atypical              WMS-R-S               Mittenberg, Azrin, Millsaps, & Heilbronner (1993) found high classification; it has been replicated (Iverson,
                                              Slick, & Franzen, 2000).
Sequelae              NSI                   Ridenour, McCoy, & Dean (1998) provide promising data on the overall level of reported symptoms to identify
                                              simulators; it needs replication with a range of neuropsychological conditions.
SVT                   PDRT                  Several studies found superb specificity but poor sensitivity.
SVT                   HDMT                  Several studies found superb specificity but poor sensitivity.
SVT                   TONI-S                Frederick & Foster (1991) found superb specificity but poor sensitivity.
SVT                   TOMM                  Several studies found superb specificity but poor sensitivity.
FCT                   PDRT                  Moderate classification; research is limited by differential prevalence design and lack of studies on comorbidity.
FCT                   HDMT                  Guilmette et al. (1993) used performance below 75% correct to achieve a high classification; it needs replication
                                              with large samples and evaluation of comorbidity.
FCT                   21-Item Memory        Highly variable classification rates were found across studies.
FCT                   “b” Test              Boone et al. (2000) found promising data; it needs replication.
FCT                   WMT                   Iverson, Green, & Gervais (1999) summarize past research that shows promise as a screen.
Consistency           TONI-S                Frederick & Foster (1991) found this useful in conjunction with other strategies.
Time                  PDRT-C                Rose, Hall, & Szalda-Petree (1995) found shorter response times for simulators than brain-injured patients;
                                              it needs replication.
Time                  TOMM                  Rees, Tombaugh, Gansler, & Moczynski (1998) found longer response times for simulators than brain-injured
                                              patients; it needs replication.
Note: TOMM Test of Memory Malingering (Tombaugh, 1996); HDMT Hiscock Digit Memory Test (Hiscock & Hiscock, 1989); LMT Learning Mem-
ory Test (Inman et al., 1998); Digit Span sum of raw scores for highest number forward plus highest number backward; Perfor. Curve Performance Curve;
TONI-S specially scored Test of Nonverbal Intelligence (Frederick & Foster, 1991); Ravens-S specially scored Ravens Standard Matrices (Raven, 1981);
DCT Dot Counting Test (Lezak, 1995); LNNB-S specially scored Luria-Nebraska Neuropsychological Battery (Golden, Purisch, & Hammeke, 1985); Mag.
of Error Magnitude of Error; WMS-R-S specially scored Wechsler Memory Scales–Revised subtests (Wechsler, 1987); Atypical Atypical Presentation;
WAIS-R-S specially scored Wechsler Adult Intelligence Scale-Revised (Wechsler, 1981); CVLT-S specially scored California Verbal Learning Test (Delis,
Kramer, Kaplan, & Ober, 1987); Sequelae psychological sequelae; NSI Neuropsychological Symptom Inventory (Rattan, Dean, & Rattan, 1989); SVT
symptom validity testing; PDRT Portland Digit Recognition Test (Binder, 1992); consistency consistency across parallel items; WMT Word Memory
Test (Green, Astner, & Allen, 1996); Time response time; PDRT-C computerized version of the PDRT.
122   Evaluation of Malingering and Deception


    Floor effect strategy is based on the notion that malinger-    Frederick & Denney, 1998) and to test these alternatives on
ers have difficulty distinguishing which cognitive abilities        naïve persons to ensure that they have an equal likelihood of
are unlikely to be compromised in patients with genuine            being selected. For example, a question about the victim’s hair
neuropsychological impairment. This strategy was first pro-         color may elicit “brown” more often than “blond” responses
mulgated by Andre Rey in the 1940s (see Lezak, 1995) in            based on reasonable inferences about the prevalence of differ-
devising a cognitive task (Rey 15-item memory test) that ap-       ent hair colors (see Rogers & Shuman, 2000).
pears moderately complex (recall of 15 separate items) but is          Forced-choice testing (FCT) is simply lower-than-
actually simple (items are organized into easy-to-remember         expected performance based on normative data. Unlike other
sequences). As operationalized, the floor effect strategy typi-     detection strategies, FCT does not apply a logical principle
cally uses a very simple recall and recognition task that can      (e.g., floor effect) or mathematical probability (e.g., SVT). It
be successfully completed by most ( 90%) cognitively im-           simply evaluates group differences and attempts to establish
paired persons. For example, most patients with genuine cog-       an optimum cut score. FCT appears to have been introduced
nitive impairment are able to achieve a 90% accuracy on the        because SVT yielded only modest sensitivity rates (Binder &
second trial of the Test of Memory Malingering (TOMM;              Willis, 1991). Without extensive samples of cognitively
Tombaugh, 1996). The majority of simulators do not recog-          impaired individuals, including those with comorbid men-
nize the simplicity of the memory task, especially when            tal disorders (e.g., major depression or substance abuse), the
given repeated trials.                                             false-positive rates of FCT cannot be established. Forensic
    The floor effect strategy has become a popular detection        psychologists must be careful to distinguish between FCT
method for cognitive feigning (see Table 7.2). Despite its intu-   (questionable specificity) and SVT (very high specificity) in
itive appeal, forensic psychologists should be cautious in         drawing their conclusions.
applying the floor effect strategy for two reasons. First, the          The second domain for cognitive feigning is “unexpected
range of genuine cognitive impairments militates against           patterns” that capitalize on unlikely responses to specific
the selection of items that work equally well for all cognitive    items or sets of items. Detection strategies include magnitude
deficits. For example, the second trial of the TOMM appears to      of error, performance curve, and consistency across parallel
be highly effective with brain injury cases (false-positives       items. Methods using these strategies are summarized in
2.2%) but not with dementia (false-positives 27.0%). Sec-          Table 7.2.
ond, evaluatees can be easily coached to foil the floor effect.         Magnitude of error (MOE) evaluates the degree of inac-
    Symptom validity testing (SVT) examines an improbable          curacy for incorrect responses. Especially in multiple-choice
failure rate based on statistical probability. First championed    formats, incorrect responses can be grouped into “expected”
by Brady and Lind (1961), most SVT methods have a two-             and “unexpected” categories by inspecting patients with gen-
choice format; even persons with total incapacity should not       uine cognitive impairment. A reasonable assumption is that
score significantly below chance. The SVT strategy has been         most malingerers focus on what items to answer incorrectly,
used by numerous cognitive measures, typically in combina-         rather than how to answer items incorrectly. Extrapolating
tion with other strategies. Because the SVT takes into ac-         from case reports, Rogers et al. (1993) formally identify
count total incapacity, this strategy tends to be effective only   this strategy. Martin, Franzen, and Orey (1998) designed a
with extreme forms of malingering. Generally successful in         multiple-choice format for Visual Reproduction and Logical
less than one-third of simulating cases, the SVT is unique         Memory subtests of the WMS-R (Wechsler, 1987). They
among detection strategies in ruling out other reasons for         found MOE was highly effective at identifying simulators
poor performance. The only logical reason for below-chance         who endorsed a high proportion of unexpected errors. Bender
performance is the recognition of the correct response and         (2000) found the MOE to be the most effective strategy for
subsequent selection of the incorrect response. Forensic psy-      identifying simulators, even when simulators were warned
chologists can be very confident in their conclusions about         about MOE.
cognitive feigning when performance on SVT is significantly             Performance curve is based on the thesis that malingerers
below chance.                                                      do not take into account item difficulty in choosing which
    Memory complaints in forensic cases are sometimes fo-          items to fail. First identified by Goldstein (1945), perfor-
cused on personal recollections (e.g., amnesia for the offense).   mance curve compares the proportion of correct items across
Frederick, Carter, and Powel (1995) proposed that SVT could        different gradations of item difficulty. When plotted on a
be used to address purported amnesia by constructing two-          graph, genuine patients and controls typically evidence a neg-
choice alternatives for the events in question. Care must be       ative curve with lower performance on more difficult items.
taken to develop equally plausible alternatives (Denney, 1996;     In contrast, some malingerers exhibit flat or even positive
                                                                                                 Feigned Cognitive Impairment     123


curves. This strategy appears to be moderately effective            identifiable by the range and severity of reported symptoms.
across different measures, including Raven standard progres-        This strategy requires further evaluation before clinical
sive matrices (Gudjonsson & Shackleton, 1986; McKinzey,             implementation.
Podd, Krehbiel, & Raven, 1999), the Dot Counting Test                  To evaluate consistency across comparable items, Freder-
(DCT; Binks, Gouvier, & Waters, 1997), and the Luria-               ick and Foster (1991) proposed a consistency ratio for exam-
Nebraska Neuropsychological Battery (LNNB; McKinzey,                ining performance across items of equal difficulty. Frederick
et al., 1997). In addition, several versions of the performance     (1997) elaborated on this approach in his development of the
curve are central to the Validity Indicator Profile (VIP;            VIP. This strategy is difficult to implement because clinicians
Frederick, 1997). In summary, performance curve strategy            need items that have been rigorously tested across diverse
appears to be robust, with consistent, positive findings across      clinical samples to ensure comparability in item difficulty.
different measures.                                                 Especially for crystallized intelligence, cognitive abilities
    Atypical presentation was traditionally considered an un-       (e.g., vocabulary) may be highly variable in genuine patients.
standardized evaluation of symptoms that did not make “neu-         As an important caveat, consistency across parallel items
ropsychological sense” (Rogers et al., 1993). However, more         should be not confused with consistency of test results. Many
recent studies have examined disparate findings that rarely          genuine patients produce anomalous results on neuropsycho-
occur in patients with genuine cognitive impairment. For            logical testing. By themselves, inconsistent test results are
example, bona fide patients generally score higher on the            not helpful to the classification of malingering.
WMS-R Attention/Concentration index than the General                   Response time measures the average time to complete test
Memory index, whereas simulators tend to manifest the oppo-         items. Research is mixed on whether simulators take more
site pattern (Mittenberg, Azrin, Millsaps, & Heilbronner,           time (Rees et al., 1998) or less time (Rose et al., 1995) than pa-
1993; Iverson et al., 2000). Atypical presentation has also         tients with compromised cognitive functioning. For practical
been applied to the WAIS-R in the Vocabulary and Digit              purposes, response time is typically limited to computer ad-
Span difference. Mittenberg, Theroux-Fichera, Zielinski, and        ministrations. At present, response time is not recommended
Heilbronner (1995) found that a discriminant function accu-         as a general detection strategy.
rately identified 70.5% of the participants, although the false-
positive rate was unacceptably high (36.8%) for forensic use.       Guidelines for the Classification
Descriptive data from disability evaluations cast further doubt
on Vocabulary-Digit Span difference. Contrary to predictions,       Forensic psychologists involved in neuropsychological cases
Williams and Carlin (1999) found that claimants with atypical       are faced with several daunting tasks. The first task is a thor-
presentations had significantly higher IQ scores than those          ough understanding of detection strategies for feigned cogni-
with expected presentations. Finally, research on the Califor-      tive impairment and the available measures employing these
nia Verbal Learning Test (CVLT; Delis, Kramer, Kaplan, &            strategies. Although not exhaustive, Table 7.2 summarizes
Ober, 1987) indicated that simulators evidence atypical per-        most of the cognitive feigning measures reported in the clin-
formance on both recognition and recall (Sweet et al., 2000;        ical literature. In malingering cases, forensic psychologists
Trueblood & Schmidt, 1993).                                         bear the onerous responsibility of knowing the range of cog-
    Psychological sequelae is a variation of atypical perfor-       nitive feigning measures, their detection strategies, and their
mance that extends beyond cognitive abilities. Rogers et al.        general utility. Table 7.2 provides a useful starting point in
(1993) noted that simulators sometimes report symptoms of a         developing this expertise.
mental disorder (Miller & Cartlidge, 1972) or physical com-             The second task for forensic psychologists is the selection
plaints that are not typically found with genuine patients. For     of detection strategies and cognitive feigning measures for
example, Heaton, Smith, Lehman, and Vogt (1978) found that          suspected malingering cases. Psychologists will likely be
simulators of head injury commonly reported elevations on           influenced by the clinical presentation in their selection of
six MMPI clinical scales. One limitation to this strategy is that   strategies and methods. Two issues must be considered:
nonprofessionals appear to have an intuitive understanding of
concomitant symptoms for common conditions, such as mild            • Purported Deficit. Does the measure address the supposed
brain injury (Lees-Haley & Dunn, 1994) and postconcussion             impairment? Reported problems with analytic thinking
syndrome (Mittenberg, D’Attilio, Gage, & Bass, 1990). How-            are unlikely to be addressed by simple tests of memory
ever, promising work by Ridenour, McCoy, and Dean (1998)              recognition.
suggests that evaluatees can be presented with a wide array of      • Detection Strategy. Do the selected measures represent
neuropsychological symptoms, with simulators potentially              different selection strategies? As a general rule, detection
124   Evaluation of Malingering and Deception


   strategies should represent both the excessive impairment         feigned cognitive impairment are present in addition to
   (floor effect and SVT) and the unexpected pattern (MOE             marked discrepancies.
   and performance curve) domains.                                3. Possible malingering should not be used in forensic cases.
                                                                     Most complex forensic cases have some discrepancies in
   Slick, Sherman, and Iverson (1999) propounded stringent           test data and subsequent reports. As an analogue, forensic
standards for definite and probable malingering of cognitive          psychologists often reach different conclusions about
impairment. For definite malingering, they proposed that              complex neuropsychological cases based largely on the
only below-chance performance on SVT accompanied by ex-              same data. Test and collateral findings might be viewed as
ternal incentives would be sufficient for this determination.         “discrepant” based on the propensities of a particular neu-
For probable malingering, they proposed at least two of the          ropsychologist rather than the response style of the evalu-
following: (a) indicators of feigning on one or more well-           atee. Terms such as “inconsistent presentation” can be
validated measures of feigned cognitive impairment; (b) dis-         used without the pejorative effects intrinsic to the term
crepancies between test data and known patterns of brain             “malingering.”
functioning; (c) discrepancy between test data and observed
behavior within a specific domain on two or more neuropsy-
chological tests; (d) discrepancy between test data and reli-     Featured Measures
able collateral reports; and (e) discrepancy between test data    Three measures of feigned cognitive impairment from a
and documented background history. Alternatively, they pro-       broad array of potential measures are summarized: PDRT,
posed only one of the above plus discrepancies with self-         VIP, and TOMM. They were selected based on their avail-
reported symptoms or history. For possible malingering,           ability and substantial validation.
proposed criteria include any major discrepancy between
self-reported symptoms and other data (history, patterns of       Portland Digit Recognition Test
brain functioning, behavioral observations, or collateral in-
formation) or exaggerated/fabricated responses on tests of        Binder and Willis (1991) developed the PDRT as a 72-item
psychological impairment, such as the MMPI-2.                     digit recognition test of motivation and effort. A five-digit
   Slick et al. (1999) should be applauded for their efforts to   number is presented and followed by a distractor (i.e., count-
systematize the classification of malingered cognitive impair-     ing backwards). Increasing intervals are included to increase
ment. However, this model has substantial limitations for         the apparent difficulty of the task. The client is asked to
forensic practice. Three major constraints are outlined:          choose the previously presented string of digits from two
                                                                  choices. The two-choice format allows the assessment of
1. Definite malingering is too narrowly construed. Exclusive       below-chance performance (i.e., SVT). Alternatively, the
   reliance on SVT would exclude the great majority of ma-        client’s performance is compared to expected accuracy of
   lingerers that are not feigning extreme impairment. We         cognitively impaired patients (i.e., FCT).
   propose that definite malingering include either SVT or             Binder (1993) investigated the SVT in a differential
   multiple indicators of feigning (including detection strate-   prevalence design. He found that none of the nonforensic pa-
   gies from the unexpected patterns domain), plus marked         tients with moderate to severe head injuries scored below
   discrepancies between test performance and collateral          chance. In contrast, 17% of the forensic sample with only
   data.                                                          mild head injuries scored below chance. He concluded that
2. Probable malingering is too broadly construed. Foren-          the SVT is an effective detection strategy, and financial in-
   sic psychologists should be aware that distinctions be-        centives explained the differences in performance. In the
   tween probable and definite malingering may not have any        same research, Binder also used an FCT with a cut score of
   differential effect on the legal outcome. Therefore, great        39 (no more than 54.2% correct) to distinguish patients
   care must be exercised in establishing probable malin-         with “unambiguous brain dysfunctions” from simulators.
   gering in forensic cases. A major difficulty with the Slick     This research did not appear to take into account either co-
   et al. model is that the determination of probable malinger-   morbid conditions (e.g., depression) or the effects of stress
   ing can be rendered without the objective application of       and preoccupation with the potential consequences of the
   systematic decision rules. Discrepancies in self-reporting     evaluation.
   and collateral sources can be explained without invoking           Variations of the PDRT include abbreviated and computer-
   the concept of malingering. We propose that “probable          ized versions. Discontinuation rules can be employed when
   malingering” be invoked only when multiple indices of          an individual performs well on the first 18 or 36 items, thereby
                                                                                                 Feigned Cognitive Impairment    125


shortening the administration time. A modification of the             category. Specific estimates of malingering classifications are
computer administration allows for an examination of un-             provided:
usual response times. Rose et al. (1995) found higher reaction
times in patients than in simulators on the PDRT. They con-          • Nonverbal subtest. 3 of 52 (5.8%) simulators and 1 of 49
cluded that the patients required more time to process the ma-         (2.0%) suspected malingerers were classified correctly in
terial due to cognitive slowing associated with head injury.           the malingering category (Frederick, 1997, p. 28, Table 8).
Alternatively, the simulators may have underestimated the              The combined accuracy is 4/101 or 4.0%.
impact brain injury has on processing speed and failed to slow       • Verbal subtest. 4 of 52 (7.7%) simulators and 1 of 49
their responses accordingly.                                           (2.0%) suspected malingerers were classified correctly in
    The PDRT is appropriate for use in forensic contexts when          the malingering category (Frederick, 1997, p. 29, Table 9).
employed to evaluate SVT via below-chance performances.                The combined accuracy is 5/101 or 5.0%.
When used appropriately, SVT virtually eliminates false-             • Combined subtests. The classification integrating both
positives, making below-chance performances highly indica-             tests for malingering is not reported but should not exceed
tive of feigning. However, this strategy has only modest               9.0%. An extrapolation from Table 12 (p. 29), summariz-
sensitivity, meaning that most feigners are not identified by           ing the concordance for invalid subtests, yields 6.2% as an
SVT on the PDRT. Forensic psychologists are likely to be               approximate estimate.
divided on the usefulness of the FCT with the PDRT, even as
a screen for feigning. Without ruling out other explanations            These estimates derived from the VIP test manual do not
(e.g., comorbidity), the relationship between unexpectedly           support its use for the classification of malingering or feign-
poor performance and potential feigning has not been                 ing. As a measure of suboptimal effort, should forensic psy-
fully evaluated. Finally, the RT strategy has not been suffi-         chologists conclude that “invalid” profiles are likely the result
ciently validated as to warrant its forensic application.            of feigning? Substantial percentages of brain-injured patients
                                                                     have “invalid” results on the nonverbal (26.2%) and verbal
                                                                     (36.1%) subtests. Depending on the prevalence rate for
Validity Indicator Profile
                                                                     feigned cognitive impairment, invalid profiles may be found
The VIP (Frederick, 1997) employs a two-choice format for            at comparable rates between brain-injured patients with no
the assessment of suboptimal effort on two subtests addressing       apparent motivation to feign, and simulators and suspected
verbal and nonverbal abilities. The VIP is distinguished from        malingerers.
other cognitive measures by its use of multiple strategies fo-          The VIP should not be used clinically with two groups
cused predominantly on unexpected patterns. The strategies           manifesting cognitive impairment, namely, those with
include three estimates of response consistency and five esti-        mental retardation or learning disabilities. As noted by
mates of performance curve. Because of the high inter-               Frederick (1997), the VIP should not be used to evaluate
correlations for response consistency (M r         .81), forensic    patients with mental retardation (i.e., operationalized as
psychologists may be concerned whether they are discrete or          Shipley IQs 75). Almost all (95.0%) of these participants
largely redundant scales. Estimates of SVT are also possible,        produced invalid profiles. Psychologists are cautioned not to
although not employed as a primary strategy.                         use educational attainment as an indirect measure of mental
   The VIP classifies profiles as either “valid” or “invalid”          retardation; approximately two-thirds (67.5%) had at least a
rather than feigning per se. Invalid profiles are sorted into three   high school education. In addition, persons with learning
categories (Frederick, 1997, p. 2): (a) “careless” (poor effort      disabilities were systematically excluded from the cross-
but motivated to do well); (b) “irrelevant” (intention to per-       validation phase and are not included in the classification
form poorly but not a sustained effort); and (c) “malingered”        tables.
(intention to perform poorly with a sustained effort). Using the        In summary, the VIP is an ambitious effort to evaluate
broad categories of valid and invalid, the classification rates       response styles through the use of multiple detection strate-
are moderately high. The VIP nonverbal subtest has a sensitiv-       gies and the evaluation of both nonverbal and verbal abilities.
ity rate of 73.5% and a specificity rate of 85.7%. The VIP            The most judicious use of the VIP is the assessment of sub-
verbal test has a sensitivity rate of 67.3% and a specificity rate    optimal effort. Forensic psychologists should be careful not
of 83.1%.                                                            to equate suboptimal effort with deception or fraud. Depend-
   The VIP is best conceptualized as a measure of suboptimal         ing on base rates, invalid VIPs may be just as likely to
effort rather than feigning. Very few simulators and suspected       represent genuine impairment as any form of dissimula-
malingerers are correctly classified in the “malingering”             tion. In rare cases where the VIP designates a protocol as
126   Evaluation of Malingering and Deception


“malingering,” it is likely to be the result of feigning (found     case. Forensic psychologists carefully integrate multiple
in seven cases) or possibly random responding (found in two         sources of data, consistent with established detection strate-
cases).                                                             gies, in rendering their opinions on response styles to the
                                                                    courts.
Test of Memory Malingering                                             Enduring challenges remain for forensic research on re-
                                                                    sponse styles. The next century should bring additional de-
The TOMM (Tombaugh, 1996, 1997) is a two-alternative
                                                                    tection strategies that are rigorously tested by both simulation
memory recognition task composed of 50 line drawings.
                                                                    designs and known-groups comparisons. For cognitive as-
Presented in two trials, the optimum cut score (45 or 90%
                                                                    sessment in particular, detection strategies need to be both
correct) occurs in Trial 2. Scores at or above the cut score cor-
                                                                    expanded to cover diverse neurocognitive abilities and re-
rectly classified 95% of nondemented patients; scores below
                                                                    fined to improve clinical classification. From a forensic-
the cut score identified 100% of the simulators. A small num-
                                                                    psychological perspective, the standardized assessment of
ber of patients in a differential prevalence design had average
                                                                    feigned medical conditions remains a vast, uncharted terri-
scores substantially below the cut score (M             32.8). In
                                                                    tory that requires both sophisticated conceptualization and
addition to the floor effect, the TOMM also uses SVT,
                                                                    sound empiricism.
which apparently has a low detection rate for feigners (Rees
et al., 1998).
    Several cautions apply to the use of the TOMM in foren-         REFERENCES
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      PA R T T H R E E


  SPECIAL TOPICS IN
FORENSIC PSYCHOLOGY
CHAPTER 8


Forensic Assessment for High-Risk Occupations
RANDY BORUM, JOHN SUPER, AND MICHELLE RAND




ETHICAL ISSUES IN HIGH-RISK                                             FITNESS-FOR-DUTY EVALUATIONS 140
  OCCUPATIONAL ASSESSMENTS 133                                             Legal Issues 140
  Competence 134                                                           Practice Issues 142
  Role Definition 134                                                       Identifying Job-Related Abilities 142
  Confidentiality and Access to Results 134                                 Obtaining Consent 142
PREEMPLOYMENT SCREENING 135                                                Assessment Methods 142
  Legal Issues 135                                                         Fitness Analysis 143
  Practice Issues 136                                                   SUMMARY 144
  Identifying Job-Related Abilities 137                                 REFERENCES 145
  Obtaining Consent 137
  Assessment Methods 137
  Suitability Analysis 139
  Communicating Results 139



In recent years, psychologists have been increasingly active            screening and fitness-for-duty evaluations specifically. Al-
in conducting assessments for candidates and incumbent                  though most of the current literature and practice guidelines
employees in law enforcement and other “high-risk” occupa-              are focused on assessments for law enforcement personnel,
tions (Blau, 1994; Inwald & Resko, 1995). A mid-1980s                   many of the same issues apply to other high-risk occupa-
survey indicated that there has been substantial growth in the          tions that affect public safety, including correctional offi-
use of psychological services in law enforcement. More than             cers, security officers, firefighters, air traffic controllers,
75% of responding agencies reported a need for psycholo-                airline pilots, and nuclear power plant operators (Rigaud &
gists to assist in recruit screening and evaluating candidates          Flynn, 1995).
for promotion, and 67% of respondents reported a need for
psychological evaluations for suspended and problem offi-
cers (Delprino & Bahn, 1988). These represent the two
primary types of occupational assessments requested for                 ETHICAL ISSUES IN HIGH-RISK
high-risk occupations: preemployment screening, an assess-              OCCUPATIONAL ASSESSMENTS
ment of an applicant’s psychological suitability for prospec-
tive employment, and “fitness for duty” evaluation, an                   There are two primary sources of authority for psychologists
assessment that typically occurs after an employee has en-              in understanding the ethical contours of conducting high-
gaged in some behavior or communication that has raised                 risk occupational assessments: the American Psychological
concern about his or her psychological suitability to perform           Association’s (APA) “Ethical Principles of Psychologists and
job duties or about risk of harm to self or others in the work-         Code of Conduct” (hereinafter, APA Ethics Code, APA,
place. These evaluations are considered forensic because                1992), and “The Specialty Guidelines for Forensic Psycholo-
they address and inform a legally relevant issue of psycho-             gists” adopted by the American Psychology-Law Society and
logical suitability for a sensitive position.                           the American Academy of Forensic Psychology (hereinafter,
   In this chapter, we first review ethical issues in conducting         Specialty Guidelines; Committee on Ethical Guidelines for
high-risk occupational assessments generally, then discuss              Forensic Psychologists, 1991). We consider below several
legal and practice issues in preemployment psychological                key ethical issues drawn from these sources.


                                                                  133
134   Forensic Assessment for High-Risk Occupations


Competence                                                         reminded that the purpose of the evaluation is only to gather
                                                                   information about his or her psychological suitability for
Preemployment psychological screenings and fitness-for-             employment and not to provide treatment or therapeutic
duty evaluations for public safety and other high-risk occupa-     services. Standard 1.21 of the APA Ethics Code underscores
tions are specialized forensic assessments. Psychologists          this recommendation:
cannot reasonably assume that they are qualified to conduct
these assessments based solely on their knowledge of testing          When a psychologist agrees to provide services to a person or
and clinical competence to conduct general psychological as-          entity at the request of a third party, the psychologist clarifies to
sessments. At a minimum, the psychologist should have some            the extent feasible, at the outset of the service, the nature of the
understanding of and experience working with public safety            relationship with each party. This clarification includes the role
(or high-risk occupation) personnel, familiarity with the es-         of psychologist (such as therapist, organizational consultant, di-
sential job functions of the relevant position, a knowledge of        agnostician, or expert witness), the probable uses of the services
the scientific and professional literature on testing and screen-      provided or the information obtained, and the fact that there may
                                                                      be limits to confidentiality. (APA, 1992, p. 1602)
ing for high-risk occupations, a clear understanding of the
unique roles and limits of confidentiality and privilege, and a
                                                                      The Specialty Guidelines cover extensively the issue of
fundamental grounding in the state and federal legal issues
                                                                   relationships and role definition in forensic assessments. Sec-
that affect these evaluations (Super, 1997a, 1997b; see also
                                                                   tion IV advocates that the psychologist obtain informed con-
Specialty Guidelines, Section III; IACP, 1998).
                                                                   sent, to include providing reasonable notice of legal rights
    Practicing only within one’s sphere of competence is, of
                                                                   pertaining to the service, purpose of the evaluation, proce-
course, a basic tenet of psychological practice. Indeed, Prin-
                                                                   dures to be employed, intended uses of any product of the
ciple A of the APA Ethics Code directs: “Psychologists strive
                                                                   services, and the identity of the party who has employed
to maintain high standards of competence in their work. They
                                                                   the psychologist.
provide only those services and use only those techniques for
which they are qualified by education, training, or experi-
ence” (APA, 1992, p. 1599). This is reiterated in Standard         Confidentiality and Access to Results
1.04 (a): “Psychologists provide services, teach and conduct       In preemployment and psychological fitness-for-duty assess-
research only within the boundaries of their competence,           ments, the psychologist owes a primary duty of confidential-
based on their education, training, supervised experience or       ity to the hiring agency as the client of record. Certainly, the
appropriate professional experience” (p. 1600). Section III(a)     psychologist should respect the privacy of the examinee and
of the Specialty Guidelines similarly addresses this issue as it   not report information that is sensitive but unrelated to em-
applies specifically to forensic practice: “Forensic psycholo-      ployment suitability (Super, 1997a, 1997b). Nor should he or
gists provide services only in areas of psychology in which        she reveal other information gathered in the assessment
they have specialized knowledge, skill, experience, and            beyond what is necessary to support the opinion about psy-
education.”                                                        chological/emotional fitness. Standard 5.03 (a) of the APA
                                                                   Ethics Code states: “In order to minimize intrusions of pri-
                                                                   vacy, psychologists include in written and oral reports, consul-
Role Definition
                                                                   tations, and the like, only information germane to the purpose
One of the most vexing ethical issues for psychologists con-       for which the communication is made” (APA, 1992, p. 1606).
ducting psychological assessments for high-risk occupations        A corresponding section of the Specialty Guidelines directs:
is in defining and navigating roles (Super, 1997a, 1997b).          “In situations where the right of the client or party to confi-
Typically, when an individual meets with a mental health pro-      dentiality is limited, the forensic psychologist makes every
fessional, he or she reasonably expects that the information       effort to maintain confidentiality with regard to any informa-
exchanged will be confidential and will not be disclosed to         tion that does not bear directly upon the legal purpose of the
third parties. This is not the case in preemployment or fitness-    evaluation” (V.C). Nevertheless, conventional stipulations of
for-duty assessments. The applicant is not a patient and the       confidentiality do not apply and, because there is no “doctor-
evaluating psychologist should not promise confidentiality or       patient” relationship, statutory provisions of privilege may
offer or attempt counseling. The psychologist’s primary            similarly be inapplicable.
client in these evaluations is the hiring or employing agency,         One of the greatest areas of contention concerns the
not the individual applicant/employee. The examinee should         examinee’s access to the results or report of the evaluation.
be notified of this fact before the evaluation begins, and          Although psychologists typically have an obligation to
                                                                                                         Preemployment Screening    135


provide feedback to an individual who has been evaluated,                  Although preemployment psychological screening does
this is not mandated and may be contraindicated for pre-                not guarantee the identification of all applicants who may
employment and fitness-for-duty assessments (Janik, 1994a,               have or subsequently develop psychological problems that
1994b). It is necessary, however, for the psychologist to no-           could interfere with job performance, it may provide relevant
tify the examinee at the outset of the evaluation that no feed-         information to hiring agencies about candidates who may be
back or interpretation will be provided. Standard 2.09 of the           at higher risk. For example, personnel interviews, written
APA Ethics Code stipulates:                                             tests, and careful background investigation may reveal char-
                                                                        acteristics, such as a history of impulsive or aggressive
   Unless the nature of the relationship is clearly explained to the    behavior or poor emotional control, that suggest the applicant
   person being assessed in advance and precludes provision of an       could have a greater than average propensity to show an in-
   explanation of results (such as in some organizational consult-
                                                                        appropriate response in a stressful use-of-force encounter
   ing, preemployment or security screenings, and forensic evalua-
                                                                        (Stock, Borum, & Baltzley, 1996, 1999). Indeed, courts have
   tions), psychologists ensure that an explanation of the results is
   provided using language that is reasonably understandable to the
                                                                        ruled that police agencies have a right to conduct psycho-
   person assessed or to another legally authorized person on behalf    logical evaluations (McCabe v. Hoberman, 1969; Conte v.
   of the client. (APA, 1992, p. 1604)                                  Horcher, 1977) and that they may be held liable for the
                                                                        actions of employees who were not properly screened or
   If an examinee does request evaluation results, informa-             evaluated (Bonsignore v. City of New York, 1982).
tion can be provided only with consent of the agency as
holder of confidentiality. If feedback is given (with agency             Legal Issues
consent), the examinee should be informed that evaluation
results apply only to his or her suitability for the position and       Although the existence and application of statutes and case
may not relate to his or her mental health or adjustment in             law pertaining to high-risk occupational evaluations vary by
other areas.                                                            state, there are several key principles and provisions that
   In Roulette v. Department of Central Management                      should be familiar to any psychologist who conducts these as-
Services (1987), an applicant who was not selected for em-              sessments (Flanagan, 1995; Ostrov, 1995). In addition, how-
ployment as a police officer filed a request under the Freedom            ever, psychologists should be aware of the law and how it is
of Information Act to obtain the psychologist’s preemploy-              applied in the jurisdiction in which they practice (Super,
ment evaluation report. The circuit court ordered the psy-              1997b).
chologist to provide the report; however, he did not comply                 One of the most significant and far-reaching legal provi-
and was found in contempt of court. The appellate court                 sions affecting these assessments is The Americans with Dis-
reversed the decision, holding that the “information was ex-            abilities Act of 1990 (ADA, 1991), a federal statute enacted
empt from disclosure under Freedom of Information Act                   to prevent discrimination in employment and related activi-
exemptions for examination data, information relating to in-            ties based on an applicant’s physical or mental disability. For
ternal personnel rules and practices, and trade secrets and             purposes of the statute, disability is defined by the existence
commercial or financial information” (p. 60). Similar court              of “(A) physical or mental impairment that substantially lim-
rulings have been applied limiting an employee’s access to              its one or more of the major life activities of such individual;
results of fitness-for-duty assessments (Super, 1997a).                  (B) a record of such impairment; or (C) being regarded as
                                                                        having such an impairment.” (For a complete discussion on
                                                                        the ADA and related legal issues, see the chapter by Foote in
PREEMPLOYMENT SCREENING                                                 this volume.)
                                                                            The ADA has affected whether and when hiring agencies,
Most major law enforcement agencies currently have com-                 and psychologists contracted by those agencies, may inquire
prehensive, multistage selection systems that include psycho-           about an applicant’s disability, including psychological,
logical screenings as one component of the program. Indeed,             mental, or emotional impairment (Rubin, 1994). ADA inter-
this component of the screening process has been widely ad-             pretive guidelines promulgated by the Equal Employment
vocated (National Advisory Commission on Criminal Justice               Opportunity Commission (EEOC) state that “an employer
Standards and Goals: Police, 1967; Milton, Halleck, Lardner,            cannot inquire as to whether an individual has a disability
& Albrecht, 1977) and is mandated by the Commission on                  at the pre-offer stage of the selection process.” Prior to
Accreditation for Law Enforcement Agencies (CALEA) for                  enactment of the ADA, preemployment psychological evalu-
police and sheriff’s departments seeking accreditation.                 ations often were conducted near the beginning of the hiring
136   Forensic Assessment for High-Risk Occupations


process. Because the purpose of these assessments is to             plicants for the position of firefighter with Jersey City, New
identify psychological and behavioral problems that could           Jersey, challenged, as a violation of their civil rights, the
negatively affect job performance, the examiner typically           city’s requirement that they undergo psychological testing to
conducts an inquiry into psychological symptoms and areas           determine their ability to withstand the psychological pres-
of possible mental impairment, using certain psychological          sures inherent in the job. The district judge denied the claim,
tests that identify psychopathology. Accordingly, the ADA           ruling that “the interest of the City in screening out applicants
views this inquiry as “medical” in nature and prohibits such        who would not be able to handle the psychological pressures
an examination until after a candidate has been given a con-        of the job was sufficient to justify the intrusion into the
ditional offer of employment by the hiring agency. Even then,       privacy of the applicant” (p. 1355).
the inquiry about disability must be based on factors that are         Municipalities may even be held liable if employees are
job-related and consistent with business necessity (Ostrov,         not screened for emotional fitness and later engage in negli-
1995; Rubin, 1994).                                                 gent behavior or misconduct on the job (Super, 1999). Under
    EEOC Guidelines provide that “An employer is permitted          the doctrine of respondeat superior, sometimes referred to as
to require post-offer medical examinations before the em-           vicarious liability, employers may be responsible for the acts
ployee actually starts working . . . those employees who meet       of their employees when such acts are performed in the line
the employer’s physical and psychological criteria for the          of duty. Indeed, in Monell v. Department of Social Services
job, with or without reasonable accommodation, will be              (1978), the U.S. Supreme Court ruled specifically that
qualified to receive a confirmed offer of employment to begin         municipalities and administrators could be held liable for
working” (Interpretative Guidelines Section 12630.14(b)).           behavior of subordinates if the subordinate employees were
Thus, the examining psychologist should be reasonably               negligently supervised, trained, or selected.
assured by the hiring agency that candidates referred for              The applicant’s right to privacy, however, may carry
screening have been given a conditional offer before con-           different weight for security officers than for public safety
ducting any inquiry that might otherwise be proscribed.             officers. In Soroka v. Dayton Hudson Corporation (1991),
Some psychologists have expressed concern that this process         applicants for security officer positions in Target department
shifts undue weight to the psychological screening within the       stores brought suit against the parent company, Dayton Hud-
overall selection process. If a candidate presents with a con-      son Corporation, for its policy of administering preemploy-
ditional offer of employment, indicating that the agency            ment psychological testing, claiming that the tests included
believes he or she is otherwise qualified to be hired, but           objectionable items that unduly invaded their privacy. At the
receives a less than suitable rating from the evaluator, it may     time, Target used a test that combined items from the MMPI
create an appearance that the psychological assessment was          and the California Psychological Inventory (CPI) to screen
the “cause” for disqualification or a decision not to hire.          prospective applicants for store security positions. The court
    Just as the ADA was enacted to prevent discrimination in        agreed that the testing did invade the applicants’ privacy, and
employment based on disability, the most recent version of the      distinguished the use of these tests for screening public safety
Civil Rights Act (CRA, 1991) was adopted to prevent dis-            versus store security personnel:
crimination based on gender, race, or creed. This law has sev-
eral important implications for psychologists who conduct              Both of these tests [MMPI and CPI] have been used to screen out
preemployment psychological screenings (Rubin, 1995), but              emotionally unfit applicants for public safety positions such as
one of the most practical is that it prohibits using differential      police officers, correctional officers, pilots, air traffic controllers,
cutting scores on job-related tests based on a candidate’s             and nuclear power plant operators. We view the duties and re-
gender or race. Certain psychological tests, such as the               sponsibilities of these public safety personnel to be substantially
                                                                       different from those of store security officers. (p. 79)
Minnesota Multiphasic Personality Inventory (MMPI/MMPI-
2), typically use different normative comparisons based on
gender for determining a respondent’s T-score. It has been
                                                                    Practice Issues
argued that this practice would violate CRA requirements
(Inwald, 1994). It is easily remediated by using combined           The current prevailing practice is to use psychological as-
norms, but the psychologist must be aware of the issue to make      sessments to “screen out” applicants who may be at in-
such a correction.                                                  creased risk for job-related behavioral problems or who
    Courts have generally supported the right of public safety      might pose a substantial risk to public safety as a result of
agencies to require a psychological examination as part of its      psychological or behavioral problems (Janik, 1994a, 1994b).
selection procedure. In McKenna v. Fargo (1978), several ap-        Although psychologists have conducted these evaluations
                                                                                                      Preemployment Screening     137


since at least the early 1900s, it has only been recently that      although the candidate will be the subject of the assessment,
professional guidelines have been available to bring some           the hiring agency is the designated client; that examiner’s only
uniformity and accountability to the assessment process.            role will be as an evaluator; and that there is no treatment rela-
Perhaps the most widely used and accepted of these practice         tionship; therefore, psychologist-patient privilege will not
guidelines are the “Preemployment Psychological Evalua-             apply. Additionally, the candidate should be informed that,
tion Guidelines” developed and adopted by the Police Psy-           based on findings from the assessment, the examiner will send
chological Services Section of the International Association        a report to the hiring agency, and, to that extent, the content of
of Chiefs of Police (hereinafter, IACP Preemployment                the interviews, testing, and observations will not be confiden-
Guidelines; IACP, 1998). The principles contained in this           tial or privileged. (In practice, however, the evaluator should
document are consistent with CALEA standards and with               attempt to maintain the confidentiality of sensitive, nonrele-
best practices in the specialty of police psychology. It is rea-    vant information about the applicant.) The candidate should
sonable and recommended for a law enforcement agency to             also be informed that he or she may refuse to participate in the
require its evaluators to conduct their assessments in accor-       examination or to answer any specific questions, but that such
dance with these guidelines.                                        refusals will be noted in the report.
                                                                        To document this disclosure appropriately, it is recom-
                                                                    mended that the notification be done verbally and in writing.
Identifying Job-Related Abilities
                                                                    The examiner should consider using an informed consent
The first step in conducting a preemployment assessment is           form for preemployment evaluations where candidates
to establish and understand the psychological requirements          acknowledge their understanding of each point. The notifica-
for the position. According to the ADA, a candidate must be         tion and consent procedure is particularly important in these
able to perform the essential functions of the job with or          assessments because the roles, relationships, and contours of
without reasonable accommodation; therefore, the examiner           confidentiality are atypical for psychologist-examinee inter-
must know the nature of those functions and the capacities          actions. In particular, it may be difficult for candidates to
required to perform them under job-related conditions. The          understand that they are not the designated client, and that
most precise source of information on job requirements is a         they may not be permitted access to the report, except
job task analysis, which many public safety agencies and            through consent of the hiring agency.
other employers already have conducted. This analysis
should distinguish essential functions and critical job tasks       Assessment Methods
from other work functions and identify the knowledge, skills,
abilities, and other characteristics necessary for the position.    Current practice standards, including the IACP Preemploy-
   The IACP Guidelines direct that “data on attributes consid-      ment Guidelines, suggest that preemployment psychological
ered most important for effective performance in a particular       screenings should include psychological testing and a job-
position should be obtained from job analysis, interview, sur-      related interview. Decisions regarding which tests to use will,
veys, or other appropriate sources” (Preemployment Guide-           of course, be affected by where the assessment is occurring in
line #4; IACP, 1998). These identified factors should guide the      the overall selection process. Because the ADA prohibits any
selection of instrumentation and help to focus areas of inquiry     “medical inquiry” prior to a conditional offer of employment,
during a personnel interview.                                       no tests that assess or aid in the diagnosis or appraisal of
                                                                    psychopathology may be used at that time. Most law en-
                                                                    forcement agencies have adapted to this requirement by posi-
Obtaining Consent
                                                                    tioning the psychological evaluation at the postoffer stage.
As noted previously, the examining psychologist has an ethi-        This allows the examiner to use assessment methods and ask
cal obligation to obtain informed consent from the candidate        questions that will help screen for psychological problems,
prior to the evaluation. This requires that the examiner provide    while maintaining compliance with provisions of the ADA.
information about the nature and purpose of the evaluation,            In national- and state-level documents that make recom-
the psychologist’s role, and any limits on confidentiality and       mendations about test selection and use in these assess-
privilege, including who will have access to the report. Typi-      ments, two suggestions consistently emerge: that instruments
cally, this disclosure includes notice that the examiner is a li-   should be objective rather than projective, and that validation
censed psychologist and that the hiring agency has requested        research should exist to support the test’s use in preemploy-
an assessment of psychological suitability for the position as      ment screening (IACP Preemployment Guidelines, 1998;
part of the selection process. It is important to clarify that      Hargrave & Berner, 1984).
138   Forensic Assessment for High-Risk Occupations


    In the early 1990s, Scrivner (1994) conducted a survey         310-item true-false instrument that goes beyond traditional
of 65 experienced, practicing police psychologists, 45 of          assessment of psychopathology to include scales that mea-
whom conducted preemployment screenings. Among those               sure other behavioral and interpersonal factors relevant to
who conducted these assessments, almost all used psycho-           high-risk personnel selection decisions (Inwald, Knatz, &
logical testing (96%) and clinical interviews (91%). A much        Shusman, 1982). Factors such as rigidity (Reiser & Geiger,
smaller proportion used supplemental or alternative proto-         1984), suspiciousness, authority problems (Lawrence, 1984),
cols such as risk assessment models (22%), situational tests       past work and legal history, and status of current relation-
(15%), or job simulations (4%) (Scrivner, 1994). Only a few        ships (Johnson, 1984) have a demonstrated relationship to
tests were used regularly, including the MMPI/MMPI-2               applicant suitability and subsequent job-related success. The
(91%), the CPI (54%), Sixteen Personality Factors Ques-            IPI measures these dimensions in addition to some common
tionnaire (16PF)/Clinical Analysis Questionnaire (28%),            clinical syndromes. Based on existing research, predictions
Sentence Completion Form (20%), and the Inwald Personal-           derived from Fisher discriminant function equations are pro-
ity Inventory (15%; Scrivner, 1994).                               vided on the IPI reports predicting the likelihood of absence,
    The frequent use of the MMPI-2 is not surprising, as it is     lateness, disciplinary action, and termination of the applicant
also one of the most widely used tests in clinical psychological   within the first year of employment.
assessment. Prior research has examined the relationship be-          A number of predictive validity studies have found
tween MMPI scales and various criteria of police academy and       significant relationships between IPI scales and subsequent
job performance. Several studies have found significant rela-       academy and on-the-job performance criteria, including ter-
tionships between certain scale scores from the original MMPI      mination, lateness, absence, disciplinary action, injuries,
and criterion measures of academy attrition (Hargrave &            leadership potential, supervisor’s ratings, and overall perfor-
Berner, 1984), disciplinary action (Hiatt & Hargrave, 1988a;       mance (Inwald, 1988; Inwald & Shusman, 1984; Scogin,
Weiss, Johnson, Serafino, & Serafino, 2001), length of time          Schumacher, Howland, & McGee, 1989; Shusman, Inwald,
on the job (Saxe & Reiser, 1976), performance ratings from         & Knatz, 1987). Some research suggests that IPI variables
supervisors (Hiatt & Hargrave, 1988b; Weiss et al., 2001), and     predict job-related criteria better than MMPI variables
even promotion (Peterson & Strider, 1968).                         (Inwald, 1988; Inwald & Shusman, 1984; Shusman, Inwald,
    Two newer trends in testing for high-risk occupations,         & Knatz, 1987), and that the two instruments are not measur-
however, are worth noting. The first is the development of the      ing the same factors. In fact, a redundancy analysis of the IPI
Personality Assessment Inventory (PAI; Morey, 1991). Like          and MMPI has indicated an overlap in variance of only about
the MMPI-2, the PAI is a broad-based measure of psy-               20% (Shusman, 1987). Although much of the early research
chopathology and clinical syndromes in adults. However, it         on the IPI was conducted by investigators from Hilson
offers some distinct advantages over other instruments: It is      Research,
shorter (344 items versus 567 items on the MMPI-2); it has
easier readability (Schinka & Borum, 1993); and its item              an independent meta-analysis was conducted using IPI studies
content is more straightforward and is unlikely to be viewed          available as of 1991 (Ones, Viswesvaran, Schmidt, & Schultz,
as intrusive or offensive. Recent data, using a sample of over        1992). This analysis resulted in an estimated criterion-related va-
3,000 law enforcement applicants, showed that PAI scales              lidity of the IPI for predicting job performance in general of .37,
had higher correlations than MMPI-2 scales with applicants’           with the standard deviation of the true validity at .07, indicating
reported problem behavior (e.g., anger control problems               that this validity applies across situations in organizations.
and illicit drug use) and psychological suitability ratings           (Inwald, in press)
(Roberts, 1997). Normative PAI data for more than 17,000
public safety applicants are available as part of a specialized       Although psychological testing is an important compo-
Police and Public Safety Report developed by the test pub-         nent of a preemployment psychological screening, it is
lisher (Roberts, Thompson, & Johnson, 1999). The PAI may           generally not a sufficient basis to render an opinion about a
not be as widely used as the MMPI-2, but there clearly is a        candidate’s psychological suitability. IACP Preemployment
strong conceptual and empirical rationale to support its use in    Guidelines direct that “individual, face-to-face interviews
public safety preemployment screenings.                            with candidates should be conducted before a final psycho-
    The second major development is a series of instruments        logical report is submitted” (Guideline #12). It is also recom-
from Hilson Research that are designed and validated spe-          mended that this interview take place after the examining
cifically for use in high-risk occupational screenings and          psychologist has reviewed the results of the psychological
assessments (Inwald, in press). The oldest and most estab-         testing, so that any concerns raised by these results can be
lished of these is the Inwald Personality Inventory (IPI), a       explored or clarified with the candidate. The content of the
                                                                                                         Preemployment Screening     139


TABLE 8.1      Preemployment Psychological Interview Areas of Inquiry   the expert must assess the extent to which those problems
•   Family history                                                      would interfere with the applicant’s ability to safely perform
    – Where born and raised.                                            the essential functions of the position under job-related condi-
    – Siblings.
    – Mother: status and background.
                                                                        tions. For example, disturbances in thinking could impair
    – Father: status and background.                                    one’s perceptions or judgment under pressure, severe distur-
    – Home problems, abuse/neglect, fighting.                            bances in mood could affect behavioral controls or reaction
    – Marital status and history.
                                                                        speed, and problems with impulsivity or anger management
    – Children.
•   School history                                                      could increase the risk of inappropriate aggression. Ratings of
    – High school attended and graduated.                               psychological suitability are typically offered in at least three
    – Grade average, failures.                                          categories, rather than simply as a yes or no decision.
    – Learning problems, special placements.
    – Sports and club participation.                                       Although these ratings often are not operationally defined
    – School discipline.                                                in practice, this specification is helpful for heuristic purposes,
    – College education.                                                for increasing the consistency of judgments across candi-
•   Work history
    – Military; branch.                                                 dates, and for enhancing the clarity of the rating to the hiring
      • Type of discharge.                                              agency. Provided below is one example of how these levels
      • Military occupational specialty.                                might be defined:
      • Rank at discharge, time of enlistment.
      • Disciplinary actions.
    – Work history                                                      • Suitable. No indications of significant psychopathology or
      • Past employers, position, time employed.                          severe behavioral problems/patterns that would nega-
      • Reasons for leaving past positions.                               tively affect job performance. Few or no areas of concern
      • Work-related disciplinary actions.
      • Work performance.                                                 were noted. Any moderate or marked elevations or critical
      • Conflicts with supervisors or coworkers.                           items on psychological testing have been examined in the
•   Behavioral history                                                    context of the face-to-face interview, and are not believed
    – Juvenile law enforcement contact/arrest.
    – Adult law enforcement contact/arrest.                               to indicate significant psychopathology or behavioral
    – Other legal system involvement.                                     problems.
    – Physical fights as an adult.                                       • Marginally Suitable. No indications of significant psy-
    – Moving violations and motor vehicle accidents.
    – Mental health treatment or problems that needed treatment.          chopathology, although some symptom patterns or be-
    – Substance use treatment or problems that needed treatment.          havioral traits may exceed normal limits. One or more
    – Alcohol consumption.                                                significant areas of concern were noted; however, either
    – Illicit drug use/experimentation.
    – Medical problems.                                                   (a) the evidence for the problem, (b) the type of problem,
•   Job-Specific                                                           or (c) the level of severity of the problem is currently
    – Reason for seeking position.                                        insufficient to justify the applicant’s exclusion. Some
    – Best qualities.                                                     moderate or marked elevations or critical items on psy-
    – Worst qualities.
    – Perception of job and role.                                         chological testing may exist, which, on follow-up, either
•   Possible job-related scenarios                                        suggested mild-moderate potential for job-related difficul-
                                                                          ties or that the applicant was not able to satisfactorily
                                                                          explain.
interview typically covers relevant historical and back-                • Unsuitable. Well-supported indications of significant psy-
ground information. The interview should follow a semi-                   chopathology or potential for severe behavioral problems
structured format to ensure that all relevant areas are covered.          that could negatively affect job performance. Multiple
Common areas of inquiry for a preemployment psychologi-                   areas of concern may be present, or the type or severity of
cal interview are shown in Table 8.1.                                     the problem suggests a substantial potential for job-related
                                                                          difficulties. Moderate or marked elevations or critical
Suitability Analysis                                                      items on psychological testing are believed to reflect po-
                                                                          tential psychological or behavioral problems that could
Once the relevant information has been collected through test-            negatively affect job performance.
ing and interviews, the key to determining a candidate’s psy-
chological suitability is to assess the degree of “fit” between
                                                                        Communicating Results
his or her capacities and the requirements of the position
(Grisso, 1986). If there are indications from test results, his-        Preemployment psychological reports vary widely in format,
tory, or interview of psychological or behavioral problems,             content, and length. A psychologist may even have a different
140   Forensic Assessment for High-Risk Occupations


report format for different agencies, depending on their needs           Stone (1990), an experienced police psychologist, analyzed
and preferences. In general, however, the screening report           the reasons for FFDE referrals in his own practice over a 10-
will contain identifying information for the candidate (e.g.,        year period. The most frequently cited causes were suspected
name, age, race, date of birth, position sought), a listing of the   psychopathology (26%), excessive force issues (19%), sub-
sources of information used in the assessment (e.g., list of         stance abuse (15%), repeated poor judgment (13%), domestic
tests, interview), a statement describing the consent proce-         violence (9%). This distribution may not be representative of
dure, background/historical information, behavioral and              all FFDEs nationally, but it does give some indication of com-
mental status observations, test results, and conclusions. In        mon reasons for referral by public safety agencies.
the conclusion section, the psychologist assigns the suitabil-           Agencies that hire employees for high-risk occupations
ity rating and provides a summary of the key information and         should have policies in place addressing the substantive and
analysis that supports that opinion, but should avoid using          procedural issues involved in FFDE referrals (Ostrov, Nowicki,
clinical diagnoses or psychiatric labels (IACP Preemploy-            & Beazley, 1987; Saxe-Clifford, 1986). These policies should
ment Guideline #16).                                                 be developed and implemented before an employee-related
                                                                     crisis occurs. In the sections below, we describe several key
                                                                     legal and practice issues in FFD assessments.
FITNESS-FOR-DUTY EVALUATIONS

                                                                     Legal Issues
Whereas preemployment psychological evaluations are
intended to screen out candidates who may be psychologi-             As previously noted, psychologists should be aware of the rel-
cally unsuitable before they are hired, psychological fitness-        evant law and how it is applied in the jurisdiction in which
for-duty evaluations (FFDEs) are indicated for incumbent             they practice; however, it is instructive to consider the manner
employees whose communication, behavior, or performance              in which legal disputes regarding FFDEs have been resolved
raises a specter of concern about safety or about behavioral or      by other courts. Federal statutes, such as the ADA and CRA,
psychological problems that might significantly interfere             are also relevant to FFDEs, but because they were addressed
with job performance (Stone, 1995, 2000). Thus, there are            in the section on preemployment evaluations, the information
two primary circumstances that might cause an agency to              will not be repeated (Flanagan, 1995; Ostrov, 1995).
refer an employee for an FFDE:                                           The most fundamental legal issue in FFDEs is whether the
                                                                     hiring agency has a right to require an employee to submit to
1. When there is reasonable cause to suspect that an em-             a psychological evaluation to assess his or her continued psy-
   ployee may pose a significant risk of harm to self or others       chological suitability or fitness for employment. The land-
   in the workplace.                                                 mark case in this area is Conte v. Horcher (1977), a case in
2. When there is reasonable cause to suspect that the em-            which a police lieutenant brought suit against the chief of po-
   ployee may have a psychological, psychiatric, or substance        lice for ordering him to undergo a psychiatric evaluation,
   use disorder, or psychological/psychiatric symptoms that          claiming that the mandate was inappropriate and unlawful.
   significantly interfere with his or her ability to perform the     The court ruled that the police chief had not only the author-
   essential functions of the position.                              ity to order the evaluation, but also an obligation to do so if
                                                                     the facts warranted concern about an officer’s psychological
   Concerns about an employee’s risk of harm or excessive            suitability:
force may be handled in accordance with agency policies
relating to use of force, threats, harassment, or violence.             It is the duty of the police chief to maintain a capable and
Behaviors that raise concerns about serious harm and violate            efficient force. An examination, either physical or mental, en-
policy may not always result in an FFDE. If the employee is             ables the chief to ascertain the qualifications of a person to per-
to be terminated, however, an assessment or consultation in             form particular duties or to fill a particular position. (p. 569)
these circumstances may be useful to help assess the degree
of risk inherent in the termination. Concerns about psycho-          This supports the rulings of other courts that agencies
logical or psychiatric impairment may result from observa-           employing high-risk personnel, particularly law enforce-
tion or credible evidence that a disturbance in the employee’s       ment officers, should have official policies and procedures
behavior, thinking, mood, perception, orientation, or memory         in place for monitoring the psychological fitness of employ-
may be interfering with his or her ability to perform the            ees, including mandated assessment referrals where appro-
essential functions of the position or assigned duties.              priate (Bonsignore v. City of New York, 1982).
                                                                                                      Fitness-for-Duty Evaluations      141


   A second legal issue pertains to the question of who is per-         A similar, but more complex set of facts occurred in
mitted to be present during the evaluation itself. In Vinson v.      Redmond v. City of Overland Park (1987), a case involving
The Superior Court of Alameda County (1987), an employee             the confidentiality of information and the balance between
argued that mandating a psychiatric evaluation violated her          an employee’s right to privacy and the agency’s need to en-
right to privacy, but that if she was to be compelled to submit,     sure the continued psychological fitness of its employees.
she should be allowed to have her attorney present with her          Ms. Redmond was a probationary police officer with the
during the examination. The court denied this request:               City of Overland Park from December 1984 to May 1985.
                                                                     During this time, she engaged in behaviors that resulted in
   We were skeptical that a lawyer, unschooled in the ways of the    the request for an evaluation to assess her mental fitness.
   mental health profession, would be able to discern the psychi-    Mental health professionals were contacted and conducted
   atric relevance of the questions. And the examiner should have    an initial interview; however, they apparently did not have
   the freedom to probe deeply into the plaintiff’s psyche without   her sign a form on which she acknowledged that results
   interference by a third party. (p. 412)                           would be reported back to the agency. Redmond sought legal
                                                                     counsel, alleging that police officials and the consulting
In response, Vinson argued that the presence of counsel              mental health professionals disclosed private information
would provide her with comfort and support in an adversarial         about her. On review, the court found that these mental
setting. The court responded:                                        health professionals did not render “any professional opinion
                                                                     or diagnosis of the plaintiff’s condition or her ability to func-
   An examinee could view almost any examination of this sort,       tion as a police officer” (p. 482). The initial mental health
   even by her own expert, as somewhat hostile. Whatever comfort     consultants withdrew from the case. Subsequently, other
   her attorney’s hand-holding might afford was substantially        mental health consultants were asked to provide a mental
   outweighed by the distraction and potential disruption caused     evaluation of Redmond, and had her sign an appropriate in-
   by the presence of a third person . . . we concluded counsel’s    formed consent and release of information. The court found:
   presence was not necessary. (p. 412)
                                                                        Clearly, any disclosures made on or after April 22, 1985 [the
                                                                        date of the signed consent] are not protected since plaintiff
   Another key issue at the confluence of ethics and law is              signed a release allowing the Mission Psychology Group to dis-
whether an employee has a reasonable expectation of privacy             close records and information regarding the plaintiff to the De-
or confidentiality when mandated to undergo a psychological              partment. (pp. 482–483)
FFDE. In the matter of David v. Christian (1987), the central
                                                                        Regarding the balance between the rights of the employee
issue was whether the examinee or the agency mandating the
                                                                     and those of the department, the court concluded:
assessment held the privilege of confidentiality. The petition-
ing police officer was discharged from employment after                  The court must weigh the Department’s legitimate interest in de-
undergoing a psychiatric evaluation. The petitioner then                termining the plaintiff’s fitness to serve as a police officer and the
claimed that confidentiality was abrogated when the report of            plaintiff’s narrow interest in preventing disclosure of the per-
his FFD Evaluation was released to his superiors. The court             sonal information. The court finds that overwhelming evidence
ruled:                                                                  has been presented which shows that the municipality’s interest
                                                                        in insuring that the plaintiff was capable of performing her duties
                                                                        substantially outweighed the privacy interest the plaintiff had in
   The employee counseling unit’s confidentiality requirement only       the information in question. (p. 484)
   attached where counseling was for the purpose of remedying
   personal employment problems. Here, the psychiatric report was       To summarize, trends in case law seem to suggest the
   sought exclusively by the petitioner’s superiors in order to      following:
   determine whether the petitioner’s condition warranted his
   termination. (p. 826)                                             • Police chiefs have a right, and an affirmative obligation, to
                                                                       mandate their employees to undergo an FFDE if their
The courts appear to acknowledge the distinction between               mental health or emotional stability is called into question.
circumstances in which an employee voluntarily contacts a            • Individuals who are mandated to undergo an FFDE do not
mental health professional and enters into a treatment rela-           have a legal right to have counsel present during inter-
tionship (and thereby holds the privilege of confidentiality)           views or testing sessions.
and those in a mandatory FFDE, where the referring agency            • A law enforcement agency’s responsibility to ensure the
holds the right of confidentiality.                                     psychological fitness of its officers outweighs the right to
142     Forensic Assessment for High-Risk Occupations


     privacy of an individual officer whose mental fitness may         Even if the psychologist is generally familiar with the job
     be in question.                                              or knows specific abilities identified from other agencies, it is
                                                                  often helpful to obtain a job description from the specific re-
                                                                  questing agency to ensure that one is providing the most pre-
Practice Issues
                                                                  cise assessment of fit between the examinee’s condition and
Psychological FFDEs tend to be more extensive and more            the agency’s requirements.
complex than preemployment screenings, although many of
the fundamental practice issues are quite similar. The ulti-
mate question is whether the examinee has a psychological         Obtaining Consent
or behavioral problem that would significantly interfere with
                                                                  The process of obtaining consent for a psychological FFDE is
his or her ability to perform the essential functions of the
                                                                  nearly identical to that described for preemployment screen-
position or pose a direct risk of harm in the workplace. The
                                                                  ings. Indeed, the IACP FFDE Guidelines state: “No FFDE
Police Psychological Services Section of the IACP, the au-
                                                                  should be conducted without either the officer’s informed
thors of the IACP Preemployment Guidelines, have recently
                                                                  written consent or a reasonable alternative” (Guideline #6).
approved a set of guidelines for psychologists who conduct
                                                                  The provision for a reasonable alternative is included to ad-
FFDEs (hereinafter, IACP FFDE Guidelines; IACP, 1998).
                                                                  dress situations in which the examinee may decline to sign a
As with the Preemployment Guidelines, the principles are
                                                                  notice of consent. In such cases, the psychologist could
consistent with CALEA standards and with best practices in
                                                                  choose not to proceed, could refer the matter back to the
the specialty of police psychology. They should guide the
                                                                  agency for resolution, or could proceed with a written notice
expectations of examiners, examinees, and agencies.
                                                                  of the provisions of the assessment that is signed by a third
                                                                  party and/or recorded on audio- or videotape. Regardless, it
Identifying Job-Related Abilities                                 will be necessary for the examiner to disclose information
As with preemployment evaluations, the examiner should            about the nature and purpose of the evaluation, the psycholo-
identify the psychological requirements for the position, and     gist’s role, the designation of the agency as the client of the
analyze the capacities required to perform the essential          consultation, and any limits on confidentiality and privilege,
functions under job-related conditions (Stone, 1990). Job de-     including who will have access to the report. Again, the ex-
scriptions and job task analyses are critical sources of infor-   aminee may be informed that he or she may refuse to partici-
mation. Trompetter (1998) suggests several psychological          pate in the examination or to answer any specific questions,
domains that he believes are essential for effective function-    but should be notified that such refusals will be included in
ing as a law enforcement officer and that should be assessed       the report to the agency.
during an FFDE (see Table 8.2).
                                                                  Assessment Methods
TABLE 8.2 Psychological Domains for Effective Functioning as a
Law Enforcement Officer                                            The IACP FFDE Guidelines recommend a multimethod ap-
•   Emotional control/anger management.                           proach to the psychological FFDE, which typically includes
•   Stress and threat tolerance.
                                                                  the following:
•   Acceptance of criticism.
•   Impulse/risk control.
•   Positive attitude.
•   Assertiveness/tenacity.
                                                                  1. Review of requested background information.
•   Command presence/persuasiveness.                              2. Psychological testing using objective, validated tests ap-
•   Integrity.                                                       propriate to the referral question.
•   Dependability/reliability.
•   Initiative/achievement motivation.                            3. Face-to-face comprehensive clinical interview that in-
•   Conformance to rules and regulations.                            cludes a mental status examination.
•   Adaptability/flexibility.
•   Vigilance/attention to detail.                                4. A biopsychosocial history.
•   Interpersonal sensitivity.                                    5. Third-party collateral interviews with relevant individu-
•   Social concern.
                                                                     als, if deemed necessary and appropriate by the examiner.
•   Teamwork.
•   Practical intelligence/decision-making ability.               6. Referral to and/or consultation with a specialist if the
•   Objectivity/tolerance.                                           presenting problem goes beyond the expertise of the
Source: Trompetter (1998).                                           evaluator. (Guideline #7)
                                                                                                 Fitness-for-Duty Evaluations   143


   One of the major differences in the assessment methods          Hilson Career Satisfaction Index (Inwald, 1989), Inwald
between preemployment screenings and FFDEs is the nature           Survey 5 (Inwald, 1992), Hilson Safety/Security Risk Inven-
and degree of reliance on records and collateral information.      tory (Inwald, 1995), Inwald Survey 2 (Inwald, Resko, &
IACP FFDE Guidelines suggest that, to assess an officer’s           Favuzza, 1996b), Hilson Life Adjustment Profile (Inwald,
patterns of behavior, it is usually helpful for the psychologist   Resko, & Favuzza, 1996a), and the Hilson Personnel Pro-
to review background information such as “performance              file/Success Quotient (Inwald & Brobst, 1988). The advan-
evaluations, commendations, testimonials, internal affair’s        tage of this approach is that the measures are research-based
investigations, preemployment psychological screening, for-        and cover a broad range of relevant behaviors with compar-
mal citizen/public complaints, use-of-force incidents, officer-     ative data available for incumbent employees in high-risk
involved shootings, civil claims, disciplinary actions, incident   occupations, and for persons undergoing mandatory evalua-
reports of any triggering events, [and] medical/psychological      tions. The potential disadvantage is that many of the instru-
treatment records” (Guideline #5). To ensure a fair and bal-       ments contain items derived from the same large item pool,
anced process, it may also be probative for the expert to ask      so that without results of a formal redundancy analysis, it is
the examinee if there are specific individuals he or she thinks     difficult to determine how independent each of these mea-
should be interviewed or documents that should be reviewed         sures are from each other. Moreover, the degree of incre-
as part of the evaluation.                                         mental validity associated with using each of the six tests in
   The extent to which a psychologist chooses to use psycho-       the battery has not, to our knowledge, been systematically
logical testing in an FFDE may depend on the facts of the case     evaluated or reported.
and the circumstances precipitating the referral. Typically, it
will be helpful to have at least one broad-based measure of
psychopathology such as the PAI or the MMPI-2 because              Fitness Analysis
there is often an implicit or explicit predicate question about    As with preemployment assessments, the psychologist must
the presence of a psychological disorder. Testing, in this cir-    evaluate the degree of fit between the employee’s current
cumstance, provides an efficient way to gather information          capacities or impairments and the essential requirements of
across multiple symptom areas and to screen for indications of     the position (Grisso, 1986; Stone, 1995). The assessment can
significant problems that may occur even if there is no history     be done by (a) determining if there are psychological or
of prior treatment. Including in one’s test battery an inventory   behavioral problems, and if so, evaluating their potential im-
that assesses normal dimensions of personality, such as the        pact on the employee’s ability to perform the functions of the
NEO-Personality Inventory-Revised (NEO-PI-R), the CPI, or          job; and (b) determining if there are any significant impair-
the 16PF, may help to reveal strengths that can lend balance to    ments in the employee’s ability to perform essential job func-
the evaluation, or may suggest personality traits that may be      tions, and if so, evaluating their cause. If impairments are
problematic, inflexible, or maladaptive, even if there are not      caused by a mental or emotional disorder, the psychologist
clear indications of a formal personality disorder.                must then assess whether the condition is remediable and
   If the psychologist selects a battery with more than one        whether the nature and degree of impairment is sufficient to
test, the objective should be to maximize convergent and           justify a designation of being unfit for duty. If impairment is
discriminant validity while minimizing measurement redun-          sufficiently severe that the employee is unfit for duty and the
dancy (Borum, Otto, & Golding, 1993). A psychologist does          condition causing that impairment is not reasonably remedia-
not want to simply select multiple measures of the same            ble, the employee would generally be considered perma-
construct or constructs, all of which are highly correlated        nently unfit for duty. If the condition is treatable, however,
with each other. Rather, it is helpful to achieve a sufficiently    the examiner should recommend a course of intervention
broad sample of behavioral domains and to examine areas of         most likely to remediate it and specify the conditions neces-
convergence across assessment methods. Inwald (in press)           sary for restoring the employee to work status.
notes: “The best predictors of job behavior are past indica-          Based on this analysis, a determination is typically made
tions/admissions of similar behavior in similar situations.        that the employee meets one of four conditions:
When compared with predictions based on psychopathology,
predictions based on behavioral admissions are consistently        1. Fit for duty. The employee does not have a psychological
better.” Following the assertion of Hogan, Hogan, and                 or behavioral disorder that causes substantial impairment
Roberts (1996) that “most performance criteria are best pre-          in his or her ability to perform the requirements of the job
dicted by a combination of scales,” Inwald currently advo-            or that poses a direct threat of foreseeable harm in the
cates a six-test battery of Hilson Instruments for FFDEs: the         workplace.
144   Forensic Assessment for High-Risk Occupations


2. Fit for duty with mandatory treatment. The employee does       reactions and consider the appraisal of fitness in light of the
   not pose a direct threat of foreseeable harm in the work-      nature and severity of the reactive symptoms and length of
   place. Some psychological or behavioral condition exists       time that has elapsed since the incident. Officers who ini-
   that may negatively affect job functioning, but the nature     tially show no reaction may subsequently develop problems,
   or severity is not sufficient to classify the employee as       and some officers who initially have problems find that they
   being unfit for duty. The condition is remediable within a      resolve quickly. The examiner must seek information about
   reasonable time frame with appropriate treatment. Specific      whether the involved officer has experienced any changes in
   treatment recommendations are provided, and the em-            thinking, mood, or behavior after the incident. In addition to
   ployee should be directed to adhere to the treatment plan as   assessing usual symptoms of posttraumatic stress disorder,
   a condition of continued employment with the agency.           depression, and anxiety, the psychologist should specifi-
   Reasonable accommodations (e.g., light duty assignment)        cally probe and consider a possible heightened sense of
   may be suggested as an interim or ongoing measure.             danger, excessive reactivity, anger, dissociative and intru-
3. Temporarily unfit for duty, mandatory treatment. The em-        sive experiences, substance abuse problems, and suicidal
   ployee has a psychological or behavioral disorder that         thoughts (Solomon & Horn, 1986). The job-related abilities
   causes substantial impairment in his or her ability to per-    are the same as for any other FFDE, but it is useful to con-
   form the requirements of the job or that poses a direct        sider how any adjustment difficulties may interfere with
   threat of foreseeable harm in the workplace. The nature or     those essential functions. If there is significant potential for
   severity of the condition and/or the attendant impairment      impairment in job-related abilities, as in other FFDEs, the
   is sufficient to classify the employee as being unfit for        assessor must then consider the prospect for remediation
   duty; however, the condition is likely remediable within a     through treatment.
   reasonable time frame with appropriate treatment. Spe-             If an officer has been found temporarily unfit or otherwise
   cific treatment recommendations are provided, and the           temporarily relieved of full duty for psychological reasons,
   employee should be directed to adhere to the treatment         typically, an FFDE will be requested at some point to assess
   plan as a condition of continued employment with the           his or her capacity to return to work. The nature of the evalu-
   agency or eligibility to return to work.                       ation and analysis is not substantially different than in other
4. Permanently unfit for duty. The employee has a psycho-          types of FFDE referrals; the key distinction is the appraisal of
   logical or behavioral disorder that causes substantial im-     what has happened since the declaration of unfitness and
   pairment in his or her ability to perform the requirements     what changes have occurred in the symptoms or impairments
   of the job or that poses a direct threat of foreseeable harm   that initially caused concern. In this way, the reassessment is
   in the workplace. The nature or severity of the condition      somewhat more focused, but certainly no less challenging.
   and/or the attendant impairment is sufficient to classify the   Reliance on third-party information is critical to gauge any
   employee as being unfit for duty, and the condition caus-       changes in thinking, mood, or behavior that may be observ-
   ing the impairment is judged not to be remediable within a     able by others and to assess the extent to which they are
   reasonable period of time.                                     consistent with the officer’s self-report. If the officer has been
                                                                  referred for treatment, the evaluator ordinarily should contact
   There are two circumstances where the fitness determi-          the treatment provider to request records (with written
nation requires some special consideration: those involving       consent of the officer) and to gather, preferably through dis-
officers involved in a duty-related shooting and those that        cussion, relevant information about specific symptoms or be-
are reassessments after being found temporarily unfit or           haviors of concern. The treating professional may also have
being assigned to light duty. Taking a life in the line of duty   relevant data and opinions about the officer’s prognosis.
and witnessing the violent death of a partner are among the       When consulting a treating professional, however, the FFDE
most stressful critical incidents experienced by law enforce-     examiner must always consider that the provider has a pri-
ment officers (Sewell, 1983). Although these events are un-        mary alliance with the officer, and that the applicability of
questionably traumatic, the range of individual reactions         any information must be considered in light of the known dis-
varies widely. Many will cope well with no apparent diffi-         tinctions between therapeutic and forensic roles.
culty; some will initially experience some transient symp-
toms of anxiety or distress but quickly regain equilibrium.       SUMMARY
Others, however, will be severely and profoundly affected
in a way that could interfere with their ability to perform       Psychologists have been involved in conducting assessments
their peace officer functions. The evaluating psychologist         for applicants and incumbents in high-risk occupations
should understand the typical phases of posttraumatic             for many years; however, only recently have professional
                                                                                                                          References    145


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CHAPTER 9


Eyewitness Memory for People and Events
GARY L. WELLS AND ELIZABETH F. LOFTUS




THE MISIDENTIFICATION OF THOMAS BREWSTER                 150             MEMORY FOR PEOPLE 155
MEMORY FOR EVENTS 152                                                      Variables Affecting Identification Accuracy     156
  Misinformation Effects 153                                               The Process of Lineup Identification 157
  Planting False Childhood Memories 153                                  CONCLUSIONS AND PROSPECTUS 158
  Imagination and Memory 155                                             REFERENCES 158
  Other Suggestive Procedures 155




A criminal trial is, among other things, an attempt to recon-            Police protocols for collecting, preserving, and interpreting
struct a past event to aid the trier of fact in determining              eyewitness evidence have not integrated the results of re-
what happened. Physical trace evidence, such as fingerprints,             search conducted by memory experts. Hence, science has not
fibers, or blood, are often used to assist this reconstruction            been the backbone of police procedures for collecting, pre-
because, when properly collected and analyzed, trace evi-                serving, and interpreting eyewitness evidence. Whereas the
dence can help determine the nature of the events and the                justice system’s analysis of physical evidence, especially bi-
identity of the perpetrator. Eyewitness evidence can be                  ological traces, has advanced rapidly in the past decade, the
likened to other forms of trace evidence (Wells, 1995). In               analysis of eyewitness evidence has languished.
effect, a criminal event involving an eyewitness leaves a                   We believe that this gap is due in large part to the failure
trace in the brain of the eyewitness. The “memory as trace               of the justice system to embrace the scientific model for eye-
evidence” metaphor has rich implications. Like physical evi-             witness evidence while accepting the scientific model for
dence, memory trace evidence can be contaminated, lost, de-              physical evidence. Perhaps it is no surprise, therefore, that
stroyed, or otherwise made to produce results that can lead to           mistaken eyewitnesses account for more convictions of in-
an incorrect reconstruction of the event in question. Like               nocent persons than all other causes combined and that it
physical trace evidence, the manner in which memory trace                has been scientific analysis of biological evidence (forensic
evidence is collected can have important consequences for                DNA) that has proven that these eyewitnesses were in error
the accuracy of the results.                                             (Scheck, Neufeld, & Dwyer, 2000; Wells, Small, Penrod,
   The criminal justice system, however, has treated memory              Malpass, Fulero, & Brimacombe, 1998).
traces very differently from physical trace evidence. The col-              The idea of using a scientific model to collect, analyze,
lection of physical trace evidence is relatively well prescribed         and interpret eyewitness evidence is readily apparent in the
according to protocols that have a scientific foundation,                 case of both memory for events and memory for people.
grounded in what experts have suggested are the optimal                  Consider, for example, how social scientists collect data from
ways to avoid contamination (Technical Working Group on                  people. In surveys about past events, great care is taken in con-
Crime Scene Investigations, 1999). Police protocols for the              structing questions because of clear evidence that people’s re-
collection, preservation, and interpretation of physical evi-            ports are influenced by how the questions are worded (Loftus,
dence are dictated largely by forensic scientists, and the prac-         Fienberg, & Tanur, l985; Loftus, Smith, Klinger, & Fiedler,
tice of physical evidence collection and examination has tried           1992). Scientific approaches to minimizing and detecting
to borrow as much as possible from science. Eyewitness evi-              response biases and demand characteristics in surveys repre-
dence, on the other hand, is typically collected by nonspe-              sent solid models for how law enforcement might go about
cialists who have little or no training in human memory.                 the process of questioning eyewitnesses. In the case of


                                                                   149
150   Eyewitness Memory for People and Events


eyewitness identification, the “lineup as experiment” analogy          only from the event itself but also from postevent information
is a rich scientific model that law enforcement could follow           gleaned in various ways after the event has occurred. In some
(see Wells & Luus, 1990). According to this analogy, police           cases, mere imagination can have the power to make people
conducting a lineup are like experimenters conducting re-             believe that they witnessed or experienced an event that did
search. Police have a hypothesis (that the suspect is the culprit);   not happen. The second main section reviews work on eye-
they create a design to test the hypothesis (embed the suspect        witness memory for people, especially the ability of eyewit-
among fillers); they provide instructions (e.g., “Don’t guess.         nesses to identify culprits from lineups. The primary lesson
The culprit might or might not be in the lineup.”); they collect      of the eyewitness identification work is that mistaken identi-
responses (e.g., selection, certainty); and they interpret the re-    fication rates can be very high under certain conditions and
sults. The same factors that can make the results of a scientific      many of these conditions could actually be avoided by the
experiment uninterpretable can make the results of a lineup un-       use of more scientific procedures for lineups.
interpretable (e.g., confoundings, biased instructions, experi-          Before we begin our review, we describe a case that we
menter expectancy effects, selective recording of results).           believe illustrates many of the points that are central to this
    The failure of the criminal justice system to adopt a scien-      chapter.
tific model for memory trace evidence while embracing such
a model for physical trace evidence is perhaps attributable to
several related factors. We note, for instance, that eyewitness       THE MISIDENTIFICATION OF
evidence was a staple in criminal investigations long before          THOMAS BREWSTER
any scientific studies of eyewitnesses were conducted. The
most scientific analyses of physical evidence (such as foren-          It was December 14, 1984. Terry Arendt and Sherrie
sic DNA), on the other hand, were developed by scientists             Gillaspey were parked in a remote area of Shasta County,
first and adopted by crime investigators later. Had the lineup         California. Terry and Sherrie were friends, not lovers, and
been invented by scientists before it was ever used by the            were enjoying each other’s company when a car drove by
criminal justice system, law enforcement would be following           three times. After the third time, a bullet went through the dri-
a scientific protocol. This protocol would involve mock wit-           ver’s side window, killing Terry. A male approached the car
ness pretesting of fillers, double-blind testing procedures,           and forced Gillaspey a short distance from the car, where he
carefully worded instructions, convergent measures, video-            sexually assaulted her. The killer then left. A few days later,
taping, careful documentation of records, and an interpreta-          Gillaspey worked with a sketch artist to develop a likeness
tional framework for the identification responses.                     of the killer. Thomas E. Brewster, a lifelong resident of the
    The failure of the criminal justice system to adopt a scien-      area, bore a resemblance to the sketch and thereby became a
tific model for eyewitness evidence may also be attributable           suspect in the killing.
to the criminal justice system not having a focused theory of             On December 19, 1984, Gillaspey was shown a photo
memory. In fact, the justice system as a whole might have no          lineup with Brewster’s photo in it. She could not make a pos-
theory at all and its members may be operating under several          itive identification. One day later, Gillaspey was shown a live
theories. Implicitly, however, it appears that the justice sys-       lineup in which Brewster appeared. Again, Gillaspey could
tem is assuming that stored information remains largely               not make a positive identification. Brewster was not arrested.
unchanged as a function of postevent information and is rela-         Nearly four years later, in August 1988, detectives again
tively impervious to suggestion, and that memory failures are         showed Gillaspey a photo lineup with Brewster’s picture in it.
primarily failures to retrieve information. In fact, however,         Once again she could not make a positive identification.
memory reports are readily influenced by postevent informa-                In 1995, 11 years after the murder, two new detectives
tion, are very susceptible to suggestion, and can err in nu-          were assigned to the case. These detectives brought photos
merous ways, including memory reports of entire events that           and, after interviewing her with the photos, she signed a
were never witnessed (Loftus, 1996).                                  statement saying that Brewster was the killer. Six days later,
    In this chapter, we review major developments in the sci-         she identified Brewster from a live lineup. The prosecutor de-
entific literature on eyewitness evidence. There are two main          cided to seek the death penalty and the trial did not com-
sections to this review. First, we review research and theory         mence until 1997 (California v. Brewster, 1997). Motions to
on eyewitness memory for events. The primary lesson of the            suppress the identification were denied. After the trial had
memory for events research is that memory for events is mal-          begun, a criminalist found a semen stain on the blouse that
leable. The process of recollection is reconstructive, and            Gillaspey wore that evening and the stain was tested for
sources of information that are used to reconstruct are not           DNA. The trial was in progress and Gillaspey was still on the
                                                                                    The Misidentification of Thomas Brewster   151


stand after having positively identified Brewster in court             D1: Why do you ask me that?
when the DNA test results came in. Brewster was not the               SG: I don’t know, he looks familiar but (unintelligible).
killer. Gillaspey was carefully debriefed and all charges             D1: Have you seen him before?
against Brewster were dismissed.
    At least 80 people have been released from prison in re-       The conversation turned to a discussion of whether she could
cent years after DNA proved that they had been mistakenly          recognize the voice of the perpetrator. The detectives then
identified by eyewitnesses (Scheck et al., 2000; Wells et al.,      turned the conversation back to the photos.
1998). In many cases, there were multiple witnesses who
misidentified the person, many were sentenced to death, and            D1: And what photograph are you talking about?
they served an average of about eight years before being
                                                                      SG: Number three.
freed based on the DNA tests. Although DNA tests eventually
saved these individuals from the mistaken eyewitness identi-          D1: And that individual looks familiar to you, you don’t
fication problem, DNA can be used to exonerate only a small              know in what respect?
fraction of people from mistaken identification. Forensic              SG: Nobody else here does, all I know is he does for some
DNA tests cannot prevent wrongful convictions in most eye-              reason.
witness cases because the biological traces needed for DNA            D1: Well, let’s go through a process of elimination. Is he
tests are not left behind by perpetrators in the vast majority          somebody that you went to school with?
of crimes. Most murders and nearly all robberies, drive-by            SG: Huh uh.
shootings, burglaries, hit-and-run offenses, and other com-           D1: Is he somebody who works in a store where you
mon crimes leave no biological trace evidence that can be               shop?
clearly linked to the perpetrator or that can be used to exon-
                                                                      SG: No.
erate an innocent person. It is no coincidence that nearly all
                                                                      D1: Is he somebody you bought a car from?
of the DNA exoneration cases are cases involving sexual as-
sault. Sexual assaults commonly have biological evidence              SG: No.
(semen) that is unambiguously linked to the perpetrator,              D1: Is he an old schoolteacher?
whereas most other cases do not.                                      SG: Nope.
    The Brewster case is somewhat unique in one respect; the          D1: Is he an old boyfriend?
new detectives who took over the case (13 years after the mur-        SG: No.
der) taperecorded their interview with Gillaspey. We think it
                                                                      D1: He work in a service station?
is important to print excerpts from that interview because they
illustrate some of the dynamics of the eyewitness problem.            SG: No, no.
Keep in mind that the victim-witness, Gillaspey, had already          D1: Is he somebody that has hit on you?
viewed either photos or live lineups containing Brewster
at least four times before the new detectives interviewed her         It is important to note that these detectives were fully
in 1995. She had never made a positive identification of            aware that Sherrie Gillaspey had been shown photos of
Brewster despite these numerous attempts prior to the 1995         Brewster and had viewed him in a live lineup at various times
interview.                                                         over the prior 13 years. Not once, however, did they ever ask
    The interview itself is quite long, so we reprint only a       if he looked familiar because he was the same person that
small portion here. A full transcript of the taped interview was   other detectives had shown her previously. The interview
entered into evidence at a hearing on a motion to suppress the     continued:
identification and can be obtained from the first author on re-
quest. Most of the interview involves Gillaspey recalling the         D1: Could he be the guy that assaulted Terry and you that
events of the night of the murder. At some point, however, the          night?
detectives decided to show her a photospread that included            SG: It’s possible. I mean, I would really like to hear, I
yet another photo of Brewster. In the following transcript              would really like to hear him talk.
quotes from the tape, D1 is the first detective, D2 the second         D1: Well, I can arrange that.
detective, and SG is the witness, Sherrie Gillaspey:
                                                                   Gillaspey had already heard his voice in the 1985 lineup.
   SG: Who is this guy? (apparently pointing to the photo of       Again, however, the detectives offered no information to her
     Brewster).                                                    about that fact. Instead, the discussion turned to signing a
152   Eyewitness Memory for People and Events


statement. She was asked to indicate number three on the           prosecutor, and the judge were willing to accept her identifi-
statement form and to write in the comments section.               cation of Brewster over 3,850 days later.
                                                                       Second, this case illustrates the detective’s lack of under-
   SG: So, what do you want me to put, just write . . .            standing of the processes and the power of suggestive proce-
   BM: Well, let’s think about that for a minute. . . . One of     dures in shaping an eyewitness’s recollections. Presenting
     the things that I, that I probably rely on more than any-     Brewster, both in photos and live, to the eyewitness several
     thing else is body language . . . and emotional reaction.     times over an 11-year period is not the only suggestive aspect
     I think it’s safe to say that you went to number three        of the case. The key interview in 1995, as noted in the tran-
     just like that.                                               script, included the detective interpreting the eyewitness’s
   SG: Uh huh, totally, yeah.                                      behavior for her (“you went to number three just like that . . .
                                                                   you became flushed”). It included a suggestive prediction re-
   D1: And my next question is you became flushed. Why
                                                                   garding how she might behave in the subsequent live lineup
     did you do that?
                                                                   (“we conduct a physical lineup and you identify this individ-
   SG: I don’t know, well immediately, immediately in my           ual as absolutely unequivocally, without a doubt the guy that
     mind, you know, in my mind thinks, is that the person,        was there”), and suggestions that she not say anything in her
     you know, kind of . . .                                       photo-identification card that would not play well later in
   D1: That’s the answer I’m looking for. Could that be the        court.
     guy that did all this?                                            Third, this case illustrates a problem of source monitoring.
   SG: Yeah.                                                       Gillaspey seemed to be unaware that Brewster’s familiarity
                                                                   was the result of her being exposed to him after the murder
Notice how the detective tells Gillaspey what her emotional        rather than his being the person she saw on the night of the
reaction was and interprets her body language. Then, when          murder. Fourth, this case illustrates how the certainty of an
she says something that agrees with the detective’s suspi-         eyewitness is not only a poor indicator of whether the witness
cions about the guilt of Brewster, he tells her that was the an-   is accurate (Gillaspey was positive at trial even though she
swer he was looking for. The interview continues.                  had mistakenly identified the defendant), but also how cer-
                                                                   tainty is a product of variables other than the memory of the
   D1: Then what, see what, what I have to worry about now         eyewitness.
     is if in fact you do come back over and we conduct a              Finally, this case illustrates how the justice system fails to
     physical lineup and you identify this individual as ab-       take advantage of what is known about human memory and
     solutely unequivocally, without a doubt the guy that          social influence to develop appropriate safeguards against
     was there . . .                                               mistaken identification. There was a detailed and reasonable
   SG: Uh huh.                                                     motion to suppress the eyewitness identification evidence.
   D1: Then obviously the next thing that happens is some-         The suppression motion was denied in the Brewster case, as it
     where down the line we have to think about what hap-          is rather routinely in nearly all cases, even though the identi-
     pens in court. And we don’t want to taint that with           fication procedures were highly suggestive (Loftus & Doyle,
     some, with a comment that you might inadvertently             1997/2000). As previously stated, we believe that some mem-
     make on the back of that card.                                bers of the justice system seem to operate under a theory of
                                                                   memory that does not give much credence to the idea that
The taped interview then ended. Six days later, Gillaspey          postevent information can account for serious mistakes by
picked Brewster from a live lineup and was absolutely posi-        eyewitnesses.
tive of her identification.
    The Brewster case illustrates much of what concerns
scientific psychologists about eyewitness testimony. First, it      MEMORY FOR EVENTS
illustrates what seems to be a general misunderstanding
about the nature of human memory, namely, that memory              As the Brewster case suggests, postevent viewings of a sus-
might get better (or at least not deteriorate) with time.          pect’s likeness, either by photograph or in person, can help to
Gillaspey had already viewed a photo of Brewster a mere five        make someone look familiar later. That enhanced familiarity
days after the incident and viewed him again in a live lineup      can lead to a false identification of the suspect as the person
that included Brewster a mere six days after the incident. In      who committed the crime. But decades of research has shown
neither case could she identify Brewster. And yet, police, the     that postevent information, particularly when it is misleading,
                                                                                                           Memory for Events    153


can also alter recollections of other details about key events.   previously acquired memory or tinkering with a detail here
A typical finding is that after receiving new information that     and there, they studied whether suggestive procedures can
is misleading in some way, people make errors when they re-       create entirely false memories for the past. Researchers de-
port what they saw. The new, postevent information is often       vised procedures that could make people believe and remem-
incorporated into the recollection, supplementing or altering     ber that earlier in life they had been hospitalized when they
it, sometimes in dramatic ways.                                   had not (Hyman, Husband, & Billings, 1995), that they had
                                                                  been lost and frightened in a mall when they had not (Loftus
                                                                  et al., 1996), that they had been victims of vicious animal at-
Misinformation Effects
                                                                  tacks as children even though they had not been (Porter,
Current research showing how memory can become skewed             1998; Porter, Yuille, & Lehman, 1999), and even that they
when people assimilate new data uses a three-part procedure.      had witnessed demonic possession when they were very
Experimental witnesses first see a complex event, such as a        young (Giuliana, Mazzoni, Loftus, & Kirsch, 2001). This line
simulated violent crime or an automobile accident. Sub-           of false memory research shows that it is indeed possible to
sequently, half of the witnesses receive new misleading in-       create quite complex, elaborate, and “confident” false memo-
formation about the event. The other half do not get any          ries in the minds of research participants.
misinformation. Finally, all witnesses attempt to recall the          To see how false memories of events can be created, we
original event. In a typical example of a study using this par-   describe one method in some detail: planting a childhood
adigm, witnesses saw a simulated traffic accident. They then       memory for something that never happened. One goal of the
received written information about the accident, but some         research was to find a method for planting a memory that, if
people were misled about what they saw. A stop sign, for in-      the event had actually occurred, would have been at least
stance, was referred to as a yield sign. When asked whether       mildly traumatic. But the experience should not, of course, be
they originally saw a stop or a yield sign, those given the       so upsetting to the person that it would be unethical to create
phony information tended to adopt it as their memory; they        a false memory about it.
said they saw a yield sign (see Loftus, Coan, & Pickerell,            Loftus and colleagues settled on the idea of trying to plant
1979/1996, for a review of this study and similar research). In   a very specific memory of being a 5-year-old lost in a shop-
these and many other experiments, people who had not re-          ping mall, being frightened, crying, and ultimately rescued
ceived the misleading information provided much more              by an elderly person and reunited with the rest of the family
accurate memories. In some experiments, the deficits in            (see Loftus & Ketcham, 1994, for a description of the origin
memory performance following receipt of misinformation            of the idea, and Loftus et al., 1996, for more details on this re-
have been dramatic, with performance differences as large as      search). Here is how it was done: The participants, all adults,
30% or 40% (Belli, 1993; McCloskey & Zaragoza, 1985).             were asked to try to remember childhood events that were
   This degree of distorted reporting has been found in scores    supplied by their mother, father, older sibling, or other close
of studies, involving a wide variety of procedures. People        relative. Three of the events were true, and one was the
have recalled nonexistent broken glass and tape recorders, a      research-crafted false event about getting lost in a shopping
clean-shaven man as having a mustache, straight hair as curly,    mall, department store, or other public place. In phase l, par-
stop signs as yield signs, hammers as screwdrivers, and even      ticipants completed a booklet containing four one-paragraph
something as large and conspicuous as a barn in a bucolic         stories about events from their childhood provided by their
scene that contained no buildings at all. In short, misleading    relative. Three events actually happened, and the fourth,
postevent information can alter a person’s recollection in a      always in the third position, was false.
powerful, and often predictable, manner. The change in report         The false event was constructed from information pro-
arising after receipt of misinformation is often referred to as   vided by a relative of the participant who gave the re-
the “misinformation effect” (Loftus & Hoffman, 1989).             searchers details about a plausible shopping trip. The relative
                                                                  told the researchers (a) where the family would have
                                                                  shopped when the participant was about five years old; (b)
Planting False Childhood Memories
                                                                  which members of the family usually went along on shop-
During the last decade of the twentieth century, eyewitness       ping trips; (c) what kinds of stores might have attracted the
researchers took things a step further; they turned their         participant’s interest; and (d) verification that the participant
attention to the question: Just how far can we go with people     had not been lost in a mall around the age of 5. This infor-
in terms of distorting their memories with suggestion and         mation was then used to craft the false event. The false
misinformation? Rather than merely adding a detail to a           events always included the following elements about the
154   Eyewitness Memory for People and Events


participant: (a) lost for an extended period of time; (b) cry-       bered all or part of this creation. In a separate study, Hyman
ing; (c) lost in a mall or large department store at about the       and collaborators created even more unlikely false memo-
age of 5; (d) found and aided by an elderly woman; and (e)           ries, such as attending a wedding reception and accidentally
reunited with the family.                                            spilling a punch bowl on the parents of the bride or having to
   Participants read what their relative had told us about each      evacuate a grocery store when the overhead sprinkler sys-
event, and then completed the booklets by writing what they          tems erroneously activated. This time, approximately 25%
remembered about each event. If they did not remember the            accepted all or part of the false memory by the end of the
event, they were told to write “I do not remember this.” When        third interview (see Hyman & Billings, 1998; Hyman &
the booklets were returned, participants were called and two         Pentland, 1996).
interviews were scheduled. These occurred approximately                  A recent doctoral dissertation project also succeeded in
one to two weeks apart. Participants were told that the re-          planting false memories via suggestion that ostensibly came
searchers were interested in examining how much detail they          from relatives of the participants. This research planted mem-
could remember and how their memories compared with                  ories not only for getting lost and having undergone serious
those of their relative. The event paragraphs were not read to       medical procedures, but also for serious animal attacks, seri-
them verbatim, but rather bits of information were provided          ous indoor accidents, and serious outdoor accidents, events
as retrieval cues. When participants had recalled as much as         that would have been traumatic had they actually occurred
possible, they were asked to rate the clarity of their memory        (Porter, 1998; Porter et al., 1999). These investigators re-
for the event on a scale of 1 to 10, with 1 being not clear at all   ported that just over 25% of their participants created a rather
and 10 being extremely clear.                                        complete false memory, and another 30% created a partial
   In all, participants remembered something about 68% of            memory. Clearly, these methods are capable of inducing false
the true events that they were asked about. This figure did           memories in a sizable percentage of people.
not change from the initial report through the two follow-up             Like Hyman and Billings (1998), Porter et al. (1999)
interviews. The rate of “remembering” the false event was            found that the participants who were most susceptible to
lower, at about 25%. Statistically, there were some differ-          memory implantation were those who scored high on the Dis-
ences between the true memories and the false ones: More             sociative Experiences Scale, a self-report measure of the ex-
words were used to describe the true memories, and the true          tent to which participants experience lapses in memory and
memories were rated as being somewhat more clear. But                perception in their everyday life. As Loftus and colleagues
with many of the participants, if an onlooker were to watch          had found (e.g., Loftus et al., 1996), these investigators also
the participant describe an experience, it would be difficult         found that participants gave higher ratings of vividness or
indeed to tell whether the report was of a true or a false           clarity when relating a real memory as opposed to an im-
memory.                                                              planted one. Interestingly, the real memories related by the
   Other investigators used a similar procedure to plant false       participants did not contain more details than the planted
memories of even more unusual events. In one study, college          memories.
students were asked to recall actual events that had been                In remarking about their findings, Porter and colleagues
reported by their parents and one experimenter-crafted false         (1999) were particularly impressed that fully 20% of created
event (Hyman et al., 1995). The false event was an overnight         memories were given with the highest possible confidence
hospitalization for a high fever with a possible ear infection,      rating. At the end of their study, over 33% of the participants
or a nonexistent birthday party with pizza and a clown. Par-         who had created a false memory were willing to wager
ents confirmed that neither of these events had happened, yet         money that the false event occurred. Moreover, the investiga-
participants were told that they had experienced one of the          tors reported that at the time the participants were debriefed,
false events at about the age of 5.                                  most of them appeared to be “genuinely astonished” when
   Participants tried to recall childhood experiences that they      told about the parental reports and the fact that their memo-
thought had been supplied by their parents, in the belief that       ries were false. Many appeared amused and wanted to talk
the experimenters were interested in how people remember             more with the researchers about the process of memory
shared experiences differently. All events, both the true ones       creation, in some instances, even requesting literature in the
and the false one, were first cued with an event title (family        area of research. These features of the reaction help convince
vacation, overnight hospitalization) and an age. Hyman et al.        the researchers that the participants had in fact recalled
(1995) found that participants remembered approximately              the false event, as opposed to responding to demand charac-
80% of the true events. As for the false event, by the end of        teristics of the study. It seems evident from these findings
the second interview, 20% of the participants had remem-             that participants are actually “remembering” these false
                                                                                                         Memory for People   155


experiences, in the sense that they have a genuine recollec-      did not imagine getting in trouble for calling 911, only 11%
tive feeling about the experiences.                               showed a corresponding increase.
                                                                     Numerous other investigators have used imagination to
                                                                  alter people’s beliefs about their past. Imagination can make
Imagination and Memory
                                                                  people believe that they have had experiences in the dis-
It should be kept in mind that these studies used a rather        tant past (Heaps & Nash, 1999; Paddock, Joseph, Chan,
strong form of suggestion in which a source with some             Terranova, Maning, & Loftus, 1998), but it also can make
prestige suggested that an event had occurred in the past.        people believe that they have had experiences in the recent
However, such heavy-handed methods are not needed to get          past (Goff & Roediger, 1998; Thomas & Loftus, 2001).
people to increase their confidence that they had experiences
in the past that they probably did not experience. Inducing
people to imagine that they have had an experience can influ-      Other Suggestive Procedures
ence people to recall having had such an experience.
                                                                  The power of suggestion to create false beliefs and false mem-
    To explore what happens to memory when people imag-
                                                                  ories has now been shown repeatedly. Suggestive dream inter-
ine events that did not occur, Garry, Manning, Loftus, and
                                                                  pretation has led people to believe that they were lost for an
Sherman (1996) used a three-stage procedure. Participants
                                                                  extended period of time, or that they faced a great danger from
were first asked about 40 possible events from their child-
                                                                  which they were rescued (Mazzoni & Loftus, 1998). Reading
hood and indicated the likelihood that these events happened
                                                                  suggestive stories and getting false feedback about one’s fears
to them on a scale of responses ranging from definitely did
                                                                  has led people to believe that they witnessed demonic posses-
not happen to definitely did happen. Two weeks later, the par-
                                                                  sion in the past or that they nearly swallowed an object and
ticipants were asked to imagine that they had experienced
                                                                  choked (Mazzoni et al., 2001). Suggestive false feedback
some of these events. The events included falling and break-
                                                                  about one’s visual-motor skills has led people to believe that
ing a window with their hand, getting in trouble for calling
                                                                  they could remember experiences from the day after birth
911, finding a $10 bill in a parking lot, or being pulled out of
                                                                  (DuBreuil, Garry, & Loftus, 1998; Spanos, Burgess, Burgess,
the water by a lifeguard. Different participants were asked to
                                                                  Samuels, & Blois, 1999). These findings should give pause to
imagine different events.
                                                                  investigators and others who think that they are extracting
    Consider a typical one-minute imagination exercise, one
                                                                  recalcitrant, accurate memories from witnesses and suspects
in which participants imagined breaking a window with their
                                                                  by using techniques that resemble the ones that psychologists
hand. They were told to picture that it was after school and
                                                                  have studied. The danger lies in planting the seed of sugges-
they were playing in the house when they heard a strange
                                                                  tion that then takes root and grows into a mighty false memory
noise outside. They were told to imagine themselves running
                                                                  that has the power to convict an innocent person.
toward the window, tripping, falling, reaching out, and break-
ing a window with their hand. While imagining the scene, the
participants were asked several questions, such as “What did
you trip on?” and “How did you feel?” After imagining sev-        MEMORY FOR PEOPLE
eral situations, the participants again, sometime later, were
given the list of 40 childhood events to respond to.              An eyewitness’s identification of a particular person as the
    Comparing the responses to the two questionnaires about       one who committed a crime is a powerful form of evidence.
possible childhood experiences, it was found that a one-          An eyewitness who says “That’s the man I saw pull the trig-
minute act of imagination led a significant minority of partic-    ger” is providing direct evidence of guilt. Even fingerprints
ipants to indicate that an event was more likely to have          are not direct evidence of guilt because they indicate only
happened after previously identifying it as unlikely to have      that a given person touched a given surface, and there might
occurred. In the broken window scenario, 24% of the partici-      have been many innocent ways to have touched the surface.
pants who imagined the event showed an increase in con-           Hence, although most evidence in courts of law is circum-
fidence that the event had actually occurred. For those            stantial, eyewitness identification evidence is direct evidence
participants who did not imagine breaking the window, 12%         of guilt.
showed a corresponding increase. In the “got in trouble for          Eyewitness researchers’ concern about the accuracy of
calling 911” scenario, 20% of the participants who imagined       eyewitness identification evidence is grounded in two broad
the event showed an increase in confidence that the event had      observations. First, eyewitness experiments involving staged
occurred when they were children. For those participants who      crimes show that rates of mistaken identification can be very
156   Eyewitness Memory for People and Events


high under certain conditions (Wells, 1993). These conditions       On the other hand, consider the problem of structurally biased
are often represented in real-life cases. Second, real-world        lineups. In a structurally biased lineup, the suspect fits the de-
cases in which people have been convicted of crimes that they       scription that the eyewitness had given of the culprit, whereas
did not commit show that mistaken identification was the pri-        the fillers (known innocents, distractors, or foils) do not fit
mary evidence leading to their conviction (Huff, Rattner, &         that description. Structural lineup bias is a suspect-bias vari-
Sagarin, 1986; Scheck et al., 2000; Wells et al., 1998).            able rather than a general impairment variable because it can
                                                                    account for why the eyewitness selected the suspect rather
                                                                    than selecting some other lineup member.
Variables Affecting Identification Accuracy
                                                                        Table 9.1 lists a large number of variables known to affect
How do mistaken identifications happen? Like most impor-             the accuracy of eyewitness identification. The list is not ex-
tant phenomena, the causes are many. The scientific approach         haustive, but it represents the variables that have been studied
to studying the causes of mistaken identification has gener-         most often. Each variable is then categorized according to
ally been to isolate suspected variables in controlled experi-      each of the three types of categorization. The last column of
ments. The list of variables that have been shown to affect         Table 9.1 lists one representative publication dealing with
rates of mistaken identification is rather large. One common         each variable. We recommend a meta-analysis by Shapiro
approach to organizing the findings has been to categorize the       and Penrod (1986), which included most of these variables,
variables into witness characteristics (e.g., sex, intelligence),   for information on estimates of effect size, a standardized sta-
characteristics of the witnessed event (e.g., exposure duration,    tistical estimate of the impact that one variable has on another
presence of a weapon), postevent variables (e.g., suggestions       variable. Effect sizes are often used to compare the relative
from other witnesses, exposure to a sketch), characteristics of     impact of one variable versus some other variable. We cau-
the identification task (e.g., structure of the lineup, instruc-     tion readers, however, against inferring too much from effect
tions to witnesses prior to viewing the lineup), and postidenti-    size estimates. Effect sizes are very sensitive to the particular
fication events (e.g., feedback to the eyewitness regarding the      operationalizations that are used in manipulating each of the
identification). We refer to this as the chronological approach      variables.
because the categories are ordered in the temporal sequence in          It is apparent from Table 9.1 that chronological catego-
which they unfold. Another way to organize these variables is       rization and system versus estimator categorization are re-
according to whether they are controllable by the criminal jus-     lated. This is because system variables do not normally come
tice system in actual cases (e.g., the structure of a lineup) or    into play until after the crime event has occurred. The general
are not controllable in real cases (e.g., exposure duration),       impairment versus suspect-bias variables distinction, on the
which is known as the system-variable versus estimator-             other hand, is not restricted to any particular chronological
variable distinction (Wells, 1978).                                 frame. In addition, the general impairment and suspect-bias
    More recently, Wells and Olson (2001) suggested yet an-         variables can be either system or estimator variables. Finally,
other distinction among eyewitness identification variables:         note that a few variables are not restricted to a single cate-
between suspect-bias variables and general impairment vari-         gory. One variable is the period of time between the event
ables. A suspect-bias variable is one that can account for why      and the person’s recollection, sometimes referred to as reten-
an eyewitness, when presented with a lineup, specifically se-        tion interval. Retention interval is commonly construed as an
lected the innocent suspect rather than one of the fillers in the    estimator variable. However, there are times when the justice
lineup (or simply saying “I don’t know” or “None of these           system has some control over the retention interval, such as
people”). A general impairment variable, on the other hand,         when investigators show eyewitnesses a lineup that could
cannot account for which person the suspect picked, but can         have been conducted at an earlier point in time. Also,
account only for poor eyewitness performance more gener-            exposure to mugshots might normally be considered a gen-
ally. Consider, for instance, the other–race effect: There is       eral impairment variable because it generally interferes with
now rather good evidence that people have more difficulty            the witness’s ability to keep the perpetrator’s face in mind
identifying persons of another race than their own race (see        later, when viewing the lineup. At other times, however, ex-
meta-analysis by Meisner & Brigham, 2001). The other-race           posure to mugshots could be a specific-suspect-bias variable
effect is a general impairment variable in the sense that it can-   if it makes an innocent suspect seem familiar because he or
not account for why the witness would select the suspect in         she was seen in the set of mugshots.
the lineup rather than one of the fillers in the lineup. (This ex-       Each of the three ways of categorizing eyewitness identi-
ample assumes, of course, that all members of the lineup are        fication variables has a different utility. The chronological
of the same race, a race different from that of the eyewitness.)    categorization assists in developing a temporal understanding
                                                                                                                         Memory for People       157


     TABLE 9.1    Eyewitness Identification Variables and Their Categories
                                                                                     General
                                                                     System        Impairment
                                                                     versus           versus
                                                  Chronological     Estimator      Suspect-Bias
                     Variable                       Category        Category        Category                    Example Citation
     Sex of witness                                    WC               E              GI
     Intelligence of witness                           WC               E              GI          Brown, Deffenbacher, & Sturgill, 1977
     Age of witness                                    WC               E              GI          Chance & Goldstein, 1984
     Face recognition skills                           WC               E              GI          Woodhead, Baddeley, & Simmonds, 1979
     Personality                                       WC               E              GI          Hosch & Platz, 1984
     Alcohol                                           WC               E              GI          Yuille & Tollestrup, 1990
     Prior exposure/source confusion/bystander         WC               E              SB          Read, 1994
     View                                              EC               E              GI          Lindsay, Wells, & Rumpel, 1987
     Disguise of perpetrator                           EC               E             GI/SB        Cutler, Penrod, & Martens, 1981
     Exposure time                                     EC               E              GI          Ellis, Davies, & Shepherd, 1977
     Same versus other-race identification              EC               E              GI          Anthony, Cooper, & Mullen, 1992
     Stress                                            EC               E              GI          Christianson, 1992
     Weapon                                            EC               E              GI          Steblay, 1992
     Retention interval                                PE              E/S             GI          Krafka & Penrod, 1985
     Interpolated mugshots                             PE               S             GI/SB        Brigham & Cairns, 1988
     Overheard descriptions                            PE               S              SB          Loftus & Greene, 1980
     Prelineup instructions                            ID               S              GI          Steblay, 1997
     Structure of lineup/fillers                        ID               S              SB          Wells, Rydell, & Seelau, 1993
     Simultaneous/sequential procedure                 ID               S              GI          Lindsay & Wells, 1985
     Suggestive behaviors during lineup                ID               S              SB          Phillips, McAuliff, Kovera, & Cutler, 1999
     Postidentification feedback                        PI               S              SB          Wells & Bradfield, 1998

     Note: WC witness characteristics, EC event characteristics, PE postevent factors, ID identification test variables, PI   postidentification
     variables, S system variable, E estimator variable, GI general impairment variable, SB suspect-bias variable.




of the order in which these variables come into play in the                  biased lineup, for instance, serves to explain why the eye-
witnessing experience. The system versus estimator catego-                   witness preferred the suspect rather than one of the fillers.
rization is useful for developing methods for increasing the                 Hence, the general impairment versus suspect-bias variable
accuracy of eyewitness identification evidence via system-                    distinction may be very useful in terms of understanding
variable recommendations to the justice system. The general                  why some variables might be more important to juries than
impairment versus suspect-bias categorization is relevant to                 others in terms of their willingness to accept identification
understanding how jurors might reason about eyewitness                       testimony.
identification in a given case.
   The relevance of the general impairment versus suspect-
                                                                             The Process of Lineup Identification
bias distinction to jurors’ judgments of eyewitness identifica-
tion evidence requires more explanation. Consider a case in                  One of the simplest and most useful ideas in understanding
which it is argued to the jury that the eyewitness had a very                mistaken identifications from lineups is the relative judgment
poor view of the perpetrator, was of a different race than the               conceptualization. According to this conceptualization, eye-
perpetrator, and did not view a lineup until two months after                witnesses tend to identify the person from a lineup who most
the crime. Wells and Olson (2001) argue that these variables                 closely resembles the eyewitness’s memory of the perpetrator
might not matter much to the jury when they deliberate be-                   relative to the other members of the lineup (Wells, 1984). This
cause they fail to explain why the eyewitness picked the sus-                process of identification works reasonably well as long as the
pect out of the lineup and did not pick a filler. If the other-race           actual perpetrator is in the lineup. When the perpetrator is not
effect made the lineup members “all look alike,” then how                    in the lineup, however, there is still someone who looks more
was the witness able to pick out the suspect? The problem                    like the perpetrator than do the other lineup members, and
with general impairment variables is that they tend to beg the               eyewitnesses have a propensity to identify that person.
question for the jury as to why the eyewitness picked the sus-                   There are several reliable phenomena that support the
pect instead of one of the fillers. Suspect-bias variables, on                relative judgment conceptualization. For example, failure to
the other hand, tend to answer that question. A structurally                 give explicit instructions to the eyewitness that emphasize
158   Eyewitness Memory for People and Events


that the perpetrator might not be in the lineup leads eyewit-    and suggestive lineup procedures can have immense effects
nesses to pick someone from the lineup at very high rates        on the testimony of eyewitnesses. Memories for events that
regardless of whether the perpetrator is present (Malpass &      never occurred are readily confused with memories for actual
Devine, 1981). Even with these instructions, eyewitnesses        events, and mistaken eyewitness identifications are readily
tend to use relative judgments. For example, removing the        confused with accurate eyewitness identifications. Although
perpetrator from a lineup without replacement leads most         there has been some recent success in getting the criminal jus-
eyewitnesses who otherwise would have selected the perpe-        tice system to make use of psychological science in its proce-
trator to instead select the “next best” person in the lineup    dures for collecting eyewitness evidence (see Wells, Malpass,
rather than indicate that the perpetrator is not there (Wells,   et al., 2000), there remains a large gap between what psycho-
1993). In addition, eyewitnesses who report that they used a     logical science advises for collecting eyewitness evidence
relative comparison process (e.g., “I compared number three      and actual practices of criminal investigators.
to number two”) or an elimination process (e.g., “I knew it          Future research needs to address this gap between psycho-
wasn’t number one”) are more likely to have made a mis-          logical science and the practices of the legal system with
taken identification than are those who report that the face      regard to eyewitness memory. To some extent, this might be
“just popped out” (Dunning & Stern, 1994). This makes            facilitated by research directed at the question of what theo-
sense to the extent that the relative judgment process is an     ries the criminal justice system is using in collecting eyewit-
effortful, deliberate elimination strategy whereas absolute      ness evidence. Undoubtedly, these theories are more implicit
judgments are automatic, rapid, true recognition responses.      than explicit, so it is unlikely that one can simply ask crimi-
    Perhaps the best evidence that relative judgments are        nal justice actors to articulate their theories about memory.
involved in mistaken identification comes from research on        However, we believe that an understanding of these implicit
simultaneous versus sequential presentation procedures for       theories can tell us something about how to better communi-
identifications. Simultaneous lineups are ones in which all       cate our findings to those in the criminal justice system with
members of the lineup are shown to the eyewitness at one         a somewhat better chance to actually affect how the justice
time, whereas a sequential procedure involves showing            system thinks about and manages the collection of eyewit-
the eyewitness one lineup member at a time and forcing the       ness evidence.
eyewitness to make a recognition decision (yes or no) before
viewing the next lineup member. The sequential proce-
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CHAPTER 10


Voir Dire and Jury Selection
MARGARET BULL KOVERA, JASON J. DICKINSON, AND BRIAN L. CUTLER




VOIR DIRE 161                                                                 The Practice of Scientific Jury Selection 168
  Challenging Potential Jurors 162                                            Demographic Predictors of Verdict 168
  Extended versus Minimal Voir Dire 163                                       Personality Traits as Predictors of Verdict 169
  The Social Psychology of Voir Dire 163                                      Attitudinal Predictors of Verdict 170
TRADITIONAL JURY SELECTION 165                                                Comparison of Traditional and Scientific Jury
  Stereotypes and Implicit Theories of Personality                               Selection Techniques 171
     and Attitudes 165                                                        Does the Jury Selection Process Produce Better
  Beliefs about Nonverbal Communication 166                                      Juror Decisions? 171
  Effectiveness of Traditional Jury Selection 166                           DIRECTIONS FOR FUTURE RESEARCH 172
SCIENTIFIC JURY SELECTION 167                                               REFERENCES 173




The jury is widely regarded as the zenith of American juris-                hear a civil or criminal trial. During voir dire, the judge
prudence: the marquee of justice designed to protect the inno-              and/or the attorneys (i.e., the prosecution and the defense
cent and lay blame to the guilty. But more than that, the jury is           in criminal cases, the lawyers representing the plaintiff and
perhaps the only mechanism of democracy that so decisively                  the defendant in civil cases) formally examine groups of
places decision-making responsibilities in the hands of the                 prospective jurors, known as the venire. Attorneys may use
people. Those people are jurors, and, as we shall see, the meth-            the voir dire process to accomplish a variety of goals. Some
ods used to select these individuals is often the source of con-            attorneys advocate using voir dire as an opportunity to ingra-
siderable debate between and among psycholegal researchers                  tiate themselves with the jury (e.g., Levine, 2001; Liotti &
and legal practitioners. In this chapter, we describe the proce-            Cole, 2000; Weaver, 1993). Others argue that voir dire is a
dure, voir dire, through which regular citizens are chosen to               time to educate the jury about case-relevant law or the cen-
serve on juries. We also review the research, examining the                 tral issues in the case (e.g., Herman, 1997; McNulty, 2000).
efficacy of traditional attorney-conducted jury selection. We                Whatever other purposes voir dire serves, its primary purpose
contrast traditional methods of jury selection with one of the              is to provide a forum in which attorneys attempt to uncover
many services provided by trial consultants: scientific jury se-             any bias that jurors have that might prevent them from
lection. Scientific jury selection relies on community surveys               weighing the evidence fairly and arriving at an appropriate
to identify demographic, personality, or attitudinal correlates             verdict (McCarter, 1999).
of potential jurors’ inclinations to vote guilty or not guilty in a             Voir dire is used in both criminal and civil trials. In a crim-
particular case. Finally, we note the limitations of the extant re-         inal case, because the state bears the burden of proof, the
search on jury selection and, based on relevant social psycho-              prosecution typically begins the examination, followed by
logical research on attitude-behavior relationships, suggest                the defense; in a civil case, the plaintiff’s attorney usually be-
avenues for future research on voir dire and jury selection.                gins the questioning. When a case is tried in federal court,
                                                                            however, it is very likely that the judge will ask most, if not
VOIR DIRE                                                                   all, of the questions of the venire. The length of voir dire may
                                                                            range from several hours in the typical case to several
Voir dire (from the French, to speak the truth) is a pretrial               months. However, a protracted voir dire is relatively rare and
legal proceeding, mandated by federal or state statute, in                  is typically reserved for cases that are exceedingly complex
which a petit jury (as opposed to a grand jury) is assembled to             or involve a high degree of pretrial publicity. Depending on

                                                                      161
162   Voir Dire and Jury Selection


the nature of the case, a venire person typically will be asked       Peremptory challenges serve several functions (Babcock,
an array of questions, including questions designed to elicit         1972). For example, trial participants may be more satisfied
basic demographic information, knowledge about the case,              with the outcome of the trial if they help to select the people
and perhaps case-specific attitudes.                                   who will decide the outcome. Moreover, peremptory chal-
    When the examination is finished, the venire often is ex-          lenges allow attorneys to eliminate jurors who may be reluc-
cused from the courtroom so that the attorneys may openly             tant to admit their bias and to excuse jurors that attorneys may
scrutinize the jurors and their responses to these questions. If      have offended during intrusive questioning.
the venire is not excused, the attorneys approach the bench and           Unlike challenges for cause, the number of peremptory
quietly convene with the judge so as not to offend any of the         challenges allotted varies with the jurisdiction in which a
panel members. It is at this time that the jury is assembled.         case is being tried, as dictated by state or federal statute. For
There are two mechanisms through which jurors can be ex-              example, in Florida and Missouri civil trials, both defendant
cluded from a jury. Attorneys may make a motion that partic-          and plaintiff are allotted three peremptory challenges; in
ular jurors should be excused because they exhibited clear bias       Michigan civil trials, they are allotted two. Depending on
that would prejudice their evaluation of the evidence. This           state law, judges may be free to grant additional peremptory
motion is known as a challenge for cause. Attorneys may also          challenges as they see fit. For example, in a case surrounded
remove a juror by exercising one of their peremptory chal-            by intense pretrial publicity, a judge may decide that addi-
lenges, which allows them to exclude a juror without stating          tional challenges are warranted to ensure that an impartial
the cause for the exclusion. After all of the challenges have         jury is seated. Thus, the number of peremptory challenges
been made and ruled, the surviving venire persons are then            available to counsel is limited but routinely increases with the
sworn into service as jurors. The individuals who are not re-         severity of the crime (Elwork et al., 1981). Moreover, our jus-
tained for service are excused and may later be summoned to           tice system is designed to protect the criminal defendant
participate in a different voir dire for another trial. Because at-   through mechanisms such as the presumption of the defen-
torneys are concerned with striking prospective jurors rather         dant’s innocence and placing a high burden of proof on the
than retaining them, voir dire is best characterized as a process     prosecution. Therefore, the criminal defense is typically
of elimination rather than a process of selection (Elwork,            granted at least as many and sometimes more peremptory
Sales, & Suggs, 1981; Middendorf & Luginbuhl, 1995). That             challenges than the prosecution. For example, in Michigan in
is, attorneys challenge the suitability of jurors for jury service    noncapital criminal trials, defendant and plaintiff are granted
rather than choosing those jurors they would most like to see         5 peremptory challenges; however, in a capital trial, the de-
seated on the jury.                                                   fendant is granted 20 peremptory challenges and the prosecu-
                                                                      tion is granted 15.
                                                                          In practice, attorneys exercise peremptory challenges for a
Challenging Potential Jurors
                                                                      variety of reasons. Even if a venire person may not be re-
Challenges for cause may be granted if, during voir dire, a           moved for cause, he or she may be rejected based on per-
venire person is found to hold overt prejudice, is in disagree-       sonal characteristics, perceived attitudes, occupational status,
ment with fundamental principles of due process, or fails to          or other dispositions that are thought to be unfavorable to an
meet minimum state eligibility for jury service. Challenges for       attorney’s case. There are some limitations to the use of
cause are unlimited in number and, like all motions, are either       peremptory challenges. Attorneys are prohibited from strik-
granted or denied by the judge. However, if a venire person           ing members of cognizable groups (i.e., an easily identifiable
admits to holding prejudice, the judge can, and often does, ask       segment of the community). In 1986, the U.S. Supreme Court
if that individual is willing and able to set aside that bias and     ruled that race could not constitute the sole criterion for exer-
render a fair verdict (Berry, 1997; McElhaney, 2000). If the          cising a peremptory challenge in criminal trials (Batson v.
venire person reports that bias can be set aside, he or she often     Kentucky, 1986). Courts have ruled that peremptory chal-
is retained for service. Challenges for cause granted are rarely;     lenges may not be used to exclude jurors in civil cases because
however, the venire person may still be removed through the           of their race (Powers v. Ohio, 1991). The U.S. Supreme Court
exercise of a peremptory challenge.                                   has extended this protection to preclude the use of peremptory
    Peremptory challenges refer to the removal of a venire per-       challenges based solely on gender (J.E.B. v. Alabama, ex rel
son from the panel for no avowed reason. That is, attorneys           T.B., 1994). Although these rulings were intended to protect
exercise peremptory challenges at their discretion, “for any          the integrity of the jury, it is widely acknowledged that at-
tactical reasons they desire” (Suggs & Sales, 1981, p. 246).          torneys who rationalize or fabricate alternative reasons for
                                                                                                                        Voir Dire   163


striking a prospective juror can circumvent the law. Thus, it is     these studies, the way the judge conducts the voir dire bears
unclear to what extent these rulings have been effective             directly on the ability of attorneys to obtain information from
(Golash, 1992; Rose, 1999).                                          jurors that will help them predict juror verdicts.
                                                                        These investigations highlight another critical point:
                                                                     Judges, attorneys, and trial consultants often hold different
Extended versus Minimal Voir Dire
                                                                     ideas as to what voir dire should accomplish (Johnson &
As can be seen from this brief discussion, voir dire provides        Haney, 1994). Judges favor a minimal voir dire primarily be-
the procedural dimensions for the application of jury selection.     cause of the time and money consumed by an extended ex-
It should be noted that judges wield sweeping discretionary          amination. Attorneys view an extended voir dire not only as
power in deciding how voir dire is conducted in their court-         an opportunity to question the panel thoroughly (probative
rooms; consequently, the scope of voir dire is likely to vary        voir dire), but also as a chance to ingratiate themselves with
widely across jurisdictions. Moran, Cutler, and Loftus (1990)        the venire, begin arguing their case, and “inoculate” prospec-
argued that when the judge conducts the voir dire with limited       tive jurors from damaging evidence forthcoming (didactic
or no participation from counsel (i.e., “minimal” voir dire), at-    voir dire). For the trial consultant, an extended voir dire is al-
torneys are deprived of the information they need to intelli-        most a necessity. Consultants may collect data from a com-
gently exercise their challenges. They further argued that only      munity survey that indicates which attitudinal dispositions
by granting counsel generous time and latitude in their ques-        are most predictive of a verdict. Without extended voir dire,
tioning (i.e., “extended” voir dire) will they be able to identify   the consultant will not have the relevant information about
potentially biased individuals.                                      jurors’ attitudes to accurately predict which jurors will be
    To provide empirical evidence for their argument, Moran          likely to vote in favor of the consultant’s client. Thus, there
et al. (1990) used the results of surveys to contrast the predic-    are inherent differences in the way that judges and advocates
tive validity of the information that normally would be gained       view voir dire. For the presiding judge, the goal of voir dire is
from a minimal voir dire with the information that would be          to seat a legally qualified jury; for the advocate, it is to select
gathered during an extended voir dire. In one of these surveys,      a jury that is favorable to one’s case, or at the very least, one
participants read a case summary of a drug-related prosecu-          that will hear the evidence objectively.
tion and subsequently responded to measures of defendant
culpability, case-specific attitudes, attitudes toward the legal      The Social Psychology of Voir Dire
system, and demographic information. To simulate a minimal
voir dire, the authors assessed the relationship between defen-      As can be seen, voir dire entails an exceedingly complex so-
dant culpability ratings and survey items that attorneys would       cial interaction, the premise of which rests on the assumption
normally gather from that type of examination (e.g., age, gen-       that venire persons will be honest and forthcoming in reveal-
der, education, marital status, and occupation). The authors         ing some of their most personally held attitudes, beliefs, and
also assessed the relationship between the same defendant            biases. Jury selection will be as successful as the voir dire is
culpability ratings and the information that attorneys could         effective. In other words, irrespective of how the voir dire
obtain in an extended voir dire (e.g., attitudinal dispositions in   is conducted, be it minimal or extended, there is a positive
addition to demographic information). The results from this          relationship between the forthrightness of the venire and the
investigation demonstrate the superiority of extended voir           efficacy of jury selection (assuming that the jury selection
dire, with its predictors accounting for 31% of the variance in      method is valid and is executed competently). For this rea-
the final culpability rating and the predictors in the minimal        son, a small but notable body of literature has analyzed the
voir dire accounting for only 8% of the variance.                    features of voir dire that can either foster or discourage po-
    Nietzel and colleagues have provided strong empirical ev-        tential jurors’ self-disclosure.
idence that an extended voir dire is essential in guiding the            Several system variables (i.e., aspects of the voir dire that
use of not only peremptory challenges, but challenges for            are under direct control of the judicial system) may moderate
cause as well (Nietzel & Dillehay, 1982; Nietzel, Dillehay, &        the completeness of self-disclosure: (a) who conducts the
Himelein, 1987). Their field investigations of voir dire in           voir dire, (b) how the voir dire is conducted, and (c) the envi-
death penalty cases found that in those trials in which the          ronment in which voir dire takes place. Drawing on estab-
judge allowed the attorneys to conduct a thorough voir dire          lished social psychological research, Suggs and Sales (1981)
examination, attorneys successfully exercised a significantly         surmised that voir dire would be most effective when con-
greater number of challenges for cause. As is apparent from          ducted by attorneys because the differential status between
164   Voir Dire and Jury Selection


judge and venire person may lead to socially desirable re-         court proceedings, the presence of a bailiff, the number of at-
sponses. In other words, because potential jurors recognize        torneys present, and the physical characteristics of the court-
that the judge is in a position of authority, they may wish to     room. One particularly salient demand characteristic thought
provide desirable answers to his questions. Furthermore,           to operate during voir dire is that of expectancy effects.
because previous research has demonstrated that individuals        Expectancy effects lead experimenters to engage in verbal or
volunteer more information in the absence of a group, they         nonverbal behaviors that indicate to the subject what the ex-
asserted that voir dire would be most effective when panel         perimenter is looking for or is hoping to find. Some judges,
members are questioned individually as opposed to collec-          for example, are notorious for quizzing the venire using a
tively. Finally, they argued that the physical dimensions          demanding and impatient demeanor. There is convincing
and characteristics of the courtroom (e.g., the proximity be-      evidence that judges’ nonverbal behaviors influence jurors’
tween the venire, attorneys, and judge) might inhibit self-        verdicts (Halverson, Hallahan, Hart, & Rosenthal, 1997;
disclosure. Particular aspects of the courtroom, such as the       Hart, 1995). In voir dire, expectancy effects may occur when
judge’s elevated bench and black robe, for example, are            prospective jurors receive verbal or nonverbal cues from
thought to impart cues to the panel as to what constitutes an      judges and/or attorneys, inadvertently guiding them to re-
acceptable response. For example, it may be difficult for           spond in a socially desirable manner (see LeVan, 1984).
venire persons to report to a judge that they would be unable         In an effort to determine what influence these factors exert
to set aside their biases as the judge is requesting because of    on self-disclosure, Marshall and Smith (1986) posed ques-
the judge’s elevated stature and authority.                        tions to ex-jurors regarding their general feelings and attitudes
    Marshall and Smith (1986) have expanded on this social         toward their jury selection experience. Results from this study
psychological analysis of voir dire by comparing the voir dire     revealed that those jurors reporting high levels of evaluation
process to the procedures of a psychological experiment.           anxiety during voir dire were significantly less likely to pro-
These researchers reason that because voir dire, like an ex-       vide honest answers than those who did not. Furthermore,
periment, requires individuals to undergo intense examina-         measures of expectancy effects were found to be a marginally
tion, certain psychological factors that have been shown to        significant predictor of honesty during voir dire, whereas
operate during an experiment will be present during the ex-        other demand characteristics were found to exert no effect.
amination. These factors are collectively known as experi-         Although there clearly are limitations to the retrospective
mental artifacts (Rosenthal & Rosnow, 1969). In the context        methodology used in this study, the findings suggest that
of voir dire, two artifacts in particular are thought to exert a   evaluation anxiety and experimenter expectancy effects may
detrimental effect on self-disclosure: evaluation anxiety and      increase the social desirability and decrease the honesty of
demand characteristics.                                            jurors’ responses to questions during voir dire.
    According to Rosenberg (1969), evaluation anxiety is “an          Jones (1987) used an experimental methodology to test
active, anxiety-toned concern that [the participant] win a pos-    the hypothesis that an attorney-conducted examination will
itive evaluation from the experimenter, or at least that [the      be more effective at eliciting candid responses from the
participant] provide no grounds for a negative one” (p. 281).      venire than would an examination conducted by a judge, as
During voir dire, prospective jurors may experience nervous-       usually occurs in federal court. Jones reasoned that demand
ness, embarrassment, or apprehension when they realize that        characteristics emitted from the judge, relative to those emit-
the judge and attorneys possess the power to determine if          ted by attorneys, would significantly inhibit self-disclosure.
they are fit to serve on the jury or when they acknowledge the      Jones had jury eligible citizens participate in a mock voir dire
grave responsibility of their duty. To help alleviate their anx-   conducted by attorneys or a judge who used either a personal
iety, prospective jurors may respond in less truthful but so-      or formal demeanor (thus exerting some control over the de-
cially desirable ways to garner a favorable evaluation from        mand characteristics emitted by both parties). Participants in
the judge. This process would lead jurors to report that they      each condition completed a legal attitudes questionnaire and
could set aside their predispositions and biases when evaluat-     a measure of public self-awareness prior to their examina-
ing the trial evidence even if they truly believe that it would    tion. With the voir dire then underway, the judge or attorneys
be difficult or impossible to do so.                                posed several questions to individual panel members that
    Demand characteristics also may influence venire per-           they were required to publicly answer. At this point, the ex-
sons’ responses during voir dire. Defined as “the totality of       amination was interrupted and participants again completed
cues which convey an experimental hypothesis to the sub-           the measures of legal attitudes and public self-awareness.
ject” (Orne, 1962, p. 779), demand characteristics include a          From first to second administration of these measures,
wide range of situational factors, such as the formality of the    those individuals undergoing judge-directed voir dire changed
                                                                                                    Traditional Jury Selection   165


their responses at a rate nearly twice that of those undergoing    trial consultants to select a favorable jury is constrained by
an attorney-conducted examination, irrespective of whether         the validity of the information obtained during voir dire, we
the judge behaved in a personal or formal manner. Further-         now turn our attention exclusively to jury selection, begin-
more, participants’ change scores were significantly greater        ning with a discussion of some of the traditional methods
when the attorneys conducted themselves with a formal rather       used to select the jury.
than a personable demeanor. These results suggest that voir
dire will be more effective (i.e., will yield more information)
when attorneys are permitted to examine the venire, especially     TRADITIONAL JURY SELECTION
when they use a personable demeanor to establish rapport.
These results also demonstrate that the demand characteristics     A distinction was previously drawn between voir dire and
emitted by the judge significantly inhibit self-disclosure and      jury selection, the former referring to a pretrial legal pro-
that changes in the judge’s demeanor do not moderate this          ceeding and the latter referring to the execution of that proce-
effect.                                                            dure. At this point, we draw an additional distinction between
    Middendorf and Luginbuhl (1995) further examined the           traditional and scientific jury selection. When we speak of
influence of different styles of voir dire used by attorneys on     traditional jury selection, we are broadly referring to any
self-disclosure during voir dire. Specifically, they studied        strategy that has traditionally been used by attorneys to iden-
whether jurors responded differently when attorneys used a         tify jurors who are favorable (or unfavorable) to their case.
directive style relying on closed questions (e.g., “Do you un-     The hallmark of these traditional strategies is that they are
derstand that it is not an admission of guilt if the defendant     based on attorneys’ intuition, implicit stereotypes, and ex-
does not testify on his behalf?”) versus a nondirective style      pectancies. Scientific jury selection, in contrast, refers to the
relying on open-ended questions (e.g., “What would it mean         application of social science methodology to the selection of
to you if the defendant did not testify on his behalf?”). Those    jurors.
individuals examined with the directive style endorsed guar-
antees of due process to a greater degree than those examined      Stereotyp