Tamar Use of Secular Evals for Halacha (5 Files Merged)

1

ד"בס

This Post Includes Several Documents Authored By Top Mental Health

Experts That Should Raise Concerns About The Use Of Secular Mental Health

Evaluations For Halachic Matters.

Please Feel Free To Share!

The appended documents seem to point to very serious problems involved with basing any Halachic פסק

whatsoever on mental health evaluations which are based on DSM diagnosis. According to these documents

authored by top experts in the field, this is so even when said evaluations are produced by specially trained

“forensic” experts and even when such experts follow all legal and ethical requirements. Evaluations done by

regular clinicians and / or not following a list of specific legal standards are not admissible in a courtroom and

surely not valid Halachically.

It is important to note that to the best of the writer’s knowledge there are absolutely no teshuvos extant that

show that Rav Moshe Zatzal ever relied on the evaluation of secular professionals to define mental illness. He

only used the experts to ascertain facts, which he then independently evaluated as signs of mental illness.

Indeed, the writer has personally spoken to a Talmid of Rav Moshe who received an Haskama from Rav Moshe

for a Sefer he wrote about mental health, and he recounted how Rav Moshe told him about his concerns

concerning the reliability of the stated expertise in the field of mental health.

Some of the Teshuvos of the רבנים הגאונים שליט"א raise questions concerning the reliability of the purported

mental health evaluation that was used as the basis of the marriage annulment in the current case. Some

commenters have noted that similar methods seem to have also been used in the past, concerning other marriage

annulments.

I have therefore appended these documents to help clarify the concerns that top mental health experts have

regarding the methods used in these cases. This will IY”H hopefully help raise awareness about this specific

problem, which seems to be all but unknown in the community at the present time.

The writer’s fervent hope is that Rabbonim who are currently “straddling the fence” regarding this and other

marriage annulments may find the documentation useful, as it may act as a “springing board” to further

investigate whether this and other claims of mental illness used in adversarial situations properly followed what

the law requires and whether such use should be Halachically permitted. Layman may find these resources

useful to raise awareness by their Rabbis, friends and families.

There can be no doubt that mental illness is an extremely serious matter, and that SOME people suffer from

serious illness that according to Rav Moshe would be reason for a marriage annulment. The issue here concerns

what criteria should be acceptable and the concerns the top experts raise concerning validity also clearly

increase the doubts in many minds about using mental health evaluations for Halachic purposes.

The writer is not qualified to offer legal advice and has no intention of doing so.

2

ד"בס

The first document appended here is titled “Ethical Issues in Conducting Forensic

Evaluations” written by Dr. Karen Kalmbach:

APA citation: Kalmbach, K. C., & Lyons, P. M. (2006). Ethical issues in conducting forensic evaluations.

Applied Psychology in Criminal Justice, 2(3), 261-290.

Among other things, this document includes information regarding the following areas of concern:

1) “Forensic” evaluations which can be used in any way to curtail a person’s rights, require a much higher level

of attention to detail and expertise than what regular clinicians who are trained to offer therapeutic services are

qualified to offer.

2) Furthermore, the forensic evaluator needs to make every possible effort to personally interview the subject of

the evaluation. In cases where the evaluation is not court-ordered, informed consent is required. Where there is

a court order, a disclosure is required.

3) The court would require that the evaluator prove his or her professional competence. This includes proof of

continuing education and awareness of recent developments in the area of claimed expertise.

4) The evaluator must also prove his or her “Cultural competence in forensic practice”, meaning awareness of

how religious and / or cultural concerns may affect the outcome of the evaluation. This includes that the

evaluator “Shifts lenses” to see things from the subject’s cultural view and understand how culture effects the

context, behavior & diagnosis of the subject.

5) Furthermore, the evaluator is required to maintain records showing how he reached said diagnosis.

6) Any possible dual relationships between evaluator and other parties that may cause a conflict of interest also

need to be disclosed.

7) The subject must be assured access to a competent mental health professional who will assist in his or her

defense. Subject or his or her legal counsel have the right to cross examine and question the evaluator to

ascertain the admissibility of the expert evaluation.

The second document appended here is titled “Forensic Mental Health Evaluations:

Reliability, Validity, Quality, and Other Minor Details” written by Dr. W. Neil

Gowensmith et al:

Retrieved from: http://www.thejuryexpert.com/2013/01/forensic-mental-health-evaluations-reliability-validity-

quality-and-other-minor-details/

3

ד"בס

Among other things, this document includes information regarding the following areas of concern:

1) Even under the best available conditions, professional forensic evaluators only agreed 55% to 71% of the

time, depending on the purpose of the evaluation. The best conditions, which were found in the state of Hawaii,

involved a total of three evaluators that were all hired by and paid for by the courts, thus assuring independence.

One can therefore assume that one evaluator hired by a party with a vested interest would offer a much less

reliable evaluation.

2) When questioning the validity of an evaluation Courts would very carefully examine the process that the

evaluator used to obtain the evaluation and carefully examine supporting documentation. Issues with the

aforementioned would cast doubt on the value of the evaluation.

The third and fourth documents appended here are written by Dr. Allen Frances, who

helped to prepare DSM III (published in 1980), DSM III R (published in 1987); and was

Chair of the Task Force that published DSM IV in 1994. It is probably fair to assume that

he as “expert among experts” because he is the main architect of the “bible” used to make

these evaluations.

Document #3 is written for the popular press and titled “Is Expert Testimony in Court

Cases Really Expert?” Document #4 is a scholarly document Dr. Frances wrote on the

subject, titled “The Uses and Misuses of the DSM in Forensic Settings”

Doc. #3 is Retrieved from: http://www.huffingtonpost.com/allen-frances/is-expert-testimony-in-court-cases-

really-expert_b_6100124.html

APA citation for doc. #4 is: Frances, A., & Halon, R. (2013). The uses and misuses of the DSM in forensic

settings. Psychological Injury and Law, 6(4), 336-344

The writer hasn’t had time to properly analyze these documents, but a quick perusal makes it clear that basing

any Halachic psak on mental health evaluations that are based on DSM diagnosis, is extremely problematic.

http://www.huffingtonpost.com/allen-frances/is-expert-testimony-in-court-cases-really-expert_b_6100124.html

http://www.huffingtonpost.com/allen-frances/is-expert-testimony-in-court-cases-really-expert_b_6100124.html

ETHICAL ISSUES IN CONDUCTING

FORENSIC EVALUATIONS

Karen C. Kalmbach

Phillip M. Lyons

Sam Houston State University

UNIQUE NATURE OF FORENSIC MENTAL HEALTH

PRACTICE

The role of the forensic mental health professional (MHP) often differs sub-

stantially from that of the typical clinician. These differences bear directly on the ethical

delivery of services (Canter, Bennett, Jones & Nagy, 1994; Heilbrun, 2001, 2003).

For the therapist, the client is the individual presenting for

treatment; in forensic evaluations this is rarely the case (cf. Green-

berg & Shuman, 1997). This distinction carries with it important

ramifications for informed consent or disclosure as well as the con-

trol and use of information obtained during the course of the

evaluation. Additionally, the customary therapeutic alliance and

typical assurances of confidentiality do not exist in a forensic con-

text. Pressure to assume an advocacy position, however subtle,

may pose an ethical dilemma for the forensic MHP. Unlike a

therapeutic relationship, the forensic evaluation involves limited

contact, an adversarial forum, an impartial stance, and a critical,

evaluative style that includes reliance on collateral and corrobo-

rated information rather than mere assertions by the examinee.

Correspondence concerning this article should be addressed to Karen Kalmbach, Ph.D.,

Sam Houston State University, Department of Psychology, P.O. Box 2210, Huntsville,

TX 77341-2210; Email: [email protected]

© Applied Psychology in Criminal Justice, 2006, 2(3)

262 ETHICAL ISSUES

The content of the clinical forensic interview tends to be much

more circumscribed as it is focused narrowly on information perti-

nent to the relevant psycholegal question to be answered (e.g.,

mental state at time of offense, competency to stand trial), and

careful consideration must be given to the influence of multicul-

tural factors at all stages of the evaluation process.

In this regard, it is worth noting that forensic evaluations

often will involve consideration of aspects of human behavior that

are not normative and may be quite disturbing. In cases involving

potential legal dispositions that are contrary to strongly held per-

sonal convictions (e.g., capital punishment), MHPs may find them-

selves with diminished objectivity (Brodsky, 1990; Weissman &

DeBow, 2003; cf. Heilbrun, 2001). To perform forensic evalua-

tions competently it is necessary to approach assessments with as

much clinical impartiality as possible. On those occasions where

such objectivity appears compromised, the MHP may well con-

sider whether to abstain from participating in the forensic evalua-

tion (Bonnie, 1990; Brodsky, 1990; Specialty Guidelines for Fo-

rensic Psychologists, §III[E], 1991).

Forensic MHPs practice in a unique niche and are obligated

to meet a high ethical standard. This requires special attention to

various issues including confidentiality, clarification of roles, and

the intended use and potential recipients of the opinion or evalua-

tion ultimately rendered. Familiarity with legal standards and ad-

herence to professional ethics codes and the forensic specialty

guidelines can be used as evidence of a professional commitment

to a standard of care, in the event one’s opinion is challenged. Pro-

fessionals who choose to participate in the legal forum must ensure

that their performance meets not only the standards of general

practice for their profession, but also those pertaining to the foren-

sic specialty, if any (see American Academy of Psychiatry and the

Law, 1987; Committee on Ethical Guidelines for Forensic Psy-

chologists, 1991 and the Appendix to this article). Equally impor-

tant is a thorough knowledge of professional statutory regulations

and current legal standards upon which forensic testimony may be


KALMBACH & LYONS 263

based (as discussed elsewhere in this Issue; for Texas, see also

Shuman, 1997).

IDENTIFICATION OF CLIENT

In the practice of traditional clinical psychology, identifica-

tion of the client is typically straightforward—generally, it is the

individual presenting for treatment. In a forensic context, it is rare

for the person being evaluated to be the client (Greenberg &

Shuman, 1997; Ogloff, 1999). The forensic practitioner may have

as a client (a) the individual (via his or her attorney), (b) the custo-

dian of the individual (e.g., the Texas Department of Criminal Jus-

tice), or (c) the Court (by way of a court order for evaluation). It is

important to determine, as part of preparation for the evaluation, a

variety of issues including: (a) the specific referral question to be

answered (e.g., competency to stand trial), (b) who the client is,

and (c) who will have access to the final report. This information is

then shared with the examinee.

INFORMED CONSENT VS. DISCLOSURE

Informed consent is a long-held tenet of professional prac-

tice. In seeking to share information before decisions are made,

informed consent speaks to the importance of personal autonomy

and respect for the dignity of people. Disclosure, or notification, on

the other hand, seeks merely to inform, not to obtain the consent of

the participant.

Notwithstanding the foregoing, in the practice of forensic

evaluations, informed consent is often not legally required. Gener-

ally, informed consent is required unless the evaluation is (a)

court-ordered, and/or (b) statutorily required. Regardless of

whether an informed consent procedure or disclosure process is

used, the elements of notification should be similar. The following

are important points to be included:

(a) Name of person or agency requesting the evaluation,

and the intended recipient(s) of the final product


264 ETHICAL ISSUES

(b) Other professionals or agencies who will have access to

the report

(c) Limits of confidentiality, and the absence of privileged

communication

(d) Non-therapeutic nature of the relationship (i.e., evalua-

tor is not a treatment provider)

(e) The psycholegal or referral question to be addressed in

the evaluation (e.g., competency to stand trial; mental

state at the time of offense)

(f) The type of material that will be collected, and the

methods by which the information will be obtained

(e.g., psychological tests, interview)

(g) The nature of the legal proceeding(s) at which the ex-

aminer may be required to testify (e.g., trial, post-trial

sentencing)

(h) The type of information which may require mandatory

reporting (e.g., child abuse)

(i) Whether the examinee has a right to decline participa-

tion in the evaluation and the possible consequences for

declining (adapted from Melton et al., 1997, p. 88)

Unlike non-forensic cases, In the case of court ordered

evaluations it is not imperative that the examinee fully understand

the disclosure provided—indeed he or she may not be able to (e.g.,

acute psychosis); however, every effort should be made to facili-

tate that understanding. If it is clear, despite the evaluator’s efforts,

that the defendant does not understand the disclosure, this should

be noted in the final report. In the event that a defendant has re-

fused to participate, the forensic MHP might wish to consult with

the examinee’s attorney to facilitate his or her cooperation. In in-

stances where there is neither a court order nor a statutory mandate

for the evaluation, informed consent is generally required. In cases

where the examinee is not competent to provide such consent,

counsel should be consulted regarding the possibility of consent by

an authorized third party.

Written versus verbal notification

Debate exists regarding the necessity of offering written

consent or disclosure information as opposed to a verbal notifica-



tion. Some experts recommend providing a written form contain-

ing all pertinent details (Melton et al., 1997), whereas others note

that, although ideal, a written form is not necessary (Shapiro,

1999). In any case, the consent or disclosure process, whether writ-

ten or verbal, should be noted and documented within the practi-

tioner’s files. In general, given the importance of the doctrine of

informed consent in the mental health professions as well as the

potential legal ramifications should the examinee later argue non-

notification, it may be advisable to consider using a written form as

a matter of practice. Conscientious documentation may forestall

later problems—evidence of the consent/disclosure process can be

compelled by law (e.g., competence to stand trial or fitness to pro-

ceed hearings).

Special considerations: Mental illness, mental retardation, and

participation of juveniles

With all examinees, but especially with juveniles and indi-

viduals who have cognitive limitations, the precise nature of the

professional relationship should be explained carefully. It is useful

to state clearly, for example, “I have been ordered by the judge in

your case to conduct this evaluation. My report will be given not

only to your attorney, but also to the judge and the District Attor-

ney. She will have access to everything that I put in my report. Do

you understand?” Some juveniles may require communication that

is simple and concrete, in keeping with appropriate levels of cogni-

tive development. Juveniles also may exhibit more limited under-

standing of their rights (e.g., self-incrimination), and thus require

sensitive handling of ethical issues, and perhaps repeated remind-

ers of important information.

With many forms of mental illness the ability to receive

and process information is impaired. For example, individuals who

are floridly psychotic or delusional may not possess the ability to

attend to and process information until he or she has been stabi-

lized with medication. Although mental retardation is not a mental

illness, the impact of the condition on communication may be

equally problematic. Mental retardation manifests itself in a num-

ber of characteristic traits that interact to create certain vulnerabili-

ties in examinees undergoing forensic evaluation. Furthermore,


266 ETHICAL ISSUES

individuals with mental retardation may not be easily identified as

many have learned to adapt by emulating their “normal” peers, and

often feign understanding so as to avoid stigmatizing labels; this is

the so-called “cloak of competence.” With such individuals there is

also a tendency to acquiesce in order to please authority figures,

and a heightened suggestibility to leading questions (see Melton et

al., 1997, p. 171).

The forensic practitioner bears an ethical responsibility to

be aware of the characteristics and vulnerabilities of individuals

with mental retardation, mental illness, and age-related cognitive

limitations during the course of conducting an evaluation.

PRODUCING A FORENSIC REPORT WITHOUT A

CLINICAL INTERVIEW

In the vast majority of cases, an integral part of the forensic

evaluation is a clinical interview with the evaluee; this is certainly

the preferred and optimal situation. However, in some instances an

interview is not possible because either the evaluee declines to par-

ticipate, or circumstances do not so allow. Consider however, that

if MHPs refused to perform evaluations absent an interview, any

defendant could halt court proceedings simply by refusing to com-

ply. Ethical guidelines for both psychologists and psychiatrists ac-

knowledge the occasions where an interview is not feasible but

there is sufficient collateral information to formulate an opinion

with a reasonable degree of clinical certainty. In such circum-

stances, MHPs must state clearly in their work product (whether

oral or written) the limitations that this situation imposes.

Forensic psychologists avoid giving written or oral evidence about

the psychological characteristics of particular individuals when

they have not had an opportunity to conduct an examination of the

individual adequate to the scope of the statements, opinions, or

conclusions to be issued. Forensic psychologists make every rea-

sonable effort to conduct such examinations. When it is not possi-

ble or feasible to do so, they make clear the impact of such limita-

tions on the reliability and validity of their professional products,



evidence, or testimony. (Specialty Guidelines for Forensic Psy-

chologists, §VI[H], 1991)

While there are authorities who would bar an expert opinion in re-

gard to an individual who has not been personally examined, it is

the position of the Academy that if, after earnest effort, it is not

possible to conduct a personal examination, an opinion may be

rendered on the basis of other information. However, under such

circumstances, it is the responsibility of the forensic psychiatrist to

assure that the statement of their opinion and any reports of testi-

mony based on those opinions, clearly indicate that there was no

personal examination and the opinions expressed are thereby lim-

ited. (Ethical Guidelines for the Practice of Forensic Psychiatry,

§IV, 1987)

CONFIDENTIALITY

In the forensic arena, MHPs may be well advised to assume

non-confidentiality as a general matter, and to conduct evaluations

accordingly. Although there are many instances in which the ex-

aminee is owed no duty of confidentiality (e.g., court ordered or

statutorily mandated evaluations), the doctrines of informed con-

sent, the ethical standards of MHPs, or both may require that such

an individual be informed, at the outset, of the absence of confi-

dentiality.

Where the defense has retained the forensic examiner, most

courts have found the results of the forensic evaluation to be pro-

tected by attorney-client privilege unless and until the defense

raises the issue of mental state, thus waiving privilege. However,

pretrial discovery provisions vary and, thus, it may be unadvisable

to offer complete confidentiality assurances under any circum-

stances (Melton et al., 1997). Finally, if the evaluation is court or-

dered, the examinee should be notified that no privilege exists, and

that copies of the final report will be given to the prosecutor and

judge as well as his or her defense attorney. One exception would

be a court order specifically appointing the evaluator to assist the

defense counsel (e.g., in response to an Ake motion; Ake v. Okla-

homa, 1985).


268 ETHICAL ISSUES

LEGAL PRIVILEGE, LIMITS ON CONFIDENTIALITY,

AND ETHICAL GUIDELINES

In Texas, privilege is broad and extends to persons “li-

censed or certified by the State of Texas in the diagnosis, evalua-

tion or treatment of any mental or emotional disorder,” or “in-

volved in the treatment or examination of drug abusers” (Tex. Rule

Evid. 510(a)(1)). Despite the application of privilege to a wide

range of mental health professionals in Texas, privilege should not

be an issue for most forensic evaluators as it attaches mainly to

therapeutic encounters and not forensic assessments. Regardless, in

most forensic evaluations the issue of mental state has already been

raised and, thus, any existing privilege has been waived.

Civil Rights

Although all clinicians have a responsibility to be respect-

ful of the rights of those to whom they provide services, the re-

sponsibility for clinicians doing forensic work is even more pro-

nounced. Forensic MHPs have an ethical obligation to make them-

selves aware of and be sensitive to the civil rights of forensic ex-

aminees. This is because the evaluative context (i.e., criminal jus-

tice setting, crimes alleged) is such that the threats to those rights

are more substantial. Although other rights may be implicated as

well, rights secured under the Fifth and Sixth Amendments to the

Constitution (and their State constitutional counterparts) are at is-

sue most often.

Fifth Amendment privilege against self-incrimination

The privilege against self-incrimination is a cornerstone of

our legal system. It reflects the belief that no person accused of a

crime should be forced to provide testimonial evidence against

himself or herself. In Estelle v. Smith (1981), the Supreme Court

held the defendant’s Fifth Amendment privilege against self-

incrimination was violated because he was not advised prior to the

psychiatric evaluation (for competency) that he had a right to re-

main silent, and that any statement he made could be used against

him in a later sentencing proceeding.



Texas law specifically circumscribes the use of defendant

statements made during a mental health evaluation:

A statement made by a defendant during an examina-

tion or hearing on the defendant’s incompetency, the

testimony of an expert based on that statement, and

evidence obtained as a result of that statement may

not be admitted in evidence against the defendant in

any criminal proceeding, other than at: (1) a hearing

on the defendant’s incompetency; or (2) any pro-

ceeding at which the defendant first introduces into

evidence a statement testimony or evidence [regard-

ing mental state.] Tex. Code Crim. Proc. Art.

46B.007 (Lexis 2005)

Defendants, however, are often very concerned that prejudicial in-

formation will be given to the court and/or the prosecutor, even

though the specific statements are inadmissible at trial.

Fifth Amendment implications are one reason for being

mindful of the uses to which defendants’ statements may be put; it

is important to exercise caution not only about obtaining informa-

tion (i.e., through appropriate consent/disclosure procedures), but

also about communicating that information (e.g., by avoiding cer-

tain offense-related information of an irrelevant nature, in compe-

tence reports). Beyond Fifth Amendment concerns, forensic exam-

iners also must be aware that much of what can be generally said

about an examinee may be prejudicial in the eyes of the fact finder.

Accordingly, forensic evaluators should exercise caution during

the interview and refrain from obtaining or recounting information

that is not relevant to the psycholegal issue at hand.

Sixth Amendment right to counsel

As a general matter, forensic practitioners make every ef-

fort to ensure the examinee has legal representation before per-

forming an evaluation. This principle seeks to safeguard the indi-

vidual’s rights as well as shield the examiner should the evaluation

be contested later. One exception would be initial Sexually Violent


270 ETHICAL ISSUES

Predator (SVP) evaluations, which are conducted for triage pur-

poses, prior to a petition for commitment.

The decision to perform evaluations without appointed

counsel is not clear-cut in all cases. In striving to ensure fairness

and accuracy in the evaluation process, forensic practitioners may

be called upon to inform the court of their ethical standards that

discourage providing services without legally appointed counsel.

In the event that the court indicates a pressing need to have the in-

dividual evaluated, the examiner should inform the judge of any

reservations he or she may have.

Forensic psychologists do not provide professional forensic

services to a defendant or to any party in, or in contempla-

tion of, a legal proceeding prior to that individual’s repre-

sentation by counsel, except for persons judicially deter-

mined, where appropriate, to be handling their representa-

tion pro se. When the forensic services are pursuant to

court order and the client is not represented by counsel, the

forensic psychologist makes reasonable efforts to inform

the court prior to providing the services. (Specialty Guide-

lines for Forensic Psychologists, §VI[D], 1991)

With regard to any person charged with criminal acts, ethi-

cal considerations preclude forensic evaluation prior to ac-

cess to, or availability of legal counsel. (Ethical Guidelines

for the Practice of Forensic Psychiatry, §III, 1987)

Presence of attorney during evaluation

In Estelle v. Smith (1981), the Supreme Court held that de-

fendants have a constitutional right to the assistance of counsel,

who must be informed of the purpose(s) of the interview prior to

participation in a forensic evaluation. However, the Court did not

find a right to the presence of counsel during the evaluation. A

judge may so order. Some experts, for ethical and legal reasons,

recommend allowing defense counsel to be present in criminal

cases (Melton et al., 1997, p. 72). In cases where a court order

specifies the presence of counsel, or instances where a particular



attorney wants to be present during the interview, evaluators have

a number of options.

Practically, the presence of any third party may pose a

problem. Given the potential for the examinee to be distracted or

unduly influenced by the presence of counsel, most MHPs prefer

the attorney not to be physically present in the same room. Most

courts have supported this preference of MHPs (i.e., not upheld a

right to presence of counsel during an evaluation), although some

exceptions exist. However, if court-ordered or requested by the

defense, forensic evaluators must make the determination on an

individual basis. A number of options representing a compromise

have been suggested: (a) videotaping, (b) audiotaping, or (c) ob-

servation from a removed location (out of visual field of evaluee,

with no interruption etc.). When faced with an attorney’s resolute

request to be present, one must weigh the costs and benefits of al-

lowing counsel to be present. Ultimately, if the presence of counsel

is court-ordered and the forensic MHP is unwilling to comply, he

or she may refuse to conduct the evaluation.

PROFESSIONAL COMPETENCE

Developing specialized expertise

Mental health professionals are ethically obligated to be

competent in whatever area they practice. Although there is no

clearly delineated litmus test for ascertaining professional compe-

tence, a number of factors are generally considered indicative of

specialization in a given area. Demonstration of some combination

of the following can be offered as evidence of expertise:

(a) education and training (e.g., graduate training,

continuing education workshops),

(b) reading and research in the area of specialization,

(c) supervision by a qualified MHP with relevant ex-

perience,

(d) record of relevant work experience, and

(e) publication of scholarly works in the area of spe-

cialization


272 ETHICAL ISSUES

Texas has adopted new statutory provisions relating to

competence to stand trial (or fitness to proceed in juvenile cases)

and those provisions specify the kind of training and experiences

that qualify one as an expert to conduct competence evaluations

(see Tex. Code Crim. Proc. Art. 46B.022 for provisions related to

establishing expertise for competency to stand trial evaluations and

Tex. Code Crim. Proc. Art. 46C.102 for provisions related to estab-

lishing expertise for sanity evaluations). However, most areas of

practice do not yet have such clearly delineated requirements.

Evidence of general competence in the area of forensic

mental health practice should be considered the first level of quali-

fication. However, specific competencies are also required. Thus,

for example, an examiner with experience in conducting child cus-

tody assessments should not assume competence to perform sanity

or competency evaluations (Melton et al., 1997, p. 81). Finally, the

MHP is also required to make clear the boundaries of his or her

competence. This could include, for example, the number of simi-

lar evaluations conducted.

In addition to psychological expertise, the forensic exam-

iner should also become well versed in the following:

(a) Legal standards and statutes for Texas: A thorough un-

derstanding of specific standards is imperative in de-

termining whether legal criteria are met (for example,

awareness of the legal standard for Insanity which

stipulates that that “the actor, as a result of severe men-

tal disease or defect, did not know that his conduct was

wrong.”)

(b) Rules of Evidence: Rules vary by jurisdiction; in Texas

for example, ultimate issue testimony on Sanity (i.e.,

testimony which answers the ultimate legal question,

for example, not guilty by reason of insanity) is permit-

ted; in the federal system, it is not.

(c) Rules of Discovery: Legal rules govern the ability of

parties to request information that is not privileged and

is relevant to the matter at hand. The purpose of discov-

ery is to allow all parties to obtain full knowledge of the



various issues and facts of the case prior to trial. The

Texas Rules of Civil Procedure were changed recently

in 1999; Rule 192 identifies the types of information

which is discoverable. Also, jurisdictional policies vary

across the state regarding open versus closed files main-

tained by prosecutors. In some jurisdictions, policies

exist which prohibit, for example, the disclosure of cer-

tain law enforcement reports to defense counsel. Foren-

sic evaluators should be aware of any such discovery

rules that may impact their practice.

(d) General ground rules of an adversarial legal system.

(e) The process of plea bargaining and potential outcomes.

(f) For unique evaluations, it may be necessary to review

relevant case law in the area to have a clear understand-

ing of the issues at hand—both psychological and legal.

Appropriate test use

One area of forensic assessment that has sometimes gener-

ated controversy involves the use of psychometric tests (Borum &

Grisso, 1995). In the case of forensic assessment, important legal

decisions regarding such issues as parental custody, competency to

stand trial, criminal responsibility, personal liberty, and even capi-

tal punishment are influenced to some degree by the MHP’s report

and recommendations; thus, the forensic MHP is urged to exercise

caution (Gray-Little & Kaplan, 1998). In many cases, there may be

no clearly identifiable reason to administer a psychological test to

an examinee. In such cases, testing should not proceed until or

unless a determination is made that a psycholegal issue can be di-

rectly addressed by the use of a particular test (see Heilbrun,

1992).

As with any testing endeavor, forensic clinicians must use

instruments appropriately. Indiscriminate administration of instru-

ments may, at best, be time consuming and unnecessary, and, at

worst, expose prejudicial information. Ethical responsibilities be-

gin with adequate training and continue through the selection, ad-

ministration, scoring and interpretation of results (Butcher & Pope,

1993; Gray-Little & Kaplan, 1998).


274 ETHICAL ISSUES

Awareness of psychometric properties, norm groups, cul-

turally influenced variability, and other idiosyncratic test interpre-

tation issues is extremely important, especially if testimony is open

to cross-examination by opposing attorneys. Familiarity with typi-

cal questions posed to experts, and a thoughtful, accurate, and

ready answer, can assist forensic practitioners in developing a

comfortable and articulate courtroom style (see, for example, Pope,

Butcher & Seelen, n.d.).

In contemplating whether to use a forensic instrument,

MHPs may consider the following questions:

• Is the test directly relevant to the psycholegal issue at

hand? (e.g., competency to stand trial)

• Does the instrument match, exactly, the factor being

measured? (e.g., a test normed on persons with malin-

gered psychosis should not be used to assess for malin-

gered Post-Traumatic Stress Disorder)

• Is the measure culturally appropriate, valid, and reli-

able?

• Are the tests, and/or the results of the test, easily under-

standable? (i.e., will the court find the information use-

ful)

For every test administered and reported, the MHP must

have a thorough knowledge of reliability and validity, norm group

composition, related multicultural issues (addressed in the follow-

ing section), and awareness of conflicting evidence in the litera-

ture. Regardless of pressure to administer tests, the central issue

should remain one of relevance. If there is no clearly identifiable

reason to administer a psychological test, it should not be given.

One obvious exception to the foregoing occurs where testing is

statutorily mandated (e.g., all SVP evaluations in Texas must in-

clude a measure of psychopathy). Forensic MHPs are ethically ob-

ligated to be aware of such requirements, and to be adequately

trained in the administration and interpretation of appropriate tools.



MULTICULTURALISM

Cultural competence in forensic practice

In recent years greater attention has been paid to the influ-

ence of cultural factors on the evaluation process and outcome

(see, e.g., Dana, Aguilar-Kitibur, Diaz-Vivar, and Vetter, 2002;

Lopez, 2002). Multiculturalism refers to the wide range of human

experience and socialization that result in an individual’s unique

way of perceiving and experiencing the world and others (see

Guidelines, APA, 2003). Originally concerned with race and eth-

nicity, the term multiculturalism now includes socioeconomic

class, sexual orientation, gender, physical ability, age, and reli-

gious preference (see Sue & Sue, 2003). Another “culture” familiar

to most forensic MHPs is the culture within the criminal justice

system and corrections more generally.

Most MHPs today have been trained within a system re-

flecting what is termed mainstream culture. This understanding

often tends to reflect largely White, middle class ways of thinking

and being in the world. In 2000, about 33% of Americans identi-

fied as non-White; Texas in particular is one of five “high diver-

sity” states with many counties composed of 60-77% racial/ethnic

minority group members (see Guidelines, APA, 2003). As U.S.

population trends show evidence of dramatically diverse demo-

graphic shifts occurring, the forensic MHP would do well to con-

sider becoming conversant with multicultural issues and pursue

training.

Many different cultures have prescribed ways of behaving

and interacting with others that can be quite different from main-

stream culture, but are nonetheless equally valid. In forensic prac-

tice, as in general mental health arenas, examinees will behave,

think, and feel in ways that are influenced by the cultural context

of their lives. The astute and multiculturally competent evaluator

will be able to consider factors outside of traditional clinical train-

ing to arrive at a more accurate and representative picture of the

examinee (see Hicks, 2004).


276 ETHICAL ISSUES

“Shifting the lens”

Although clinical professional judgment and hypotheses

must be maintained (e.g., delusions), the forensic MHP should also

be able to “shift the cultural lens” (Kleinman & Kleinman, 1991)

and see the world from the examinee’s viewpoint (e.g., spirituality)

in order to interpret behavior (Lopez, 2002). Consider for example

an individual separated for some time from family while incarcer-

ated; during evaluation he or she speaks of communicating with a

deceased grandmother. A multiculturally competent MHP is better

able to discern whether (a) a thought disorder, or (b) a culturally

accepted practice of spiritual communication with forbears, is the

more accurate interpretation of behavior. Deciding which hypothe-

sis is a better explanation of behavior remains a sometimes chal-

lenging task; care must be taken neither to over-attribute cause to

culture, nor to avoid the implications of its influence.

Another important issue for the MHP to be aware of is that

even within a particular cultural group, great diversity can exist.

For example, the racial group referred to in the U.S. as Hispanic,

actually comprises at least a dozen very distinct ethnicities includ-

ing Cuban, Puerto Rican, Mexican, and so forth. Care must be

taken not to make global assumptions about a cultural group with-

out first investigating their accuracy.

Culture and context

Another example of cultural differences lies in child rearing

practices. Within some cultures child rearing is a task commonly

left to grandparents and/or extended relatives. Parents may be ab-

sent for a number of reasons (migrant work, incarceration, hospi-

talization), or may actually be in the home but not functioning as

parental authority figures. In such a case, collateral information

would most appropriately come from the individual in the role as

primary caretaker, and not necessarily a biological or legal parent.

In considering family members and roles, it may be wise to avoid

confusion of familial name labels with functional roles; in some

cases family members referred to as “brother” or “sister” may ac-

tually be biologically a cousin or other extended relative who has

been reared with the examinee.



Clinicians should also take care in the conceptualization of

such a living arrangement; it is not necessarily the case that an in-

dividual reared in such a manner has experienced “abandonment”

or other psychological trauma normally attributed to such a situa-

tion by mainstream culture. In order to understand and interpret

behavior, the competent MHP must understand the context from

which it arises.

Culture and behavior

For the forensic MHP, failing to become multiculturally

competent can lead to inaccurate and potentially misleading case

formulation. Consider for example, a culture that places a high

value on respect for elders; this deference may be exhibited by

avoidance of eye contact and slight bowing of the head. An un-

aware clinician may interpret this nonverbal behavior as a lack of

self-esteem, shame, failure to engage, or possibly even depression.

In other cultures (such as ‘prison culture’) prolonged eye

contact can be a sign of aggression or intimidation. Within the

same culture, respect is commonly the only currency one possesses

and it is often defended or obtained by violence. It is not uncom-

mon for individuals to engage in violent behavior over seemingly

small slights. For an examinee with no prior history of violent or

aggressive behavior, consideration should be given to the circum-

stances surrounding apparently atypical behaviors.

Culture and diagnoses

A recent review of the literature (Gray-Little & Kaplan,

1998) reveals numerous studies suggesting that race and ethnicity

may influence a clinical diagnosis even where symptoms are con-

trolled for (pp. 142- 145). In general, some evidence suggests

mood and personality disorders tend to be diagnosed more fre-

quently in Whites than Blacks, and that Blacks are diagnosed with

serious thought disorders (e.g., schizophrenia) three or more times

as often than Whites. In terms of professional clinical judgment,

there is some evidence that, even with comparable symptoms, mi-

nority group members tend to be judged both as having more se-

vere mental health problems in some cases, and less severe in oth-

ers (p. 143). Other research indicates that Black adolescents with


278 ETHICAL ISSUES

aggressive and delinquent behavior are judged to be less psycho-

pathological than White children who exhibit the same behavior

(Martin, 1993). Another area of concern involves the self-reporting

of symptoms: consistent findings indicate that Asian and Hispanic

group members tend to report somatic symptoms more when de-

pressed than do Whites. In the case of bipolar disorder, Blacks and

Hispanics report more hallucinations than do Whites (see for re-

view Gray-Little & Kaplan, 1998). Although there is great vari-

ability at the individual level, the evaluating MHP must be familiar

with literature addressing issues of culture and diagnosis in order

to remain aware of possible biases in the clinical assessment phase.

Guidelines for developing a culturally appropriate clinical formula-

tion can be found in Appendix I of the DSM-IV-TR (APA, 2000).

Culture and tests

Recent advances in research have revealed the troubling

variability of tests normed on mainstream cultures but routinely

used with diverse populations (see for review, Gray-Little & Kap-

lan, 1998; Hicks, 2004). In some cases, cultural differences may

even extend to test-taking behavior. For example, many psycho-

metric tests currently used have time limits. Some cultures value

accuracy over speed of completion; the performance of individuals

from such cultures may be poor as the result of non-completion,

and thus may not accurately reflect their actual abilities.

Care must be taken to choose assessment measures normed

on populations that accurately reflect the examinee. In one case,

the Wechsler Adult Intelligence Scale-Revised (WAIS-R), was

translated into Spanish by a bilingual translator for use with a Cu-

ban immigrant who was being evaluated for competency to stand

trial; he obtained a fullscale score of 62. However, when the same

individual was reassessed with a proper Spanish version of the

WAIS-R, normed on a Spanish-speaking sample, his IQ scored

rose 43 points to a fullscale of 105 (Johnson & Torres, 1992, as

cited in Gray-Little & Kaplan, 1998). Using a measure whose

normative sample was so dissimilar to the examinee was not im-

proved by simple translation into Spanish. Examiners should not

assume that simply employing the services of a translator will ad-

dress any cultural or communication problems that exist. Extensive



research indicates that there exists significant variability in the va-

lidity of many commonly used tests when administered to indi-

viduals from other cultures. It is the responsibility of the practitio-

ner to be aware of such issues prior to selecting or scoring a meas-

ure.

To become truly multiculturally competent requires a long-

term commitment to learning about others’ lives and experiences,

and a willingness to consider one’s own biases, attitudes and be-

liefs. It requires a thoughtful and open awareness of both the simi-

larities and differences that are present in persons and groups

within the community, and how those factors may contribute and

influence the individual and the assessment process generally.

Continuing education classes, graduate training, as well as the lo-

cal library can provide useful resources, but perhaps the best op-

portunity to learn is by seeking to work with individuals and

groups from diverse backgrounds. Especially in the case of foren-

sic evaluations, where impartiality and the avoidance of undue bias

is critical, MHPs should actively pursue multicultural learning on

an ongoing basis.

DUTY TO PROTECT THIRD PARTIES

Absence of Tarasoff requirements in the State of Texas

A precedent-setting case in the late 1970s raised the ques-

tion of whether a mental health professional has a responsibility to

warn a third party who has been threatened by a client in treatment.

In Tarasoff v. Regents of the University of California (1976), the

Supreme Court of California imposed a duty, on therapists in Cali-

fornia, to take measures to protect identified victims, regardless of

confidentiality requirements.

In Texas, however, the Tarasoff duty does not apply. In

Thapar v. Zezulka (1999) the Supreme Court of Texas refrained

from imposing a duty on MHPs to warn third parties of a patient’s

threat to harm. The court chose instead to reiterate its commitment

to “closely guard a patient’s communications with a mental health

professional” (p. 638). Under these conditions, the MHP is, in fact,

prohibited from warning the victim as that would have violated the


280 ETHICAL ISSUES

patient’s right to confidentiality. Under Texas law there is an ex-

ception in the confidentiality statute that allows for disclosure to

appropriate medical or law enforcement personnel. However, the

court noted, “[the statute] permits these disclosures but does not

require them…” (p. 639). In cases involving threat of harm to third

parties, forensic evaluators should review current legal standards

and consult with experienced colleagues to determine an appropri-

ate course of action or consult with legal counsel (see Shuman,

1997, pp. 109-115).

Texas allows an MHP to disclose confidential information

obtained during the course of the therapist-patient relation-

ship to medical or law enforcement personnel if the MHP

determines that there is a probability of imminent physical

injury by the patient to the patient or to others. Although

unjustified disclosure of confidential information may give

rise to a malpractice claim, the issue arises more commonly

in the case of a failure to disclose and resultant harm to a

third party. (Shuman, 1997, pp. 110-111)

KNOWLEDGE OF RELEVANT LEGAL STANDARDS IN

TEXAS

Forensic MHPs are required to have a thorough understand-

ing of the legal doctrines and standards in the areas in which they

purport to be expert (cf. Heilbrun, 2001). Thus, a familiarity with

both state and federal requirements is necessary. A clear under-

standing of the differences among legal concepts, for example—

competence and sanity—is crucial, as even seasoned clinicians

have been known to confuse the two (for discussion see Melton et

al., 1997; Gutheil, 1999). Legal standards and related issues are

addressed elsewhere in this volume.

DOCUMENTATION

Maintaining accurate records is important in all profes-

sional practice. In this regard, forensic practice is held to a higher

standard than general practice. It is good practice to retain all



notes, documentation, recordings, tests, and any collateral materi-

als used to form an opinion. In the creation of forensic evaluation

files, it is important to make no assumptions of privacy, privilege,

or confidentiality.

Contemporaneous notes, even if they have been rewritten, should

be retained.

Forensic evaluators should be aware that personal notes

may be subject to discovery. Given the higher level of scrutiny that

forensic MHPs must anticipate, professionals are well advised to

consider carefully the information included in those notes.

COLLATERAL SOURCES

Just as forensic MHPs must approach record maintenance

differently from their non-forensic counterparts, so must they ap-

proach data collection differently (cf. Heilbrun, 2001). As Weiss-

man and DeBow observe, “forensic contexts have a broader range

of goals…. Ethical evaluations call on the expert to use multi-

source, multimodal methodologies for the task of answering such

complex psycholegal questions” (2003, p. 41).

Collateral sources may include police or criminal history

reports, institutional records, personal correspondence, victim

statements, medical records, and employment records, to name a

few. Other sources of collateral information include the personal

reports of witnesses, friends, or family members. Before contacting

such individuals, it is best to consult with counsel and announce

any intention to interview collateral sources, thus, allowing counsel

to voice any concerns or prohibitions. When interviewing collat-

eral sources, it is important to inform the reporting individuals that

nonconfidentiality must be assumed (i.e., what is reported will be

recorded with identifying information). The issue of how much to

reveal to collateral sources is best discussed with counsel prior to

the interview.


282 ETHICAL ISSUES

DUAL ROLES

Clarification of roles and avoidance of multiple relationships

The importance of clarifying roles and addressing the non-

therapeutic nature of a forensic evaluation has been addressed pre-

viously and is discussed at length in the literature (see, for exam-

ple, Greenberg & Shuman, 1997; Heilbrun, 2001; Melton et al.,

1997; Shapiro, 1999). Forensic MHPs have an obligation to refrain

from any activity that may be perceived as biased, or construed as

posing a conflict of interest (cf. Heilbrun, 2001). The importance

of maintaining a reputation of propriety and objectivity is para-

mount in the provision of forensic services. For this reason, profes-

sionals should avoid functioning as both therapist and forensic

evaluator of the same individual. The importance of avoiding dual

roles is premised upon a number of factors:

(a) Within a therapeutic relationship, assurances of confi-

dentiality are paramount; in forensic evaluations these

same assurances do not stand—in fact, information re-

ported usually must be conveyed in the report

(b) The role of therapist is often one of ally and advocate,

this role is naturally assumed to be the case in treatment

settings; forensic evaluators are required to act with ob-

jectivity and impartiality insofar as it is possible to do

so

(c) The forensic evaluator, once having engaged in a treat-

ment relationship, is not able to “forget” the informa-

tion gleaned in that capacity and proceed with the fo-

rensic evaluation in an unbiased manner. Information

derived during the therapy relationship may signifi-

cantly color the forensic evaluation and be revealed in

the public forum.

(d) Finally, functioning in a forensic capacity with a ther-

apy client (or former therapy client) very well may de-

stroy the therapeutic relationship, thus, potentially re-

sulting in harm to that individual.



Forensic psychologists recognize potential conflicts of in-

terest in dual relationships with parties to a legal proceed-

ing, and they seek to minimize their effects. (Specialty

Guidelines for Forensic Psychologists, §IV [D], 1991)

Treating psychiatrists should generally avoid agreeing to be

an expert witness or to perform evaluations of their patients

for legal purposes because a forensic evaluation usually re-

quires that other people be interviewed and testimony may

adversely affect the therapeutic relationship. (Ethical

Guidelines for the Practice of Forensic Psychiatry, §IV,

1987)

The forensic MHP as consultant to counsel

The ethical tension between the role forensic evaluator and

that of attorney historically has been difficult to reconcile. In Ake

v. Oklahoma (1985), the Supreme Court broke ground in ruling

that the indigent defendant, Ake, had a right of access to a psychia-

trist to “assist in evaluation, preparation and presentation of the

defense.” In effect, the Court ruled that criminal defendants have

the right to a psychiatric consultant who participates as a member

of the defense team, assisting in strategy and trial preparation. If

only one mental health professional is appointed to a case, she or

he will need to perform the evaluation as well as consult on strate-

gies favoring the examinee. In light of longstanding efforts by

mental health professionals to avoid the appearance of bias or par-

tisanship, this ruling left many stunned.

Nonetheless, other experts insist that Ake did not force

mental health professionals into an advocate’s role—merely a con-

sultant’s role. The difference, they argue, is that one (consultant)

merely proffers unbiased information and opinion, whereas the

other (advocate) decides what to make use of in support of the de-

fense strategy (Appelbaum, 1987, p. 20).


284 ETHICAL ISSUES

Ake v. Oklahoma

“[T]he State must, at a minimum, assure the defendant ac-

cess to a competent psychiatrist who will conduct an ap-

propriate examination and assist in evaluation, preparation,

and presentation of the defense.”(Ake v. Oklahoma, 105 S.

Ct. 1087 (1985))

Awareness of covert influence and inappropriate requests

Following Ake, forensic practitioners were allowed (in-

deed, required) in some cases to function as an integral part of the

defense team. As such, questions of remuneration and client satis-

faction were increasingly raised. Once appointed to assist the de-

fense team, the forensic MHP was no longer a disinterested and

neutral participant. Many question whether MHPs can produce an

impartial and unbiased clinical forensic evaluation while simulta-

neously providing input to the legal team on defense strategy. Be-

fore agreeing to serve as both consultant and expert, an MHP

should think through carefully the ethical and practical implica-

tions of such a decision and explore any potential alternative op-

tions.

Contingency fees

Payments made on the basis of the outcome of a particular

case, or contingency fee arrangements, are strictly prohibited by

most professional guidelines (Ethical Guidelines for the Practice of

Forensic Psychiatry, §IV, 1987; Specialty Guidelines for Forensic

Psychologists, §IV[B], 1991). This prohibition speaks to the im-

portance of the examiner maintaining a professional impartiality in

order to meet the goal of assisting the trier of fact.

Forensic psychologists do not provide professional services

to parties to a legal proceeding on the basis of “contingent

fees,” when those services involve the offering of expert

testimony to a court or administrative body, or when they

call upon the psychologist to make affirmations or repre-

sentations intended to be relied upon by third parties. (Spe-

cialty Guidelines for Forensic Psychologists, §IV[B], 1991)



Contingency fees, because of the problems that these create

in regard to honesty and efforts to obtain objectivity, should

not be accepted. On the other hand, retainer fees do not

create problems in regard to honesty and efforts to obtain

objectivity and, therefore, may be accepted. (Ethical Guide-

lines for the Practice of Forensic Psychiatry, §IV, 1987)

The adversarial nature of our Anglo-American legal proc-

ess presents special hazards for the practicing forensic psy-

chiatrist. Being retained by one side in a civil or criminal

matter exposes the forensic psychiatrist to the potential for

unintended bias and the danger of distortion of their opin-

ion. It is the responsibility of forensic psychiatrists to

minimize such hazards by carrying out his (sic) responsi-

bilities in an honest manner striving to reach an objective

opinion. (Ethical Guidelines for the Practice of Forensic

Psychiatry, §IV, 1987)

Modification of forensic reports

As a matter of practice, attorneys may legitimately reframe

or refocus the evaluation if the referral question was misidentified

originally. However, MHPs should carefully guard against allow-

ing attorneys to dictate or modify the substance of reports. The im-

portance of clarifying roles and defining the referral question at the

beginning of the process is paramount and can reduce the likeli-

hood of subsequent problems (cf. Heilbrun, 2001).

The American Bar Association (ABA) has directed attor-

neys “[to] not edit, modify, revise, or otherwise compromise the

integrity of the report” (ABA Criminal Justice Mental Health

Standards, §7-3.7[c], 1989). Despite this, some have suggested

that, in fact, such alterations are routinely made:

[I]n practice, it is not at all unusual for an attorney to con-

sider a report prepared by an expert he or she has retained

to be a draft which will be revised after further discussion

with the professional. Members of the legal profession have

admitted that “an attorney almost always assists in the

preparation of expert witness reports” (Easton, 2001).


286 ETHICAL ISSUES

Needless to say, this practice is completely at odds with ethical

standards addressing the preparation of forensic reports, and

should be actively discouraged.

CONCLUSION

As the foregoing discussion reveals, forensic mental health

practice can be a rigorous but rewarding undertaking; it is also an

extraordinarily challenging endeavor fraught with multiple ethi-

colegal concerns. Careful consideration of and familiarity with le-

gal standards and one’s professional ethics code are imperative.

Professional competence must go beyond traditional clinical train-

ing and experience to include forensic populations and the legal

system more generally. Given the stakes may be much higher than

in traditional practice, it is incumbent upon forensic MHPs to be

aware of and communicate the boundaries of their personal compe-

tences.

Ethical issues often cannot be resolved simply by consult-

ing definitive standards of practice. Forensic MHPs must become

comfortable with resolving these issues for themselves by an in-

formed, reasoned, and ethically sensitive process of personal delib-

eration and consultation with colleagues. Finally, throughout the

entire process, the forensic MHP must guard against cooption by

any party, acknowledging others’ legitimate interest in advocacy,

but striving to maintain personal objectivity and clinical impartial-

ity. Ultimately, the only real currency the forensic MHP possesses

is his or her personal credibility; it should be guarded jealously.

The following summary points are offered for considera-

tion and to assist in decision-making as the MHP seeks to navigate

the forensic arena:

• Ensure personal competence and familiarity with legal

and ethical standards by a commitment to ongoing pro-

fessional development, education, and consultation with

experienced colleagues

• Attend to the development of multicultural competence;

be aware of and sensitive to the influence of cultural



factors on diagnoses, test interpretation, clinical and

other related interpersonal interactions

• Be aware of personal boundaries of competence; ac-

cept only those forensic cases relating to areas in which

a level of personal expertise has been, or is being, at-

tained

• Upon acceptance of a case, immediately seek to iden-

tify the client and clarify the referral questions from the

requesting party

• Provide for comprehensive informed consent or disclo-

sure prior to evaluation; clearly explicate the role of fo-

rensic evaluator and the nontherapeutic nature of ser-

vices to be rendered

• Ensure that examinee is fully aware of limits of confi-

dentiality, privilege, and whether s/he has a right of re-

fusal

• Be aware of the legal statutes and case law upon which

the psycholegal question turns; if uncertain, request

clarification from attorney or courts

• Carefully and accurately document the evaluation proc-

ess; be aware of the rules of discovery and assume non-

confidentiality as a rule and attempt to limit discover-

able material that is not relevant

• If it is not feasible to conduct an in-person interview,

clearly state this fact and the limitations it imposes

upon your findings

• Be aware of subtle or overt attempts at cooption; strive

to maintain clinical impartiality and personal objectivity

• Remain cognizant of the potentially significant influ-

ence of forensic mental health testimony on the court,

and its impact upon the examinee; wield that influence

cautiously and judiciously.


288 ETHICAL ISSUES

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Shuman, D. W. (1997). Law and mental health professionals: Texas. Washington, DC:

American Psychological Association.

Sue, D.W. & Sue, D. (2003). Counseling the culturally diverse (4th ed.). New

York: John Wiley and Sons

Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)

Thapar v. Zezulka, 994 S.W. 2d 635 (Tex. 1999).

Weissman, H. N. & DeBow, D. M. (2003). Ethical principles and professional competen-

cies. In A. M. Goldstein (Ed.), Handbook of Psychology, Vol. 11, Forensic

Psychology (pp. 33-53). New York: John Wiley & Sons.

Received: February 2006

Accepted: June 2006

Suggested Citation:

Kalmbach, K. C. & Lyons, P. M. (2006). Ethical Issues in Conducting Forensic Evalua-

tions [Electronic Version]. Applied Psychology in Criminal Justice, 2(3), 261-

290.


290 ETHICAL ISSUES

Appendix A: Ethical Guidelines of the Professions

Ethical guidelines for practitioners in both psychiatry and

psychology are available online from the following:

Psychiatry:

American Academy of Psychiatry and the Law Ethical

Guidelines for the Practice of Forensic Psychiatry

http://www.aapl.org

Psychology:

Specialty Guidelines for Forensic Psychologists

http://www.abfp.com

Law:

Fitch, W. L., Petrella, R. C., & Wallace, J. (1987). Legal

ethics and the use of mental health experts in crimi-

nal cases. Behavioral Sciences and the Law, 5, 105-

117.

Note: This reference, although not to ethical guidelines per

se, nicely describes how attorneys conceptualize

their ethical responsibilities relative to mental health

experts.


http://www.aapl.org/

http://www.cjcenter.org/Lyons/misc/FEIT/www.abfp.com

11thejuryexpert.comJanuary/February 2013 - Volume 25, Issue 1

A publication of the American Society of Trial Consultants Foundation

from JANUARY/FEBRUARY 2013Volume 25, Issue 1

Reliability is crucial to expert evidence. In cases involving mental health, the court usually relies on the opinions and testimony of forensic mental

health expert witnesses (those experts who specialize in the intersection of mental health and the law). Even in adversarial proceedings, independent forensic experts appointed by the court are presumed objective and generally reliable. In other words, an opinion from one neutral expert should be similar to the opinion from another neutral expert when the two are considering the same case details.

But how reliable are these forensic experts? hat is, how often do independent, court-appointed forensic experts agree with each other? Further, what factors might inluence that reliability? Do some types of cases lead to more disagreement than others? Is agreement better for some questions (e.g., competence to stand trial) than others (e.g., insanity)?

To answer some of these questions, we reviewed nearly 350 real cases in which multiple forensic evaluators, in routine practice, evaluated the same defendants to answer questions of competency to stand trial, legal sanity (criminal responsibility),

and readiness for release from a psychiatric hospital. Our goal was to examine how often we might expect forensic evaluators to agree on the most common psycho-legal questions the court asks of them. We calculated evaluator agreement across these cases, researched the eventual court dispositions, and explored factors that increased or decreased evaluator agreement. We present these indings later in this paper. First, we review how the evaluations in our study were ordered and conducted.

The Forensic EvaluationWe studied evaluations from Hawaii, where state statutes dictate a unique process that provides an excellent setting for examining reliability. In felony cases, the courts order three concurrent and independent evaluations of the defendant. One of these evaluations must be conducted by an employee of the state Department of Health. he other two evaluations are conducted by independent certiied evaluators in the community. One of these independent evaluators must be a licensed psychiatrist, while the other may either be a licensed psychiatrist or a licensed psychologist. All evaluators are appointed by the court, not by the defense or prosecution.

Forensic Mental Health Evaluations: Reliability, Validity, Quality, and Other Minor Details

by W. Neil Gowensmith, Daniel Murrie, and Marcus T. Boccaccini

http://www.thejuryexpert.com


In this way, evaluators in Hawaii are independent, so any disagreement we ind is not likely to be attributable to “adversarial allegiance,” the tendency for experts to form opinions that support the party who retained them (see Murrie et al, 2008). All of the evaluators in this study had been certiied by the state Department of Health through a series of trainings on forensic evaluation. hese conditions allowed for a unique, naturalistic study of the ield reliability of forensic evaluations; because each case requires three independent and concurrent evaluations, we could easily compute agreement rates across each case and identify factors related to that reliability.

We reviewed opinions from the most common forensic evaluations: competency to stand trial, legal sanity, and readiness for “Conditional Release” (release from the state hospital subsequent to placement after a verdict of insanity).

Competency to Stand TrialIn lay terms, competency to stand trial (CST) refers to a defendant’s ability to understand his or her court proceedings and work productively with his or her defense counsel. Like all states, Hawaii uses the Duksycriteria for competency (Dusky v United States, 1960). hat is, the defendant must demonstrate a factual and rational understanding of the charges against him, and must be able to assist defense counsel (see Drope v Missouri, 1975).

How reliable are evaluations of a defendant’s competency to stand trial? Previous results were mixed, with some showing reasonable agreement among clinicians and others showing poor agreement. Most previous research utilized artiicial experimental conditions (such as hypothetical vignettes, or studies in which evaluators use the same instruments in the same hospital), which tended to reveal strong reliability but may not translate adequately to real-world forensic practice. hus routine reliability “in the ield,” has been largely unknown.

We coded data from a total of 716 CST reports, taken from 241 cases (full details available in Gowensmith, Murrie & Boccaccini, 2012). Seven Department of Health psychologists, 15 independent psychologists, and 16 certiied independent psychiatrists submitted the reports. In most cases, three diferent evaluators saw each defendant. hus, evaluators could show unanimous agreement in one of two ways: all could agree that the defendant was competent to stand trial, or all could agree that the defendant was incompetent.

How often did all three evaluators agree with each other? In 71% of cases involving initial evaluations of competency to stand trial, all three evaluators unanimously agreed in their opinion about the defendant’s competency. Most of those cases (59%) involved unanimous agreement that the defendant was competent, and fewer (12%) involved unanimous agreement that the defendant was incompetent. For cases involving repeated evaluations of competency (i.e., re-evaluation after incompetent defendants received treatment to restore

competence), agreement rates fell to 61.0%.

When it came to the actual court decisions about a defendant’s competence, judges typically followed the “majority opinion” from evaluators. When judges ruled in the opposite direction of the majority of evaluators, they usually did so to ind a defendant incompetent to stand trial. his relects the court’s conservative stance towards competency; that is, they were apparently reluctant to ind a defendant competent if there was any doubt among evaluators. Judges were also far more likely to rule against the majority recommendation of evaluators when evaluators presented a split decision on competency (i.e., two say competent, one says incompetent).

We explored several factors that we believed might inluence evaluator agreement: the age, gender, and ethnicity of the defendant, the seriousness of the ofense, the location of the evaluation, the referral court, the judge presiding over the case, the professional discipline or employer of the evaluators, and the defendant’s proiciency with the English language. None of these factors signiicantly inluenced agreement among evaluators. However, when evaluators agreed that a defendant was psychotic (that is, demonstrated severe symptoms such as hallucinations, delusions, or grossly disorganized behavior), they showed better agreement about competence. Fortunately, further analysis revealed that evaluators did not simply conlate a psychotic diagnosis with the inding of incompetence, a problem that has historically been common in competence evaluations (Skeem & Golding, 1998).

Legal Sanity / Criminal ResponsibilityWe also investigated rates of agreement regarding legal sanity (also known as criminal responsibility). Unlike competency to stand trial, which is a dynamic condition focused on a defendant’s current functioning–which may change from moment to moment– legal sanity is a static, historical condition that requires retrospectively determining a defendant’s functioning at the moment of his crime. he state of Hawaii uses a version of the two-pronged American Legal Institute standard for legal sanity, which considers both the M’Naughten standard (whether the defendant understood the criminal behavior was wrong) and the volitional capacity standard (whether the defendant could resist the impulse to commit the crime).

Very little previous research has been conducted on the ield reliability of legal sanity evaluations. Indeed, no recent literature examines evaluator agreement in real cases involving legal sanity.

We coded 468 sanity evaluation reports across 161 cases (for details, see Gowensmith, Murrie & Boccaccini, in press). he proportion of psychologists (24) versus psychiatrists (12) was similar to the pattern we found in CST evaluations.

How often did evaluators agree with each other regarding a



defendant’s legal sanity? We found unanimous agreement among evaluators in 55% of legal sanity cases. Evaluators unanimously agreed that the defendant was sane in 38% of cases, and they unanimously agreed the defendant was insane in 17% of cases. When evaluators disagreed, two of the three evaluators more often opined that the defendant was sane rather than insane.

When these sanity cases went to trial, judges were more likely to “overrule” the majority opinion of the evaluators in cases of legal sanity than in cases involving competency to stand trial. hey typically did so to ind defendants legally sane even when two or three evaluators opined them as insane. In fact, in only one out of 91 cases did a judge ind a defendant insane when the majority of evaluators believed the defendant to be sane.

Unlike competency to stand trial evaluations, several factors inluenced rates of evaluator agreement in cases involving legal sanity. Evaluators were more likely to agree about sanity when they agreed the defendant warranted diagnosis of a psychotic disorder or when the defendant had been hospitalized in a psychiatric facility sometime in the six months prior to the evaluation. Evaluators were more likely to disagree with each other when the defendant had been abusing substances (making it diicult to disentangle the efects of mental illness versus substance abuse) or when the defendant had committed a violent felony.

Readiness for Cconditional ReleaseFinally, we investigated agreement rates for evaluators assessing readiness for conditional release (CR). “Conditional release” in Hawaii refers to the community placement of a person previously acquitted by the insanity defense. Conditional release procedures are typically required in every jurisdiction that has an insanity defense. CR readiness evaluations typically involve some form of violence risk assessment, a broader category of evaluation that requires evaluators to measure and comment on an individual’s likelihood to act violently.

Unlike competency to stand trial and legal sanity, there is little statutory guidance for the CR evaluation. he statute requires that evaluators form an opinion as to whether or not the insanity acquittee can “be safely managed in the community” once released from commitment status. However, the statutes give no additional guidance on this issue, making the legal question far less clear than competence or sanity.

We reviewed 175 real evaluation reports across 62 cases (McNichols, Gowensmith, Murrie & Boccaccini, 2011). Unanimous agreement rates were the lowest of all three evaluation types we studied. Evaluators agreed unanimously on a person’s readiness for CR in only 53.2% of cases. Nearly 90% of these cases involved all three evaluators agreeing that the person was indeed ready for CR. When evaluators disagreed, the two evaluators in most of the split decisions were just about as likely to recommend against CR as they were to support

the motion for CR. None of the additional factors that we examined in this study signiicantly inluenced the agreement rates of evaluators on CR readiness evaluations.

Of all the psycho-legal questions that we studied, judges were most likely to “overrule” the majority recommendation of evaluators in cases involving readiness for CR. hat is, judges appeared to err on the side of caution, by retaining a patient in the hospital, even when the majority of evaluators opined the patient was ready for release.

Did evaluator agreement relate to case outcome? Of the 62 patients who petitioned for conditional release, the court ultimately granted conditional release to 43 of them. We followed all 43 of these cases for up to three years post-hospital discharge and documented rates of rehospitalization. In cases in which evaluators unanimously agreed that the person was ready for CR, 34.5% were rehospitalized within three years. his approximates a base rate for rehospitalization within the Hawaii CR population, and is similar to other rates of rehospitalization in similar populations across the United States. In cases in which evaluators disagreed, however, 71.4% of individuals granted CR were rehospitalized within three years. In other words, the patients about whom evaluators tended to disagree were indeed those patients who were more likely to “fail” on conditional release (or at least to require re-hospitalization).

Decision-making in Forensic EvaluationsWe also explored the rationale behind the conditional release decision-making in the evaluators themselves. Previous work along these lines has been done for competency to stand trial evaluations; Skeem and Golding (1998) found substantial diferences among competency reports, with many evaluators documenting little to no rationale for their decision on competency in their reports. Given the low rates of agreement in CR evaluations, and the lack of statutory guidance for CR readiness, we explored how evaluators make decisions on hospital discharge.

We gave 46 certiied forensic evaluators a list of 21 potentially relevant factors to be considered in a CR evaluation. We asked them to rank these factors, and we then asked them to identify their understanding of the psycholegal question for CR readiness. Evaluators showed substantial agreement on the importance of “past violence” in determining readiness for conditional release. However, evaluators disagreed on the importance of all the other factors; no other factor was endorsed by more than half of the evaluators, but two-thirds were listed in individual evaluators’ “top three” lists. Also, evaluators were nearly evenly split on how to interpret the statute ordering the evaluation. Forensic evaluators seem to have no clear agreement on what factors are important to consider in conditional release readiness applications, or even what the question means in the irst place – likely causing the low reliability found across these evaluations. In other words, Hawaii’s ambiguous legal



criterion for this particular type of evaluation apparently leaves evaluators interpreting and measuring the relevant issues in diferent ways.

What Do These Reliability Studies Mean for Attorneys and Trial Consultants?First, we should expect to see some disagreement among forensic mental health experts, particularly in complex cases. Attorneys and consultants who routinely handle cases that require mental health testimony will inevitably encounter some in which reasonable experts seem to disagree.

Does this mean that expert mental health testimony is worthless? Not at all. he levels of agreement among evaluators in our studies were signiicantly better than chance. For example, using the base rates for sanity opinions found in our sample, the likelihood that three evaluators will agree on a dichotomous opinion of legal sanity by chance alone is 31%; our research showed that evaluators agreed at a rate of approximately 55%, which is well above chance. Agreement rates for competency to stand trial were substantially higher (71%), far exceeding chance levels. hus, experts agreed in most cases, particularly when the legal question was more straightforward and well-deined (e.g., competence to stand trial).

Arriving at a unanimous decision on “straightforward” forensic evaluations—those that have clearly deined statutory criteria and sound psychometric assessments easily available to evaluators—is itself a tall order. Expecting unanimous agreement on evaluations that require retrospective decision-making (legal sanity) or interpreting fuzzy statutory criteria (conditional release) is simply unrealistic. In addition, the clinical data that evaluators must consider are rarely unambiguous. Complicating factors abound: defendants may misrepresent or malinger their symptoms, important records may be unavailable, and it is inevitably diicult to infer mental

state in the past or present. Challenging and confusing cases will always exist; this is the rationale behind requesting a “second opinion” from a medical doctor – or behind checking that second weather report before holding your daughter’s outdoor wedding in the backyard. Our indings of less-than-perfect agreement (even in non-adversarial contexts) suggest that it may be worthwhile and reasonable to seek a second opinion in complex cases.

Second, because disagreements among experts are not common, it is important to consider an expert’s procedure not just the expert’s inal opinion. Although judges do tend to follow the evaluator’s ultimate opinion, we suggest that the opinion itself is less important than the procedures and data that underlie that opinion. When litigation features disagreeing experts, consultants and attorneys should be ready to scrutinize—and help the court scrutinize—the procedures that an expert followed, and the data an expert considered, to reach a particular conclusion. Often, the reasons for disagreements become clear when evaluators are asked to detail the information they considered (or failed to consider) or the inferences they used to connect data and form an opinion. Because many forensic evaluations are genuinely complex and diicult, there are often decision points (e.g., Are additional collateral records necessary?) and inferences (e.g., how does this new data it with the existing records?) in evaluations during which reasonable professionals might disagree. It is important to identify these decision points and ambiguous data for careful scrutiny. Ask forensic experts to “show their work,” not just state their opinion.

Input from forensic mental health experts can be helpful—even essential—to answer certain legal questions. But, like any expert opinion on complex matters, opinions from mental health experts may vary, particularly on complex cases, and this requires educated consumers to carefully consider the data and procedure underlying forensic evaluations.

W. Neil Gowensmith, PhD is an Assistant Professor in the Master’s of Forensic Psychology Program at the University of Denver’s Graduate School of Professional Psychology. As a clinician, Dr. Gowensmith performs criminal forensic psychological evaluations and was previously the chief of statewide forensic services for the state of Hawaii. His research program focuses on issues related to forensic assessment (particularly field reliability, validity and quality) and the public forensic mental health system.

Marcus T. Boccaccini is an Associate Professor in the Psychology and Philosophy Department at Sam Houston State University. His recent consulting work has focused on strategies for explaining psychological test results to judges and jurors. His research program focuses broadly on the area of forensic assessment, with emphases in field reliability and validity.

Daniel Murrie, PhD serves as Director of Psychology at the University of Virginia’s Institute of Law, Psychiatry and Public Policy (ILPPP), an Associate Professor in the School of Medicine, and an instructor in the School of Law. As a clinician, Dr. Murrie performs criminal and civil forensic psychological evaluations. As a researcher, Dr. Murrie studies topics related to forensic assessment, particularly bias and quality control. For details, see here or here.

ReferencesGowensmith, W., Murrie, D.C., & Boccaccini, M.T. (in press). How reliable are forensic evaluations of legal sanity? Law and Human Behavior*. doi: 10.1037/lhb0000001

je


http://www.thejuryexpert.com/william.gowensmith%40du.edu

http://www.thejuryexpert.com/Boccaccini%40shsu.edu

http://www.thejuryexpert.com/Murrie%40Virginia.edu

http://www.ilppp.virginia.edu/FacultyAndStaff/Profile/DanielMurrie

http://www.law.virginia.edu/lawweb/faculty.nsf/FHPbI/1193919


We asked two trial consultants to respond to this paper. On the following pages, Doug Green and Roy Aranda respond.

Doug Green responds:

Doug Green is the principal consultant with Douglas Green Associates, Inc. which is based in greater New Orleans, but has a national scope, working mostly in civil litigation. Doug has a Ph.D. in Psychology from Tulane University is once again serving on the board and is the President-Elect of the American Society of Trial Consultants.

Because my practice is focused almost exclusively on civil litigation, the principal implications of this research do not necessarily apply directly to my clients. But,

underlying these indings is a core concept that I believe applies to expert testimony in any kind of case. While it is generally accepted that experts are indispensable in most kinds of civil litigation, in my experience jurors view experts in a much diferent way today than they did 20 years ago. his experience comes from conducting hundreds of mock jury studies and interviewing actual jurors after verdicts. he changing perception of experts has important implications for trial lawyers.

When I started working as a trial consultant in the 1980s, most of the work I did involved automotive, product liability cases. At issue in these cases was typically an allegation of design defect. Both sides hired experts in automobile design who would opine on the ultimate question in the case: does the design in question represent a defect. Along the way, the experts would discuss design standards and practices. One side or the other might conduct testing related to the case. And, the presentation of the expert witness at trial always began with an impressive presentation of his or her credentials. Ultimately, there was the opinion that the design was or was not defective. he same was true for injury causation and damages.

Back then, we counted a great deal on the credentials of the expert and his or her ability to persuade the jury that he or she was more experienced, more credentialed, and more of a “real expert” in the ield. hese factors were very important at the time and we focused mostly on getting the jury to trust

the expert for his or her expertise and therefore accept the profered opinion.

hings slowly started to change towards the end of the 1990s. At the time, I attributed the change to the collapse of Enron, and still do to some extent. Perhaps my bias was that I did a lot of work in Texas. But the Enron scandal exposed an ugly side of American business. At the core of the scandal was unbridled greed and arrogance, and the big losers were the average workers who went to the oice every day and did their jobs for nothing more than their middle class wages. hey stood to gain nothing by the risks that their employers took, but they paid a very heavy price.

At the same time, I saw a concerning escalation in the fees charged by expert witnesses. When I irst started, expert fees were in the range of $150 to $250 per hour. In that range, jurors were impressed, but not shocked. But by the mid–1990s, some experts were charging as much as $500 to $650 per hour. At those rates, jurors started to take serious note of the money changing hands. hen, Enron came to light.

What the scandal stood for in the eyes of many people was that when there was enough money to be gained, some people would do, or say, almost anything. It also created tremendous skepticism about corporations and corporate governance. he role of government regulation in the scandal, or lack thereof, did not become apparent for some time. But, the perception of these events on the part of the average person, the average juror, became a dominant theme in how they perceived cases where individuals were pitted against corporations. Now, the $650 an hour expert was viewed with great skepticism. For that much money, many people believed, a person might say just about anything. he perception of the hired gun became very real. he idea of building trust in an expert became very diicult.

Nothing much has happened to change these attitudes in the intervening years. Around the same time, we saw the dot-com bubble bust and more recently we have seen the sub-prime mortgage crisis. here has also been a massive tort reform movement set in motion largely by the insurance industry, designed to question the motivation of anyone who iles a lawsuit. Plaintifs, after all, have a lot to gain and everyone knows about contingent fee lawyers.

Gowensmith, W.N., Murrie, D.C., & Boccaccini, M.T. (2012). Field reliability of competency to stand trial evaluations: How often do evaluators agree, and what do judges decide when evaluators disagree? Law and Human Behavior, 36,130–139. doi: 10.1037/h0093958

Murrie, D.C., Boccaccini, M.T., Turner, D., Meeks, M., Woods, C. & Tussey, C. (2009). Rater (dis)agreement on risk assessment measures in sexually violent predator proceedings: Evidence of adversarial allegiance in forensic evaluation?Psychology, Public Policy, and Law, 15,19–53. doi: 10.1037/a0014897

Skeem, J., & Golding, S. (1998). Community examiners’ evaluations of competence to stand trial: Common problems and suggestions for improvement. Professional Psychology: Research and Practice, 29,357–367.



So, what does all of this mean for the use of expert witnesses today? What strategies do we incorporate in my practice to deal with the increasing skepticism of anyone getting paid a lot of money to give opinions? Well, I turn back to the authors’ recommendations, which is how I got started on this line of thought: “it is important to consider an expert’s procedure not just the expert’s inal opinion. Ask forensic experts to ‘show their work,’ not just state their opinion.”

As an initial proposition, the philosophy I use when working with experts is that their job is to educate the jury on the relevant ield of study to the point where the jurors can examine the evidence and reach their own conclusions. he expert is, therefore, not someone who says, “trust me, I’m an expert,” but rather, “let me teach you so you can become an expert.”

If you start from this point of view, the qualiications of the expert you choose become clear. I get a lot of calls on this question and the client usually starts by telling me about the potential expert’s qualiications. My response is usually, “but can he teach this to the jury?” he precise qualiications of experts, in my opinion, are less important than the individual’s ability to communicate and to present diicult concepts to the jury in plain, simple terms. It is also tremendously helpful if the expert is likable and friendly. I ind that lawyers tend to parse the qualiications of experts much more inely than do jurors. he gap between the knowledge and experiences of two potential experts will always be far less than the gap between either one and the jurors. When it comes to experts, one should worry more about the ability of a potential expert to communicate and relate to jurors and worry less about expert’s speciic credentials.

Finally, I believe that the impact of experts on jury decision making today has tremendously diminished compared to 20 years ago. I can’t debate the conventional wisdom that experts are essential to most cases. hey are often required as a matter of law. But what impact is the expert going to have on the jury verdict? My experience is that in most cases the impact is not much. Jurors today want to hear from fact witnesses. hey want to know the story of what happened. If there is a design question in the case, they want to hear from someone actually involved in the design at the time. If the issue is patent infringement, they want to hear from the inventor of the patent and the designer of the accused product. he weakness of experts is that they were not involved at the time and are only involved now because they are getting paid – and usually a lot of money. From this point of view, jurors look at experts with great skepticism.

So, my advice to trial lawyers today is to choose experts carefully and use them wisely. Build your case around people who were there at the time – whether they are your witnesses or the other side’s – and rely on experts as little as possible. Build the record you need to make your case and hold on to a verdict, but do not expect the jury to care much about the opinions of your experts.

Roy Aranda responds:

Roy Aranda, Psy.D., J.D. is a forensic psychologist with offices in N.Y. and Long Island. He has been involved in several high profile cases including traveling to Cuba and Puerto Rico and testifies frequently in criminal and civil cases throughout New York State.

Gowensmith, Murrie, and Boccaccini have taken their research about how often forensic experts agree with one another in the ield up another notch. Drawing

upon earlier research (Gowensmith, Murrie, & Boccaccini, 2012) that examined ield reliability of competence to stand trial (CST), Forensic Mental Health Evaluations: Reliability, Validity, Quality, and Other Minor Details examines forensic evaluations in three contexts: CST; criminal responsibility; and conditional release from a state hospital.

Gowensmith, Murrie, and Boccaccini sought to answer several questions: 1) How often do forensic evaluators agree with another? 2) What factors might inluence their reliability? 3) Do some types of cases lead to more disagreement than others? 4) Is agreement better in some contexts than others?

Gowensmith, Murrie, and Boccaccini reviewed nearly 350 cases in Hawaii of multiple forensic evaluators who evaluated the same defendants. Hawaii’s unique process provided an excellent setting for several reasons. First, three evaluators are used. his adds a measure of validity that is lacking in settings that rely on a single examiner and when it is assumed that evaluators are interchangeable. Second, because precious little is known about reliability in the ield, it provides a natural, real-world setting as opposed to a research setting that employs artiicial experimental conditions. hird, the impact of adversarial or partisan allegiance is controlled because all evaluators are independent in as much as they are appointed by the court, not by the defense or prosecution.

Outcome:CST: In 71% of cases there was unanimous agreement; 59% found that the defendant was competent, and 12% found that the defendant was not competent. Judges typically followed the majority opinion. When they did not they usually took a conservative stand inding that the defendant was not competent to stand trial. Judges also were more likely to rule against the majority when there was a split decision among the evaluators.

Gowensmith, Murrie, and Boccaccini examined the following factors:

• Age of the defendant• Gender of the defendant• Ethnicity of the defendant• Seriousness of the ofense• Location of the evaluation


http://www.thejuryexpert.com/braindocr%40aol.com


• Referral court• Presiding judge• Professional discipline• Employer• Defendant’s English-speaking proiciency

Surprisingly, none of these factors signiicantly inluenced agreement among the evaluators.

Analysis revealed that a psychotic diagnosis per se did not result in a inding of incompetence suggesting that functional abilities were looked at more closely.

Criminal responsibility: In 55% of cases there was unanimous agreement; 38% found that the defendant was sane, and 17% found that the defendant was insane. Judges were more likely to overrule the majority opinion of evaluators than in CST, and when they did, they found the defendant to be legally sane and thus subject to criminal prosecution.

Factors that led to increased agreement among the evaluators were 1) diagnosis of psychotic disorder, and 2) hospitalization in a psychiatric facility within six months prior to the evaluation. Factors that led to increased disagreement among the evaluators were 1) when the defendant had been abusing substances, and 2) when the defendant had committed a violent felony.

Conditional release: Unanimous agreement rates among evaluators were lowest of all three types of evaluations. In 53.2% of cases there was unanimous agreement; nearly 90% found that the defendant was ready for conditional release. Judges were most likely to overrule the majority opinion of evaluators in these cases keeping the patient hospitalized, apparently choosing to err on the side of caution.

Little statutory guidance in Hawaii makes the issue of conditional release – that involves whether or not the respondent can “be safely managed in the community” – much less clear than CST or criminal responsibility.

Signiicantly, of the 21 potentially relevant factors that Gowensmith, Murrie, and Boccaccini considered to be important in a conditional release evaluation, substantial agreement was found in only one: past violence. None of the other factors were endorsed by more than half of the evaluators. Moreover, evaluators were split on how to interpret the statute.

he study raises the following questions and implications:

Evaluators are not interchangeable. Expect to ind disagreement among evaluators albeit levels of agreement were signiicantly better than chance. Agreement was greatest in CST.

Agreement is greater when the legal question is more straightforward and well deined.

Gowensmith, Murrie, and Boccaccini recommend that a

second opinion be sought in cases that are complex.

How applicable are the indings to other jurisdictions? Evaluators comply with jurisdiction-speciic requirements. What might reliability look like elsewhere?

How are judges’ rulings inluenced by the reports of evaluators? What other factors are weighed?

How do evaluators go about performing an evaluation? What factors do they consider to be important? What does their assessment consist of? What are the “best practices” or guidelines established by the profession?

Judges tend to follow the evaluators’ opinions. he procedures employed by evaluators may shed more light. hus, when there is disagreement, it is advisable to scrutinize the procedures, data employed, and to examine the evaluators’ work product.

How can the procedure(s) in conditional release evaluations, the most problematic of three forensic contexts examined by Gowensmith, Murrie, and Boccaccini, be improved?

In their earlier study, Gowensmith, Murrie, and Boccaccini noted that a small percentage of evaluators (14.3%) used formal competency assessment measures. Why do they or don’t they use measures? And when employed, which ones are used?

What weight can be attributed in diferent contexts to static factors (more applicable in criminal responsibility cases and providing a window into the past in conditional release) and dynamic factors (more applicable in CST and current functioning in conditional release)?

Do evaluators use risk assessment tools in conditional release evaluations? Why or why not? Which ones when used?

Would reliability be improved by use of context-speciic instruments?

Do evaluator characteristics and factors identiied by Gowensmith, Murrie, and Boccaccini need to be examined further? Would the conclusions extend to other jurisdictions and settings?

What can be done to improve the evaluation on the part of examiners in diferent forensic contexts?

Would mandated training and oversight improve reliability?

What policy implications can be drawn from this study in diferent jurisdictions and forensic contexts?

When evaluators are not court appointed, what is the likely impact of adversarial allegiance? How can this be controlled?

When mistakes are made, what are the consequences to the



defendant and to society in diferent jurisdictions and forensic contexts?

For attorneys who rely on the work of forensic experts, it behooves them to know their background, training, evaluation methodology, and experience and knowledge of the applicable law and statutes.

Forensic examiners need to remain up to date with the literature, evidence-based practice, and know the applicable law and statutes of the jurisdiction they work in. It also behooves them to routinely self-assess potential biases.

It may be that describing evaluation procedures and methodology more fully in forensic reports will add greater clarity to the judge to assist in making a ruling.

ReferencesGowensmith, W., Murrie, D.C., & Boccaccini, M.T. (2012). Field reliability of competency to stand trial evaluations: How often do evaluators agree, and what do judges decide when evaluators disagree? Law and Human Behavior, 36, 130–139.

After reading the reactions to their paper, the authors decided to issue a inal comment.

Dr. Aranda raises several insightful questions about our research and the context for its indings. Although space precludes us from answering each of his

questions, please allow us a brief moment to discuss some additional research that addresses his major themes.

First, Dr. Aranda wonders about how well this data generalizes to other jurisdictions and settings. he reliability values we found appear comparable to one of only a few other “real world” reliability studies (Skeem & Golding, 1998), though far more studies of this sort are needed. We are also researching additional settings and states to consider how our results generalize. Speciically, we are conducting additional research in multiple states on the decision-making of both the judges and the evaluators in forensic psychological assessments. What factors do mental health professionals prioritize in these types of cases? Do those comport with the factors that judges and attorneys view as most important? Does the state or setting matter? Some early trends are emerging, and we look forward to having more answers soon.

Second, Dr. Aranda poses questions about how to improve reliability and validity in forensic mental health evaluations. Of course there is no one easy answer. We have some evidence that the overall quality of forensic evaluations themselves has room for improvement (see Nguyen, Acklin, Fuger, Gowensmith, & Ignacio, 2011 for more information). We suspect that the largest improvements in reliability, validity and quality of

forensic evaluations are likely to come from simply following the already-established standards in the ield. We are working with several states to improve their evaluator certiication processes and to ensure that best practices are infused into training and education for forensic evaluators. We must also work with the legal system as well to ensure that both legal and mental health audiences are well-informed about the most powerful factors to consider in various forensic cases, and the best ways to scrutinize forensic evaluations.

Finally, Dr. Aranda mentions the subject of adversarial allegiance. In contrast to our studies in Hawaii, where evaluators are appointed by the judge and presumed to be neutral experts, many jurisdictions let the defense and prosecution retain their own experts. Of course this raises questions about whether those experts can ever be impartial. his concept of “adversarial allegiance” continues to be a focus of our research, and we have found that opinions of mental health experts can difer depending on the side from which they were retained (please see Murrie et al, 2008; 2009 for more information).

We appreciate all of the reviewers’ commentary and questions. As they suggest, a comprehensive understanding of forensic evaluations requires examining the evaluations, the evaluators, and the justice system in which they work. We have begun this process, and we have found some provocative results, but there is much work left to do.

References:Murrie, D. C., Boccaccini, M. T., Johnson, J. T., & Janke, C. (2008). Does interrater (dis)agreement on Psychopathy Checklist scores in sexually violent predator trials suggest partisan allegiance in forensic evaluations? Law and Human Behavior, 32, 352–362. doi: 10.1007/s10979–007–9097–5

Murrie, D.C., Boccaccini, M.T., Turner, D., Meeks, M., Woods, C. & Tussey, C. (2009). Rater (dis)agreement on risk assessment measures in sexually violent predator proceedings: Evidence of adversarial allegiance in forensic evaluation?Psychology, Public Policy, and Law, 15,19–53. doi: 10.1037/a0014897

Nguyen, A. H., Acklin, M. A., Fuger, K., Gowensmith, W. N. & Ignacio, L. A. (2011). Freedom in paradise: Quality of conditional release reports submitted to the Hawaii judiciary. International Journal of Law and Psychiatry, 34, 341–348.

Skeem, J. L. & Golding, S. G. (1998). Community examiners’ evaluations of competence to stand trial: Common problems and suggestions for improvement. Professional Psychology: Research and Practice, 29, 357–367.


Allen F rances Become a fan

Professor E meritus, Duke University

Posted: 12/06/2014 12:05 pm E S T Updated: 02/05/2015 5:59 am E S T

Is E xper t T estimony in Court Cases R eally E xper t?

Dostoevsky's Brother's Karamazov cleverly spoofs the careless inexpertness of what often passes for expert legal testimony.

Three medical experts are called to testify whether Dmitri Karamazov was sane or insane when committing the alleged murder of his father.Naturally, the experts all disagree, with each completely convinced of the incontrovertible truth of his own opinion. E xpert 1 finds Dmitri

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insane because he looked to the left as he entered the courtroom. Expert 2 also finds Dmitri insane, but instead because he looked to theright. Expert 3 correctly finds Dmitri sane, but for the wrong reason that he stared straight ahead. And all three are absolutely sure Dimitridid commit the murder-which in fact he did not. Three blind mice.

Dostoevsky was recognized by Freud as the master of psychological thinking, but his love of psychology did not stop him from poking hugeholes in its reliability. "One can draw from psychology whatever conclusions one likes. It all depends on whose hands it is in. I am speakingof excessive psychology, of a certain abuse of it."

He then demonstrates vividly just how the this abuse of psychology plays out in courtroom situations. The prosecutor on the case presents abrilliant, completely plausible psychological profile of Dmitri that proves beyond any shadow of doubt that he must have committed thecrime. Then, based on the very same traits and facts, the defense attorney presents an equally brilliant, but completely opposite,psychological profile that proves beyond any shadow of doubt that Dmitri could not possibly have committed the crime. There is no goldstandard that allows a jury to choose between the opposing speculations.

Dostoevsky uses a Russian proverb to explain this situation -- that psychology is a stick with two ends (equivalent to our sword that cutsboth ways). He knew better than anyone that speculative psychological theorizing can be just as easily used to disguise the truth as to revealit. A theory that seems completely plausible can be completely wrong.

Dostoevsky wrote 135 years ago, but his critique of forensic psychiatry and forensic psychology stands the test of time. The abuses hedescribed still occur often today in just the way he described them. My experience as expert witness in hundreds of legal cases does notinspire much confidence in the way our legal system uses (and more often abuses) expert testimony.

Many factors contribute to experts generating heat, not light.

F irst off, many alleged experts are simply not really all that expert and say things that are just dead wrong. The filters meant to eliminateerrant opinion and junk 'science' don't work.

Second, the adversarial system cultivates expert allegiance bias. Consciously or unconsciously, expert opinions are strongly influenced bywho is paying the bill.

Third, juries often have to decide questions that are far beyond their competence. Which of the dueling experts to believe is more oftendetermined by presentation skills and likability than the technical accuracy of the testimony.

F inally, the adversarial quality of the legal system demands that experts give black-and-white, yes-or-no answers to questions that oftenrequire a shades-of-gray, nuanced response. E ven wise and unbiased experts mislead when they are forced to choose a yes or no when thebest answer would be maybe or a little bit of both.

As it stands now, the expert testimony in many trials is pretty worthless. Each side presents an extreme set of opinions that in opposite waysdistort the complex reality. The jury cancels them out or makes a pretty blind choice between them.


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Essentials of PsychiatricDiagnosis, RevisedEdition: Responding tothe Challenge ofDSM-5®by Allen Frances MD

Saving Normal: AnInsider's Revolt AgainstOut-of-ControlPsychiatric Diagnosis,DSM-5, Big Pharma,and the Medicalizationof Ordinary L ifeby Allen Frances

The system may be too embedded to reform, but a few simple changes would make a world of difference. To achieve neutrality and preservenuance, experts should whenever possible be appointed by the court, not the warring sides. There should be a more rigorous way ofestablishing that they are indeed experts and are using methods of assessment that are reasonably reliable and well validated. Reportsshould document how the existing literature pertains to the facts of this case and the degree of confidence with which each opinion isrendered and why. Experts should be instructed to be cautious in their judgments, staying close to the facts and to the literature. I don'tknow is the most appropriate answer to many questions. Purely idiosyncratic speculation should be identified and treated as unreliable andessentially worthless.

Doing it right would much reduce the role of expert testimony in the legal system- probably a very good thing.

Allen Frances is a professor emeritus at Duke University and was the chairman of the DSM-IV task force.

Forensic Psychiatry Forensic Psychology E xpert Witnesses Trial Testimony Bias

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The Uses and Misuses of the DSM in Forensic Settings

Allen Frances & Robert Halon

Received: 28 September 2013 /Accepted: 23 October 2013# Springer Science+Business Media New York 2013

Abstract The purpose of this paper is to present in broadsummary our views—gained through experiences interactingin the legal system—concerning some of the more significantissues that trouble the legal/psychiatric interface. Even when apsychiatric diagnosis is the reliable and accurate result ofappropriate evaluation methods and proper documentation, itmay not be helpful in answering the questions posed to mentalhealth professionals by the legal system. The Diagnostic andStatistical Manual provides explicit cautions that its clinicaldescriptions of mental disorder do not always map well withlegal concepts of mental illness or abnormality. This is aninherent tension that accurate psychiatric diagnosis can re-duce, but not eliminate. The relationship between psychiatryand the law continues to evolve and we hope will improvewith greater understanding of the possible misunderstandings.

Keywords DSM .Mental disorder . Statutory . Clinical .

Forensic . Diagnostic criteria . Clinical significance .

Daubert . Reasonable degree

Psychiatry and the law are separated by a deep chasm createdby their differing purposes, methods, histories, and philoso-phies. When they interact in criminal and civil cases, it isusually without a common understanding of basic terms anddefinitions. The inevitable result is misunderstanding and thelikelihood of bad legal decisions.

Perhaps the most obvious example is the confusion betweenstatutory concepts of “mental abnormality” or “mental illness”and psychiatry’s definition of “mental disorder” contained inits Diagnostic and Statistical Manual (DSM). Legislators and

the courts need not abide by the DSM and are permitted to usemental health concepts in any way they see fit (Kansas v.

Hendricks , 1997). They sometimes borrow loosely from clin-ical terms or coin their own diagnostic terms without accom-panying them with precise definitions. The statutes are writtenin vague language that specifies the types of dysfunctionaddressed in the particular statute but fails to provide meaning-ful definitional links between what is meant legally by “mentalabnormality” or “mental illness” and DSM diagnostic criteriafor the various clinical dysfunctions described in the DSM.

The resulting vacuum of diagnostic definition is usuallyfilled by reference to the DSM which cannot avoid this re-sponsibility, but is often ill suited to answer the questionsposed by the legal system. This is why the DSM since versionIII has contained a prominently placed caution: “… the use ofDSM-5 should be informed by an awareness of the risks andlimitations of its use in forensic settings” (DSM-5, p. 25;American Psychiatric Association, 2013).

Before we go into considerable detail describing theselimitations, it is important to understand the necessary andconstructive role played by DSM in the courts. The DSMcriteria sets defining its specified “mental disorders” are auseful guide to psychiatric diagnosis, providing the best avail-able method for beginning the discussion of who is and who isnot “mentally ill” in a legal sense. Though the DSM diagnos-tic criteria are a necessary tool in any attempt to answer thiscrucial question, they are rarely sufficient.

The definitions included in the DSM were not developedfor legal purposes. They were written with careful attention toclinical detail, but are not nearly precise enough to meet thedifferent needs and outlooks of the legal system. Psychiatriclanguage often stands up poorly to the nitpicking scrutiny thatcharacterizes adversarial legal argument. Legal and psychiat-ric truths are very different animals. Whereas the legal systemrequires black and white answers, clinical psychiatry andpsychology almost always deal in probabilities and shadesof gray. The inherent ambiguities of psychiatric diagnosis

A. FrancesDepartment of Psychiatry, Duke University, Durham, NC, USA

R. Halon (*)San Luis Obispo, CA, USAe-mail: [email protected]

Psychol. Inj. and Law

DOI 10.1007/s12207-013-9180-9

often make it impossible to meet the legal demand that therebe an unambiguously dichotomous yes or no answer.

The legal combat inherent in the adversarial system alsoadds yet another layer of obfuscation; it selects for experttestimony that intended to prove a point, not to provide abalanced and accurate perspective. The reliability and validityof psychiatric diagnosis are most necessary and consequentialin legal proceedings—but often these are sacrificed in therough and tumble of adversarial legal jockeying. An astutelawyer can often find enough ambiguities in the DSM word-ings and/or in the interpretations of the legal criteria to supporteither side in any given case. Neutrality and accuracy areespecially vulnerable whenever diagnostic disagreements re-flect the influence of the different sides that pay the bill.

Juries are often called upon to decide unclear questions thathave no correct answers and lack clinical meaningfulness.They have to do so in the heat of a confusing legal battle,usually without really understanding the mental health issuesor their relationship to the legal questions involved. Lay triersof fact have no training in sifting through the technical issuesthat separate the often diametrically opposed expert opin-ions—which they, therefore, often dismiss and vote accordingto their own logic and mores. No wonder jurors' judgments sooften seem arbitrary, puzzling, and lacking in rational assess-ment of the accuracy of the diagnostic information. Too often,decisions are pivotally influenced by the relative legal skills ofthe lawyers and the emotional impact of their presentations.Cases are also won and lost more on the persuasiveness of theexperts than on the accuracy of their testimony. To top it off,the layperson decision about the “mental abnormality” at issuebecomes a “fact”; something a clinical diagnosis never is.

We intend to present a broad summary covering a lot ofground—not digging deeply into any one of the issues, eachof which merits much more extensive discussion than spacehere permits. This is nomore than an opinion piece expressingour own views gained through experiences interacting in thelegal system. We recognize that others on both sides of thelegal/psychiatric interface might disagree with many of ourobservations and conclusions and welcome the exchange ofideas. The relationship between psychiatry and the law con-tinues to evolve and we hope will improve with greaterunderstanding of the possible misunderstandings.

The Role of DSM in the Legal System

DSM has been employed for many uses and is used to servemany masters (Kendell, 1975; Regier, Narrow, Clarke,Kraemer, Kuramoto, Kuhl, & Kupfer, 2013; Sartorius, Üstün,Costa e Silva, Goldberg, Lecrubier, Ormel, Von Korff, &Wittchen, 1993). It provides a common language for clinicians,a tool for researchers, and a bridge over the clinical/researchinterface (American Psychiatric Association, 2000). DSM also

serves as a textbook for educators and students (First & Pincus,2002) and provides is a coding system for statistical, insurance,disability, and administrative purposes.

The creators of the various versions of the DSM havealways been fully aware of the important role it plays in legalproceedings and have not ignored its forensic implications(e.g., DSM-IV; American Psychiatric Association, 1994;Melton, Petrila, Poythress, & Slobogin, 2007). But they couldnot possibly give this one arena their highest priority. The usesand possible misuses of DSM in forensic settings rate nohigher than a distant fourth on their list of priorities, followingwell behind DSM's role in clinical care, in research, and ineducation.

For the most part, the varied goals of the DSM system arecompatible, but inevitable difficulties arise when one manualis used to do so many different purposes. DSM is a commondenominator that meets all its various responsibilities ade-quately, but none perfectly. Its criteria sets are too detailedfor the convenience of clinicians, not nearly detailed enoughfor the needs of researchers, and far too dull to keep teachersand students awake. DSM is framed in clinical language andconcepts that often do not map well with legal questions, andDSM criteria are much less precise and definitive than theyneed to be for laws, lawyers, and courts (Frances, Widiger, &Pincus, 1989; Halon, 2009; Melton et al., 2007). Psychiatricdiagnosis is not based on any pretension of medical or scien-tific certainty. It is a descriptive and fallible art, informed byresearch but relying heavily on subjective judgments and notsupported by objective biological tests.

The different diagnoses were included in the DSM byhistorical accretion and vary in their scientific support andinherent reliability. The reliability for any given diagnosis alsovaries dramatically depending on the method used in makingthe diagnosis. Semi-structured clinical interviews for DSMdisorders can provide a comprehensive and reliable startingplace that reduces information variance and increases agree-ment among raters. A useful substitute for semi-structuredinterviewing is to systematically ask questions (and documentthe answers) related to each of the items contained in thecriteria set for any diagnosis that will be considered in theexpert's report. The base rate of a condition also affects itsreliability since it is always harder for two raters to pull thesame needle out of a haystack than to find the haystack.Clinicians who are more experienced in a given diagnosis, insystematic interview methods, and in the proper use of DSMare more likely to be credible. Impressionistic, unsystematicdiagnosis is usually unreliable and inaccurate.

DSM is not and does not aspire to be any sort of “bible” ofpsychiatry. It is no more than a guide to psychiatric diagno-sis—but it is also no less than a useful guide. Despite itsimperfections, when used appropriately, DSM remains thebest (really the only) means to achieve reliable and accuratediagnosis in the clinic and in forensic settings. However, DSM


is only useful when it is followed closely and applied well.Unfortunately, it is our experience that the diagnoses offeredas “expert” testimony are often poorly done, idiosyncratic, anddisplay a disheartening lack of attention to the careful evalu-ation and documentation of the presence or absence of thespecific, pertinent DSM criteria. Often an expert's report con-sists of a very lengthy chronology of largely irrelevant eventsbearing little diagnostic information. The diagnostic conclu-sion is typically a very short and uninformative paragraphbearing little evidence of having flowed from a systematicdiagnostic evaluation and providing little or no rationale forthe diagnostic decisions that have been made. Rarely is thereadequate consideration of differential diagnostic alternativesthat might have led to different conclusions. Appropriatediagnostic cautions and recognition of uncertainty are usuallylacking.

Forensic usage should set the highest standard for accuratediagnosis in expert testimony; however, we have seen toomany cases in which it fails to meet even the lowest. Jurorshave enough trouble making sense of technical psychiatricterms. It gets impossibly muddied when experts arrive at theirdiagnoses carelessly using only their clinical judgment—ab-sent data gathered in systematic and comprehensive diagnos-tic interviews, without consideration of opposing possibilities,without supporting documentation, without adequate analysisof the relationship between the DSM diagnostic criteria andthe legal question at hand, and with the obvious appearance ofattempting to support one side or the other in an the adversar-ial process.

In our experience, neither the Daubert v. Merrell DowPharmaceuticals, Inc. (1993) nor the Frye v. United States(1923) admissibility standards, which are meant to filter outjunk expert testimony, provide sufficient filtering. Judges donot always seem to exercise their prerogative to rule out evenclearly inexpert testimony, probably because they are so con-cerned about being reversed on appeal. They also often seemto be unfamiliar with the standards used to evaluate scientificevidence and opt for the safe play of passing the burden offiltering onto a jury that is even less well equipped to handle it.What passes for expert testimony on psychiatric diagnosis ismore often than it should be blatantly incompetent diagnosis.

Are there any solutions to this quagmire? A few comeimmediately to mind. Expert testimony on the presence orabsence of psychiatric diagnosis should be proffered by pro-fessionals who have considerable experience in the diagnosisof that disorder. Being a general practitioner of psychiatry orpsychology does guarantee such expertise. At a minimum,forensic evaluations should always require: recording themethods used in gathering the information; a systematic for-mat including either a semi-structured interview or detailedquestioning on each pertinent DSM item; and specific expla-nations on how the information gathered addresses, pro orcon, the diagnostic criteria. Affirmative support for the

diagnosis should be detailed by examples that illustrate howeach item of the DSM criteria set has been met. Differentialdiagnosis should be well documented with a listing of poten-tial alternative diagnoses and explanations of how and whythese have been ruled out. Diagnoses that have failed to earn aplace in the official DSM system should not be dignified orvalidated by acceptance in the courts for decision-makingpurposes. Exotic diagnoses and theories, if allowed as evi-dence, should be labeled and described as such and accompa-nied by an extraordinarily high threshold of certitude—whichthe poorly defined and loosely applied “reasonable degree ofmedical (psychological) certainty” does not reach.

DSM recommends granting wide latitude to clinicians forclinical purposes, encouraging them to exercise their ownclinical judgment in considering the particularities of eachpatient. However, the use of idiosyncratic clinical judgmentis not appropriate for decision-making in forensic cases. Thegain in clinical flexibility has too great a cost in the loss offorensic reliability. The forensic situation should prize reliabil-ity over creativity and discourage anything but the tightestadherence to the diagnostic criteria listed in the DSM. Thedefault position in doubtful situations should be “no diagno-sis” or detailed descriptions of the uncertainties.

It also needs to be understood that reliability is a necessaryprecondition to validity, but is by no means a guarantor of it.While semi-structured and systematic DSM interviewing canreduce information variance and increase agreement amongraters, using an appropriate method of gathering the clinicaldiagnostic information and improving reliability does not ad-dress further issues of its interpretations, relevance, and validity.

How Clinical and Forensic Evaluations Differ

Being labeled with a psychiatric diagnosis can be a life-changing moment, especially in forensic settings. But, despitethe great importance of diagnosis, it is far too often donecarelessly in ways that cannot possibly yield reliable andaccurate results. For example, a single diagnostic interviewusually does not capture the essence of a person's past courseof symptoms or their likely evolution in the future. Accuratediagnosis requires adequate time in each individual visit andoften multiple visits over an extended period of time in orderto get a longitudinal perspective that will increase the reliabil-ity and validity of the diagnostic conclusions. While it isimportant to review diagnoses made in previous evaluations,they cannot be followed slavishly because previous diagnosticjudgments are often incomplete and/or wrong and/or may nolonger be applicable given changes over time. A diagnosiscannot be judged reliable or accurate when it is not accompa-nied and justified by descriptions of the criteria used in mak-ing the diagnosis, by the data from which fitness to the criteriawas determined, and by descriptions of alternative diagnostic


explanations that have been ruled out and how they were ruledout.

Impressionistic, unsupported diagnosis are often inevitablein the rush of ordinary clinical practice, but such sloppydiagnostic practice should have no role whatever in forensicwork where the stakes are much higher and there exists timeand resources for a thorough evaluation. Once a court of lawmakes a decision about a person (on presumably reliableprobative diagnostic evidence), that person often has little ifany chance of later changing the decision and the impact onhis life may be profound and enduring. In the clinic, wrongdiagnosis can also have tragic consequences, but decisions aremore often reversible and subject to correction. Forensic mis-takes can destroy lives and threaten the credibility of the legalsystem. If the forensic mistakes were made by “expert”mentalhealth witnesses, the credibility of psychiatry and psychologyis also diminished.

In clinical practice, because the definitions and diagnosticcriteria cannot possibly encompass the vast heterogeneity ofindividual presentations, practitioners are encouraged to exer-cise a great deal of latitude in applying clinical judgment. Inthe forensic arena, that latitude should be superseded byrigorous diagnostic methodology, strict adherence to criteria,careful documentation of every conclusion, and admission ofuncertainty whenever certainty is not possible. Strict adher-ence to criteria sets is not required in clinical situations butshould be required in the courtroom.

Let's take up an illustrative example. Suppose the DSMcriteria set requires the presence of five of nine items, but thepatient presents instead with only four symptoms. In everydaypractice, DSM instructs the clinician to use his judgmentwhether the patient should qualify for the diagnosis even ifthe strict criteria are not met. Perhaps there are only foursymptoms, but each of these is present at the highest level ofseverity, the patient is suicidal, and urgent treatment is obvi-ously needed. DSM encourages the clinician to use his judg-ment and make the diagnosis, rather than follow the rules inrote fashion. This reduces diagnostic reliability, but makesclinical common sense and is the best guide to the patient'streatment.

But the forensic situation is quite different. The forensicexperts' task is to present triers of fact with the most objectiveand reliable evidence available (Melton et al., 2007). The DSMdiagnostic rules should be followed closely to avoid the arbi-trariness and unreliability that is inherent whenever experts areallowed to give undue weight to subjective judgment.

Unfortunately, the legal test for admissibility of mentalhealth expert testimony (i.e., “to a reasonable degree ofmedical/psychological certainty”) does little to guarantee thereliability or validity of proffered information. The concept“has no empirical meaning and is simply a mantra repeated byexperts for purposes of legal decision-makers who similarlyhave no idea what it means” (Faigman, 2010). In some states,

“reasonable degree” is legally defined as “better than chance,”hardly much of an improvement.

DSM Cautionary Statements

DSM-III placed this short forensic caution in a prominentplace at the front of the book:

The purpose of DSM-III is to provide clear descriptionsof diagnostic categories in order to enable clinicians andinvestigators to diagnose, communicate about, studyand treat various mental disorders. The use of this man-ual for non-clinical purposes, such a determination oflegal responsibility, competency or insanity, or justifica-tion for third-party payment, must be critically exam-ined in each instance within the appropriate institutionalcontext. (DSM-III, p. 12, American Psychiatric Associ-ation, 1980)

This caution focused on the nonequivalence of DSM clin-ical definitions and the requirements of the legal system. Inorder to provide more explanation concerning more specificissues, the cautionary statement has been lengthened andincluded as a separate section starting with DSM-III-R(American Psychiatric Association, 1987). The cautionarystatement in DSM-5 (American Psychiatric Association,2013) is significantly expanded (Table 1).

It would be useful for everyone involved in any legal casethat includes psychiatric diagnosis to read this caution beforemaking decisions about mental health and diagnostic issues. Itwould be especially important for expert witnesses to keep thecautions in mind as a check against speculations that gobeyond the range of valid application of DSM. Expertsshould, in their reports and testimony, address and describein detail the factors that affect the reliability and validity of anydiagnosis proffered.

Whatever its failings, the DSM is an extremely useful guideto what otherwise would be pretty much random forensicdiagnosis. However, it is not equivalent to legal criteria orconcepts (DSM-5, p. 25, American Psychiatric Association,2013). The presence of a DSM-diagnosed mental disorderdoes not imply that the disorder has caused the individual todo any particular thing or that the disorder has impaired or doesnow impair one's cognition, volition, emotion, perception, orbehavior in any particular way or degree. Awareness of theseDSM cautions should inform its every use in the courtroom.

The Significance of Clinical Significance

There are three requirements that must be satisfied before aDSMmental disorder is diagnosed: (1) the requisite number of


items included in the criteria set for that disorder must bepresent; (2) these must “not be better accounted for” byanother condition (this requirement is meant to differentiatethis disorder from other possible mental disorders that mightpresent with similar symptoms and from human experiencesthat are not “disordered”); and (3) the symptoms must cause“clinically significant disturbance in an individual's cognition,

emotional regulation, or behaviour that reflects a dysfunctionin the psychological, biological, or developmental processesunderlying mental functioning” (DSM-5, p. 20, AmericanPsychiatric Association, 2013). The third caveat establishesthe boundary between mental disorder and normality and isincluded because all of us sometimes have troubling experi-ences or symptoms that are not considered to be sufficientevidence of mental disorder.

Although “clinical significance” is a key diagnostic con-cept, DSM provides only a general and tautological descrip-tion of what is intended, without operational definition or aspecific criteria set to pin it down. It is, thus, left to theindividual clinician to use his own judgment in determiningwhether the person's symptoms are at such level and causingsufficient impairment to cross the fuzzy threshold from thenormal problems of everyday life to highly troubling prob-lems to mental disorder. This is a subjective and, at theborders, not a reliable determination, left deliberately vagueto allow the flexibility needed to deal with the bewilderingheterogeneity of diverse presentations encountered in clinicalpractice.

The requirement that there be clinically significant distressor impairment is a necessary but very fallible restrictionagainst overdiagnosis. It contains within it the circular argu-ment that the clinician gets to decide arbitrarily what levels ofdistress and impairment are severe enough to be consideredclinically significant. This seems to be a tolerable and neces-sary compromise in clinical work, but introduces idiosyncrasyand imprecision in forensic determinations that should notdepend so heavily on what may be the arbitrary and unreliablejudgment of any given expert.

We must recognize and accept that there is no simple brightline separating a normal presentation of distressful experiencefrom a very mild mental disorder. This uncertain state ofaffairs is problematic enough even when diagnosis is usedonly for planning treatment in the clinical situation. It is aprofound handicap in the forensic arena in which proof ofobjectivity and appropriateness to the triable issues govern theprobative value of the proffered information.

The solution? There is no completely satisfying solution,but the best bet is this: before making a diagnosis of mentaldisorder that will be used for forensic decision-making, a highthreshold should be established for what constitutes reliableand valid diagnostic evidence of clinically significant distressor impairment. The distress and impairment should be soextensive and obvious that most or all observers would agreeupon it. Ambiguous cases of possible disorder might qualifyfor a clinical diagnosis to permit and facilitate treatment but donot necessarily satisfy what should be a much more rigorousforensic standard. Also, the expert should describe how histhreshold for clinical significance was met in the case at hand,along with specific examples drawn from the items in theDSM criteria set.

Table 1 Cautionary statement in using the DSM-5 forensically

Paragraph Excerpt paraphrased

1 The primary aim of DSM-5 diagnostic criteria and text is toassist in conducting clinical assessment, case formulation,and treatment planning. Because it can also be used forcourt and by attorneys in determining the forensicconsequences of mental disorders, it is important to notethat the DSM-5 definition of mental disorder was notmeant to meet all of the needs of court and attorneys.

2 When used appropriately, the DSM-5 provides diagnoses anddiagnostic information that can assist court and attorneysin their work. For example, if the presence of a mentaldisorder is required in legal determination (e.g.,involuntary civil commitment), the DSM-5 provides anestablished system of diagnosis that enhances the valueand reliability of the determination. Through its review ofthe relevant clinical and research literature, DSM-5 mayhelp legal decision-makers to understand better thepertinent characteristics of whatever mental disorder is atissue. This literature also serves as a check on ungroundedspeculation in diagnosis and functioning for a case at hand.Finally, the longitudinal course in a case may provideinformation that helps improve decision-makingwhen pastor future mental functioning is the legal issue.

3 However, users of the DSM-5 should be prudent about therisks and limitations of using it forensically. In forensicsettings, it could be misused or misunderstood because theDSM-5 is, first, a clinical manual andmight not necessarilyfit the ultimate concern to court in a case at hand. Theclinical diagnosis of a DSM-5mental disorder is not meantto imply that the person involved (a) meets any legalcriteria for the presence of a mental disorder or (b) aspecified legal standard. Usually, what is missing in aDSM-5 diagnosis pertinent in these regards is informationabout the individual's functional impairments/particularabilities in question. Any impairments, abilities, anddisabilities that might be associated with any DSM-5diagnostic category are not meant to address a specificlegally relevant issue.

4 Use of the DSM-5 should not be used by insufficientlytrained individuals to assess for the presence of a mentaldisorder. No DSM diagnosis informs sufficiently about (a)the etiology or causes of the individual's mental disorder or(b) the person's degree of control over behaviors that mightbe associated with the disorder at issue. In cases in whichdiminished control over one's behavior is a feature of thedisorder diagnosed, this does not in and of itselfdemonstrate that the person involved is (or had been)unable to control her or his behavior at a particular time.

Adopted from American Psychiatric Association (2013)


reliably determine what precisely was sexually arousing (i.e.,the aggressive behavior, per se, or the sexual contact obtainedthrough the aggression).

Hundreds of evaluators have followed Doren's error,resulting in the inappropriate psychiatric incarceration of thou-sands of rapists who have no real psychiatric diagnosis.Uncritical adoption of Doren’s invention was initially under-standable since Doren was considered an authority in theirfield. However, there should have been a bit more criticalanalyses of the issue before adopting it in their forensic testi-mony as if it were a valid diagnosis. It is much more under-standable that judges and juries—laypersons—would acceptthe supposedly expert testimony even though it is far off themark.While ignorance of the fine points of paraphilia diagnosismight have been understandable at the start of implementationof the SVP laws, there is no excuse for the continuing unreli-able and unsupported use of Paraphilia NOS in SVP cases.

Many papers, blogs, and presentations have correctedDoren's misinterpretation and the California Department ofMental Health has enjoined evaluators to be much morecareful in following DSM diagnostic rules. This has improvedbut not corrected the problem of forensic misdiagnosis. Someevaluators continue to diagnose Paraphilia NOS in rapists justbecause they have raped. They consistently proffer incom-petent diagnostic information lacking in rationale orsupporting documentation. The rubric “expert” is awardedto them by trial judges on the basis of broad strokesconcerning education and experience—none of which in-cludes examination of the reliability or validity of theinformation to be proffered as “expert.” Their reports andtestimonies—from which layperson triers must make theirdecisions—are filled with incorrect, idiosyncratic opinionsoffered as definitively clinically diagnostic and as directlyaddressing the statutorily defined SVP criteria. More oftenthan not, the result is the involuntary hospitalization as“mentally disordered” of simple criminals who have alreadyserved their apportioned prison terms.

How can such diagnostic errors be controlled? Attemptingto do so case by case with triers of fact who are not sufficientlyinformed about the technical issues is unreliable, expensive,time-consuming, and usually inaccurate. The process is alsounduly influenced by the descriptions of crimes committedagainst innocent victims, and the common, erroneous beliefthat only “sick” people do such crimes. If ever a rigorousapplication of Daubert v. Merrell Dow Pharmaceuticals, Inc .and what constitutes a “relevant scientific community” wereneeded, it is here.

Use/Misuse of DSM in Child Custody Cases

DSM has the potential to be a double-edged sword in childcustody evaluations. The positive edge is that DSM provides

uniform criteria that increase the reliability of diagnoses andimprove estimates of how diagnostic features translate intoparenting. The negative edge shows itself especially in con-flictual child custody disputes where diagnostic labels canbecome little more than weapons in a sophisticated form ofname-calling. Court discussion often morphs into a futiledispute about the meaning of the labels, shifting attentionaway from the specific behavioral, emotional, and relationalissues that impact the child. Often enough, as soon as one sidesays parent A has “this,” the other side brings in an opposingexpert to say it is not so, but that parent B has “that.” Thediagnoses (even inaccurate ones) tend to endure and take on alife of their own long after any useful function may have beenserved

Custody battles can become the most painful, disorienting,and distressing of human experiences. The diagnostic evalu-ations typically take place at the worst period in the lives of theprincipals and often bring out the worst in them. Breakup of afamily is a tremendous stress to all concerned and causessymptoms that may not be typical of the individuals' past orfuture functioning. By the time a court has to order a “childcustody evaluation,” the parents and children are typicallyexperiencing psychological distress and personal and interper-sonal dysfunction. Even those who are usually resilient duringtimes of great difficulty may now become anxious, sad, angry,scared, erratic, on a rollercoaster of emotions and impulsivity,and less able to appropriately tend to the needs of theirchildren (or themselves). Whatever are their usual cognitiveand behavioral tendencies will be exaggerated as they strive toright themselves. They may also exaggerate their usual par-enting patterns or make frantic efforts to modify them.Evaluators must take into account that participants are oftenpresenting at their worst as they try to present their best.

DSM terms have become so familiar to the mainstreampopulation that they can serve as convenient slurs, subject toongoing misinterpretation and misuse in the service of what-ever current bone the principals are chewing on. The labelssometimes themselves become the bones. The diagnosticargument joins and aggravates all of the other arguments andthe children suffer as the discussion drifts ever further awayfrom the issues that really count (Bricklin, 2013).

Careless overdiagnosis is also often applied to childrenwho may in fact be experiencing no more than an expectablereaction to family conflict and future uncertainties. Evenunder the best of circumstances, children are always hard todiagnose accurately because their symptoms may be no morethan transient manifestations of developmental blips, environ-mental stress, or drug/medication use. Labels, on the otherhand, tend to stick around, sometimes because one side orboth find it useful to preserve them as an ace up the sleeve.Diagnosing children in the heat of a fierce marital battle (andunder the distorting light of an adversarial legal conflict) isusually uninformative and often harmful. Children should be


protected from shotgun diagnoses, not saddled, perhaps per-manently, with inaccurate and stigmatizing labels.

Whenever a custody battle hits the courtroom, the lawfavors open access to all records and the privacy of all theprincipals is lost. Everything the evaluators have written isdiscoverable for trial purposes and, once included in the courtrecord, becomes part of the permanent public record. Theparties lose control over access and are not allowed to agreeamong themselves to seal parts of the court file (Hogoboom&King, 1998) even when such privacy would be in the bestinterests of all concerned. The most reasonable assumption tomake is that psychiatric and psychological diagnostic infor-mation will likely have no privilege and potentially may causeembarrassment and harm. The DSM's caveat that there are“significant risks that diagnostic information will be misusedor misunderstood” is nowhere more apropos than in custodybattles.

All this said, psychiatric diagnosis done well and for theright reasons (and not in an adversarial spirit) is often neces-sary, sometimes essential in the custody situation and can beof immense value in the lives of everyone involved.

Conclusions

Legal proceedings often require that experts conduct evalua-tions and render psychiatric diagnoses. The DSM criteria sets,with all their imperfections, provide the best tool for experts toachieve a reliable and accurate judgment on the presence orabsence of specific mental disorders, but the evaluations mustbe carefully done. The DSM must be closely adhered to andthe limitations of psychiatric diagnosis in the legal settingmust be understood, factored into diagnostic considerations,and clearly described. In our experience, many witnessesqualified by courts as mental health experts offer psychiatricdiagnoses that are inaccurate and very far from expert.

DSM offers clinicians a good deal of leeway to exerciseflexible clinical judgment, allowing them to tailor diagnosisand treatment to the particular needs of the individual patient.The standards for systematic diagnostic assessment and ad-herence to DSM diagnostic rules, rigor, and reliability must beset much higher in forensic than in clinical settings. There isno place for idiosyncratic, impressionistic diagnostic opinionsthat express the views of that expert but do not follow the rulesof the diagnostic manual. Without close adherence to theDSM criteria sets, there can be no reliability. Without reliabil-ity, there can be no validity, and the psychiatric diagnosis mayactually be worse than worthless since inaccurate psychiatricdiagnosis is very misleading in legal decision-making.

Semi-structured DSM clinical interviews are useful in re-ducing information variance about clinical diagnosis and inincreasing reliability. If these are not used, there should be asystematic evaluation of each of the items that make up the

criteria sets for pertinent diagnoses. Everything should bedocumented: the diagnostic method used, the data gathered,and how the data fits and does not fit the diagnostic criteria.All affirmative evidence supporting the presence or absence ofeach DSM criterion item should be illustrated with convincingexamples; all pertinent alternative differential diagnoses thatmight account for the same symptoms and behaviors shouldbe considered and the rationale for ruling them out clearlydescribed. Exotic, rare diagnoses and diagnostic theoriesshould arouse skepticism and require extraordinary supportiveevidence. “Not Elsewhere Classified,” “Other Specified,” and“Unspecified” diagnoses are provided in the DSM only toallow for clinical flexibility; they are without fitness criteriaand are inherently unreliable, hence, of no validity and, there-fore, unsuitable for forensic cases.

Even if a psychiatric diagnosis is the reliable and accurateresult of appropriate evaluationmethods and proper documen-tation, it still may not be helpful in answering the questionsposed by the legal system. DSM provides explicit cautionsthat its clinical descriptions of mental disorder do not alwaysmap well with legal concepts of mental illness or abnormality.This is an inherent tension that accurate psychiatric diagnosiscan reduce, but not eliminate.

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