Handbook of psychology: Forensic psychology [11, 2 ed.] 9780470619049, 9780470639177, 9781118281901, 9781118283752, 9781118285275

Table of contents :
Handbook of Psychology
Contents
Handbook of Psychology Preface
Volume Preface
Contributors
Part I Nature of the Field
Chapter 1 Overview of Forensic Psychology
Definition of Forensic Psychology
A Brief History of Forensic Psychology
Organization of This Volume
Summary
References
Chapter 2 Forensic Training and Practice
Historical Development of the Field
Practice
Training
Internships
Certification and Credentialing
Models for the Future
Conclusion
References
Appendix
Chapter 3 Ethics in Forensic Practice
Identifying the Problems
Implications and Applications
Looking Forward
Conclusion
References
Chapter 4 Legal Contours of Expert Testimony
Introduction
The Law of Expert Testimony
Effective Practice of Expert Testimony
Summary
References
Chapter 5 Forensic Report Writing
Introduction
Literature Review
Practical Implications of the Literature
Achieving Understanding
Report Structure
Common Report Elements
The Problem of Potentially Incriminating Information
Inclusion of Irrelevant Data
Improving Readability
Conclusion
References
Part II Forensic Evaluations in Civil Proceedings
Chapter 6 Child Custody Evaluations: Current Literature and Practical Applications
Chapter Overview
Changes in Law Regarding the Best Interests of the Child
Child Custody Law
Changes in the Practice of Child Custody Evaluations
Professional Practice Guidelines
Integrating Literature With Evaluation Results: The Seeds of a Scientifically Informed Model
Complex Issues in Child Custody Assessment
Domestic Violence
Summary
References
Chapter 7 Assessment in a Child Protection Context
Introduction
Overview of the Legal Context
Empirical Foundation and Limits
Forensic Mental Health Concepts and Frameworks
Methods of Data Collection
Communication of Assessment Findings
Summary
References
Chapter 8 Psychological Evaluation of Emotional Damages in Tort Cases
Introduction
Evaluation of Emotional Distress in Tort Cases: Legal Framework
Categories of Torts
The Emotional Distress Torts
Evolution of Standards in Negligent Infliction of Emotional Distress Claims
The Psychological Evaluation
The Evaluation Model: The Matrix and the Five Stages
Evaluation Process
Conclusion
References
Chapter 9 Disability and Worker's Compensation
Disability Benefits
Legal Context
Psycholegal Constructions of Disability
Assessment Methods
Data Interpretation
Communicating Results
Conclusion
References
Chapter 10 Assessing Employment Discrimination and Harassment
Overview and Scope of the Discussion
The Legal Landscape: Civil Rights Act of 1964
Relevant Psychological Issues
Combining Legal Issues and Social Science: Psychologists' Roles in Court
Conclusion
References
Chapter 11 Forensic Assessment for High-Risk Occupations
Ethical Issues in High-Risk Occupational Assessments
Preemployment Psychological Screening
Fitness-for-Duty Evaluations
Summary
References
Chapter 12 Forensic Evaluation in Americans With Disabilities Act Cases
Introduction
The Employment of People With Disabilities
Psychiatric/Psychological Disabilities and the ADA
Psychological Consultations With Employers and Workers
Litigation-Related Evaluations and Consultations
Conclusion
References
Chapter 13 Civil Competencies
Introduction
Retrospective Assessment of Competencies
Assessment of Current Competencies
Assessment of Future Competencies
Conclusion
References
Chapter 14 Civil Commitment and Involuntary Hospitalization of the Mentally Ill
Introduction
Legal Aspects and Contours of Involuntary Hospitalization
Evaluation for Involuntary Hospitalization
Summary
References
Chapter 15 Evaluation and Management of Sexual Offenders
Introduction
Sex Offender Statutes
The Issue of Diagnosis
Risk Assessment of Sex Offenders
Risk Management With Sex Offenders
Presenting Expert Opinion
Special Ethical Concerns
Future Directions
References
Part III Forensic Evaluations in Delinquency and Criminal Proceedings
Chapter 16 Forensic Evaluation in Delinquency Cases
One Hundred Years of Psychological Evaluations in Delinquency Cases
Clinical and Dispositional Assessments in Delinquency Cases
Assessments for Risk of Reoffending
Assessments for Psycholegal Concepts in Delinquency Cases
Future Advances in Forensic Assessments in Delinquency Cases
Summary
References
Chapter 17 Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion
Evaluating the Validity of Miranda Rights Waivers
Assessment of Susceptibility to Police Coercion
Conclusion
References
Chapter 18 Assessment of Competence to Stand Trial
Introduction
The Conceptualization of Competence to Stand Trial
Empirical Literature
Evaluation of Trial Competence
Trial Competence in Special Populations
Conclusion
References
Chapter 19 Evaluation of Criminal Responsibility
Doctrines of Criminal Liability
The Insanity Defense
Free Will and Causation: Distracting Confusions
Ethical Issues in Evaluation of Mental State at the Time of the Offense
Assessment of Mental State at the Time of the Offense
Summary
References
Chapter 20 Sentencing Determinations in Death Penalty Cases
The Nature and Structure of Capital Trials
Facts and Figures
Case Law and the Death Penalty
Ethical Issues in Death Penalty Assessment
The Nature of Forensic Assessments in Capital Cases
Violence Risk Assessment in Capital Cases
Expert Testimony in Capital Cases
Other Capital Case Assessments
Summary
References
Part IV Special Assessment Issues
Chapter 21 Evaluation of Malingering and Related Response Styles
Conceptual Issues
Empirical Issues
Classification Issues
Malingering of Mental Disorders
Feigned Cognitive Impairment
Summary
References
Chapter 22 Violence Risk Assessment
Violence Risk Assessment: Law and Policy
The Process of Clinical Risk Assessment
The Outcomes of Clinical Risk Assessment
Actuarial Risk Assessment
The Clinical Adjustment of Actuarial Estimates
Risk Communication
Conclusion
References
Chapter 23 Clinical and Forensic Issues in the Assessment of Psychopathy
Introduction
Nature of Psychopathy
Review of Assessment Procedures
Legal Relevance of Psychopathy
Recommendations for Practice
Areas for Future Research
Summary
References
Chapter 24 Child Sexual Abuse Evaluations
Scope of the Problem
Effects of Child Sexual Abuse
Base Rates of Children's Behaviors
Memory
Suggestibility
Assessment Tools
Structuring the Interview
Children's Testimony
Summary
References
Part V Forensic Consultation
Chapter 25 Eyewitness Memory for People and Events
The Misidentification of Thomas Brewster
Memory for Events
Memory for People
Conclusions and Prospectus
References
Chapter 26 Voir Dire and Jury Selection
Voir Dire
Jury Selection
Traditional Jury Selection
Scientific Jury Selection
Directions for Future Research
References
Chapter 27 Trial Consultation
The Forensic Psychologist as Trial Consultant
Legal and Ethical Considerations
Specialized Applications
Conclusion
References
Author Index
Subject Index

Citation preview

HANDBOOK OF PSYCHOLOGY

HANDBOOK OF PSYCHOLOGY VOLUME 11: FORENSIC PSYCHOLOGY

Second Edition

Volume Editor

RANDY K. OTTO Editor-in-Chief

IRVING B. WEINER

John Wiley & Sons, Inc.

This book is printed on acid-free paper. Copyright © 2013 by John Wiley & Sons, Inc. All rights reserved. Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008. Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering professional services. If legal, accounting, medical, psychological or any other expert assistance is required, the services of a competent professional person should be sought. The contents of this work are intended to further general scientific research, understanding, and discussion only and are not intended and should not be relied upon as recommending or promoting a specific method, diagnosis, or treatment by physicians for any particular patient. The publisher and the author make no representations or warranties with respect to the accuracy or completeness of the contents of this work and specifically disclaim all warranties, including without limitation any implied warranties of fitness for a particular purpose. In view of ongoing research, equipment modifications, changes in governmental regulations, and the constant flow of information relating to the use of medicines, equipment, and devices, the reader is urged to review and evaluate the information provided in the package insert or instructions for each medicine, equipment, or device for, among other things, any changes in the instructions or indication of usage and for added warnings and precautions. Readers should consult with a specialist where appropriate. The fact that an organization or Web site is referred to in this work as a citation and/or a potential source of further information does not mean that the author or the publisher endorses the information the organization or Web site may provide or recommendations it may make. Further, readers should be aware that Internet Web sites listed in this work may have changed or disappeared between when this work was written and when it is read. No warranty may be created or extended by any promotional statements for this work. Neither the publisher nor the author shall be liable for any damages arising herefrom. Designations used by companies to distinguish their products are often claimed as trademarks. In all instances where John Wiley & Sons, Inc. is aware of a claim, the product names appear in initial capital or all capital letters. Readers, however, should contact the appropriate companies for more complete information regarding trademarks and registration. For general information on our other products and services please contact our Customer Care Department within the United States at (800) 762-2974, outside the United States at (317) 572-3993 or fax (317) 572-4002. Wiley publishes in a variety of print and electronic formats and by print-on-demand. Some material included with standard print versions of this book may not be included in e-books or in print-on-demand. If this book refers to media such as a CD or DVD that is not included in the version you purchased, you may download this material at http://booksupport.wiley.com. For more information about Wiley products, visit www.wiley.com. Library of Congress Cataloging-in-Publication Data: Handbook of psychology / Irving B. Weiner, editor-in-chief. – 2nd ed. v. cm. Includes bibliographical references and index. ISBN 978-0-470-61904-9 (set) – ISBN 978-0-470-63917-7 (cloth : v. 11) ISBN 978-1-118-28190-1 (ebk) ISBN 978-1-118-28375-2 (ebk) ISBN 978-1-118-28527-5 (ebk) 1. Psychology. I. Weiner, Irving B. BF121.H213 2013 150–dc23 2012005833 Printed in the United States of America 10 9 8 7 6 5 4 3 2 1

Editorial Board

Volume 1 History of Psychology

Volume 5 Personality and Social Psychology

Donald K. Freedheim, PhD Case Western Reserve University Cleveland, Ohio

Howard Tennen, PhD University of Connecticut Health Center Farmington, Connecticut

Volume 2 Research Methods in Psychology

Jerry Suls, PhD University of Iowa Iowa City, Iowa

John A. Schinka, PhD University of South Florida Tampa, Florida

Volume 6 Developmental Psychology

Wayne F. Velicer, PhD University of Rhode Island Kingston, Rhode Island

Richard M. Lerner, PhD M. Ann Easterbrooks, PhD Jayanthi Mistry, PhD Tufts University Medford, Massachusetts

Volume 3 Behavioral Neuroscience

Volume 7 Educational Psychology

Randy J. Nelson, PhD Ohio State University Columbus, Ohio

William M. Reynolds, PhD Humboldt State University Arcata, California

Sheri J. Y. Mizumori, PhD University of Washington Seattle, Washington

Gloria E. Miller, PhD University of Denver Denver, Colorado

Volume 4 Experimental Psychology

Volume 8 Clinical Psychology

Alice F. Healy, PhD University of Colorado Boulder, Colorado

George Stricker, PhD Argosy University DC Arlington, Virginia

Robert W. Proctor, PhD Purdue University West Lafayette, Indiana

Thomas A. Widiger, PhD University of Kentucky Lexington, Kentucky

v

vi

Editorial Board

Volume 9 Health Psychology

Volume 11 Forensic Psychology

Arthur M. Nezu, PhD Christine Maguth Nezu, PhD Pamela A. Geller, PhD Drexel University Philadelphia, Pennsylvania

Randy K. Otto, PhD University of South Florida Tampa, Florida

Volume 10 Assessment Psychology

Volume 12 Industrial and Organizational Psychology

John R. Graham, PhD Kent State University Kent, Ohio

Neal W. Schmitt, PhD Michigan State University East Lansing, Michigan

Jack A. Naglieri, PhD University of Virginia Charlottesville, Virginia

Scott Highhouse, PhD Bowling Green State University Bowling Green, Ohio

Contents

Handbook of Psychology Preface Irving B. Weiner Volume Preface Randy K. Otto Contributors

I

xi

xiii

xv

NATURE OF THE FIELD 1

1

OVERVIEW OF FORENSIC PSYCHOLOGY

3

Randy K. Otto and Alan M. Goldstein

2

FORENSIC TRAINING AND PRACTICE

16

Ira K. Packer and Randy Borum

3

ETHICS IN FORENSIC PRACTICE

37

David A. Martindale and Jonathan W. Gould

4

LEGAL CONTOURS OF EXPERT TESTIMONY

62

Steven K. Erickson and Charles Patrick Ewing

5

FORENSIC REPORT WRITING

75

Richart L. DeMier

II 6

FORENSIC EVALUATIONS IN CIVIL PROCEEDINGS 99 CHILD CUSTODY EVALUATIONS: CURRENT LITERATURE AND PRACTICAL APPLICATIONS 101 Jonathan W. Gould and David A. Martindale

7

ASSESSMENT IN A CHILD PROTECTION CONTEXT Karen S. Budd, Mary Connell, and Jennifer R. Clark vii

139

viii

8

Contents

PSYCHOLOGICAL EVALUATION OF EMOTIONAL DAMAGES IN TORT CASES

172

William E. Foote and Craig R. Lareau

9

DISABILITY AND WORKER’S COMPENSATION

201

Lisa Drago Piechowski

10

ASSESSING EMPLOYMENT DISCRIMINATION AND HARASSMENT

225

Nancy L. Baker, Melba J. T. Vasquez, and Sandra L. Shullman

11

FORENSIC ASSESSMENT FOR HIGH-RISK OCCUPATIONS

246

David M. Corey and Randy Borum

12

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

13

CIVIL COMPETENCIES

295

Eric Y. Drogin and Curtis L. Barrett

14

CIVIL COMMITMENT AND INVOLUNTARY HOSPITALIZATION OF THE MENTALLY ILL 308 Craig R. Lareau

15

EVALUATION AND MANAGEMENT OF SEXUAL OFFENDERS

332

Mary Alice Conroy and Philip H. Witt

III FORENSIC EVALUATIONS IN DELINQUENCY AND CRIMINAL PROCEEDINGS 357 16

FORENSIC EVALUATION IN DELINQUENCY CASES

359

Thomas Grisso and Christina L. Riggs Romaine

17

CAPACITY TO WAIVE MIRANDA RIGHTS AND THE ASSESSMENT OF SUSCEPTIBILITY TO POLICE COERCION 381 Naomi E. S. Goldstein, Alan M. Goldstein, Heather Zelle, and Lois Oberlander Condie

18

ASSESSMENT OF COMPETENCE TO STAND TRIAL

412

Kathleen Powers Stafford and Martin O. Sellbom

19

EVALUATION OF CRIMINAL RESPONSIBILITY

440

Alan M. Goldstein, Stephen J. Morse, and Ira K. Packer

20

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

473

271

Contents

IV SPECIAL ASSESSMENT ISSUES 515 21

EVALUATION OF MALINGERING AND RELATED RESPONSE STYLES

517

Richard Rogers and Scott D. Bender

22

VIOLENCE RISK ASSESSMENT

541

John Monahan

23

CLINICAL AND FORENSIC ISSUES IN THE ASSESSMENT OF PSYCHOPATHY Stephen D. Hart and Jennifer E. Storey

24

CHILD SEXUAL ABUSE EVALUATIONS

579

Kathryn Kuehnle and Mary Connell

V

FORENSIC CONSULTATION

615

25

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

26

VOIR DIRE AND JURY SELECTION Margaret Bull Kovera

27

TRIAL CONSULTATION

648

Eric Y. Drogin and Curtis L. Barrett Author Index

665

Subject Index

693

630

617

556

ix

Handbook of Psychology Preface

Two unifying threads run through the science of behavior. The first is a common history rooted in conceptual and empirical approaches to understanding the nature of behavior. The specific histories of all specialty areas in psychology trace their origins to the formulations of the classical philosophers and the early experimentalists, and appreciation for the historical evolution of psychology in all of its variations transcends identifying oneself as a particular kind of psychologist. Accordingly, Volume 1 in the Handbook , again edited by Donald Freedheim, is devoted to the History of Psychology as it emerged in many areas of scientific study and applied technology. A second unifying thread in psychology is a commitment to the development and utilization of research methods suitable for collecting and analyzing behavioral data. With attention both to specific procedures and to their application in particular settings, Volume 2, again edited by John Schinka and Wayne Velicer, addresses Research Methods in Psychology. Volumes 3 through 7 of the Handbook present the substantive content of psychological knowledge in five areas of study. Volume 3, which addressed Biological Psychology in the first edition, has in light of developments in the field been retitled in the second edition to cover Behavioral Neuroscience. Randy Nelson continues as editor of this volume and is joined by Sheri Mizumori as a new coeditor. Volume 4 concerns Experimental Psychology and is again edited by Alice Healy and Robert Proctor. Volume 5 on Personality and Social Psychology has been reorganized by two new co-editors, Howard Tennen and Jerry Suls. Volume 6 on Developmental Psychology is again edited by Richard Lerner, Ann Easterbrooks, and Jayanthi Mistry. William Reynolds and Gloria Miller continue as co-editors of Volume 7 on Educational Psychology.

The first edition of the 12-volume Handbook of Psychology was published in 2003 to provide a comprehensive overview of the current status and anticipated future directions of basic and applied psychology and to serve as a reference source and textbook for the ensuing decade. With 10 years having elapsed, and psychological knowledge and applications continuing to expand, the time has come for this second edition to appear. In addition to wellreferenced updating of the first edition content, this second edition of the Handbook reflects the fresh perspectives of some new volume editors, chapter authors, and subject areas. However, the conceptualization and organization of the Handbook , as stated next, remain the same. Psychologists commonly regard their discipline as the science of behavior, and the pursuits of behavioral scientists range from the natural sciences to the social sciences and embrace a wide variety of objects of investigation. Some psychologists have more in common with biologists than with most other psychologists, and some have more in common with sociologists than with most of their psychological colleagues. Some psychologists are interested primarily in the behavior of animals, some in the behavior of people, and others in the behavior of organizations. These and other dimensions of difference among psychological scientists are matched by equal if not greater heterogeneity among psychological practitioners, who apply a vast array of methods in many different settings to achieve highly varied purposes. This 12-volume Handbook of Psychology captures the breadth and diversity of psychology and encompasses interests and concerns shared by psychologists in all branches of the field. To this end, leading national and international scholars and practitioners have collaborated to produce 301 authoritative and detailed chapters covering all fundamental facets of the discipline.

xi

xii

Handbook of Psychology Preface

Volumes 8 through 12 address the application of psychological knowledge in five broad areas of professional practice. Thomas Widiger and George Stricker continue as co-editors of Volume 8 on Clinical Psychology. Volume 9 on Health Psychology is again co-edited by Arthur Nezu, Christine Nezu, and Pamela Geller. Continuing to co-edit Volume 10 on Assessment Psychology are John Graham and Jack Naglieri. Randy Otto joins the Editorial Board as the new editor of Volume 11 on Forensic Psychology. Also joining the Editorial Board are two new co-editors, Neal Schmitt and Scott Highhouse, who have reorganized Volume 12 on Industrial and Organizational Psychology. The Handbook of Psychology was prepared to educate and inform readers about the present state of psychological knowledge and about anticipated advances in behavioral science research and practice. To this end, the Handbook volumes address the needs and interests of three groups. First, for graduate students in behavioral science, the volumes provide advanced instruction in the basic concepts and methods that define the fields they cover, together with a review of current knowledge, core literature, and likely future directions. Second, in addition to serving as graduate textbooks, the volumes offer professional psychologists an opportunity to read and contemplate the views of distinguished colleagues concerning the central thrusts of research and the leading edges of practice

in their respective fields. Third, for psychologists seeking to become conversant with fields outside their own specialty and for persons outside of psychology seeking information about psychological matters, the Handbook volumes serve as a reference source for expanding their knowledge and directing them to additional sources in the literature. The preparation of this Handbook was made possible by the diligence and scholarly sophistication of 24 volume editors and co-editors who constituted the Editorial Board. As Editor-in-Chief, I want to thank each of these colleagues for the pleasure of their collaboration in this project. I compliment them for having recruited an outstanding cast of contributors to their volumes and then working closely with these authors to achieve chapters that will stand each in their own right as valuable contributions to the literature. Finally, I would like to thank Brittany White for her exemplary work as my administrator for our manuscript management system, and the editorial staff of John Wiley & Sons for encouraging and helping bring to fruition this second edition of the Handbook , particularly Patricia Rossi, Executive Editor, and Kara Borbely, Editorial Program Coordinator. Irving B. Weiner Tampa, Florida

Volume Preface

This volume presents a current description of the specialty of forensic psychology. The chapters represent contemporary topics and areas of investigation in this rapidly expanding specialty. Topics were selected to reflect forensic psychology’s applicability to both the civil and criminal justice systems. This volume is organized into five parts, grouping topics with common themes. The reader will first develop an understanding of the nature of the specialty—what it is and why it is different from other areas of psychology—and, next, how forensic psychologists gather, use, and produce information. Although the majority of psychologists who identify themselves as specializing in forensic matters focus on assessment of persons whose mental states are at issue in some type of legal proceeding (e.g., a plaintiff alleging emotional harm in a personal injury lawsuit or a criminal defendant pleading not guilty by reason of insanity), forensic psychology as a specialty area is considerably broader. For example, some forensic psychologists serve as consultants to law enforcement agencies and evaluating job candidates, some consult with attorneys on matters of jury selection or pretrial publicity and change of venue, and others offer what is referred to as social framework testimony in an

attempt to educate the legal decision maker about matters before it, such as the accuracy of eyewitnesses or the vulnerability of children to suggestive questioning. Although this volume provides chapters on a wide variety of pursuits, the focus is clearly on matters of forensic evaluation. Part I includes chapters that address more general issues that are arguably relevant to all forensic subspecialty practice areas. Parts II and III are comprised of chapters that address a range of civil and criminal forensic evaluation matters. Chapters in Part IV are devoted to some special assessment issues, and chapters in Part V focus on pursuits well beyond forensic psychological assessment. Although this volume may serve as an undergraduate or graduate textbook, the chapters were written to stand on their own. As was the case with the first edition—which was so well edited by Alan Goldstein (to whom I remain indebted)—this volume seeks to reflect the developments in, and the current state of, the specialty. Accordingly, some chapters from the first edition were excluded and others were added. Randy K. Otto

xiii

Contributors

Nancy L. Baker, PhD, ABPP School of Psychology Fielding Graduate University Santa Monica, California

Mary Alice Conroy, PhD, ABPP Department of Psychology Sam Houston State University Huntsville, Texas

Curtis L. Barrett, PhD, ABPP School of Medicine University of Louisville Louisville, Kentucky

David M. Corey, PhD, ABPP Private Practice Lake Oswego, Oregon Mark D. Cunningham, PhD, ABPP Private Practice Dallas, Texas

Scott D. Bender, PhD, ABPP Department of Psychiatry and Neurosciences University of Virginia School of Medicine Charlottesville, Virginia

Richart L. DeMier, PhD, ABPP Department of Psychology U.S. Medical Center for Federal Prisoners Springfield, Missouri

Randy Borum, PsyD, ABPP Department of Mental Health Law and Policy University of South Florida Tampa, Florida

Eric Y. Drogin, JD, PhD, ABPP Department of Psychiatry Harvard Medical School Boston, Massachusetts

Karen S. Budd, PhD Department of Psychology DePaul University Chicago, Illinois

Steven K. Erickson, JD, PhD, LLM, ABPP School of Law Widener University Harrisburg, Pennsylvania

Jennifer R. Clark, PsyD Private Practice Mexico City, Mexico

Charles Patrick Ewing, JD, PhD, ABPP College of Law State University of New York at Buffalo Buffalo, New York

Lois Oberlander Condie, PhD, ABPP Children’s Hospital Boston Boston, Massachusetts

William E. Foote, PhD, ABPP Department of Psychology University of New Mexico Albuquerque, New Mexico

Mary Connell, EdD, ABPP Private Practice Fort Worth, Texas xv

xvi

Contributors

Alan M. Goldstein, PhD, ABPP John Jay College of Criminal Justice City University of New York New York, New York

Stephen J. Morse, JD, PhD, ABPP College of Law University of Pennsylvania Philadelphia, Pennsylvania

Naomi E. S. Goldstein, PhD Department of Psychology Drexel University Philadelphia, Pennsylvania

Randy K. Otto, PhD, ABPP Department of Mental Health Law and Policy University of South Florida Tampa, Florida

Jonathan W. Gould, PhD, ABPP Private Practice Charlotte, North Carolina Thomas Grisso, PhD, ABPP Department of Psychiatry University of Massachusetts Medical School Worcester, Massachusetts Stephen D. Hart, PhD Department of Psychology Simon Fraser University Bumaby, British Columbia, Canada Margaret Bull Kovera, PhD John Jay College of Criminal Justice City University of New York New York, New York

Ira K. Packer, PhD, ABPP Department of Psychiatry University of Massachusetts Medical School Worcester, Massachusetts Lisa Drago Piechowski, PhD, ABPP Department of Clinical Psychology American School of Professional Psychology Washington, District of Columbia Richard Rogers, PhD, ABPP Department of Psychology University of North Texas Denton, Texas

Kathryn Kuehnle, PhD Department of Mental Health Law and Policy University of South Florida Tampa, Florida

Christina L. Riggs Romaine, PhD Department of Psychiatry University of Massachusetts Medical School Worcester, Massachusetts

Craig R. Lareau, JD, PhD, ABPP Department of Psychology Patton State Hospital Patton, California

Martin O. Sellbom, PhD Department of Psychology University of Alabama Tuscaloosa, Alabama

Elizabeth F. Loftus, PhD Department of Social Ecology University of California–Irvine Irvine, California

Sandra L. Shullman, PhD Department of Psychology Cleveland State University Cleveland, Ohio

David A. Martindale, PhD, ABPP Private Practice St. Petersburg, Florida

Kathleen Powers Stafford, PhD, ABPP Private Practice Hudson, Ohio

John Monahan, PhD, ABPP School of Law University of Virginia Charlottesville, Virginia

Jennifer E. Storey, MA Department of Psychology Simon Fraser University Burnaby, British Columbia

Contributors

Melba J. T. Vasquez, PhD, ABPP Private Practice Austin, Texas

Philip H. Witt, PhD, ABPP Private Practice Somerville, New Jersey

Gary L. Wells, PhD Department of Psychology Iowa State University Ames, Iowa

Heather Zelle, JD Department of Psychology Drexel University Philadelphia, Pennsylvania

xvii

PART I

Nature of the Field

CHAPTER 1

Overview of Forensic Psychology RANDY K. OTTO AND ALAN M. GOLDSTEIN

DEFINITION OF FORENSIC PSYCHOLOGY 3 A BRIEF HISTORY OF FORENSIC PSYCHOLOGY ORGANIZATION OF THIS VOLUME 5

SUMMARY 13 REFERENCES 13

3

of psychological research, theory, practice, and traditional and specialized methodology (e.g., interviewing, psychological testing, forensic assessment, and forensically relevant instruments) for the express purpose of providing assistance to the legal system.

DEFINITION OF FORENSIC PSYCHOLOGY The word forensic, derived from the Latin, forensis, means “forum,” the place where trials were conducted in Roman times. The current use of the term forensic typically denotes some involvement of a particular field of study in a legal forum. There is no uniform or commonly accepted definition of forensic psychology—many exist. More narrow definitions limit forensic psychology to applications of clinical psychology to legal matters—typically in the context of evaluating litigants whose mental states are at issue in legal proceedings—whereas broader definitions include applications of all areas of psychology (e.g., clinical, developmental, social, experimental) to legal matters. An example of this narrower scope is provided by the American Psychological Association’s definition of forensic psychology as a specialty: “the professional practice by psychologists within the areas of clinical psychology, counseling psychology, neuropsychology, and school psychology, when they are engaged regularly as experts and represent themselves as such, in an activity primarily intended to provide professional psychological expertise to the judicial system” (Heilbrun, 2000, p. 6). In contrast, a broader perspective is provided in the Specialty Guidelines for Forensic Psychology (American Psychological Association, in press), which define forensic psychology as “professional practice by any psychologist working within any subdiscipline of psychology (e.g., clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters.” For purposes of this volume forensic psychology is defined broadly as the application

A BRIEF HISTORY OF FORENSIC PSYCHOLOGY Psychologist Hugo M¨unsterberg, a student of Wilhelm Wundt and a professor at Harvard University, is generally credited with founding the field of forensic psychology. His landmark book, On the Witness Stand (1908), is comprised of an introduction and eight essays that describe how psychologists could be of assistance to the legal system. Relying in part on his own experience as an expert witness, M¨unsterberg considered topics as diverse as eyewitness identification, false confessions, hypnosis as a crime prevention measure, and the potential value of precursors of the modern-day polygraph and concluded that it was “astonishing that the work of justice is ever carried out in the courts without ever consulting the psychologist” (p. 194). In response to publication of M¨unsterberg’s text, John Wigmore, a law professor and leading scholar on the law of evidence, published a satirical article in the Illinois Law Review (1909) mocking psychology’s potential to assist the legal process. Wigmore’s criticisms did have some merit. M¨unsterberg’s book lacked any references, and Bartol and Bartol (1999) described some of his claims as “exaggerated” and “rarely empirically based” (p. 6). Indeed, M¨unsterberg’s claims for the contributions that psychology could make to the legal system may have been 3

4

Nature of the Field

premature since, at the beginning of the 20th century, psychology was in its infancy and certainly lacked sufficient scientific foundation to support the admissibility of “expert” testimony. Thus, despite M¨unsterberg’s impassioned pleas for psychology’s involvement in the legal system, his suggestions were largely ignored. However, M¨unsterberg certainly generated interest in the possibility that someday psychology might make contributions to the judicial process. That M¨unsterberg saw what is now referred to as forensic psychology as being broadly defined and having the potential to make many contributions to the law is indicated by his observation that psychologists, in addition to providing insights into the characteristics of individuals in particular cases (e.g., witnesses or defendants), could also contribute to what was known about the legal system more generally: I have written the following popular sketches, which select only a few problems in which psychology and law come in contact. They deal essentially with the mind of the witness on the witness stand; only the last, on the prevention of crime, takes another direction. I have not touched so far the psychology of the attorney, of the judge, or of the jury—problems which lend themselves to very interesting experimental treatment. (M¨unsterberg, 1908, p. 11)

Around this same time, psychologists and other mental health professionals began providing assistance to the courts in matters of delinquency and dependency, by evaluating children who were the subject of proceedings that were occurring in “juvenile courts”—the first of which was established in Chicago in 1899—and making recommendations for interventions and dispositions. Indeed, some commentators (see, e.g., Otto & Heilbrun, 2002) have observed that this involvement constitutes psychologists’ first real contributions to the legal process, and it is the forensic evaluation role that has gone on to define for many what forensic psychology is today. Because they were not physicians, psychologists were sometimes barred from testifying in legal proceedings on the grounds that they did not have the requisite expertise to testify about matters involving the psychological functioning of litigants and others. However, in 1962, the D.C. Circuit Court of Appeals held in Jenkins v. United States that psychologists could provide expert opinions about mental illness at the time a defendant was alleged to have committed a criminal offense. In the court’s opinion, Judge David Bazelon, after reviewing the training and qualifications of psychologists, concluded that physicians were not uniquely qualified to offer expert testimony on matters involving mental disorders, and courts, when

considering who should be permitted to provide expert testimony about such issues, should consider factors such as the proferred expert’s training, skills, experience, and knowledge. Subsequent to this decision, psychologists entered the courts with increasing frequency and offered expert testimony on a wide range of legal issues. In 1954, the Supreme Court ruled that racial segregation in the public schools violated the equal protection clause of the Constitution (Brown v. Board of Education). In his opinion for a unanimous court, Chief Justice Earl Warren referenced research conducted by psychologists Kenneth and Marie Clark that was offered as evidence by attorneys representing the plaintiffs that racial segregation had deleterious effects on the psychological development and functioning of African American children. Although the value of the Clarks’ research and their resulting interpretations have been questioned (see, e.g., Wolters, 2005) the Supreme Court’s reference to their work is cited as evidence of the legal system’s increasing willingness to look to the expertise of psychologists in matters that go beyond assessment of litigants’ mental states. Since that time psychologists have offered what has been referred to as social framework testimony (Monahan & Walker, 2010) in a variety of matters that addresses such diverse topics as the (in)accuracy of eyewitness identification, the biasing effects of pretrial publicity, and consumer confusion in the context of trademark litigation. In addition, other foci of forensic psychology include providing treatment to legally involved populations, researching and consulting with attorneys on matters such as jury selection and case presentation, and studying the legal system and its operation (e.g., efficacy of drug courts, effects of transferring juveniles to criminal court for prosecution and sentencing). Forensic psychology is unique as a specialty. By its very nature, it operates in another system as its practitioners attempt to provide assistance to attorneys, judges, juries, and the legal system more generally. This practice requires not only an understanding of how the legal system operates, but a working familiarity with statutes and case law that are relevant to the particular issues(s) at hand. At this time, only a minority of psychologists who identify themselves as forensic specialists have completed any kind of formal forensic training at the doctoral level. Rather, most have obtained a doctoral degree in some general specialty (e.g., clinical psychology, developmental psychology, experimental psychology, social psychology) and supplemented this with limited graduate coursework, a postdoctoral fellowship, or continuing education. However, within the past 25 years we have seen development

Overview of Forensic Psychology

of more focused graduate training in the forensic arena (Packer & Borum, this volume). Attempts to define forensic psychology as a specialty or subspecialty began in the 1970s. The American Psychology–Law Society was established in 1969 and, shortly thereafter, affiliated with the American Psychological Association as a division. In 1978, the American Board of Forensic Psychology (ABFP) was established to certify psychologists with competence in the forensic area. Shortly thereafter ABFP affiliated with the American Board of Professional Psychology. And, in 2001 the American Psychological Association formally recognized forensic psychology as a specialty. The Specialty Guidelines for Forensic Psychologists, which provide guidance for psychologists engaged in forensic pursuits, were first published in 1991 (Committee on Specialty Guidelines for Forensic Psychologists), and were subsequently revised and adopted by the American Psychological Association Council of Representatives in 2011 as the Specialty Guidelines for Forensic Psychology. In addition, the American Psychological Association and other professional organizations (e.g., American Academy of Clinical Neuropsychology, National Academy of Neuropsychology) have published a variety of guidelines and position statements on matters of relevance to forensic psychologists (e.g., statements on impact of third-party observers on examinations, guidelines for conducting child custody and dependency evaluations, guidelines on use of response-style measures in forensic evaluations). Finally, journals devoted to the area abound (e.g., Law and Human Behavior, Psychology, Public Policy and the Law, Behavioral Sciences and the Law, Journal of Forensic Psychology Practice), and a number of forensic psychology references have been published in their second or third editions (e.g., Grisso, 2003; Melton et al., 2007; Rogers, 2007). Thus, a little more than 100 years after M¨unsterberg first beseeched attorneys and judges to consider the contributions that psychologists could offer to the legal process, forensic psychology is a vibrant, well established specialty that continues to grow.

ORGANIZATION OF THIS VOLUME Although the activities of forensic psychologists are diverse, the bulk of this volume is focused on forensic assessment activities. The initial section is devoted to professional issues that are of relevance to all forensic pursuits, the second section is concerned with evaluation of

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persons whose mental state is at issue in criminal proceedings, the third section focuses on evaluation of persons involved in the criminal justice system, the fourth section includes chapters that address a variety of special assessment matters, and the last section is devoted to a variety of nonclinical, nonassessment activities in which forensic psychologists may become involved. Overview This section includes three chapters that address overriding issues that are relevant to all forensic practitioners: training in the specialty, the ethical obligations that shape the work of psychologists when engaged in forensic pursuits, and how the law shapes the practice of the specialty and how psychologists communicate their work and findings to the court. Forensic Training and Practice Historically, psychologists who specialized in forensic pursuits gained relevant knowledge and skills through on-the-job training and intermittent continuing education. A few texts devoted to forensic psychology practice were published in the 1970s and early 1980s (The Role of the Forensic Psychologist, Cooke, 1973; Who Is the Client?, Monahan, 1980), and a handful of doctoral programs devoted to the intersection of law and psychology were developed around this same time (University of Alabama, University of Nebraska, and Florida State University). Much has changed in the past half century. There are currently a large number of masters, doctoral, internship, and postdoctoral training programs devoted to forensic pursuits (go to www.ap-ls.org/education/ GraduatePrograms.php for a listing and description of these programs) and continuing education opportunities abound, including an organized and ongoing program of study offered by the American Academy of Forensic Psychology (go to www.aafp.ws for review of current offerings). Integral to demonstrating the establishment of a substantive specialty is the existence of training opportunities and a system or systems that allow practitioners to demonstrate their competence in the specialty area. In Chapter 2, Ira Packer and Randy Borum review the roles of social, developmental, cognitive, and clinical psychologists in the field and consider areas of focus, subspecialization, and psycholegal issues addressed by forensic psychologists. They describe graduate training in the field, doctoral programs, and joint degree programs (those that award the PhD or PsyD and the JD), and discuss levels of

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Nature of the Field

training, internship offerings, postdoctoral fellowships, and continuing education. Ethics in Forensic Practice Psychologists working in the legal system are faced with ethical challenges. Many of these are similar to challenges experienced by psychologists practicing in other specialty areas, and some are more specific to forensic practice. That the unique challenge of forensic practice was appreciated by organized psychology is evidenced by development of the “Specialty Guidelines for Forensic Psychologists” (Committee on Specialty Guidelines for Forensic Psychologists, 1991), inclusion of a special forensic practice section in the 1992 version of the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 1992; hereinafter APA), and development by APA of practice guidelines for some more focused forensic assessment activities, including evaluation of children and families in cases of disputed custody (American Psychological Association, 2010) and evaluation of children in caretakers in dependency (i.e., abuse/neglect) proceedings (American Psychological Association, 1998). In addition, practice guidelines and statements relevant to forensic practitioners have been published by a number of related professional organizations including the American Academy of Clinical Neuropsychology and the National Academy of Neuropsychology. Most recently, the forensic practice guidelines were revised (American Psychological Association, in press). Familiarity with such guidelines and statements is important for informed forensic practice. The work of forensic psychologists is probably scrutinized more than the work of any other psychologists (Heilbrun, Grisso, & Goldstein, 2008). Reports and testimony summarizing the opinions reached by the psychologist are subjected to both criticism and formal cross-examination. The findings of forensic assessments often have profound effects on the lives of litigants, whether used to support a finding awarding or denying a parent custody of a child, grant a sum of money to a plaintiff in a personal injury case, or end or continue the involuntary hospitalization of a litigant previously adjudicated not guilty by reason of insanity. Psychologists are expected to be knowledgeable about specific statutes, case law, and rules of evidence, and have experience in conducting forensic assessments. The Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 2002), of course, apply to all areas of professional psychological activity. However, because of the conflicts between

the demands of the legal system and the EPPCC, forensic psychologists sometimes face challenges in attempting to satisfy the court and meet their professional obligations. In Chapter 3, David Martindale and Jon Gould identify the unique demands encountered by forensic psychologists, discuss professional standards implicit in the competent professional practice of forensic psychology, and make clear that psychologists should practice in a way that is consistent not only with the APA’s Ethical Principles but with other relevant guidelines and standards, given the stakes involved in legal matters. Legal Contours of Expert Testimony Forensic psychologists typically conduct evaluations with the expectation that their findings will be presented via written reports or oral testimony. Whereas witnesses of fact (lay witnesses) are typically limited to testifying about knowledge they have acquired firsthand through their senses (generally, what they have seen and heard), experts are permitted to offer to the court not only what they have learned of themselves, but also resulting opinions and the underlying reasoning. Steven Erickson and Charles Ewing (Chapter 4) examine the structure and function of expert testimony that impact psychologists who enter the courtroom. They review the general legal rules that govern expert testimony, including the Federal Rules of Evidence, explain statutes and case law that determine who can be qualified as an expert and how that occurs, and discuss the law surrounding the admissibility of expert testimony and the limitations placed on experts when testifying. Selected practical aspects of the process of providing effective ethical expert testimony are provided as well, focusing on specific types of expert testimony, cross-examination, and the issue of immunity of experts from civil liability. Forensic Report Writing As previously noted, forensic psychologists typically conduct evaluations with the expectation that their findings will be presented to others (e.g., the judge, jury, or retaining attorney). Reports psychologists write that summarize the evaluation process, their main findings, the reasons or data that support their findings, and key opinions are integral to the forensic process. Indeed, well-written reports can obviate the need for oral testimony. Richart DeMier, in Chapter 5, reviews the nature and purpose of report writing, discusses some of the key research examining the report-writing practices of forensic psychologists, and provides some helpful direction to those seeking to

Overview of Forensic Psychology

improve how they communicate their practices, findings, and opinions to the courts. Forensic Evaluations in Civil Proceedings Accurate assessment of examinees’ emotional, behavioral, and cognitive functioning is crucial given the stakes involved in civil proceedings. Litigants in civil proceedings can receive financial awards, important personal rights can be restricted or removed in guardianship and related proceedings—including the right to manage one’s finances and make health-care decisions, the right to parent or visit one’s children can be removed or limited in dependency or family court proceedings, and persons’ liberty can be restricted via different involuntary hospitalization proceedings. Child Custody Evaluations Assessment of parents and children in cases of disputed custody is one of the most complex and challenging forensic evaluation tasks (Fuhrmann & Zibbell, 2011). The vast majority of forensic evaluations involve assessment of one person (e.g., a personal injury litigant, a criminal defendant for whom trial competence is at issue, a person who is subject to guardianship or conservatorship proceedings) with respect to relatively specific, focused, and well-formulated psycholegal abilities. In contrast, forensic evaluations conducted in the context of custody disputes require assessment of multiple persons (e.g., parents, children, parents’ significant others) in multiple spheres, and—too frequently—in the absence of well-defined criteria. Because the stakes are so significant in these matters, at least one parent is apt to be angry about or resentful of the examiners’ opinions and recommendations. Consequently, ethics complaints against forensic psychologists involved in this area of assessment are not uncommon. In Chapter 6, Jonathan Gould and David Martindale describe the legal standards for the determination of custody in the United States, review child custody evaluation guidelines developed by professional organizations, and provide important recommendations for competent practice in this very important pursuit. Assessment in a Child Protection Context Many more children are involved in legal proceedings in response to allegations of abuse or neglect by caretakers than are involved in legal proceedings involving parental disputes regarding custody and visitation. Yet, matters relating to child custody evaluation have received

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considerably more attention. This, of course, is unfortunate given what is at stake for children who are the subjects of dependency proceedings. Whereas in many cases of disputed custody the legal dispute often distills to which parent and what circumstances are better for the child, in dependency proceedings the question too often is whether either parent or a particular parent can provide a basic and safe environment for the child (Budd, Connell, & Clark, 2011). Thus, the stakes in many dependency proceedings are likely higher than the stakes in most custody proceedings. It is this very reason why it is of utmost importance that psychologists evaluating these children and their parents accurately describe their abilities and needs. Chapter 7, by Karen Budd, Mary Connell, and Jennifer Clark, goes a long way toward the goal of improving evaluations conducted by psychologists in such contexts. The authors provide an overview of the legal context of dependency proceedings, discuss the relevant empirical literature regarding child abuse and neglect, review various methods of assessment data collection, and make recommendations regarding communicating findings and opinions to the court. Psychological Evaluation of Emotional Damages in Tort Cases The law allows those who have been harmed to bring suit against those they believe are responsible in order to be compensated for the harm they endured (Kane & Dvoskin, 2011). To prevail in a personal injury lawsuit, the plaintiff typically must demonstrate that he or she was harmed by the defendant’s breach of some duty. The plaintiff must also demonstrate a relationship between the breach and the harm, such that the harm would not have occurred but for what the defendant did: the concept of proximate cause. In Chapter 8 on personal injury evaluation, William Foote and Craig Lareau first review the legal framework of personal injury cases and the law of torts. They then offer an assessment model that can be employed by the examiner. They discuss in detail how the forensic psychologist can go about assessing the plaintiff’s functioning both before and after the alleged breach, the distress endured by the plaintiff (if any), the extent of impairments and injuries to the plaintiff’s functioning, the likely cause of any impairments or injuries, and the prognosis and steps necessary to restore the plaintiff to his or her preincident functioning. Disability and Worker’s Compensation Persons whose ability to work is significantly impaired as the result of emotional, behavioral, cognitive, or physical

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Nature of the Field

impairments may be entitled to important and significant public (e.g., Social Security benefits, Supplemental Security Income, worker’s compensation benefits) and private (via purchased disability insurance) benefits (Drago Piechowski, 2011). Crucial to decision making regarding whether claimants are entitled to such benefits are comprehensive and accurate assessments of their emotional, behavioral, and cognitive functioning, and how such affect their ability to work. But the mere presence of illness or impairment is not enough. Rather, there must be an illness or impairment that has a significant impact on the claimant’s work-related abilities. In Chapter 9, Lisa Piechowski reviews various disability benefits programs and provides a model for assessing persons referred for evaluation in these matters. Employment Discrimination and Harassment Title VII of the 1964 Civil Rights Act bars discrimination based on race, sex, religion, or national origin. Forensic psychologists may be asked to evaluate persons who allege emotional harm stemming from alleged discrimination and harassment. In Chapter 10, Nancy Lynn Baker, Melba Vasquez, and Sandra Shullman present the legal bases underlying these claims. Forms of illegal discrimination, including harassment, sexual harassment (heterosexual and same-sex), hostile environment, and retaliation are considered and the professional literature on sexual and racial discrimination is reviewed. The roles of the forensic psychologist are described, and specialized assessment methods to employ when evaluating persons alleging employment discrimination and harassment are presented. Forensic Assessment for High-Risk Occupations Forensic psychologists are sometimes asked to examine job candidates for high-risk occupations (e.g., law enforcement personnel, firefighters, security, commercial pilots) to assess how their emotional and behavioral functioning may impact their job performance, if hired. In addition, referrals are made to conduct fitness-for-duty evaluations when questions exist about a current employee’s ability to perform the full duties associated with his or her position. Because these evaluations impact examinees’ employment status, they are subject to considerable legal requirements and regulations, they present many unique challenges that are not present in other types of forensic evaluations, and examiners may be at increased risk for ethics or licensing complaints stemming from dissatisfied examinees. The complicated nature of this

subspecialty is reflected, at least in part, by board certification in Police and Public Safety Psychology now being available by the American Board of Professional Psychology (go to www.abpp.org/i4a/pages/index.cfm? pageid=3688 for more information about this newly established board). In Chapter 11, David Corey and Randy Borum discuss the many complicated legal issues surrounding these evaluations, review representative ethical issues involved, and review appropriate assessment approaches. Forensic Evaluation in Americans With Disabilities Act Cases Whereas the Civil Rights Act of 1964 banned discrimination on the basis of race, sex, religion, and national origin, it was not until passage of the Americans With Disabilities Act of 1990 (ADA) that discrimination against persons with physical and mental disabilities was prohibited. Designed in part to allow persons with disabilities to achieve maximal functioning in the workplace, this legislation outlawed discrimination on the basis of disability for hiring, training, compensation, and benefits (Goodman-Delahunty, 2000). In Chapter 12, William Foote examines the issue of disability in the workplace and how the ADA fits with existing disability systems. He details the impact of discrimination on the basis of disability, with a focus on mood disorders, learning disabilities, and substance abuse disorders. Foote presents assessment methodologies that can be used to evaluate persons making ADA claims, and he considers issues such as the assessment of damages and the impact of the employer’s failure to provide reasonable accommodations. He also explores the topics of disparate treatment and disparate impact assessments, reprisals for pursuing claims, and the impact of harassment and hostile work environments on those with disabilities. Civil Competencies The American culture’s value of autonomy is reflected in the law’s recognition that all adults, absent significant impairment or limitations, enjoy the right to manage their personal affairs absent interference from or meddling by the state (Melton et al., 2007). However, questions may arise regarding a person’s ability to make informed, reasoned judgments that are in his or her best interests. These questions may be raised in matters involving the ability to make health-care decisions, manage one’s finances, or execute a will or contract (Drogin & Barrett, 2010).

Overview of Forensic Psychology

Concerns about a particular person’s capacities may develop at or around the time the decision of interest is to be made, after the decision of interest has been made, or before the decision is to be made. Decision-making capacity can be affected by a variety of emotional, behavioral, or cognitive impairments. Eric Drogin and Curtis Barrett (Chapter 13) describe the role of forensic psychologists in the assessment of a variety of civil competencies. After providing a review of the legal concept of competence they discuss a variety of civil competencies that may be brought into question, discuss various assessment approaches, and review specific assessment tools. Civil Commitment and Involuntary Hospitalization of Persons With Mental Illness Although involuntary hospitalization is a civil matter, the stakes in these proceedings are high. Persons can be detained for extended periods of time and their liberty and autonomy are strictly limited as a result (Pinals & Mossman, 2011). In Chapter 14, Craig Lareau reviews the legal history of and rationale/justification for involuntary hospitalization, and discusses more recent legal developments including outpatient commitment and conditional release. He also reviews the commitment process and discusses the role forensic psychologists may play in the involuntary examination and hospitalization process with respect to assessment of risk for harm to self and others, assessment of decision-making capacity, and implementation of treatments and other interventions designed to minimize risk of harm. Evaluation and Management of Sexual Offenders With the exception of drug offenders, during the 1990s the sex offender population has increased faster than any other group of violent criminals (La Fond, 1998), and ways that the legal system can act against sex offenders have continued to expand during the early parts of the 21st century (Edwards, 2001; Vasquez, Maddan, & Walker, 2008; Witt & Conroy, 2008). Many states have expanded the criminal penalties for second offenses, approximately 40% of states have laws in place that allow for involuntary hospitalization of sex offenders after they have completed criminal sentences for their offenses, and all states have some requirements related to registration and/or community notification. Mary Alice Conroy and Philip Witt describe the impact of this legislation on forensic practice in Chapter 15. They

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review sex offender legislation (including sexual violent predator statutes), issues related to evaluating the sex offender’s mental state and risk for recidivism, and ethical concerns. Forensic Evaluations in Delinquency and Criminal Proceedings As noted previously, it was the doors of the juvenile court through which psychologists first entered the legal arena in a meaningful way. They continue to be heavily involved in these proceedings today. Similarly, many psychologists specialize in evaluation of criminal defendants, and a review of forensic psychologists certified by the American Board of Professional Psychology (www.abpp.com) reveals that evaluation of criminal defendants in the most common activity of this group of professionals. The stakes are probably greatest in delinquency and criminal proceedings. Juvenile and adults found responsible for criminal offenses can have their liberty restricted for extended periods of time, and the death penalty remains in place in a majority of states. In this section three key issues that are considered by the criminal courts are addressed: competence, responsibility, and sentencing/ disposition. Forensic Evaluation in Delinquency Cases Establishment of the first juvenile court in Chicago in 1899 reflected the legal system’s understanding that juveniles were different from adults in many important ways, and that these differences required a special response when juveniles ran afoul of the law. The stated goal of the first juvenile courts—rehabilitation rather than punishment—was significantly different from that of criminal courts. Thomas Grisso and Christina Riggs Romaine note that, although the development of the knowledge base regarding how the abilities and limitations of juveniles are important to understanding their involvement with the legal system has lagged when compared to development in other forensic areas, there has been significant growth in the past decade. In Chapter 16, the authors review the current state of knowledge regarding the evaluation of juvenile offenders and use of various instruments and tools. Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion Confessions to crimes are valuable commodities, which, once introduced to a judge or jury, are exceedingly difficult for defense lawyers to overcome. Unchallenged,

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Nature of the Field

inculpatory statements are devastating—typically, and at times mistakenly, taken as a clear sign of the defendant’s guilt. In Miranda v. Arizona (1966) the U.S. Supreme Court noted that the process of interrogation is hidden from public scrutiny and ruled that the Constitution requires that suspects undergoing interrogation must be informed of their right to avoid self-incrimination. Only confessions that were provided subsequent to a knowing, voluntary, and intelligent waiver of one’s right to avoid self-incrimination are admissible and can be used to prove criminal responsibility Goldstein & Sevin Goldstein (2010). This issue has received increasing attention in the past decade as compelling evidence of convictions based on false and coerced confessions has been unearthed (Drizin & Leo, 2004). In Chapter 17, Naomi Goldstein, Alan Goldstein, Heather Zelle, and Lois Oberlander Condie examine case law regarding the ability to waive Miranda rights and the validity of confessions. They describe research relevant to child, adolescent, and adult Miranda rights comprehension, and the relationship between understanding these rights and IQ, academic achievement, reading ability, familiarity with the criminal justice system, race, and socioeconomic status. Forensic assessment instruments, some in their second generation, that have been developed to assist in assessment of an individual’s ability to make a knowing and intelligent waiver are reviewed, and the use of traditional clinical tests as an adjunct to the evaluative process is described as well. The authors also explore the literature on false confessions: the significance of inculpatory statements, frequency of false confessions, and why some defendants may provide a false confession. The authors present methodology for evaluating those factors that may contribute to inculpatory statements that may not be truthful. Assessment of Competence to Stand Trial A defendant in a criminal case must be more than just a physical presence in the courtroom; he or she must have, at a minimum, “sufficient present ability to consult with his attorney with a reasonable degree of rational understanding . . . and a rational and factual understanding of the proceedings” (Dusky v. U.S., 1960). Fitness-fortrial assessments are the most common of all criminal evaluations (Hoge, Bonnie, Poythress, & Monahan, 1992; Melton et al., 2007; Zapf & Roesch, 2008). Kathleen Stafford and Martin Sellbom review the legal framework of trial competence, placing it in historical perspective in

Chapter 18 of this volume. They describe the variables relevant to trial competence that are reported in the empirical literature. They examine the methodological approaches to assess competence to stand trial, including the use of forensic assessment instruments designed expressly for this purpose, and consider the issue of trial competence with special populations. Dispositional issues, including prediction of competence restoration, treatment of incompetent defendants, and permanent incompetence, are also discussed. Evaluation of Criminal Responsibility Perhaps no other area of the law engenders more attention than the insanity defense (Melton et al., 2007; Packer, 2009). The trial of John W. Hinckley for the attempted murder of President Reagan and his subsequent acquittal by reason of insanity (United States v. Hinckley, 1982) fanned the flames of the perceived injustices resulting from insanity defenses. However, public perceptions differ significantly from reality in terms of the frequency of insanity defenses, their rate of success, and what ultimately happens to those acquitted by reason of insanity. The evaluation of a defendant’s mental state at the time of an offense is central to the issue of criminal responsibility and the appropriateness of punishment. These assessments require the “reconstruction” of a prior mental state to assist the trier of fact in rendering a decision of legal responsibility. In Chapter 19, Alan Goldstein, Stephen Morse, and Ira Packer explain the basic doctrines of criminal liability. They focus on mental state issues relevant to culpability, including negation of mens rea, provocation and passion, extreme mental or emotional disturbance, voluntary and involuntary intoxication, imperfect self-defense, and duress. The authors review the history of the insanity defense, including its development, changes, and recent reforms. Ethical issues and conflicts that arise when conducting these assessments are explored, and the authors describe a methodology for assessing a defendant’s mental state at the time of the alleged offense. Sentencing Determinations in Death Penalty Cases Unlike any other form of punishment, the death penalty is the ultimate, irrevocable sanction. The Supreme Court held that death penalty statutes must not be “capricious” and that specific guidelines are required to avoid the “uncontrolled discretion” of judges and juries, whereby “[p]eople live or die, dependent on the whim of 1 man or 12”

Overview of Forensic Psychology

(Furman v. Georgia, 1972). Similarly, the Court rejected North Carolina’s statute making any first-degree murder conviction in that state punishable by death (Woodson v. North Carolina, 1976), reasoning that each case must be individualized. In Gregg v. Georgia (1976), the Court accepted as constitutional that state’s requirement that at least one aggravating factor must be established during a separate sentencing phase of a capital trial before a defendant could be sentenced to death. The defense was permitted to introduce mitigating facts or circumstances for the jury or judge to weigh against the aggravating factor(s) before the death penalty could be imposed. Because sentencing must be individualized, the defense is permitted to introduce any aspect of the defendant’s character or record and any circumstances of the offense in mitigation (Lockett v. Ohio, 1978). In Chapter 20, Mark Cunningham and Alan Goldstein describe the nature and structure of capital trials and the data regarding the administration of the death penalty. They examine landmark Supreme Court decisions related to capital punishment, and ethical issues regarding the role of the psychologist in sentencing evaluations and in assessments addressing competence to be executed. The authors discuss methodology in conducting capital evaluations, including assessment parameters. In their chapter, Cunningham and Goldstein focus on violence risk assessment in death penalty cases and detail common errors in such evaluations. They also discuss issues related to base rates, risk management, and group statistical data. Special Assessment Issues Because some matters and challenges present themselves in a variety of forensic evaluation contexts, it makes most sense that they be addressed independently. These activities are the subject of this section. Evaluation of Malingering and Related Response Styles How an examinee is approaching the assessment process—that is, the examinee’s response style—must be addressed by all forensic psychologists when conducting examinations. Examinees may adopt a variety of approaches to the forensic evaluation process given the stakes involved, and only when the examinee’s approach is considered can the psychologist draw a conclusion about how accurately the examinee’s presentation reflects his or her genuine abilities or functioning.

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Evaluators in a forensic context cannot accept unquestioningly an examinee’s statements and presentations as valid and accurate representations or indicators of their functioning and adjustment. Given the stakes involved in forensic matters (e.g., financial reward in a personal injury case, custody of a child in a family law matter), litigants may respond in self-serving and less-than-candid ways. In Chapter 21 of this volume, Richard Rogers and Scott Bender present an overview of conceptual issues regarding assessment of response styles, with a focus on identifying examinees feigning impairments of some type. They review explanatory models of why individuals may attempt to portray psychological and physical impairments, and they examine major empirical issues and false assumptions frequently made about various responses and their assessment. Violence Risk Assessment Despite the U.S. Supreme Court’s finding in Barefoot v. Estelle (1983) that clinical predictions of violence could not be made with an acceptable degree of reliability/ validity, the Court concluded that to prevent such testimony was “like asking us to disinvent the wheel.” Thus, consideration of the risk an examinee presents for aggressive behavior directed toward others continues to be relevant to a variety of forensic assessment pursuits including involuntary hospitalization proceedings in both criminal and civil venues (Heilbrun, 2008; Otto & Douglas, 2010). In Chapter 22, John Monahan describes the relevance of violence risk assessment to the legal system and how such evidence is legally evaluated. He contrasts clinical and actuarial risk assessment and then reviews instruments developed specifically to evaluate risk of violence. Monahan summarizes those risk factors related to the occurrence of violence as identified in the MacArthur Violence Risk Assessment Study (Monahan et al., 2001; Steadman et al., 2000), and addresses the issue of the relationship between clinical and actuarial risk assessment in formulating opinions and explains how such opinions should be communicated. Clinical and Forensic Issues in the Assessment of Psychopathy Psychopathy is certainly the most researched personality disorder, presumably because of its strong relationship to violent and nonviolent criminal offending. Thus, the degree to which an examinee manifests psychopathic

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Nature of the Field

traits is relevant in a number of litigation areas in which risk for offending or reoffending is an issue including involuntary hospitalization proceedings, criminal sentencing proceedings including capital cases, and family court and dependency proceedings. Forensic assessments frequently incorporate traditional psychological tests as well as instruments designed to provide data relevant to specific psycholegal questions. In the field of psychopathy, a specific form of personality disorder, we have witnessed the development of such specialized methodologies during the past two decades (Hare, 1996). The presence or absence of psychopathy is relevant to a number of civil (e.g., civil commitment) and criminal (e.g., probation and parole, detention under violent offender statutes, and death penalty cases; Hart, 2001) contexts. The reliable and valid assessment of psychopathy is, therefore, critical. In Chapter 23, Stephen Hart and Jennifer Storey describe the nature of psychopathy. They review various assessment methodologies, and consider questions, conflicts, and legal issues arising when forensic psychologists assess psychopathy. Child Sexual Abuse Evaluations Understanding the functioning and abilities of children who may have been sexually abused is relevant in a variety of legal contexts, including criminal proceedings, dependency proceedings, and custody proceedings. Psychologists may be asked to engage in a variety of activities including assisting the court as it attempts to determine whether abuse occurred (via examining the child and/or providing more general information about children’s abilities) and making recommendations for treatment and other interventions in cases of confirmed abuse. When allegations are made involving sexual abuse of a child, the victim is, typically, the only witness to the crime. Usually, medical evidence is absent; behavioral symptoms, if present, may be attributable to factors other than or in addition to the claimed abuse; and admissions of responsibility by the alleged perpetrators are rare (Johnson, 2004; Myers, 1998). There is considerable controversy in the academic and practice community about the frequency of false reports of abuse attributable to distortions of memory, suggestibility, or other causes. However, there is agreement that mental health professionals retained to evaluate a child who is alleged to have been abused must be familiar with relevant statutes and case law, the professional literature on child development, behavioral

manifestations of abuse, and the specialized methodology required to conduct such evaluations. Kathryn Kuehnle and Mary Connell (Chapter 24) describe a model for assessing child sexual abuse. They review the data on the prevalence of child sexual abuse and those factors demonstrated to increase children’s vulnerability to the risk of sexual abuse. Symptom patterns associated with child sexual abuse are examined. In addition, they review the literature on factors that may distort valid recall and reporting of the event in question. They consider the interview process with children who may have been victims of sexual abuse and describe a range of tools and instruments that may assist in the assessment procedure. They also explore relevant legal issues in relationship to these topics. Other Forensic Consultation Areas As indicated previously, much forensic psychology practice involves evaluation of litigants whose mental states are at issue in legal proceedings, and the bulk of these evaluations are conducted by clinical and counseling psychologists. However, psychologists may also be involved in the legal arena in nonassessment capacities. Often this work is done by nonclinicians, including but not limited to social psychologists, experimental psychologists, and developmental psychologists. In the final section of this volume some of these nonclinical forensic pursuits are discussed. Eyewitness Memory for People and Events In a criminal trial, attempts are made, through the introduction of evidence, to reconstruct what occurred at the moment of the crime. In addition to physical evidence (e.g., fingerprints, tire tracks, DNA), eyewitnesses to the crime (including the victim) may be called to testify at trial about what they observed. However, for a number of reasons, memories may become contaminated, lost, or destroyed, resulting in well-intentioned but nonetheless inaccurate testimony. The consequences for the defendant and society may be significant (Bull Kovera, 2009). Mistakes in eyewitness identification account for more convictions of innocent defendants (exonerated by DNA evidence) than all other factors combined (Brewer & Wells, 2011; Scheck, Neufeld, & Dwyer, 2000; Wells, 2006). In Chapter 25, Gary Wells and Elizabeth Loftus argue for a scientific model to collect, analyze, and

Overview of Forensic Psychology

interpret eyewitness evidence. The scientific literature and theory on eyewitness memory for events is reviewed, and they examine factors that may impact accuracy. The literature on eyewitness memory for people, focusing on the ability of eyewitnesses to identify suspects from lineups, is detailed, and those factors that may impair this ability are discussed. Scientific procedures for lineups are suggested to reduce those factors demonstrated to increase error rate. Voir Dire and Jury Selection The jury is the hallmark of a democratic system of justice. Decision making as to guilt or innocence in a criminal case and for or against a plaintiff in a civil case is placed in the hands of ordinary citizens who are expected to consider evidence in an objective, unbiased fashion. However, it has long been recognized that potential jurors bring into the courtroom their prior experiences, attitudes, biases, and personality characteristics—factors that may interfere with the impartial outcome of a trial. The process of voir dire (to speak the truth), mandated both by federal and state law, is designed to uncover biases that might interfere with the objective weighing of evidence. Who is on the jury is critical, therefore, for both sides in a trial. In Chapter 26, Margaret Bull Kovera describes the process of voir dire, as well as the system developed to challenge potential jurors. She reviews the traditional methods of jury selection, typically relying on conjecture, use of stereotypes, body language, and anecdotal strategies to predict inclinations favorable toward a specific verdict, and contrasts this approach with scientific jury selection as developed by Schulman, Shaver, Colman, Emrich, and Christie (1973). This latter approach relies on demographics, personality traits, and attitudes and their relationship to trial outcome. Kovera explains the limitations of research on jury selection and suggests directions for future research in this area. Trial Consultation In some cases psychologists work with attorneys in a solely consultative capacity around a variety of trial and litigation issues—exclusive of presenting expert findings or opinions to a legal decision maker. Most psychologists rarely serve in this role, however, presumably because of the (extra) expense involved. Indeed, given the added costs of this type of consultation, those cases in which psychologists do work in this capacity typically involve

13

very high stakes, in terms of either the legal outcomes at risk or the economics involved. As Eric Drogin and Curtis Barrett make clear in Chapter 27, the activities in which these psychologists engage are many, involving tasks as diverse as developing case strategy(ies), identifying and assisting in selection of potential experts, and reviewing the work of experts retained by opposing counsel and assisting the retaining attorney in developing cross-examination strategies and questions. Drogin and Barrett also provide a valuable discussion about ethical challenges psychologists are presented with when working in this capacity. SUMMARY Although the roots of forensic psychology date back to the early 1900s, marked by the publication of On the Witness Stand (M¨unsterberg, 1908), and the involvement of psychologists in juvenile courts, it took decades for the field to demonstrate the empirical basis necessary to qualify as evidentiary expert testimony on a regular basis and without question. Both state and federal courts now generally accept the application of forensic psychology theory, research, and methodology to a wide range of civil and criminal legal questions. Programs offering doctorates in forensic psychology have been established, and postdoctoral fellowships, although limited in number, are available. Continuing education programs, presented by APAapproved sponsors, designed to provide the skills, training, and knowledge required of experts in court are readily available. Most recently, the APA approved forensic psychology as a specialty within the field of psychology—a landmark recognition of its current status. We hope that graduate students and allied mental health professionals reading this book will develop an appreciation for the field as a whole, recognizing its uniqueness, its complexity, and the need for specialized training and knowledge. In addition, each chapter should serve as a reference source on a specific topic, reviewing the state of the art in the 21st century.

REFERENCES American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., Text rev.). Washington, DC: Author. American Psychological Association. (1992). Ethical principles of psychologists and code of conduct. Washington, DC: Author.

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American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 47, 1597–1611. American Psychological Association. (1998). Guidelines for psychological evaluations in child protection matters. Washington, DC: Author. Available at www.apa.org/practice/guidelines/childprotection.pdf American Psychological Association. (2010). Guidelines for child custody evaluations in family law proceedings. American Psychologist, 65, 863–867. American Psychological Association. (in press). Specialty guidelines for forensic psychology. American Psychologist. Americans With Disabilities Act of 1990, 42 U.S.C.A. 12101 et seq. Barefoot v. Estelle, 463 U.S. 880 (1983). Bartol, C. R., & Bartol, A. M. (1999). History of forensic psychology. In A. K. Hess & I. B. Weiner (Eds.), The handbook of forensic psychology (2nd ed., pp. 3–23). New York, NY: Wiley. Brewer, N., & Wells, G. L. (2011). Eyewitness identification, Current Directions in Psychological Science, 20, 24–27. Brown v. Board of Education of Topeka, 74 S. Ct. 686 (1954). Budd, K., Connell, M., & Clark, J. R. (2011). Evaluation of parenting capacity in child protection. New York, NY: Oxford University Press. Bull Kovera, M. (2009) Evaluating eyewitness identification. New York, NY: Oxford University Press. Committee on Specialty Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 655–665. Cooke, G. (1973). The role of the forensic psychologist. Springfield, IL: Charles Thomas Publishers. Crane v. Kentucky, 106 S.Ct. 2142 (1986). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Dickerson v. U.S., 166 F.3d 667 (2000). Drago Piechowski, L. (2011). Evaluation of workplace disability. New York, NY: Oxford University Press. Drizin, S., & Leo, R. (2004). The problems of false confessions in a post-DNA world. North Carolina Law Review, 82, 891–1007. Drogin, E. Y., & Barrett, C. S. (2010). Evaluation for guardianship. New York, NY: Oxford University Press. Dusky v. U.S., 362 U.S. 402 (1960). Edwards, W. (2001). Contextualizing sex offender management legislation and policy: Evaluating the problem of latent consequences in community notification laws. International Journal of Offender Therapy and Comparative Criminology, 45, 83–101. Fuhrmann, G. S. W., & Zibbell, R. A. (2011). Evaluation for child custody. New York, NY: Oxford University Press. Furman v. Georgia, 408 U.S. 238 (1972). Goldstein, A. M., & Sevin Goldstein, N. E. (2010). Evaluating capacity to waive Miranda rights. New York, NY: Oxford University Press. Goodman-Delahunty, J, (2000). Psychological impairment under the Americans with Disabilities Act: Legal guidelines. Professional Psychology: Research and Practice, 31, 197–205. Gregg v. Georgia, 428 U.S. 153 (1976). Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York, NY: Plenum Press. Hare, R. D. (1996). Psychopathy: A clinical construct whose time has come. Criminal Justice and Behavior, 23, 25–54.

Hart, S. D. (2001). Forensic issues. In W. J. Livesley (Ed.), Handbook of personality disorders: Theory, research, and treatment (pp. 555–569). New York, NY: Guilford Press. Heilbrun, K. S. (2000, July 20). Petition for the recognition of a specialty in professional psychology. Submitted on behalf of the American Board of Forensic Psychology and the American Psychology–Law Society to the American Psychological Association. Heilbrun, K., Grisso, T., & Goldstein, A. (2008). Foundations of forensic mental health assessment. New York, NY: Oxford University Press. Hess, A. K., & Weiner, I. B. (Eds.). (1999). The handbook of forensic psychology (2nd ed.). New York, NY: Wiley. Hoge, S. K., Bonnie, R. J., Poythress, N., & Monahan, J. (1992). Attorney–client decision-making in criminal cases: Client competence and participation as perceived by their attorneys. Behavioral Sciences and the Law, 10, 385–394. In re Gault, 387 U.S. 1 (1967). Jenkins v. United States, 307 F.2d 637 (U.S. App, D.C., 1962). Johnson, C. F. (2004). Child sexual abuse. The Lancet, 364, 462–470. Kane, A. W., & Dvoskin, J. (2011). Evaluating for personal injury claims. New York, NY: Oxford University Press. Kansas v. Hendricks, 117 S.Ct. 2072 (1997). La Fond, J. Q. (1998). The cost of enacting a sexual predator law. Psychology, Public Policy and the Law, 4, 468–504. Lockett v. Ohio, 438 U.S. 586, 604 (1978). Melton, G. B., Petrila, J., Poythress, N., Slobogin, C., Lyons, P., & Otto, R. K. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press. Miranda v. Arizona, 384 U.S. 436 (1966). Monahan, J. (Ed.). (1980). Who is the client? The ethics of psychological intervention in the criminal justice system. Washington, DC: American Psychological Association. Monahan, J., Steadman, H., Silver, E., Appelbaum, A., Robbins, P., Mulvey, E., Roth, L., Grisso, T., & Banks, S. (2001). Rethinking risk assessment: The MacArthur Study of Mental Disorder and Violence. New York, NY: Oxford University Press. Monahan, J., & Walker, L. (2010). Social science in law (7th ed.). New York, NY: Thomson Reuters. M¨unsterberg, H. (1908). On the witness stand . New York, NY: Doubleday. Myers, J. E. B. (1998). Legal issues in child abuse and neglect (2nd ed.). Newbury Park, CA: Sage. Otto, R. K. & Douglas, K. (Eds.). (2010). Handbook of violence risk assessment. New York, NY: Routledge. Otto, R. K., & Heilbrun, K. (2002). The practice of forensic psychology: A look to the future in light of the past. American Psychologist, 57, 5–18. Packer, I. R. (2009). Evaluation of criminal responsibility. New York, NY: Oxford University Press. Pinals, D. & Mossman, D. (2011). Heilbrun, K. (2009). Evaluation for civil commitment. New York, NY: Oxford University Press. Rogers, R. (Ed.). (2007). Clinical assessment of malingering and deception (3rd ed.). New York, NY: Guilford Press. Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual innocence. New York, NY: Cambridge University Press. Schulman, J., Shaver, P., Colman, R., Emrich, B., & Christie, R. (1973, May). Recipe for a jury. Psychology Today, 37–84. Steadman, H., Silver, E., Monahan, J., Appelbaum, A., Robbins, P., Mulvey, E., Grisso, T., . . . Banks, S. (2000). A classification tree approach to the development of actuarial violence risk assessment tools. Law and Human Behavior, 24, 83–100.

Overview of Forensic Psychology United States v. Hinckley, 525 F.Supp. 1342 (D.D.C. 1982). Vazquez, B, E., Maddan, S., & Walker, J. T. (2008). The influence of sex offender registration and notification laws in the United States: A time-series analysis. Crime and Delinquency, 54, 175–192. Wells, G. L. (2006). Eyewitness identification: Systematic reforms. Wisconsin Law Review, 2006, 615–643. Wigmore, J. H. (1909). Professor M¨unsterberg and the psychology of testimony: Being a report of the case of Cokestone v. M¨unsterberg. Illinois Law Review, 3, 399–445.

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Witt, P. W., & Conroy, M. A. (2008). Evaluation of sexually violent predators. New York, NY: Oxford University Press. Wolters, R. (2005). Constitutional history, social science, and Brown v. Board of Education 1954–1964. Occidental Quarterly, 5 (1), 7–34. Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Zapf, P., & Roesch, R. (2008). Evaluation of competence to stand trial . New York, NY: Oxford University Press.

CHAPTER 2

Forensic Training and Practice IRA K. PACKER AND RANDY BORUM

HISTORICAL DEVELOPMENT OF THE FIELD PRACTICE 17 TRAINING 20 INTERNSHIPS 23 CERTIFICATION AND CREDENTIALING 26

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MODELS FOR THE FUTURE CONCLUSION 30 REFERENCES 30 APPENDIX 32

HISTORICAL DEVELOPMENT OF THE FIELD

29

boundary issues and role definitions inherent in forensic psychological practice. As of the early 21st century, there has been a significant explosion of interest in the field of forensic psychology as evidenced by the emergence of more than 20 professional journals and hundreds of books, published nationally and internationally, focusing on forensic mental health issues (Packer & Grisso, 2011). In addition, AP-LS has over 2,500 members, including student affiliates, a majority of whom identify themselves as engaging at least in part in clinical forensic practice (approximately 78% per Griffin, 2011). In addition, in 1991, the “Specialty Guidelines for Forensic Psychologists” (Committee on Ethical Guidelines for Forensic Psychologists, 1991) were published, and the revision was finalized in 2011 (www.ap-ls.org/ aboutpsychlaw/SpecialtyGuidelines.php). These developments provided the basis for formal recognition of forensic psychology as a specialty in professional psychology by the American Psychological Association (APA) in 2001. In 2007, in keeping with APA guidelines, a petition for renewal of recognition of the specialty was submitted, which was granted in 2008. The recognition of forensic psychology as a specialty by APA is particularly noteworthy because of the process involved in obtaining such recognition, and the criteria for acceptance. APA recognition as a specialty requires submission of a petition by groups broadly representing the proposed specialty, which is evaluated by APA’s Commission for Recognition of Specialties and Proficiencies in Professional Psychology (CRSPPP). CRSPPP’s

Over the past century, forensic psychology has matured into a well-defined area of specialization. Psychological historians often trace the intellectual origins of the discipline of psychology and law to Hugo M¨unsterberg’s publication of On the Witness Stand in 1908 (e.g., Grisso, 1991). However, coordinated and formalized attempts to define and establish an area of forensically specialized professional practice began to gain momentum only in the 1970s. A significant landmark was the founding of the American Psychology–Law Society (AP-LS) in 1969, an organization of psychologists and lawyers (Grisso, 1991). Subsequently, while maintaining its freestanding status as a multidisciplinary organization, AP-LS was also recognized as a division of the American Psychological Association (Division 41). In 1978, the American Board of Forensic Psychology (ABFP) was created, providing a process for recognition and certification of psychologists who demonstrate competence in forensic psychology. In 1985, ABFP was incorporated into the American Board of Professional Psychology (ABPP). The publication in 1980 of the edited book, Who Is the Client? (Monahan, 1980), was significant in laying out the contours of the field of forensic psychology and differentiating it from therapeutic practice in clinical psychology. It highlighted the notion that the practice of forensic psychology requires a specialized orientation and mindset and cannot be simply considered a subcategory of clinical psychology. It represented an early attempt to clarify the

16

Forensic Training and Practice

criteria for recommending recognition as a specialty include evidence of: • a focused knowledge base specific to the proposed specialty, including a significant number of peer-reviewed publications and books; • a system for education and training; • a substantial cadre of practitioners; • established standards of practice; and • a system for recognition of competent practitioners. In 2000, AP-LS and ABFP jointly submitted the initial petition. The petition for renewal was submitted by the Forensic Specialty Council, comprised of representation from AP-LS, ABFP, and the American Academy of Forensic Psychology (AAFP). One of the more significant additions to the 2007 petition, compared to the original 2000 petition, was the development of Education and Training Guidelines for Forensic Psychology (http://cospp.org/system/files/guidelines/ET_ Guidelines_final_forensic_2009.pdf), which is described in more detail later in the chapter (Guidelines for Accreditation). As a specialty recognized both by APA and ABPP, forensic psychology is a member of the Council of Specialties in Professional Psychology (CoS). CoS is an independent organization initially sponsored by APA and the ABPP to represent and support the development and functioning of recognized specialties in professional psychology. CoS has a seat on the Commission on Accreditation (CoA), which is the entity responsible for accrediting programs in psychology at all levels (doctoral, internship, and postdoctoral residencies). Perhaps more importantly, the CoA will only accredit postdoctoral programs in a specialty if that specialty holds membership in the CoS, and has developed specialty-specific postdoctoral education and training (E&T) guidelines endorsed by CoS. Forensic psychology’s E&T guidelines were endorsed by CoS in 2007, which thus allows postdoctoral residency programs in forensic psychology to apply for accreditation. Terminology As the field began to emerge, the term forensic psychology was used broadly to include the many streams of research and practice at the intersection of psychology and law. More recently, attempts have been made to refine and delineate the parameters of how the specialty should be defined. The decision about whether to use a broader or a narrower definition is determined by the purpose for

17

which the definition is being used. Thus, in developing specialty guidelines, the broadest definition is used. The definition used in the current Specialty Guidelines for Forensic Psychology (2011) is: For the purposes of these Guidelines, forensic psychology refers to all professional practice by any psychologist working within any subdiscipline of psychology (e.g., clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters. (www.ap-ls.org/aboutpsychlaw/Specialty Guidelines.php)

This definition encompasses both psychologists whose backgrounds are more clinically oriented (e.g., clinical, counseling, school) and those who are primarily involved in research (e.g., social, cognitive, developmental). Although there is broad recognition of the common substrates and basic concepts that characterize the discipline (Bersoff et al., 1997), for some purposes there is a need to distinguish the labels applied to the clinical and experimental facets of the field. For instance, for the purposes of attaining recognition from APA as aspecialty in “professional” psychology, and for providing guidelines for postdoctoral programs in forensic psychology seeking accreditation from APA, a more narrow definition has been used: [T]he professional practice by psychologists within the areas of clinical psychology, counseling psychology, school psychology, or another specialty recognized by the American Psychological Association, when they are engaged as experts and represent themselves as such, in an activity primarily intend to provide professional psychological expertise to the judicial system. (http://cospp.org/specialties/ forensic-psychology)

PRACTICE The term legal psychology has been proposed to describe the application of experimental areas of psychology to the law (Bersoff et al., 1997; Careers and Training Committee, 1998). To maintain clarity in this chapter, we will use the narrower definition when referring to forensic psychology and the broader definition when referring to legal psychology. Legal Psychology Specialists in legal psychology are represented predominantly from three areas: social, developmental, and

18

Nature of the Field

cognitive psychology. Social psychologists within this specialty often conduct research and consult with attorneys and courts regarding issues such as jury selection (e.g., Brodsky, 2009; Kovera, Dickinson, & Cutler, this volume; Lieberman & Sales, 2007), credibility of witnesses, (e.g., Bank & Poythress, 1982), and influences on jury decision making (e.g., Bornstein, 1999). In addition to studying the behavior of actors in the legal system, the system itself may be viewed as an institution whose processes can be subjected to social psychological analysis, studying, for example, the relative values of the adversarial system versus mediation and arbitration. Social psychological paradigms, theories, and research methods also can be used to examine legally relevant social issues such as the impact of race and gender on decision making in the criminal justice system (e.g., Sweeney & Haney, 1992) or the perception of what constitutes sexual harassment (e.g., Hurt, Wiener, Russell, & Mannen, 1999; see Vasquez, Baker, & Shullman, this volume). Developmental psychologists specializing in legal psychology often conduct legally relevant consultations and conduct research on issues relevant to legal determinations involving children and adolescents. Substantive issues of interest often include the accuracy and suggestibility of children’s testimony (e.g., Ceci & Bruck, 1995), ability of adolescents to make legally relevant decisions and comprehend their rights (e.g., Grisso, 2000), developmental issues related to sentencing of adolescents, including the death penalty (e.g., Grisso & Steinberg, 2005; Steinberg & Scott, 2003), and the impact of divorce, separation, and varying custody arrangements on children’s development (e.g., Wallerstein & Lewis, 1998; see Gould & Martindale, this volume). A major field of inquiry has focused on whether, and under what circumstances, the testimony of child witnesses should be considered to be credible. This has been a particularly important area in light of some highly publicized cases of elaborate child abuse rings, such as the McMartin case in California and the Fells Acre case in Massachusetts. Research within this specialty area has focused, for example, on the effects of age and types of questioning (e.g., direct versus open-ended) on accuracy and suggestibility (e.g., Saywitz, Goodman, Nicholas, & Moan, 1991; see Kuehnle & Connell, this volume). Other researchers have focused on the impact of compelling children who were allegedly abused to testify directly at the trial of their abuser (e.g., Goodman, Levine, Melton, & Ogden, 1991). This body of research led to the submission of an amicus brief to the Supreme Court by the APA in the case of Maryland v. Craig (1990).

Cognitive psychologists specializing in legal psychology are often involved in extrapolating research on perception and memory to legally relevant issues. Several topics have received a great deal of attention, including eyewitness identification (e.g., Wells et al., 1998; see chapter by Wells and Loftus this volume), accuracy of witness memory (e.g., Loftus & Davies, 1984), issues related to “recovered memories” (e.g., Alpert, Brown, & Courtois, 1998; Ornstein, Ceci, & Loftus, 1998), and people’s ability to detect lying or deception (e.g., Zaparniuk, Yuille, & Taylor, 1995). As is true for psychologists in all areas of legal psychology, specialists are well-grounded in general theory and research, and then apply these concepts and knowledge to questions that may be relevant to the law or legal system. One of the most significant contributions of cognitive psychology to the legal system has been in the area of eyewitness identification. Wells et al. (1998) published a white paper that included a comprehensive review of the literature and a set of recommendations and guidelines for lineups. Their recommendations were based on: theory about the impact of relative judgment (i.e., eyewitnesses tend to identify the person from the lineup who most resembles the culprit, relative to the other members of the lineup, even when the suspect is absent); experimental studies on lineups (i.e., incorporating empirical findings about factors that influence the validity of an identification); and scientific logic (i.e., treating a lineup as an experiment, thereby requiring removal of confounding and influencing variables and requiring that the experimenter, that is, the person conducting the lineup, be blind to the true identity of the suspect). Findings and recommendations from this white paper were adopted by the U.S. Department of Justice (Technical Working Group for Eyewitness Evidence, 1999) and have made a significant contribution to the conduct of law enforcement lineups and the evaluation of their validity. Another area that has recently received significant attention is the application of research on factors that can lead to false confessions. Kassin et al. (2010) produced a white paper on this topic, including a comprehensive review of the literature. They included research on characteristics of the suspect (such as young age, developmental disability, mental illness, personality variables), and situational factors (such as length of interrogation, and interrogation techniques such as minimization and presentation of false evidence). Based on the literature they developed a set of recommendations to improve police practice in conducting interrogations. The clinical application of mental health issues to the law occurs in both criminal and civil contexts.

Forensic Training and Practice

In the criminal law, the most common issues involve assessments of cognitive and psychological status and the relevance of that status to specially defined legal questions, such as competency to stand trial, criminal responsibility, amenability to treatment, and violence risk (see chapters by Cunningham & Goldstein; Goldstein, Morse, & Packer; Monahan; and Stafford, this volume). In civil areas, referral questions may also revolve around issues of cognitive and psychological status, but the specific legal question or relevant functional capacity may be somewhat different (e.g., testamentary capacity, need for guardianship, need for involuntary psychiatric hospitalization, psychological damages resulting from the act of another, worker’s compensation suits). Similarly, forensic psychological consultation is often sought in family law matters, such as child custody, visitation, and termination of parental rights (see Gould & Martindale, this volume).

19

TABLE 2.1 Systems-Based Classification of Forensic Mental Health Assessments Criminal Justice and Juvenile Justice Delinquency Subsystem • Capacity to waive Miranda rights (and validity of confessions) • Competencies • Competence to stand trial • Competence to plead • Competence to waive counsel • Competence to testify • Competence to be sentenced • Competence to be executed • Jurisdiction (transfer to/from juvenile court to/from criminal court) • Criminal responsibility (mental state at time of the alleged offense) • Sentencing • Risk of future offending • For pretrial secure placement • For placement after adjudication • For post-corrections release or placement

Forensic Psychology Although clinical forensic practice is most often associated with evaluations and expert witness testimony (see Table 2.1 for a list of sample areas of forensic practice, adapted from Heilbrun, Grisso, and Goldstein, 2009), forensic psychologists also may provide specialized treatment services. Treatment to populations involved with the legal system is certainly provided by a broad range of psychologists (e.g., correctional psychologists providing treatment to inmates, clinical psychologists working with divorced or divorcing families). What characterizes forensic treatment is the application to specific psycholegal issues. For instance, forensic psychologists may provide treatment to defendants adjudicated incompetent to stand trial, with the aim of restoring these individuals to competency. In this case, the psychologist not only applies general clinical treatment principles but must focus the treatment on issues that are specific to the legal context. An expertise that is in particular demand at present involves violence risk assessment. Forensic psychologists provide consultations to other practitioners, agencies, and the legal system regarding assessing risk of violence. This involves not only providing risk assessments, but also consulting on the appropriate use of specialized tests and actuarial instruments. With increasing public concern about school shootings, workplace violence, and sex offending, there is increasing demand for clarity about the reliability, validity, and generalizability of approaches to violence risk assessment (e.g., Borum & Verhaagen, 2006; Heilbrun, 2009; Otto & Douglas, 2010; Witt & Conroy, 2009).

Civil Justice and Juvenile Justice Child Welfare/Domestic Affairs Subsystem • Civil commitment • Mental illness and dangerousness • Risk of sex offense recidivism after completion of criminal sentence • Competence to consent to treatment/research • Guardianship and conservatorship • Personal injury under workers’ compensation and tort laws • Employment discrimination/harassment • Testamentary capacity • Fitness for duty • Termination of parental rights • Child custody Criminal Justice, Civil Justice, and Juvenile Justice • Jury selection • Eyewitness identification • Abuse and neglect Source: Adapted from Heilbrun, Grisso, and Goldstein (2009).

As is evident from this discussion, the practice of forensic psychology spans a wide range of populations, including young children, adolescents, families, the elderly, people with severe mental illness, and offenders. Accordingly, with regard to training, a forensic specialist should begin with a strong foundation of general clinical training and skill development. Although forensic training involves specialized knowledge and skills (described next), these applications require a foundation of clinical competence in understanding psychopathology, assessment, case conceptualization, and other general clinical skills. This is analogous to the sequence for

20

Nature of the Field

legal psychologists, who first must develop foundational competencies and then subsequently apply these to the legal area of specialization. One who engages in the practice of forensic psychology, however, may not necessarily have competence or expertise with all populations and in all areas of forensic practice. For example, psychologists who have been trained primarily to work with children, adolescents, and families may learn to apply their knowledge in child custody cases but may not have the requisite background to assess testamentary capacity in adults whose decision-making ability may be impaired. In some instances, however, the population may be more specific to the forensic arena; one obvious example of this is forensic work with adult offenders. Unless a psychologist has trained in a correctional or forensic setting, for example, he or she may not be familiar with, or competent to assess, defendants who have psychopathic traits. Therefore, training in forensic psychology needs to focus both on understanding the appropriate clinical population as well as on gaining the specialized legal knowledge and skills in forensic methodology.

TRAINING In 1995, 48 leading scholars, educators, and clinicians in the field of psychology and law convened at the National Invitational Conference on Education and Training in Law and Psychology at Villanova Law School, chaired by Donald Bersoff, JD, PhD (hereafter referred to as the Villanova Conference). Participants at the Villanova Conference recommended that graduate training programs in psychology could offer any of three levels of training. The first level is referred to as the entry level : the legally informed clinician. The primary objective for this level of training is to develop a working knowledge of legal issues relevant to professional psychological practice (e.g., confidentiality, privilege, third-party reporting, responding to subpoenas). The impetus for this proposal was a recognition that forensic issues have now permeated many traditional clinical practices, and all clinicians, not only those who specialize in forensic psychology, need to be aware of certain aspects of the law that may impact on their practice. It was proposed that a substantial proportion of this legally relevant information could be incorporated into existing courses, such as ethics, assessment, and psychotherapy, although an added overview course on mental health law could also be beneficial. Many states now require that psychologists pass a state jurisprudence examination focusing on state laws relevant to psychological practice to

TABLE 2.2 Sample Forensic Issues for Clinicians 1. You have been providing psychotherapy services to a 16-year-old girl. After several months, her mother calls you and asks that the records be released to her. The girl does not want her mother to have the information. Should you release the information to the mother? 2. A mother brings her 10-year-old son in for treatment. You provide therapy to both of them for a period of several months. The mother then asks if you would testify at her upcoming divorce hearing that she should be awarded custody of her son. Should you agree to testify? 3. You receive a subpoena from an attorney of a psychiatrist who is being sued by your client for malpractice. The subpoena is for records of your client’s treatment with you. Should you provide the records? 4. Your psychotherapy client informs you that he is the one who set fire to a house a year ago, in which two people died. The police have yet to solve the case. Do you report this information to the police? 5. A father who has visitation rights but not legal custody brings his daughter in for an initial psychological evaluation, expressing concern that she has been sexually abused by his ex-wife’s new boyfriend. How should you proceed?

be licensed in that jurisdiction. (Table 2.2 poses some examples of legally relevant situations that a psychologist may encounter.) The second level of training is referred to as the proficiency level. The primary objective of this level of training is to establish competence in one or more circumscribed forensic areas related to some other major clinical specialty with which the psychologist has primary identification and expertise (e.g., a general child psychologist who performs custody evaluations as a secondary part of practice; a clinical psychologist with expertise in trauma who performs personal injury evaluations; a school psychologist who conducts evaluations of students for eligibility for special-needs programming). This would be appropriate for clinicians who do not specialize in forensic psychology but wish to do some forensic work in a limited area of practice. The requirements for training at this level would be more extensive than those for the legally informed clinician, and would likely include the necessity of one or more formal academic courses on forensic issues as well as some exposure to supervised clinical work in forensic settings. The third level, specialty level, is oriented toward the training of psychologists whose professional activities focus primarily on the provision of services to courts, attorneys, law enforcement, or corrections, and whose main specialty identification is in forensic psychology. Training for this level of specialization involves didactic and supervised practical experience. It includes study

Forensic Training and Practice

21

of case law and clinical experience with different forensic populations and types of evaluations. As discussed ahead, graduate training can provide the foundation for specialized practice, although postdoctoral education and training are necessary to attain competence as a specialist in forensic psychology.

TABLE 2.3

Graduate Training in Legal Psychology

Georgetown University (PhD in Psychology with concentration in Human Development and Public Policy and a PhD in a joint program with a master’s in Public Policy) John Jay College of Criminal Justice–CUNY (MA or PhD in Experimental Forensic Psychology) Simon Fraser University (PhD in Psychology in the Psychology and Law program)

Training for legal psychology typically occurs at the graduate level. Table 2.3 contains a list of 15 such programs identified by AP-LS for the 2010–2011 academic year. Most training occurs in traditional academic departments with a faculty member who is interested in researching issues of particular relevance to the law and legal system. A few departments have now developed minors in psychology and law, providing more specific knowledge in this area. Students are required to combine knowledge of psychology with an understanding of the legal system to appreciate how the former can impact the latter. The purpose of such programs is to train scholars who can apply the principles, methodologies, and substantive knowledge of the social sciences to legal problems. Recommendations from the Villanova Conference suggest that, in addition to the core curriculum in psychology, students specializing in legal psychology also obtain legal knowledge, including an understanding of legal processes, evidence, sources of law, and substantive law (i.e., basics of criminal and civil law). This knowledge may be obtained in law-related courses in a psychology department or in special courses at law schools. In addition, the Villanova Conference participants recommended that the curriculum include courses on substantive legal psychology, including research (as noted previously) and relevant case law and statutes. Graduate Training in Forensic Psychology There is a tension in graduate programs in professional psychology between the need to provide a broad and general education, and the desire to prepare students for specialized practice. Traditionally, graduate programs focused on general clinical skills and a breadth of experiences, but the contemporary norm is that most doctoral programs and most doctoral students pursue training relevant to a recognized specialty (Luebbe, Green, & Malcom, 2006; Perry & Boccaccini, 2009). The issue, then, as Bell (2009) notes, is not whether specialized training should occur, but rather at what point in the training process it can be implemented most effectively. Appropriate training

Nonclinical Doctoral Programs in Legal Psychology

Alliant International University (PhD in Forensic Psychology, Non-Clinical, Public Policy and Law) Arizona State University (Law and Psychology JD/PhD program) Cornell University (PhD with a concentration in Law, Psychology, and Human Development) Florida International University (PhD in Psychology with an emphasis in Legal Psychology)

University of Arizona (PhD and/or JD) University of Florida (JD/PhD) University of Illinois at Chicago (PhD with concentration in Psychology and Law) University of Minnesota (PhD. in Social Psychology with a research concentration in Social Psychology and Law) University of Nebraska (joint JD/PhD or joint JD/MA in Clinical or Social Psychology or master’s in Legal Studies) University of Nevada–Reno (PhD in Social Psychology with a concentration in Psychology and Law) University of Texas at El Paso (PhD in Applied Psychology with the Legal Psychology Group) University of Wyoming (Social or Developmental PhD with concentration in Psychology and Law) Source: AP-LS Teaching, Training, and Careers Committee (TTC), available at www.ap-ls.org/education.

for forensic psychologists involves developing core competencies in applied psychology (e.g., clinical psychology, counseling psychology, or school psychology), augmented by more specific training and education in forensic psychology. Such training includes: didactic courses in areas of law and forensic psychology; courses on specialized assessment techniques relevant to forensic psychology; and opportunities to apply these skills and knowledge under supervision in clinical settings (DeMatteo, Marczyk, Krauss, & Burl, 2009; Fernandez, Davis, Conroy, & Boccaccini, 2009). The American Psychology–Law Society’s (AP-LS) Guide to Graduate Programs in Forensic and Legal Psychology (available at http://ap-ls.org/education/ GraduatePrograms.php) provides a list of doctoral degree programs in psychology that offer specialized training in psychology and law. As of the 2010–2011 academic year, 24 doctoral programs were identified that offer training in clinical forensic psychology (see Table 2.4). Some of these programs have begun to offer a doctoral degree specifically in forensic psychology, although the long-term viability or advisability of such specialized

22

Nature of the Field

TABLE 2.4

Clinical Doctoral Programs in Forensic Psychology

Alliant International University–California School of Forensic Studies (PhD or PsyD in Forensic Psychology)∗ American School of Professional Psychology (PsyD with concentration in Forensic Psychology) Argosy University–Chicago (Clinical PsyD with concentration in Forensic Psychology) Arizona State University (Law and Psychology JD/PhD program) Carlos Albizu University in Miami (PsyD in Clinical Psychology with a concentration in Forensic Psychology) Chicago School of Professional Psychology (PsyD in Clinical Psychology with a concentration in Forensic Psychology) Drexel University (JD/PhD or PhD with a concentration in Forensic Psychology) Fordham University (Clinical PhD with a concentration in Forensic Psychology) Forest Institute of Professional Psychology (PsyD in Clinical Psychology with a concentration in Forensic Psychology) John Jay College of Criminal Justice–CUNY (PhD) Massachusetts School of Professional Psychology (PsyD with a Forensic Psychology concentration) Nova Southeastern University (PsyD with a concentration in Clinical Forensic Psychology). Pacific University (PsyD with an emphasis in Forensic Psychology) Palo Alto University (joint PhD/JD [with Golden Gate University School of Law]; and PhD in Clinical Psychology with Forensic emphasis) Sam Houston State University (PhD in Clinical Psychology with an emphasis in Forensics) Simon Fraser University (PhD in Clinical-Forensic Psychology). Spalding University (PsyD in Clinical Psychology with a concentration in Forensic Psychology) Texas A&M University (PhD in Clinical Psychology) University of Alabama (Clinical PhD with a Psychology-Law concentration) University of Arizona (Clinical Psychology with a Forensic interest) University of Illinois at Chicago (PhD in Clinical Psychology with minor in Psychology and Law) University of Nebraska (joint JD and PhD or joint JD and MA in Psychology) West Virginia University (PhD in Clinical with emphasis in Forensics) Widener University (JD/PsyD joint degree) ∗ Not identified as a program in Clinical Psychology. Source: AP-LS Teaching, Training, and Careers Committee (TTC), available at www.ap-ls.org/education.

degrees remains an open question. The issue is that these programs are not eligible for APA accreditation (APA accredits professional graduate programs only in clinical, counseling, or school psychology). Many other universities offer informal opportunities, such as individual courses in forensic psychology or practicum placements in correctional or forensic settings. Another model of training is the joint degree program (see Table 2.5), in which students complete all coursework

TABLE 2.5 Joint Degree Programs University of Arizona (PhD/JD) Arizona State University (Law and Psychology JD/PhD program) Drexel University (JD/PhD) University of Florida (JD/PhD) University of Nebraska (joint JD/PhD or joint JD/MA in Psychology) Palo Alto University (joint PhD/JD [with Golden Gate University School of Law]) Widener University (JD/PsyD joint degree) Note: All of these programs are also listed in Tables 2.3 and 2.4. Source: AP-LS Teaching, Training, and Careers Committee (TTC), available at www.ap-ls.org/education.

in psychology required for the doctoral degree (PhD or PsyD) and all coursework from an affiliated law school required to earn a law degree (JD). Within joint degree programs there are differences in the level of integration that occurs between the psychological and legal components of training. Some commentators have expressed concern that the graduates of joint degree programs are perceived as neither psychologists nor lawyers (Melton, Huss, & Tomkins, 1999), and that practical opportunities to integrate the two disciplines may be limited. Accordingly, some would argue that this type of program may not be well suited for most students who are interested primarily in clinical forensic psychology careers, and that time spent in law school may detract from time available to further their clinical training. This joint degree model may be more useful for those interested in other career tracks, such as public policy development or social science research in the legal arena, or those interested in having a more blended career. There are limited empirical data regarding the advantages of a joint degree. Hafemeister, Ogloff, and Small (1990) surveyed dual-degree recipients who reported that they perceived the acquisition of both degrees as an advantage in terms of employability, salary, and prestige. However, as noted by Ogloff, Tomkins, and Bersoff (1996), that study did not include a comparison group of individuals with only a doctorate in psychology. In an unpublished dissertation, Parsi (2010) surveyed 32 with dual degrees in both psychology and law (27 of whom had graduated from a dual-degree program, and 5 of whom had obtained psychology and law degrees separately), and compared their responses with those of 20 individuals with only doctoral degrees in psychology. She found that the dual degree did not necessarily confer financial advantages. Indeed, a frequent complaint from those in dual-degree programs was the significant debt they had incurred, which was not offset by any increase in earning capacity. The average income for the dual-degree graduates was not significantly higher

Forensic Training and Practice

than for the comparison group. However, those who had earned both degrees reported a broader range of professional roles available to them. Masters-Level Programs Although Clements and Wakeman (2007) argued that the entry-level degree for forensic practice is the doctoral degree, there are now more than 20 masters programs that identify themselves as providing specialized training in forensic psychology (http://ap-ls.org/education/ Masters.php). Some of the disagreement may be a matter of terminology. Master’s degree programs do not produce forensic psychologists (since most U.S. jurisdictions require a doctoral degree to use the title of psychologist). Rather, as Zaitchik, Berman, Whitworth, & Platania (2007) explain, a terminal master’s degree can lead to “a career working with forensic populations in a variety of treatment settings” (p. 68). They are thus referring to clinicians who work within a correctional or forensic setting, but are not psychologists. Zaitchik et al. (2007) also identify another function of master’s programs: to prepare students to enter and complete training in a doctoral program. For these students, the master’s degree does not represent completion of training, but rather is a stepping-stone to prepare them and make them more competitive applicants for doctoral programs as a function of demonstrating their ability to be successful at the graduate level, and obtaining relevant research and clinical experiences.

INTERNSHIPS The internship is typically structured as 1 year of fulltime supervised clinical practice, and is most often initiated by students in a professional psychological specialty (e.g., clinical, counseling, school) during the final year of graduate training and before conferral of the doctoral degree. As with graduate training, it is generally recommended that students use the internship year to refine a solid foundation of clinical skills. In addition, it presents an opportunity to begin to enhance one’s specialized forensic experiences. As it is advantageous to the intern to be exposed to a variety of clinical populations to aid in development of basic diagnostic and treatment skills that subsequently can be applied to forensic issues, most internships, even those in correctional settings, are not (and arguably should never be) completely “specialized.” Some sites do, however, offer an opportunity

23

to concentrate one’s activities in forensic practice. According to a survey of APA-approved internship sites conducted in 1997 (Bersoff et al., 1997), 38 programs indicated that they offered major rotations in which interns spent 50% of their time in forensic placements. Many of these settings also offered some form of forensic seminar or didactic training. A decade later, according to information on the AP-LS Web site (http://ap-ls.org/ education/Internship.php), 61 internship programs were identified that offer either major or minor rotations in forensic psychology (see Table 2.6). Postdoctoral Training in Forensic Psychology The postdoctoral fellowship is emerging in professional psychology as the benchmark of specialty training. Fellowships in forensic psychology, however, have been fairly slow to develop. There are currently only 16 postdoctoral programs in forensic psychology identified on the AP-LS Web site (see Table 2.7), with approximately 30 positions available per year. Although this represents almost a 50% increase from the 11 programs identified 10 years ago, this means only a net increase of five programs over the past decade. Most of these programs offer clinical placements that focus on criminal forensic assessment, particularly in the public sector and mostly with adults, although some programs (e.g., Massachusetts General Hospital, University of Washington, University of Massachusetts Medical School) also offer specialty training in child and/or juvenile forensic psychology. Because there are currently so few fellowship opportunities available relative to the demand for forensic psychologists (e.g., Otto & Heilbrun, 2002; Packer, 2008), it is realistic to expect these programs to focus on developing leaders in the field, and it is premature to expect completion of a postdoctoral fellowship as a prerequisite for forensic practice. Guidelines for Accreditation As noted earlier, one of the most significant accomplishments related to training in forensic psychology over the past decade has been the adoption of Education and Training Guidelines for Forensic Psychology (E&T guidelines) (http://cospp.org/system/files/guidelines/ET_ Guidelines_final_forensic_2009.pdf). These guidelines have been incorporated by APA’s Commission on Accreditation (CoA) as an essential component for accreditation of postdoctoral residencies (also referred to as fellowships) in forensic psychology. The E&T guidelines are presented at the end of this chapter. The salient elements of these guidelines are described here.

24

Nature of the Field TABLE 2.6 Internship Programs With Forensic Rotations Organized by State/Province California

Missouri

Atascadero State Hospital

Fulton State Hospital Psychology Internship U.S. Medical Center for Federal Prisoners Western Missouri Mental Health Center

Metropolitan State Hospital Marin County Health and Human Services Psychology Internship Program Patton State Hospital San Bernardino County Department of Behavioral Health VA Sepulveda Ambulatory Care Center UC Davis Children’s Hospital CAARE Center Colorado University of Denver Graduate School of Professional Psychology Internship Consortium Connecticut Yale Child Study Center Florida Florida State Hospital Pre-doctoral Psychology Internship Northeast Florida State Hospital Pre-doctoral Psychology Internship Program University of South Florida/Louis de la Parte Florida Mental Health Institute Georgia

Nebraska Nebraska Mental Health Centers at Nebraska Comprehensive Health Care Nevada VA Sierra Nevada Health Care System New Jersey Greystone Park Psychiatric Hospital Trenton Psychiatric Hospital New Mexico Southwest Consortium Pre-doctoral Psychology Internship New York MercyFirst Mt. Sinai Services/Elmhurst Hospital Center New York University–Bellevue Hospital Center Clinical Psychology Internship Program Westchester Jewish Community Services

Emory University School of Medicine/Grady Health System

North Carolina Federal Correctional Complex

Northwest Georgia Consortium

Dorothea Dix Hospital

Illinois

Ohio Ohio Psychology Internship Oregon

Adler Prison Internship Program Argosy University/Schaumburg Correctional Psychology Training Program at Stateville and Dwight Correctional Centers Argosy University/Schaumburg Correctional Psychology Training Program at Dixon Correctional Center Iowa North Iowa Consortium Psychology Internship Program Kentucky Jefferson County Internship Consortium Louisiana Southern Louisiana Internship Consortium Tulane University Health Sciences Center Maine Togus VA Medical Center Maryland Malcom Grow Medical Center, United States Air Force Spring Grove Hospital Center Springfield Hospital Center

Pacific University Psychological Service Center Pennsylvania Western Psychiatric Institute & Clinic South Dakota Dakota Counseling Institute Pre-doctoral Psychology Internship Tennessee James H. Quillen Veterans Affairs Medical Center, Psychology Internship Program Texas Federal Medical Center Carswell Department of Psychiatry, University of Texas Health Science Center at San Antonio Virginia Eastern Virginia Medical School Salem VA Medical Center Washington

Federal Medical Center Devens

Spokane Mental Health–Adult Track Western State Hospital

Worcester State Hospital

Wisconsin

Minnesota

Wisconsin Department of Corrections Pre-doctoral Internship in Professional Psychology Ethan Allen School Mendota Mental Health Institute

Massachusetts

Human Services Inc. Minnesota Veterans Home–Minneapolis Mississippi Gulf Coast Veterans Health Care System

Wyoming Wyoming State Hospital Pre-doctoral Psychology Internship

Forensic Training and Practice

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TABLE 2.6 (continued ) CANADA

Nova Scotia

Alberta Edmonton Consortium Clinical Psychology Residency Pre-doctoral Residency in Pediatric and Child Clinical Psychology

Nova Scotia Hospital Pre-doctoral Internship in Clinical Psychology Ontario Royal Ottawa Health Care Group Pre-doctoral Residency Program

Manitoba Department of Clinical Health Psychology, Faculty of Medicine, University of Manitoba

Saskatoon Psychology Internship Program, Saskatoon Health Region

Source: www.ap-ls.org/education/Internship.php.

Sequential Organization of Training The E&T guidelines emphasize that specialized forensic training builds on a strong foundation of training in the science and professional practice of psychology. The implication of this principle is that graduate training should be broad and general, not narrowly focused on forensic issues. Thus, the guidelines stipulate that one of the entry criteria for acceptance into a postdoctoral forensic psychology program should be completion of a doctoral degree from an APA or CPA accredited graduate program. At this time, APA accredits graduate programs only in clinical, counseling, or school psychology. However, consistent with the accreditation guidelines, programs may offer

TABLE 2.7 Postdoctoral Programs in Forensic Psychology Central Regional Hospital, Raleigh, North Carolina Central State Hospital Forensic Psychiatric Hospital, Petersburg, Virginia Forensic Psychiatric Hospital, Port Coquitlam, British Columbia Institute on Violence, Abuse, and Trauma at Alliant International University, San Diego, California Larned State Hospital, Larned, Kansas Liberty Healthcare Corporation at Illinois Department of Human Services, Rushville, Illinois Lubbock Regional Mental Health Mental Retardation Services, Lubbock, Texas Massachusetts General Hospital, Boston, Massachusetts Minnesota State Operated Forensic Services, St. Peter, Minnesota Patton State Hospital, Patton, California Saint Elizabeth’s Hospital, Washington, D.C. University of Massachusetts Medical School, Worcester, Massachusetts University of Southern California Institute of Psychiatry, Law, and Behavioral Science, Los Angeles, California University of Virginia Institute of Law, Psychiatry, & Public Policy and Virginia’s Western State Hospital, Charlottesville, Virginia University of Washington Child Study and Treatment Center, Lakewood, Washington Western State Hospital, Lakewood, Washington Source: http://ap-ls.org/education/PostDoc.php.

concentrations or emphases in forensic psychology as part of their curriculum and practicum experiences. Training Goals The guidelines include explicit exit criteria for assessing successful completion of the postdoctoral residency. These include attainment of competencies in knowledge as well as practice domains. The knowledge domains include understanding the legal system, knowledge of forensic psychological evaluation methods and instruments, familiarity with the relevant practice standards, and knowledge of the rules governing expert testimony, including criteria for acceptance of specific instruments and methodologies. The practice competencies include: • ability to conduct a forensic interview; • ability to use and interpret structured assessment instruments; • ability to obtain the relevant data, including collateral sources of information; • ability to integrate results and formulate interpretations consistent with data, relevant for the conclusions related to the legal question, and consistent with ethical and practice guidelines; • ability to write reports that are clear, comprehensive, articulate, and appropriately focused on the referral issue; and • ability to provide expert testimony in a clear, articulate manner, consistent with ethical and practice guidelines. General Requirements for Accreditation Postdoctoral programs are expected to provide both breadth and depth of training in forensic psychology. The breadth element refers to the didactic training. Postdoctoral programs are expected to provide a didactic curriculum that covers the range of forensic psychological practice. The depth element refers to developing competence within

26

Nature of the Field

certain areas of forensic practice. Given the many areas within forensic psychology, it is unrealistic to expect trainees to become competent in all areas. Rather, residents should receive adequate training to become competent in at least two different areas of forensic practice. This is consistent with ABPP requirements for board certification in forensic psychology (see ahead, “Certification and Credentialing”). Continuing Education Because the emergence of formal academic training in forensic psychology is fairly recent, many practicing psychologists have not had easy access to specialty training at the graduate or postdoctoral fellowship level. Thus, for many, the opportunity to develop new knowledge and skills is obtained through continuing education programming (CEP). These programs are directed toward licensed psychologists who are seeking to expand their knowledge, skills and practices by developing competencies in one or more areas of forensic psychology. Participants at the Villanova Conference identified five goals of CEP in forensic psychology: (1) improve standards of forensic practice and ethical decision making, (2) improve and update knowledge in specific content areas, (3) provide paths for the improvement of forensic skills, (4) provide opportunities for interdisciplinary interchange, and (5) stimulate research and the dissemination of new knowledge (Bersoff et al., 1997). They concluded, however, that many programs were not meeting all these requirements due to several factors, including inadequate quality control of presentations and presenters, failure to bridge the gap between research and practice, lack of accessibility to practitioners, lack of standards to measure workshop success, and lack of clarity about the preexisting level of knowledge and experience that the audience may possess. This last point is especially significant given the wide range of forensic knowledge and skills of individuals who may attend a forensic CEP: very experienced forensic psychologists, those who have had some formal training in forensic psychology, those who have learned on the job, and those who have very little or no exposure to forensic concepts and practice. A series of recommendations to address these problems and improve CEP in forensic psychology emerged from the Villanova Conference including: (a) delineating CEP into three identified levels: basic, specialty, and advanced; (b) considering credentialing of CEP sponsors for forensic education (in addition to basic APA credentialing); (c) attracting a more diverse group of presenters (in terms of ethnic and gender composition) and addressing ethnic, cultural,

gender, and linguistic differences directly in workshops; (d) developing alternatives to the commonly employed one-day didactic workshop format, including summer institutes that would include supervised practical experience; and (e) making CEP more multidisciplinary and interactive. Some of these recommendations have already been incorporated into forensic CEP. For example, the APA and American Bar Association have sponsored several joint educational activities related to criminal justice and child custody. In addition, the American Academy of Forensic Psychology, perhaps the foremost forensic CEP provider, has developed 4-day intensive training workshops in forensic psychology, divided into two tracks: introductory and advanced. Integrating supervised practical training into a continuing education program poses significant challenges, including availability of resources, licensing issues, and cost.

CERTIFICATION AND CREDENTIALING In 1978, the American Board of Forensic Psychology (ABFP) was formed for the purpose of credentialing and certifying forensic psychologists who were practicing at an advanced level of competence. In 1985, ABFP joined the ABPP, becoming one of its specialty boards. Since then, ABPP has certified the competence of forensic psychologists through a process developed and implemented by ABFP. In order to be eligible for board certification in forensic psychology by ABFP/ABPP the candidate must be a licensed psychologist with at least 5 years of experience (4 years postdoctoral) performing forensic work, including a minimum of 1,000 hours of forensic work over that period. In addition, candidates must have obtained at least 100 hours of specialized training in forensic psychology, which includes direct clinical supervision and/or didactic training (e.g., CEP activities). This requirement of 100 hours of specialized training is deliberately modest, in recognition of the current state of affairs in which access to such training is limited. However, applicants who have successfully completed a postdoctoral training program in forensic psychology may apply to have the 5 years of forensic experience waived. In addition, a law degree (JD or LLB) may be substituted for 2 of the required years of experience. Updated information about this process is available on the ABFP Web site (www.abfp.com). The application is reviewed by ABPP and ABFP to determine whether the basic requirements have been met, and jurisdictions in which the applicant is licensed are queried to determine that the license is active/current and

Forensic Training and Practice

unrestricted. If there is a record of disciplinary action, the particular issue and circumstances are considered in the decision of whether to accept the application. Once an applicant has been accepted into candidacy, he or she must pass a written examination that covers the range of forensic psychology. Candidates typically have 1 year after acceptance of the application to take the written examination. Information about these areas and recommended readings are contained on the ABFP Web site (www.abfp.com). These readings include relevant case law as well as articles and books in the forensic psychology literature. The list is updated periodically; Table 2.8 contains a sample of the case law included in the

27

current list. The test thus assesses the candidate’s breadth of knowledge. Lee and Otto (2009) provide a detailed description of the test development process, content areas covered, and criteria for passing. After successful completion of the written examination, the candidate has 1 year to submit two practice samples, which serve as the basis for an oral examination. These samples are reviewed by specially designated faculty of ABFP. The two samples must represent two different areas of forensic practice (e.g., competence to stand trial and criminal responsibility; child custody and waiver of juvenile to adult court; personal injury and civil commitment). A psychologist who is extremely skilled in

TABLE 2.8 Sample Case Law Reading List Ethics, Guidelines, Professional Issues, and Duties

Personal Injury and Civil Damages

Bruce v. Byrne-Stevens & Assocs. Eng’rs, 113 Wn.2d 123 (1989)

Bragdon v. Abbott, 524 U.S. 624 (1998)

Budwin v. American Psychological Association, 29 Cal. Rptr. 2d 453 (1994)

Carter v. General Motors, 106 N.W.2d 105 (1960) Molzof v. United States, 911 F.2d, 18 (7th Cir. 1991), ret’d, 112 S.Ct. 711 (1992)

Deatherage v. Examining Board of Psychology, 948 P.2d 828 (Wash. 1997)

Pennsylvania v. Yesky, 524 U.S. 206 (1998)

Murphy v. A. A. Mathews, 841 S.W.2d 671 (Mo. 1992)

TXO Products v. Alliance Resources, 509 U.S. 443 (1993)

Law, Precedents, Court Rules, Civil and Criminal Procedure Daubert v. Merrell Dow Pharmaceuticals, 516 U.S. 869 (1993) Frye v. U.S., 295 F. 1013 (D.C. Cir. 1923)

Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) Waube v. Warrington, 258 N.W. 497 (1935) Worker’s Compensation, Disability, and Discrimination

General Electric Co. v. Joiner, 522 U.S. 136 (1997)

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998)

Jenkins v. U.S., 307 F.2d. 637 (D.C. Cir. 1961)

Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991)

Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)

Harris v. Forklift Systems, 510 U.S. 17 (1993)

Testing and Assessment, Judgment and Bias, Examination Issues Griggs v. Duke Power Co., 401 U.S. 424 (1971) United States v. Greer, 158 F.3d 228 (1998) United States v. Gigante, 982 F. Supp. 140, 158-159 (E.D.N.Y. 1997) Civil Commitment

Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) Child Custody and Parenting Baltimore City Department of Social Services v. Bouknight, 493 U.S. 549 (1990) Chapsky v. Wood, 26 Kan. 650, 42 (1881)

Addington v. Texas, 441 U.S. 418 (1979)

DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989)

Donaldson v. O’Connor, 493 F.2d 507 (5th Cir. 1974)

Idaho v. Wright, 497 U.S. 805 (1990)

Heller v. Doe, 509 U.S. 312 (1993)

Lassiter v. Department of Social Services, 452 U.S. 18 (1981)

Kansas v. Hendricks, 521 U.S. 346 (1997)

Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817 (1967)

Lessard v. Schmidt, 349 F.Supp. 1078 (E.D. Wis. 1972)

Maryland v. Craig, 497 U.S. 836 (1990)

O’Connor v. Donaldson, 422 U.S. 563 (1975)

Painter v. Bannister, 358 Iowa 1390, 140 N.W. 2d. 152 (1966)

Parham v. JR, 442 U.S. 584 (1979)

Palmore v. Sidoti, 466 U.S., 104 S.Ct. 1879 (1984)

Youngberg v. Romeo, 457 U.S. 307 (1982)

Pennsylvania v. Richie, 480 U.S. 39 (1987)

Civil Competencies

Pierce v. Society of Sisters, 268 U.S. 510 (1925)

Caesar v. Mountanos, 542 F. 2d 1064 (9th Cir. 1976)

Prince v. Massachusetts, 321 U.S. 158 (1944)

Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981)

Santosky v. Kramer, 455 U.S. 745 (1982)

Rogers v. Okin, 643 F.2d 650 (1980)

Troxel v. Granville, 530 U.S. 57 (2000)

Rogers v. Okin, 638 F.Supp. 934 (D. Mass. 1986)

White v. Illinois, 502 U.S. 346 (1992) (continued overleaf )

28

Nature of the Field

TABLE 2.8

(continued )

Child Abuse and Neglect

In re Gault, 387 U.S. 1 (1967)

DeShaney v. Winnebago, 489 U.S. 189 (1989)

In re Winship, 397 U.S. 358 (1970)

Kentucky v. Stincer, 482 U.S. 730 (1987)

Kent v. United States, 383 U.S. 541 (1966)

Santosky v. Kramer, 455 U.S. 745 (1982)

McKeiver v. Pennsylvania, 403 U.S. 528 (1971)

Criminal Competencies Ake v. Oklahoma, 470 U.S. 68 (1985) Dusky v. U.S., 362 U.S. 402 (1960) Estelle v. Smith, 451 U.S. 454 (1981) Ford v. Wainwright, 477 U.S. 199 (1986) Godinez v. Moran, 509 U.S. 389 (1993) Indiana v. Edwards, 554 U.S. 208 (2008)

Stanford v. Kentucky, 492 U.S. 361 (1989) Death Penalty Atkins v. Virginia, 536 U.S. 304 (2002) Barefoot v. Estelle, 463 U.S. 880 (1983) Ford v. Wainwright, 477 U.S. 399 (1986) Furman v. Georgia, 408 U.S. 238 (1972)

Jackson v. Indiana, 406 U.S. 715 (1972)

Gregg v. Georgia, 428 U.S. 153 (1976)

Miranda v. Arizona, 384 U.S. 436 (1966)

Lockett v. Ohio, 438 U.S. 586, 604 (1978)

Riggins v. Nevada, 524 U.S. 127 (1992)

Stanford v. Kentucky, 492, U.S. 361 (1989)

Rock v. Arkansas, 483 U.S. 44 (1987) Criminal Responsibility

Risk Assessment Jablonski v. U.S., 712 F.2d 391 (9th Cir. 1983)

Clark v. Arizona, 548 U.S. 735 (2006)

Lipari v. Sears Roebuck, 497 F. Supp. 185 (D. Nebr. 1980)

Durham v. U.S., 214 F.2d 862 (1954, D.C. Cir.)

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

Foucha v. Louisiana, 504 U.S. 71 (1992) Frendak v. U.S., 408 A.2d 364 (D.C. 1979)

Eyewitnesses

Jones v. U.S., 463 U.S. 354 (1983)

Neil v. Biggers, 409 U.S. 188 (1972)

M’Naghten’s Case, 10 Cl.&F. 200, 8 Eng. Rep. 718 (H.L. 1843)

People v. Shirley, 723 P.2d 1354 (1982)

Juvenile Justice Fare v. Michael C., 442 U.S. 707 (1979)

State v. Hurd, 414 A.2d 291 (1980) White v. Illinois, 502 U.S. 346 (1992)

G.J.I. v. State, 778 P.2d 485 (Okla.Crim. 1989) Source: Adapted from http://abfp.com/pdfs/certification/ReadingList.pdf.

performing child custody evaluations but does no other forensic work, for example, would not be a candidate for the forensic diploma. This is not a reflection on the quality of the individual psychologist, but rather is a function of the current standard for board certification in forensic psychology, which requires competence in at least two distinct areas of forensic practice. The practice samples consist of an introductory section, followed by the work product, accompanied by supplemental materials (such as psychological testing, thirdparty documentation, relevant case law or statutes). The samples are reviewed to determine whether they are of adequate quality to proceed to the oral examination. If they are deemed adequate, the candidate then proceeds to the oral examination phase. This examination is conducted by three ABFP faculty members and lasts a maximum of 3 hours. It is designed to evaluate the quality of practice and forensic knowledge in the two distinct areas exemplified by the practice samples. In addition, the examination

focuses on the candidate’s understanding and practice consistent with ethical standards, including the most recent versions of the Ethical Principles of Psychologists and Code of Conduct and the Specialty Guidelines for Forensic Psychology. The format of the ABPP examination in forensic psychology has evolved over time, and the current format may be modified in the future. However, the consistent purpose is to provide a format for candidates to demonstrate that they have mastered the relevant competencies required for the practice of forensic psychology. This includes both a broad knowledge base, as well as practice that is consistent with established standards and ethical practice. As we have discussed in this chapter, the specialty of forensic psychology has matured to the point where there is an extensive literature on best practices (e.g., Heilbrun, Grisso, & Goldstein, 2009), guidelines for practice, and guidelines for education and training. These are all resources that applicants can access to prepare for

Forensic Training and Practice TABLE 2.9 Common Problems in Forensic Reports Submitted to ABPP 1. Opinions without sufficient explanations 2. Forensic purpose unclear 3. Organization problems 4. Irrelevant data or opinions 5. Failure to consider alternative hypotheses 6. Inadequate data 7. Data and interpretation mixed 8. Overreliance on a single source of data 9. Language problems 10. Improper test use Source: Adapted from Grisso (2010).

the examination process. Consistent with the focus on board certification being competency-based, ABFP has identified core competencies, both foundational as well as functional, to be addressed during the examination process. Packer and Grisso (2011) provide a more detailed description of these competencies. In addition, Grisso (2010) has identified the most common types of problems identified in ABFP practice sample submissions that were not approved. The 10 most common problems are listed in Table 2.9. At the time this book went to press, there were fewer than 300 board-certified forensic psychologists in the United States and Canada. It is noted, though, that the board certification process is a voluntary system (i.e., there is no expectation that a psychologist be board certified in order to practice in the forensic arena or to qualify as an expert witness). However, there are emerging trends within psychology to encourage specialty certification (across all specialties, not just forensic psychology) as a means of demonstrating competent practice (e.g., Dattilio, 2002; Elman, Illfelder-Kaye, & Robiner, 2005). This trend, accompanied by the advances discussed above in training opportunities and clearly identified competencies, will hopefully result in a significant increase in the number of psychologists board certified in forensic psychology by ABPP over the next decade. The rigor and reputation of the ABPP forensic diploma have become more significant recently, as other entities have begun awarding their own forensic credentials, creating some confusion among consumers of forensic services. There have been critiques of some of these organizations (e.g., Hansen, 2000; Otto, 1999). Golding (1999) has summarized the distinctions between the ABPP diploma and alternative certifications, including recommending crossexamination techniques to highlight some of the differences. He specifically recommends focusing on whether

29

alternative certifications include grandparenting clauses (i.e., awarding certification with a waiver of requirements), and whether they require work sample review, oral examination, and specific training and supervision. At present, psychologists may claim board certification status based on credentials from any number of private organizations. As the field of forensic psychology continues to grow and psychologists claim “board certification” status, courts will be searching for guidance regarding the meaning and value of reputed certification. However, the issue of developing professional standards for use of the terms board certification and diplomate is one not unique to forensic psychology, but rather an issue that affects all psychologists, and may be addressed by the American Psychological Association or by state boards of psychology (see e.g., Florida Code 490.0149, 2010).

MODELS FOR THE FUTURE As is evident from the above review, training in forensic psychology is now available at all levels. The Education and Training Guidelines focus on requirements for postdoctoral residencies/fellowships. However, recently, there have been attempts in the literature to identify core curriculum and training at the graduate level as well (DeMatteo, Marczyk, Krauss, & Burl, 2009; Fernandez, Davis, Conroy, & Boccaccini, 2009). The challenge for graduate programs is to include forensic training without sacrificing the broad and general training required both for APA accreditation and for competent practice. APA, at present, will not accredit programs that focus predominantly on forensic practice unless those programs meet all criteria for accreditation in either clinical, counseling or school psychology. DeMatteo et al. (2009) recommend the elements of forensic training that can be integrated into graduate curricula (legal knowledge, integrative lawpsychology knowledge, ethics and professional issues related to forensic practice, and clinical forensic training). Fernandez et al. (2009) describe one such clinical program, which identifies its goal as training “legally informed” clinicians. Furthermore, as the most recent petition for renewal of recognition of forensic psychology as a specialty by the APA identified it as a postdoctoral specialty, graduate training can provide foundational training, but will not suffice to produce competent specialists. As previously discussed, there are now numerous internships that provide opportunities for trainees to develop clinical skills with forensic populations and perform some forensic evaluations under supervision. Again,

30

Nature of the Field

however, we caution against becoming too specialized or narrowly focused at this stage of training. The internship year provides the best opportunity for sustained clinical training, and it is important that basic clinical skills be obtained prior to applying them to the forensic arena. Otto, Heilbrun, and Grisso (1990) emphasized the importance of the internship for the development of clinical skills; they discussed the advantages and disadvantages of the specialist model (focusing clinical training almost exclusively in a forensic setting) versus the generalist–specialist model, which provides some forensic experience in a general clinical internship. The disadvantage of the former is that interns may become too narrowly focused early in their careers and may not obtain a sufficiently broad range of experiences. The disadvantage of the latter is that it may not provide adequate opportunity to develop the requisite forensic skills. Currently, with the shortage of postdoctoral fellowship opportunities, this is indeed a dilemma. The challenge for the field is to find innovative ways to identify funding mechanisms to allow a greater number of psychologists to obtain postdoctoral training in forensic psychology. Continuing professional education activities would provide opportunities for trained forensic psychologists to keep up to date on developments, research, and new instruments. Also, because the field is so broad, it would provide opportunities for forensic psychologists to expand their areas of expertise (e.g., forensic psychologists who primarily conduct criminal forensic evaluations may develop competence in personal injury work). It is likely that CEP would continue to serve as a major source of education for those who have some training in forensic psychology at the graduate level but who choose not to become specialists. For these individuals, the types of models suggested by the Villanova Conference (i.e., more intensive training, including both didactic and experiential components) would be most appropriate.

CONCLUSION Forensic psychology is currently well established as a specialty area, recognized by both APA and ABPP. The competencies and knowledge domains unique to the specialty have now been firmly established through both the professional literature and guidelines for education, training, and practice. In addition, there are empirical data demonstrating that clinicians without adequate training produce forensic reports that do not meet the quality standards of the profession (e.g., Nicholson & Norwood, 2000; Packer,

2008; Wettstein, 2005). Skeem and Golding (1998) concisely identified a major source of the problems in the area, noting that “occasional experts rely primarily on their traditional clinical skills and attempt to generalize these to psycholegal assessment” (p. 365). Thus, conceptualization of forensic work as simply an application of clinical psychology to the legal arena (e.g., Matarazzo, 1987) is no longer a viable approach to the field. Rather, clinical training is a necessary, foundational component that must be supplemented by specialized knowledge and skills specific to forensic psychological practice.

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Forensic Training and Practice informed clinicians. Journal of Forensic Psychology Practice, 9, 57–69. Florida Code 490.0149 (2010). Foucha v. Louisiana, 504 U.S. 71 (1992). Godinez v. Moran, 509 U.S. 389 (1993). Golding, S. L. (1999). The voir dire of forensic experts: Issues of qualification and training. Paper presented at the American Psychological Association, Boston, MA, August 22. Goodman, G. S., Levine, M., Melton, G. B., & Ogden, D. W. (1991). Child witnesses and the confrontation clause: The American Psychological Association brief in Maryland v. Craig. Law and Human Behavior, 15, 13–29. Griffin, P. (2011). Presidential column. American Psychology Law News, 31 (1), 2. Grisso, T. (1991). A developmental history of the American Psychology Law Society. Law and Human Behavior, 15, 213–231. Grisso, T. (2000). What we know about youths’ capacities as trial defendants. In T. Grisso & R. G. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp. 139–171). Chicago, IL: University of Chicago Press. Grisso, T. (2010): Guidance for Improving Forensic Reports: A Review of Common Errors (Vol. 2, pp. 102–115). Retrieved from www.forensicpsychologyunbound.ws/ Grisso, T., & Steinberg, L. (2005). Between a rock and a soft place: Developmental research and the child advocacy process. Journal of Clinical Child and Adolescent Psychology, 34, 619– 627. Hafemeister, T. L., Ogloff, J. R. P., & Small, M. (1990). Training and careers in law and psychology: The perspective of students and graduates of dual degree programs. Behavioral Sciences and the Law, 8, 263–284, 627. Hansen, M. (2000). Expertise to go. ABA Journal, 86, 44–52. Heilbrun, K. (2009). Evaluation for risk of violence in adults. New York, NY: Oxford. Heilbrun, K., Grisso, T., & Goldstein, A. (2009). Foundations of forensic mental health assessment. New York: Oxford. Hurt, L., Wiener, R. L., Russell, B. L., & Mannen, R. K. (1999). Gender differences in evaluating social-sexual conduct in the workplace. Behavioral Sciences and the Law, 17, 413–433. Jones v. U.S., 463 U.S. 354 (1983). Kassin, S. M., Drizin, S. A., Grisso, T., Gudjonsson, G. H., Leo, R. A., & Redlich, A. D. (2010). Police-induced confessions: Risk factors and recommendations. Law and Human Behavior, 34, 3–38. Lee, G. P, & Otto, R. K. (2009). How to prepare for the written examinations in clinical neuropsychology and forensic psychology. In C. M. Nezu, A. J., Finch, & N. P. Simon (Eds.), Becoming board certified by the American Board of Professional Psychology (2009). New York: Oxford Press. Lieberman, J. D., & Sales, B. D. (2007). Scientific jury selection. Washington, DC: American Psychological Association. Loftus, E. F., & Davies, G. M. (1984). Distortions in the memory of children. Journal of Social Issues, 40, 51–67. Luebbe, A., Green, D., & Malcom, K. (2006). Student survey results: How do students view the world of “broad and general” coursework and “emphases”? Paper presented at the annual meeting of the Council of University Directors of Clinical Psychology, Tucson, AZ. Maryland v. Craig, 497 U.S. 836 (1990). Matarazzo, J. (1987). There is only one psychology, no specialties, but many applications. American Psychologist, 42, 893–903. Melton, G. B., Huss, M. T., & Tomkins, A. J. (1999). Training in forensic psychology and the law. In A. K. Hess & I. B. Weiner (Eds.), Handbook of forensic psychology (pp. 24–47). New York, NY: Wiley.

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Monahan, J. (Ed.) (1980). Who is the client? The ethics of psychological intervention in the criminal justice system. Washington, DC: American Psychological Association. M¨unsterberg, H. (1908). On the witness stand: Essays on psychology and crime. New York, NY: Clark, Boardman. Nicholson, R. A., & Norwood, S. (2000). The quality of forensic psychological assessments, reports, and testimony: Acknowledging the gap between promise and practice. Law and Human Behavior, 24, 9–44. Ogloff, J. R. P., Tomkins, A. J., & Bersoff, D. N. (1996). Education and training in psychology and law/criminal justice: Historical foundations, present structures, and future developments. Criminal Justice and Behavior, 23, 200–235. Ornstein, P. A., Ceci, S. J., & Loftus, E. F. (1998). More on the repressed memory debate: A reply to Alpert, Brown, and Courtois. Psychology, Public Policy, and Law, 4, 1068–1078. Otto, R. K. (1999). Message from the president. Bulletin of the American Academy of Forensic Psychology, 20, 11. Otto, R. K., & Douglas, K. (Eds.). (2010). Handbook of Violence Risk Assessment. New York, NY: Routledge. Otto, R. K., & Heilbrun, K. (2002). The practice of forensic psychology: A look to the future in light of the past. American Psychologist, 57, 5–18. Otto, R. K., Heilbrun, K., & Grisso, T. (1990). Training and credentialing in forensic psychology. Behavioral Sciences and the Law, 8, 217–231. Packer, I. K. (2008). Specialized practice in forensic psychology: Opportunities and obstacles. Professional Psychology: Research and Practice, 39, 245–249. Packer, I. K., & Grisso, T. (2011). Specialty competencies in Forensic Psychology. New York, NY: Oxford. Painter v. Bannister, 140 N.W. 2d 152 (1966). Parsi, H. (2010). Law and psychology education: An evaluation of economic, professional and scholastic issues in dual doctoral programs. Unpublished dissertation, Pacific Graduate School of Psychology, Palo Alto University. Perry, K. M., & Boccaccini, M. T. (2009). Specialized training in APAaccredited clinical psychology doctoral programs: Findings from a review of program web sites. Clinical Psychology: Science and Practice, 16, 348–359. Petition for the recognition of a specialty in professional psychology: Forensic psychology. (2000). Submitted by Division 41 of the American Psychological Association and the American Board of Forensic Psychology. Saywitz, K. J., Goodman, G. S., Nicholas, E., & Moan, S. F. (1991). Children’s memories of a physical examination involving genital touch: Implications for reports of child sexual abuse. Journal of Consulting and Clinical Psychology, 59, 682–691. 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. Steinberg, L., & Scott, E. (2003). Less guilty by reason of adolescence: Developmental immaturity, diminished responsibility, and the juvenile death penalty. American Psychologist, 58, 1009–1018. Sweeney, L. T., & Haney, C. (1992). The influence of race on sentencing: A meta-analytic review of experimental studies. Behavioral Sciences and the Law, 10, 179–195. Technical Working Group for Eyewitness Evidence. (1999). Eyewitness evidence: A guide for law enforcement. U.S. Department of Justice: National Institute of Justice. Troxel v. Granville, 530 U.S. 57 (2000). Wallerstein, J. S., & Lewis, J. (1998). The long-term impact of divorce on children: A first report from a 25-year study. Family and Conciliation Courts Review, 36, 368–383.

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Wells, G. L., Small, M., Penrod, S. J., Malpass, R. S., Fulero, S. M., & Brimacombe, C. A. E. (1998). Eyewitness identification procedures: Recommendations for line-ups and photospreads. Law and Human Behavior, 22, 603–647. Wettstein, R. M. (2005). Quality and quality improvement in forensic mental health evaluations. Journal of the American Academy of Psychiatry and the Law, 33, 158–175. Witt, P. H., & Conroy, M. A. (2009). Evaluation of sexually violent predators. New York, NY: Oxford University Press. Zaitchik, M. C., Berman, G. L., Whitworth, D., & Platania, J. (2007). The time is now: The emerging need for master’s-level training in forensic psychology. Journal of Forensic Psychology Practice, 7, 65–71. Zaparniuk, J., Yuille, J. C., & Taylor, S. (1995). Assessing the credibility of true and false statements. International Journal of Law and Psychiatry, 18, 343–352.

APPENDIX1 Education and Training Guidelines for Forensic Psychology I. Description and distinctiveness of the Specialty of Forensic Psychology Forensic Psychology is formally defined as “the professional practice by psychologists within the areas of clinical psychology, counseling psychology, school psychology, or another specialty recognized by the American Psychological Association, when they are engaged as experts and represent themselves as such, in an activity primarily intended to provide professional psychological expertise to the judicial system.” The distinctiveness of forensic psychology derives from the forensic psychologist’s professional obligation to obtain advanced knowledge and skills on the intersection of legal theory, procedures, and law with clinical issues, practice, and ethics. Recognition of the specialty of forensic psychology assures the public that the field of psychology can provide practitioners with advanced competence to offer services addressing civil and criminal psycholegal issues. Forensic psychology provides professional services to clinical-forensic and legal populations. The clinical-forensic population is composed broadly of individuals who may present with a psychiatric diagnosis or may have other characteristics that are relevant to a clinical-legal decision and who are involved with the judicial system. That is, each individual has an identifiable clinical status (broadly 1 Source:

http://cospp.org/system/files/guidelines/ ET_Guidelines_final_forensic_2009.pdf

considered) and legal status. The synthesis of clinical and legal issues into psycholegal issues distinguishes clinical–forensic populations from clinical populations. Individuals can be broadly categorized into two subpopulations: Civil—those involved in civil litigation (e.g., plaintiffs in personal injury suits, persons subject to civil commitment, parties to child custody cases, litigants in workers’ compensation suits, individuals seeking or contesting the need for guardianship, individuals being evaluated for fitness for duty, individuals being assessed for disability) Criminal—those involved in criminal and delinquency proceedings (e.g., defendants raising issues such as competency to stand trial, insanity, diminished capacity, sentencing considerations, or juvenile waiver, defendants adjudicated as incompetent to stand trial and in need of treatment to help restore competence, defendants acquitted by reason of insanity and in need of treatment to help progress through secure hospitalization and reintegrate safely into the community) Problems presented by the clinical–forensic population span the entire clinical spectrum. When this population’s clinical issues are considered in a legal context, they result in civil and criminal legal questions that courts must ultimately decide. The description and measurement of capacities relevant to these legal questions is an important goal in forensic psychology. The legal population includes: • Attorneys (civil and criminal) • Courts (federal, state, district, and county; trial and appellate; presiding over probate, family, juvenile, constitutional, civil, and criminal matters) • Insurers • Employers Problems presented by the legal population include the needs for relevant, accurate, and credible data and conclusions that inform legal arguments and judicial decision making, but do not intrude upon it. In addition, the need to clarify conflicts between clinical and forensic ethical standards, and the demands of law may exist. II. Sequential organization of training The goal of education and training in Forensic Psychology is to prepare psychologists to function as specialists in the area of Forensic Psychology. To achieve this goal, it is essential to have a broad and

Forensic Training and Practice

general education in Psychology, which serves as the foundation for obtaining specialized knowledge and expertise in Forensic Psychology. Competence in performing forensic work requires training and experience at the postdoctoral level, after basic competencies required for general psychological practice have been obtained at the graduate and internship levels. The ideal model is for such training to occur in a formal Postdoctoral Forensic Psychology Residency. This is an aspirational model at this time, because there is not yet an adequate number of such Residencies available. We anticipate that as the field of Forensic Psychology continues to grow and once these E&T guidelines have been in force for a few years, more Residencies will be developed. In the interim, psychologists can obtain this postdoctoral training through CE workshops (for the didactic component) and through consultation and supervision of their forensic work from a psychologist with suitable training and experience in Forensic Psychology. This document lays out the required elements of an organized, sequential training program in Forensic Psychology, including Postdoctoral Residency training. A basic principle of Forensic Psychology is that the quality of the forensic work is limited by the underlying foundational competency (i.e., in the science and professional practice of psychology) of the forensic psychologist. It is therefore essential for practitioners to first obtain a broad and general education in both scientific psychology and in the foundations of practice. This generalist training should then be augmented by exposure to the forensic area, at the graduate and internship levels, followed by specialized training at the postdoctoral level. III. Training goals In order for psychologists to successfully complete a Residency training program, they would need to develop both breadth and depth of knowledge and skills related to Forensic Psychological practice. The following are the exit criteria for Residents to demonstrate that they are practicing competently as forensic psychologists: A. Knowledge of the basic principles of the legal system, including how the legal system works, legal doctrines that are relevant for mental health evaluations, as well as core legal cases relevant to Forensic Psychology and their implications for practice, covering the breadth of forensic psychology;

33

B. Knowledge of forensic psychological evaluation methods, including specialized assessment instruments used in forensic psychological practice; C. Knowledge of, and practice consistent with, the Specialty Guidelines for Forensic Psychologists and the Ethical Principles and Code of Conduct for Psychologists; D. Knowledge of rules, procedures, and techniques related to expert witness testimony; E. Attainment of advanced skill in providing forensic psychological services sufficient to practice on an independent basis; these skills must be demonstrated in at least two distinct areas of forensic psychological practice (see Appendix A), and must include the following: 1. ability to conduct a forensic interview; 2. ability to use and interpret structured assessment instruments; 3. ability to obtain the relevant data, including collateral sources of information; 4. ability to integrate results and formulate interpretations consistent with data, relevant for the conclusions related to the legal question, and consistent with ethical and practice guidelines; 5. ability to write reports that are clear, comprehensive, articulate, and appropriately focused on the referral issue; 6. ability to provide expert testimony in a clear, articulate manner, consistent with ethical and practice guidelines. F. Demonstration of ability to critically evaluate research and how it applies to forensic practice; G. Eligibility for state or provincial licensure or certification for the independent practice of psychology; H. Eligibility for board certification in Forensic Psychology by the American Board of Professional Psychology. The last two criteria require that the training include sufficient practical experience and supervision in order to meet licensure and certification requirements. The first six criteria are competency-based and must be formally assessed. Such formal assessment should include documentation of both the knowledge component as well as assessment of quality of forensic practice. Assessment of the didactic component can be accomplished either through written or oral examination, with the Residency program specifying the

34

Nature of the Field

required passing score. Assessment of quality of forensic practice will require formal assessment, by qualified mental health professionals (including at least one qualified Psychologist), of the elements delineated above. The following guidelines are provided regarding the criteria above: A. Forensic Psychologists are not expected to be legal scholars but are expected to have a basic understanding of how the legal system is organized (e.g., types of courts, appeals process, basic legal procedures). Furthermore, Forensic Psychologists should understand the Constitutional and statutory basis for the areas in which they practice (e.g., the due process and equal protection rights impacting on commitment hearings; the principles of tort law which form the basis for personal injury, malpractice, “duty to protect” cases, etc.). This also involves familiarity with the case law that controls and limits practice, both at the national level as well as in the particular jurisdictions in which one practices. B. The field of Forensic Psychology involves the operationalization of legal concepts in a manner that guides forensic psychological practice. There is now a significant body of literature addressing the variety of forensic areas and how psychological expertise can be applied to specific psycholegal issues. This also involves an understanding of the limitations of psychological expertise as applied to specific legal questions. Forensic Psychologists should have a basic understanding of the issues relevant for the various areas in Forensic Psychology, and an in-depth understanding in at least two different areas. Forensic Psychologists must also be knowledgeable about the special considerations involved in using psychological testing and instruments in forensic settings (e.g., issues of response bias, validation within specific populations, gender, ethnic, and racial differences, etc.). Furthermore, a number of Forensic Assessment Instruments have been developed to aid in specific forensic evaluations. Forensic Psychologists should be familiar with the instruments that are relevant to their areas of forensic practice, understand when and how to use them in particular evaluations, and also understand their limitations. Furthermore, Forensic Psychologists must understand how the forensic setting differs from a treatment setting in terms of the approach and attitude towards the parties being

C.

D.

E.

F.

G.

evaluated. For instance, the Forensic Psychologist may have to adopt an adversarial role, questioning the validity or veracity of the individual’s report. In addition, the psychologist cannot rely solely on the individual’s self-report. Rather, collateral sources of information are essential for the psychologist to use to corroborate or disconfirm the individual’s presentation. Forensic Psychologists must be aware of, and accommodate to, the unique ethical challenges posed by forensic practice. Many of the specifics are included in the Specialty Guidelines for Forensic Psychologists. For instance, the need to identify the “client,” to clarify roles, to present data objectively, and to avoid, when possible, dual relationships often present special challenges to Forensic Psychologists working with courts, attorneys, litigants, and forensic mental health programs and facilities. Forensic Psychologists are often required to provide expert testimony. It is incumbent upon Forensic Psychologists to be aware of the rules governing expert testimony (e.g., Federal Rules of Evidence and corresponding State rules), as well as issues related to admissibility of certain methods and tests. Furthermore, Forensic Psychologists must develop skills in presenting information to the legal system in both written and oral form that is relevant to the court, consistent with legal rules, and accurately reflects the underlying clinical data. Residency training in Forensic Psychology should not be limited to only one area of forensic practice. Residents should attain competence in at least two different types of forensic evaluations. Residency programs can provide the requisite exposure to research methods in a number of ways. Some programs may require the resident to engage in a research project or literature review during the residency year. Others may provide seminars in which the residents are exposed to one or more areas of research related to forensic psychological practice. Assessment of competence in this area can be demonstrated by a resident preparing a presentation or a paper. Requirements for licensure: In practice, this will mean that a Residency program will need to provide a minimum number of hours of experience as well as a minimum number of hours of supervision. The specific requirement will vary by state, although the basic requirement is the equivalent of a full year of training, which will involve a minimum of

Forensic Training and Practice

20 hours per week, over no more than a 24-month span (e.g., a 40-hour-a-week program for 1 year, or a 20-hour-a-week program over 2 years). H. A goal of Residency training in Forensic Psychology is to prepare the resident to become an ABPP Board Certified specialist in Forensic Psychology. This requirement will mean that Residency Programs in Forensic Psychology incorporate in their curriculum the case law and knowledge areas identified by the American Board of Forensic Psychology. It also reinforces the need for adequate practical experience to attain competency in at least two different practice areas within Forensic Psychology. IV. Doctoral level training The focus of doctoral programs in Psychology is to provide students with broad and general education and training in both the science and practice of psychology. Within that context, doctoral programs offering a concentration in the specialty of Forensic Psychology should also provide students with a foundational knowledge of the core principles of the application of psychology to the legal system. These should include: • an understanding of the foundations of the legal system; • an understanding of basic legal principles which are relevant to Forensic practice (e.g., Constitutional rights, statutory provisions, case law); • an understanding of differences in methodologies between general clinical assessment and forensic assessment; • an understanding of the ethical issues which arise particularly in forensic contexts. Practicum experiences at the doctoral level may include (but are not required to) exposure to populations frequently seen in forensic settings (e.g., incarcerated individuals; patients in forensic hospitals or pretrial defendants; individuals diagnosed with a serious mental illness; children and families of divorce). V. Internship level training Internship programs are expected to provide an exposure to a variety of clinical populations. Trainees interested in Forensic Psychology should complete rotations that provide clinical exposure to populations seen in forensic settings (e.g., incarcerated individuals; patients in forensic hospitals or pretrial defendants; individuals diagnosed with a serious mental illness; children and families of divorce) and/or

35

opportunities to participate in forensic evaluations. The aim of internship training is not to produce forensic specialists but to provide enhanced clinical skills relevant to forensic practice on which postdoctoral training can build. VI. Accreditation requirements Forensic Psychology Residency Programs are encouraged to pursue accreditation from the American Psychological Association’s Committee on Accreditation (CoA). In addition to the generic requirements of all Residency fellowships specified by CoA, Forensic Residency Programs should contain all of the following elements: A. The faculty is comprised of at least one ABPP board-certified forensic psychologist and other professional psychologists or psychiatrists. Ideally, the Residency Program Director will be an ABPP board-certified forensic psychologist, but the requirement is that at least one faculty who is involved in training the residents will have that credential. (An exception may be made for Residency Programs in Canada, if all other requirements are met.) B. Training is provided at a fixed site or at formally affiliated training sites, with primarily onsite supervision. C. The program includes didactic components, which include, at a minimum, the following categories: 1. History of Forensic Psychology 2. Law, Civil, and Criminal Procedures, and Juries 3. Ethical issues in the practice of forensic psychology 4. Researching and analyzing legal authorities (case law, statutes, regulations) to identify relevant psycholegal constructs 5. Use of standardized assessment instruments in forensic evaluations 6. Assessment of response style, including malingering 7. Violence Risk Assessment/Civil Commitment 8. Personal Injury/Civil Damages 9. Employment Issues/Disability evaluations 10. Child Custody/Child Abuse/Termination of Parental Rights 11. Civil Competencies (Guardianship/Testamentary Capacity/Right to Refuse Treatment)

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Nature of the Field

suitable training and experience in Forensic Psychology or Psychiatry. At least half of the hours of supervision must be provided by a psychologist.

12. Competence to Stand Trial 13. Criminal Responsibility 14. Confessions 15. Sentencing and disposition issues 16. Sex offender evaluations

Areas of Forensic Psychology

17. Evaluations of Juveniles/Waiver to adult court/ Amenability to Treatment

CIVIL

18. Expert testimony 19. Issues of culture, race, and gender as they impact law and psychology (this is an important area which should also be integrated throughout the curriculum) D. Residency training in Forensic Psychology should not be limited to only one area of forensic psychological practice. The program provides sufficient supervised clinical forensic experience to allow the Resident to achieve competence in at least two areas of Forensic Psychology. (As noted above, the didactic training should cover all the forensic areas.) E. The program provides opportunities for the Residents to provide expert witness testimony in real or “mock” trials/hearings. This should include opportunities to receive feedback from legal professionals. F. The Residency Program should include a component in which the resident demonstrates ability to critically assess research and methodologies and how they apply to forensic work. “Research opportunities” are desirable but are not the only way to meet this goal. G. Entry into a Forensic Psychology Postdoctoral Residency program should be based upon completion of an APA or CPA accredited doctoral education and training program. Forensic Psychology Residents will have successfully completed an APA or CPA accredited internship program (which may include some training in Forensic Psychology). Provisions may be made for new programs that are on their way to accreditation and for internship programs which are not formally accredited by APA/CPA but which are accepted by the Doctoral Program. H. The Residency should be the equivalent of at least 1 year in length, provided over no more than a 2-year period. I. Residents should obtain at least 100 hours of direct supervision by a mental health professional with

Child Custody Termination of Parental Rights Child Abuse and Neglect Civil Commitment Competence to Consent to Treatment Disability evaluation Educational Disability Evaluations Fitness for duty Guardianship/Conservatorship Personal Injury Workers’ Compensation Testamentary Capacity CRIMINAL Assessment of Juveniles in Delinquency/Criminal Proceedings Competence to Stand Trial Confessions/Competence to Waive Miranda Rights Insanity and other Mental State Defenses Sentencing (Including Special Issues Related to Capital Sentencing) Commitment of Sex Offenders (“Sexually Violent Predators”)∗

*Commitment of sex offenders is considered a “civil” matter, but is typically provided by forensic psychologists with expertise in criminal matters.

CHAPTER 3

Ethics in Forensic Practice DAVID A. MARTINDALE AND JONATHAN W. GOULD

IDENTIFYING THE PROBLEMS 37 IMPLICATIONS AND APPLICATIONS 47 LOOKING FORWARD 56

CONCLUSION 58 REFERENCES 58

In an article outlining the development of ethics codes in the profession of psychology, Hobbs (1948) called attention to the fact that psychologists were involved in what he described as “an impressive range of activities . . . [that have taken us] into situations which frequently demand decisions of an ethical nature” (p. 80). Hobbs observed: “The individual psychologist often finds himself in need of guidance when such decisions have to be made. He feels personally the need for a code of ethics” (p. 80). We note, with interest, Hobbs’s emphasis on guidance. In psychology, as in other professions, a desire for guidance is experienced by those who, in the early stages of their careers, recognize their obligation to practice competently and who, in the later stages of their careers, strive for excellence. The unfortunate reality is that in all professions there are individuals who wish simply to be apprised of the minimum requirements. Psychology’s objective must be to cultivate in psychologists a desire to do what is right rather than to instill in them a concern for what must be done in order to meet minimum standards. Focusing on the floor rather than the ceiling (Kirkpatrick, 2004) leads us to lower our expectations for ourselves, our colleagues, and the institutions in which we offer our services. Guideline 2.03 of the March 2011 draft of the Specialty Guidelines for Forensic Psychologists (Committee to Revise, 2001, hereinafter, “SGFP, draft 6”) urges forensic practitioners to use the Specialty Guidelines to “improve the quality of forensic psychological services; enhance the practice and facilitate the systematic development of forensic psychology; encourage a high level of quality in professional practice; and encourage forensic practitioners to acknowledge and respect the rights of those they serve.”

After having studied several hundred ethics codes from organizations as different from psychology’s as the Peanut Butter Manufacturers Association, Landis (1927) concluded that there were, essentially, four types of ethics codes: those that enumerate specific rules of conduct, those that combine rules of conduct with general principles, those that merely set forth principles, and those that set forth general principles and apply those principles to specific situations. Landis concluded that codes “made up largely of specific rules” (p. 93) appear to be most effective. If, among psychologists, there are those who strive to do their jobs to the best of their ability and those who simply wish to clear the bar, what path should be taken in constructing our next ethics code? The SGFP, draft 6 (Committee to Revise, 2001) recognizes this important issue. Guideline 2.05 says, in part, “Professional conduct evolves and may be viewed along a continuum of adequacy, and ‘minimally competent’ and ‘best possible’ are usually different points along that continuum” (p. 5). It is our view that when psychologists engage in forensic psychological practice, “minimally competent” ought never to be an option. We must stride toward “best possible” in each forensic psychological activity. The stakes for the litigants are too high for us to give them anything less than “best possible.”

IDENTIFYING THE PROBLEMS Though many of the ethical dilemmas encountered by forensic psychologists are similar to those encountered by our colleagues in other psychological specialties, some of the ethical problems we face are less likely to be 37

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Nature of the Field

encountered in other specialties. Many of the problems identified by Weissman and DeBow (2003) when the topic of ethics in forensic practice was addressed by them in the first edition of this volume remain with us. Adversarial Roles In our interactions with each other, attorneys, and the court, it is important that we exercise caution in using terms the meaning of which may not be clear to those with whom we are communicating. Weissman and DeBow (2003), for example, wrote: [E]xperts . . . must remain disinterested third parties. . . . An expert joining an attorney’s “legal team” of other experts and attorneys, rather than maintaining neutrality, objectivity, and suitable boundaries, is an example of proscribed behavior. (pp. 33, 36)

It is not until the reader reaches page 38 that it becomes clear that Weissman and DeBow were referring only to testifying experts. They have written, “It is a mistake to assume that one can serve a case in the dual capacity of both expert and consultant” (p. 38). We wholeheartedly agree. Returning to the matter of exercising caution in our use of terms, we use the term expert to designate a person with a high degree of skill in or knowledge of a particular field or a certain subject. A discussion of the general components of competent functioning within the role of “expert” is found in Guideline 4 of the SGFP. It is appropriate that consulting experts assist “attorneys in their preparation of cases for litigation” (Weissman & DeBow, 2003, p. 38). Problems arise, however, when experts who have been retained to assist attorneys also endeavor to assist triers of fact by changing roles and testifying as expert witnesses. In Ake v. Oklahoma, 470 U.S. 68 (1985), the United States Supreme Court ruled that the defendant was entitled to the assistance of a psychiatrist whose tasks might include presentation of evidence and preparation of “the cross-examination of the State’s psychiatric witnesses. . . .” (at 70). We respectfully disagree with the Supreme Court’s apparent view that the same forensic mental health practitioner can effectively function both as a testimonial expert, whose obligation is to assist the trier of fact, and as an integral part of a legal team, in which his or her duties may include preparation of cross-examination questions for witnesses called by opposing counsel. In December 2010, the United States Supreme Court approved changes to the Federal Rules of Civil Procedure (FRCP) governing discovery of information from

expert witnesses who have been retained to testify at trial. These changes raise some important issues pertaining to transparency. Though we recognize that the changes to FRCP 26 are unlikely to affect most state courts for some time, discussion of the implications of these changes is warranted. The Committee on Rules of Practice and Procedure (hereinafter referred to as “the Committee”) identified inefficiencies in the procedure of allowing expansive discovery of testifying experts. Rule 26(a)(2)(B), as modified, focuses on disclosure in discovery only of the “facts or data considered by the witness” in forming the expert opinions. Previously, experts were required to disclose all “data or other information” relied on when developing their opinions, preparing reports, or preparing for testimony. Amended Rule 26 allows the following three types of communications between counsel and an expert to remain “open to discovery: (1) compensation for the expert’s study or testimony; (2) facts or data provided by the lawyer that the expert considered in forming opinions; and (3) assumptions provided to the expert by the lawyer that the expert relied upon in forming an opinion.” It is likely that these exceptions will allow opposing counsel to continue to investigate what, if any, influence attorneys have had in the development of their experts’ opinions. In making the changes to FRCP 26 (a)(2)(B), it appears that the Committee did not consider how the changes might increase the risk that bias adversely affects the experts’ testimony. When psychologists function as trial consultants, their responsibilities are often to assist attorneys in preparing for trial. Involvement in preparation for trial creates pressure to advocate for legal positions rather than to advocate for the data. Research findings reported by social psychologists (e.g., Festinger, 1957) suggest that, whether or not consultants are aware of it, advocating for legal positions tends to create a bias in favor of those positions. That is, trial consultants are not likely to be able to maintain the neutrality that enables experts to advocate for the data. Instead, they become part of the legal teams with which they have been working, and they find themselves advocating for specific outcomes. We also believe that the modification to Rule 26 may affect the public perception of the integrity of the work in which forensic psychologists are engaged. Guideline 3.01 addresses the responsibility forensic psychologists have toward maintaining integrity in the work they do for the legal system. “Forensic practitioners seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of forensic psychology and they strive to resist

Ethics in Forensic Practice

partisan pressures to provide services in any ways that might tend to be misleading or inaccurate.” The change in Rule 26 appears to allow testifying experts to engage in behind-the-scenes consulting and advocacy without concern that, in the course of discovery, specific information provided, perspectives shared, and tactical advice provided will have to be disclosed. This modification to Rule 26 serves to undermine the transparency traditionally expected of testifying experts, allowing them to take sides by playing trial consultant roles and never having to disclose such advocacy when testifying about a work product. When transparency is intentionally undermined, integrity is diminished. The term transparency, as used here by us, is intended to describe a philosophy from which a pattern of professional behavior logically follows. The philosophy guides us in our roles as forensic psychologists and, subsequently, in our roles as testifying experts: (a) As evaluators, in order to gather information helpful to triers of fact, forensic psychologists must be unencumbered by personal or philosophical agendas; must be committed to a balanced approach in their work; and must be alert to phenomena that adversely affect decision making. (b) As testifying experts, in order to be effective, forensic psychologists must be credible; must recognize that credibility is earned, and that complete openness is one means by which an expert establishes credibility; and must respect the rights of those wishing to question the opinions of experts and the manner in which those opinions were formulated. The pattern of behavior that flows from the stated philosophy includes, but is not limited to, (a) actively disclosing any prior or current relationships with the participants before accepting a forensic psychological evaluative task; (b) being diligent in the creation and maintenance of records; and (c) producing, in response to legally permissible requests, the complete contents of the file in the matter being litigated. The definition of forensic psychology that appears in SGFP, draft 6 (Committee to Revise, 2001) makes reference to providing direct assistance to courts, parties to legal proceedings, and “serving as a trial consultant or otherwise offering expertise to attorneys, the courts, or others . . . [etc.]” (Guideline 1.03, p. 3). A forensic psychologist who provides litigation support services is, in the words of the Specialty Guidelines, providing direct assistance to parties to legal proceedings, and is functioning in an appropriate role. In providing direct assistance to parties, however, forensic psychologists are at risk for adopting an adversarial mindset that would impair the ability to provide the kind of balance and objectivity

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reasonably expected of expert witnesses, whose task is to assist triers of fact without regard for who retained them. It is not our intention to suggest that a bright-line distinction can be drawn between assisting attorneys in the development of litigation strategies and preserving one’s purity as an objective testifying expert. We do, however, differentiate between assisting attorneys by calling their attention to all the pertinent data and the implications of those data and assisting them by playing a role in tactical decision making. Ethics and Advocacy In the previous edition of this volume, Weissman and DeBow (2003) offered some observations concerning advocacy agendas and how they can distort experts’ presentation of their evidence. As this is being written, a New Jersey psychologist, functioning as a therapist, but offering recommendations to a court in a matter involving allegations of child sexual abuse, stands accused of having willfully withheld exculpatory information in formal communication with the court. While assuring the court that she was “an expert in the area of child sexual abuse,” and assuring the public, in an interview with the media, that “I’ve reported what a child has said,” the psychologist neglected to inform the court that, in response to direct questions posed to a 3-year-old, the child stated that her father’s penis was green, that a tablecloth came out of it, and that her mother had told her to say that “Daddy put it in me.” In a memorandum prepared for her defense attorney, a forensic psychologist asserted that, as a therapist, the psychologist “is not expected to be neutral and detached but rather an ally of the patient [and that the] exculpatory factors . . . only needs [sic] to be addressed if one is doing an objective forensic evaluation. . . .” The applicability of the standards that comprise our Ethics Code (American Psychological Association, 2002) and the applicability of guidelines such as those contained in both the “Specialty Guidelines for Forensic Psychologists” (Committee on Ethical Guidelines for Forensic Psychologists, 1991) and the SGFP, draft 6 (Committee to Revise, 2001) is determined by the nature of the services performed and not by a psychologist’s stated areas of expertise or area(s) of practice. The current Forensic Specialty Guidelines assert that when a psychologist is “acting, with definable foreknowledge, as a psychological expert on explicitly psycholegal issues, in direct assistance to courts, . . . [etc.]” (Guideline I.B.1.b.), the psychologist is performing a forensic psychological service and is

40

Nature of the Field

obligated to avoid selective reporting of data or the presentation of data in any manner that might mislead triers of fact or others likely to rely upon the reported findings or the accompanying recommendations. The SGFP, draft 6 (Committee to Revise, 2001) makes clear that “[a]pplication of the Guidelines does not depend on the practitioner’s typical areas of practice or expertise, but rather on the service provided in the case at hand.” The New Jersey psychologist appears to have become invested in a specific litigation outcome, leading her to lose sight of her obligation to report to the court all information bearing upon the issues in dispute. In addition to participating in a lengthy interview with a reporter from a local television station, the psychologist established a fund-raising Web site on which case-specific information appeared. Guideline 13.06 of the SGFP, draft 6 (Committee to Revise, 2001) states: “Ordinarily, forensic practitioners seek to avoid making detailed public (outof-court) statements about legal proceedings in which they have been involved.” “When making public statements, forensic practitioners refrain from releasing private, confidential, or privileged information, and attempt to protect persons from harm, misuse, or misrepresentation as a result of their statements.” Inadequate Professional Preparation Weissman and DeBow (2003) called attention to the fact that it is erroneous to conclude “that a solid background of preparation as a clinical psychologist and competent clinical skills are all that is necessary and sufficient for the psychologist who accepts forensic-clinical referrals” (p. 36). When providing therapeutic services, the assessment task is to gather information and generate hypotheses relating to: (a) diagnosis, (b) treatment plan, (c) etiology, (d) personality functioning, (e) treatment motivation, and/or (f) prognosis. Once treatment has begun, continued assessment may be useful in gauging any changes that occur. More than three decades ago, Morse (1978) presented a strong argument for prohibiting mental professionals from referencing diagnoses in their expert testimony. Morse asserted that, more often than not, diagnoses do not bear directly on the psycholegal issues in dispute and that, even where they may be marginally relevant, their prejudicial impact must be considered. Greenberg, Shuman, and Meyer (2004), commenting on the appearance of diagnostic labels in custody evaluation reports, opined that “diagnosis is both ethically and legally precarious because it is misleading and risks distorting a candid assessment of a litigant’s functioning” (p. 10).

Greenberg et al. (2004) called attention to the fact that [i]n some instances, such as the insanity defense, civil commitment, and the Americans with Disabilities Act, the law makes diagnosis an essential element of a claim or defense. . . . In other instances, such as personal injury litigation, child custody litigation, and testamentary or contractual competence determinations, the law does not make diagnosis an essential element of a claim or defense. Instead, legal criteria for these actions are functional and concern themselves with impairment or capacity without regard to diagnosis. (p. 1)

The ethical implications of providing diagnoses are succinctly summarized by Greenberg et al. as follows: When testimony about a party’s diagnosis either lacks adequate reliability or validity, or is unfairly prejudicial, it is contrary to the expert’s “obligation to all parties to a legal proceeding to present . . . findings, conclusions, evidence, or other professional products in a fair manner” (Committee on Ethical Guidelines for Forensic Psychologists, 1991). (p. 2)

Empirical research has been done on specific, identified disorders and formal diagnostic labels provide indirect links to that research; however, our empirical research never relates to the specific individuals with whose litigation forensic psychologists have become involved, but rather to the diagnostic category. The descriptors that apply to a particular diagnostic category do not perfectly describe any particular human being. Thus, diagnosis is, in essence, a shorthand form of description. Forensic psychologists provide information that is far more useful when they directly address psychological characteristics that bear upon the psycholegal issues before the court. The SGFP, draft 6 (Committee to Revise, 2001) recognizes this concern, stating: “Forensic practitioners are sensitive to the problems posed by using a clinical diagnosis in forensic contexts and consider and qualify their opinions and testimony appropriately.” The Virtues of Not Being Helpful In 2001, forensic psychology was recognized as a psychological specialty by the Commission for the Recognition of Specialties in Professional Psychology (CRSPP), an organization that functions under the aegis of the American Psychological Association. A petition for recertification was filed in 2007 and the requested recertification was granted in 2008. The formal recognition of forensic psychology as a specialty serves to emphasize the fact that psychologists performing forensic psychological services should secure education, training, and supervised

Ethics in Forensic Practice

experience beyond that which is required in general psychological practice. Because graduate programs in forensic psychology have only recently been established, most of the psychologists who practice in this specialty were initially educated and trained in psychological specialties such as clinical psychology and counseling psychology, and their previous work experience was in the provision of health services. Some of the most serious problems that forensic psychologists create for themselves stem from an inability or unwillingness to control the impulse to think and act like “helpers” when they are contractually obligated to function as something quite different—independent examiners. One cannot evaluate individuals while simultaneously offering advice to them or endeavoring in some other manner to assist them. When, for example, forensic psychologists functioning as custody evaluators attempt to improve the parenting skills of those whom they are evaluating, the evaluators indirectly become evaluators of the success or failure of their own interventions. In the course of obtaining education and training in forensic psychology, some psychologists digest a significant amount of law and become quite confident that they can provide legal guidance to examinees they believe may be receiving inadequate or misguided advice from their attorneys, or to examinees who may have elected to represent themselves. And some forensic psychologists have obtained law degrees and may function as attorneys at times. Yet no matter how much legal knowledge psychologists may have, the ability to conduct impartial forensic evaluations is compromised when legal advice is offered. When the task accepted by a forensic psychologist is evaluative in nature, performing unassigned tasks inevitably diminishes the psychologist’s effectiveness at the assigned task. Privacy Issues Particularly in situations in which reports by forensic psychologists become unsealed components of public records, one occasionally encounters practitioners who are insensitive to the privacy concerns of individuals they have evaluated, and others named in the reports as well. That privacy should be conceptualized dichotomously was endorsed by the United States Supreme Court, in 1975, when it declared that “interests in privacy fade when the information involved already appears on the public record” [Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), at 494–495]. Subsequently, however, the Court has modified its position significantly.

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In Department of State v. Washington Post Co., 456 U.S. 593 (1982) at 603 (footnote 5), the Court observed that “despite their public availability elsewhere” there remained a “privacy interest in keeping personal facts away from the public eye” and, in 1989, the Court introduced the concept of practical obscurity [U.S. Dept. of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), at 762]. The Court observed that many public records are stored in such an inaccessible fashion that only the determined and the resourceful can obtain them. The court pointed out that functional barriers to various public records include travel to the location in which they are stored; the filing of request forms; time expended in waiting for the records to be produced; frequent delays resulting from inadvertent filing errors, and so forth. Thus, various real-life factors function to provide a partial barrier to the public disclosure of personal information. Though this marginal protection was not the result of any agency’s foresight, the Supreme Court has concluded that legitimate privacy interests are protected (489 U.S. 780). For forensic psychologists, the message to be taken from this ruling is that consideration should be given to the privacy concerns of those whom we evaluate, even where the records of the case in which we are involved are public. We can accomplish this by carefully considering the positive and negative effects of disclosure of different types of information gathered by us. Where it can reasonably be foreseen that certain types of information will not bear directly on the issues in dispute, forensic psychologists can display their respect for people’s privacy interests by not seeking such information in their interviews. Ethical Standard 4.04 addresses “Minimizing Intrusions on Privacy.” Standard 4.04 (a) reads: “Psychologists include in written and oral reports and consultations, only information germane to the purpose for which the communication is made.” Standard 4.04 (b) reads: “Psychologists discuss confidential information obtained in their work only for appropriate scientific or professional purposes and only with persons clearly concerned with such matters.” A perspective is reflected in SGFP, draft 6 (Committee to Revise, 2001), Guideline 10, addressing issues of privacy in forensic psychological activities. Ignoring Discrepant Data Not all negligent, incompetent, or unethical practices can be enumerated in statutes that define professional obligations, in a profession’s ethics code, or in any other document. Some professional behaviors are too rarely

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Nature of the Field

encountered to warrant inclusion in such documents. On the other hand, in the eyes of those who develop descriptions of appropriate professional behavior, the obligation to take certain professional actions may seem so selfevident that discussion seems superfluous. For example, in conducting forensic psychological assessments, it is not uncommon for psychologists to find that data from one source lend support to one hypothesis while data from another source lend support to a conflicting hypothesis, yet neither our Ethics Code (American Psychological Association, 2002) nor the “Specialty Guidelines for Forensic Psychologists” (Committee on Ethical Guidelines for Forensic Psychologists, 1991) reminds psychologists of the importance of endeavoring to resolve discrepancies in data. In some situations, obtaining clarifying information will require no more than the expenditure of a reasonable amount of additional time. In such situations, failure to seek the additional data is a failure to be thorough. SGFP, draft 6 (Committee to Revise, 2001), Guideline 3.02 appears to indirectly address our concern about the need to disclose and discuss discrepancies in data by encouraging forensic psychologists to “weigh all data, opinions, and rival hypotheses objectively.” SGFP, draft 6 (Committee to Revise, 2001), Guideline 3.02 reads, in part, Forensic practitioners recognize the adversarial nature of the legal system and strive to treat all participants and weigh all data, opinions, and rival hypotheses objectively. When conducting forensic examinations, forensic practitioners strive to be unbiased and objective, and to avoid partisan presentation of unrepresentative, incomplete, or inaccurate evidence that might mislead finders of fact.

Data Suppression We draw a distinction between the careless failure to address discrepancies in data and the deliberate suppression of data. The trust placed in forensic psychologists by the courts is violated when data supportive of our positions are presented forcefully and data inconsistent with our positions are withheld. SGFP, draft 6 (Committee to Revise, 2001), Guideline 13.03 reads, in part, Forensic practitioners recognize their obligation to affirmatively disclose all sources of all information obtained in the course of their professional services, and to be prepared to identify the source of each piece of information that was considered and relied upon in formulating a particular conclusion, opinion, or other professional product.

Withholding Data During the revision of the 1992 Ethics Code (American Psychological Association, 1992), there was heated debate concerning those sections of the ethics code that would address the release of data. Some offering commentary on the matter (e.g., Martindale & Martindale, 1993, 1994; Martindale et al., 1994) opined that psychology’s efforts to keep raw data out of the hands of people deemed unqualified was a losing battle. Historically, it appears to have been a battle the outcome of which has been entirely dependent on litigants’ monetary resources and willingness to expend those resources in battles for test data. Those with the money (and inclination) to challenge psychologists typically won and those with limited funds had to expend some of those funds on another expert (to whom the data might be released). Others (e.g., Kane, 2007) opined that attorneys should retain licensed psychologists to assist the attorneys and litigants in understanding the data. Those advancing this position expressed concern that the psychological tests upon which we depend will become virtually useless if they are frequently dissected in our courts, thereby enabling large numbers of people to develop a familiarity with them. Forensic psychologists should recognize the role of unidentified experts. With only limited exceptions, attorneys are permitted to retain consultants; not identify those consultants; and, under the terms of work product doctrine, protect from disclosure all input from their consultants. For example, an attorney has the right to hear— privately—from his or her consultant that test data obtained by an evaluator weaken the attorney’s case. The attorney also has the right to see if a different expert has a different perspective on the test data. Psychologists interfere with traditional trial preparation procedures when they insist on releasing data only to identified psychological consultants. Lees-Haley, Courtney, and Dinkins (2005) are among those who view the data release provisions in the 2002 Ethics Code as an improvement over those in the 1992 Ethics Code. In our view, psychologists stepped into the legal arena, presented themselves as practitioners whose work would be characterized by transparency, and subsequently endeavored to shield their data from legitimate scrutiny. In taking mutually contradictory positions, harm was done to the profession of psychology. It should not be necessary to remind psychologists that the disclosure of or protection of data gathered by us in the course of performing forensic psychological services are matters that

Ethics in Forensic Practice

are governed by the rules of evidence and that, far more often than not, our files are subject to discovery. Psychologists resisting the disclosure of their test data often cite the terms of contracts with test publishers and point out that on some tests (such as the MMPI-2) the raw data are not separable from the test items. Lees-Haley and his colleagues (2005) pointed out that the American Psychological Association has published and marketed texts containing entire psychological tests. Lees-Haley et al. asked rhetorically if it would be unethical for a psychologist to give an attorney a copy of a text that the APA sells to attorneys. Lees-Haley et al. also call attention to the fact that, in Responsible Test Use (Eyde et al., 1993, 2009), there is no statement urging test users to disclose test data only to qualified psychologists. Lees-Haley et al. concluded that [r]efusals to disclose psychological tests and test data, in the context of court proceedings, have gone too far. We are damaging our credibility by testifying to contradictory assertions of fact and claiming to follow ethical standards that are contrary to our conduct. Because we are conducting ourselves in this manner and because attorneys are vocal professionals who often influence public opinion, the erosion of our credibility in these quarters is not surprising. (p. 79)

Psychologists who offer forensic psychological services should recognize that operating within the legal system demands cognizance of the discovery process and an appreciation for its role in due process. (Note SGFP, draft 6 [Committee to Revise, 2001], Guideline 10.01.) Attorneys have certain obligations that psychologists must appreciate. The attorney who wishes to challenge a forensic psychologist’s findings must have access to all the data gathered by the psychologist in order to plan an effective cross-examination. Forensic psychological examiners can legitimately be questioned concerning data gathered but not utilized or data utilized but not alluded to in their reports. Thus, a psychologist who administers tests is obligated to make the test data available to an attorney who wishes to explore the psychologist’s decision-making process. Though some test data cannot be understood without specialized education and training, not all data require expertise to decipher. In an editorial published online, in 1999, the American Psychological Association reminded psychologists of their ethical obligation “to protect the value of secured tests whose psychometric integrity depends upon the test taker not having prior access to test materials.” We appreciate APA’s stated concerns and are aware of the problems that

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can arise when examinees are familiar with tests that are to be used in examining them (e.g., Baer, Wetter, and Berry, 1992, 1995). Nevertheless, we find more persuasive the argument put forward by Tippins (2004), who stated that “there is no way to effectively challenge an expert’s conclusion without disclosure and analysis of all that underlies it, disclosure that is routinely available with respect to virtually all expert witnesses” (p. 3). The Case of the Confident Incompetent Kruger and Dunning (1999) were awarded the 2000 Nobel Prize in Psychology for their work on inflated selfassessments. Dunning and his colleagues (e.g., Dunning, Johnson, Ehrlinger, & Kruger, 2003; Ehrlinger & Dunning, 2003) have repeatedly demonstrated the inability of people to engage in accurate self-assessment. Their research indicated that the less competent are less likely to recognize their limitations as “their incompetence robs them of the ability” to accurately assess their performance (p. 1121). Indeed, Krueger and Mueller (2002) reported that “[p]eople who score low on a performance test overestimate their own performance relative to others, whereas high scorers slightly underestimate their own performance” (p. 180). Davis et al. (2006) reported that when physician competencies, as objectively observed and measured, are compared with physician self-assessments, it becomes apparent that “physicians have a limited ability to accurately self-assess” (p. 1094). There is no basis for presuming that psychologists would fare any better. With this as background, consider the advice of Tippins and Wittmann (2005) that we contemplate our findings and our recommendations in terms of what they refer to as a clinical inference hierarchy. They suggest that we carefully distinguish between our observations (level I), inferences based on those observations (level II), the implications of those inferences (level III), and the prescriptive recommendations we offer (level IV). Though the recommendations made by Tippins and Wittmann were offered in connection with the performance of custody evaluations, they are equally applicable in other forensic psychological assessment contexts. Tippins and Wittmann argued that, when preparing reports, we must remind ourselves of our limitations. In discussing level I issues, they cite research documenting that even during basic data gathering, forensic mental health professionals’ observations can be distorted by various cognitive biases, attribution errors, labeling effects, illusory correlations, flawed estimation rules, and

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so on. They also call attention to the research that raises questions about the accuracy of our contemporaneous note taking. Tippins and Wittmann point out that the inferences drawn at level II may not be reliably connected to the level III constructs that are tied to the psycholegal issues in dispute. In discussing level IV issues, Tippins and Wittmann opine that when testifying experts weigh in on the ultimate issue(s) in dispute, they blur the boundaries between triers of fact—authorized by law to make socio-moral and social-control decisions—and expert witnesses, whose role is to assist triers of fact. If we are observant and maintain a modicum of objectivity concerning the accuracy of our clinical judgment, we learn that the clinical judgment of the experienced members of the profession is not appreciably better than the clinical judgment of graduate students (Garb, 1984, 1989, 1992, 1998; Garb & Boyle, 2003; Garb & Grove, 2005). Wiggins (1973) observed that “[t]here is little empirical evidence that justifies the granting of ‘expert’ status to the clinician on the basis of his [or her] training, experience, or information-processing ability” (p. 131). Wigmore has offered the perspective that a witness’s qualifications as an expert vary on a question-by-question basis. As conceptualized by Wigmore (1979), “experiential capacity is always relative to the matter at hand; [therefore,] the witness may, from question to question, enter or leave the class of persons fitted to answer, and the distinction depends on the kind of subject primarily, not on the kind of person” (p. 750). Westen and Weinberger (2004) called attention to the fact that the vast majority of forensic psychologists offer opinions in contexts in which they do not have subsequent access to reasonably unambiguous outcome data—clear evidence of what has worked and what has not worked. Only with outcome data might we be able to ascertain which types of data, when attended to, lead us to correct answers and which types of data lead us astray. In the field of forensic psychology, we lack the ability to manipulate independent variables, manage potentially confounding variables, and measure dependent variables (Ramsey & Kelly, 2004). We cannot resolve this inherent deficiency in our data; we can, and should, disclose the limitations of our data. Justice Is Not a Game Weissman and DeBow (2003) opined that some forensic psychologists appear to have developed the notion that “the adversary system somehow is a ‘game,’ a game

that lawyers play and that experts can join” (p. 35). For example, Benjamin and Gollan (2003) stated that the erasure of tapes made during forensic interviews “prevents the opposing counsel from using contemporaneous material out of context during a later cross-examination at deposition or trial” (p. 35). Brodsky (1991) advised testifying experts that, in order to avoid being questioned regarding a learned treatise, “[t]he first option is to decline absolutely all such acknowledgments of others’ expertise unless you have a thorough, ready mastery of the documents or the writings of the expert and do indeed agree with everything in them” (p. 120). Juxtaposed with Brodsky’s advice is an acknowledgment that the generally accepted definition of an authoritative treatise is one that is “a recognized source of professional knowledge” (p. 119). It is reasonable, therefore, to infer that Brodsky is well aware that a witness’s acknowledgment that a particular work is an authoritative treatise does not constitute a statement that the witness does “indeed agree with everything” contained within it. Refusals by witnesses to acknowledge that works known by them to be recognized sources of professional knowledge are authoritative treatises, as a means by which to avoid questions concerning those works, is game playing. Cross-examination is not a game, and even if it were, our games have rules and honest competitors are expected to play by the rules. Psychologists who lack respect for the manner in which the adversarial system operates should not perform forensic psychological services. Psychologists who recognize the critical role that cross-examination plays in the process should simply respond honestly, even when the inquiries become exacting, and not endeavor to avoid answering difficult questions in the manner suggested by Brodsky. Discovering the Illegible The manner in which one creates records, the steps taken to preserve them, the individuals to whom they are disclosed, and the procedures followed in releasing them are all contextually determined. In no context are appropriate records more important than in the forensic context. Unfortunately, it is more likely than not that most state regulations governing the practice of the various mental health professions make no reference to the issue of legibility. Many health service providers might take the position that records created in a treatment context must be readable by and understandable to the treating clinician and the individual who has been legally designated as the custodian of those records in the event of the

Ethics in Forensic Practice

clinician’s death. In a forensic context, records must either be created in a manner that renders them readable by others or legible versions of those records must be prepared in response to requests from those to whom the records have been provided. Forensic psychologists should be sensitive to the presumed objectives that underlie the laws and rules governing their roles. As this relates to record creation, it should be understood that discovery is linked to due process and that the rights of litigants wishing to challenge the findings and opinions of forensic psychological experts cannot be protected unless the experts have created, maintained, and produced records that are reasonably detailed and legible. SGFP, draft 6 (Committee to Revise, 2001) guidelines address components of the responsibilities of forensic psychologists to document all data they review with enough detail and quality to allow for reasonable judicial scrutiny and adequate discovery by all parties (Guideline 12.05). Forensic psychologists have a responsibility to make available all documentation in their files (Guideline 12.06) and to keep and maintain all records consistent with federal and state laws, rules, ethical codes, and regulations (Guideline 12.07). Documenting Ethical Decision Making Most psychologists have had enough exposure to medical settings to be aware of the adage that “if it’s not in the chart, it didn’t happen.” Many are surprised to learn that the adage applies not only to behavior (actions taken; words spoken) but, in some contexts, to thought processes as well. The best evidence that a thorny issue has been thought through is a written record of one’s reasoning. When forensic psychologists encounter an ethical dilemma, we recommend that they take the following steps and document having done so: (1) Identify the dilemma; (2) seek information and guidance, if available, from various sources of professional authority that guide us in our work (e.g., the Ethics Code, the Specialty Guidelines, etc.); (3) seek information, if available, from applicable material appearing in professional journals; (4) seek information from the materials retained by them following attendance at continuing education workshops; (5) record the steps taken to resolve the dilemma; (6) consider seeking consultation; and (7) articulate, in the documented decision process, the manner in which the final decision was made. When faced with an ethical dilemma, we recommend that forensic psychologists use, and document having used, the decision-making process that follows (adapted

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from Keith-Spiegel and Koocher, 1985): (1) briefly describe the ethical dilemma and list the various issues (if there is more than one); (2) identify all those who are likely to be affected by the decision; (3) specify what consideration is owed to each and the basis for it; (4) list the ethical standards and/or practice guidelines that appear to be applicable; (5) for each issue, outline alternative actions, list the reasonably anticipated consequences and benefits of each action, and list any published research that sheds light on the anticipated consequences and benefits; (6) identify the smallest change in circumstances that would cause them to choose a different action from the one tentatively chosen and identify what the different action would be; and (7) identify what action(s) must be taken in the event that there are unanticipated consequences and/or in the event that negative consequences that were considered are more serious than was anticipated. Ethical Ambiguity Ethical Standard 9.01 (American Psychological Association, 2002) addresses Bases for Assessments, a matter of great importance to forensic psychologists. Forensic psychologists who have been retained by attorneys to conduct work product reviews do not agree among themselves concerning the circumstances (if any) under which they can responsibly offer opinions concerning the psychological characteristics of individuals whom they have not evaluated. Though no empirical data are available, anecdotal evidence suggests that the performance of work product reviews, particularly in the context of family law proceedings, is becoming increasingly common. For that reason, we address the issue in detail. Ethical Standard 9.01(a) provides an admonition that, to many, seems clear and concise: “Psychologists base the opinions contained in their recommendations, reports, and diagnostic or evaluative statements, including forensic testimony, on information and techniques sufficient to substantiate their findings.” Ethical Standard 9.01(b) reads, in pertinent part, “Except as noted in 9.01c, psychologists provide opinions of the psychological characteristics of individuals only after they have conducted an examination of the individuals adequate to support their statements or conclusions.” Standard 9.01(c) reads, “When psychologists conduct a record review or provide consultation or supervision and an individual examination is not warranted or necessary for the opinion, psychologists explain this and the sources of information on which they based their conclusions and recommendations.” SGFP, draft 6 (Committee to Revise, 2001), Guideline 11.03

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Nature of the Field

also addresses the obligations of a forensic psychologist in rendering opinions regarding persons not examined. Reviewers are constrained with regard to the issues upon which they can responsibly opine. Work product reviews are performed in order to formulate opinions concerning (a) the evaluator’s adherence (or lack thereof) to statutory requirements, professional standards, and generally accepted practice guidelines; (b) the methodological integrity of the evaluation process, as outlined in the report; (c) the appropriateness of any assessment procedures employed; (d) the accuracy of any data interpretations offered; (e) the degree to which impressions described and perspectives communicated are consistent with the information provided; (f) the sufficiency of explanatory statements concerning the manner in which weight was assigned to different data, particularly where discrepant data are involved; (g) the logical nexus between the information, impressions, and perspectives communicated within the body of the report and the opinions expressed at the conclusion of the report; (h) the degree to which the evaluator appears to have drawn upon psychology’s established knowledge base in formulating his or her opinions; and (i) the degree to which opinions offered are supported by data that have been articulated in the body of the report (Baerger, Galatzer-Levy, Gould, & Nye, 2002; Galatzer-Levy, Baerger, Gould, & Nye, 2002; Gould, Kirkpatrick, Austin, & Martindale, 2004; Martindale, 2007a, 2007b; Martindale & Gould, 2008; McCurley, Murphy, & Gould, 2006). It is not intended that the reviews will lead to the formulation of opinions concerning the characteristics of the examinee. If the data from a specific test have been relied on and if all the data are available to a work product reviewer, the reviewer can testify concerning information appearing in the test manual and in the peer-reviewed published literature. In doing so, a reviewer can responsibly state that, according to the manual and published studies, data patterns of the type displayed by an examinee are often observed in groups of people with certain specified characteristics. Only under limited circumstances can a testifying reviewer express opinions concerning a specific person whose test performance is being discussed, and care must be taken to place appropriate limits on the opinions expressed. The scope of a reviewer’s task is limited and should not be confused with the work of a practitioner conducting a second evaluation (Austin, Dale, Kirkpatrick, & Flens, 2011; Gould et al. 2004; Gould, Martindale, Tippins, & Wittmann, 2011). If a reviewer identifies deficiencies in an evaluator’s work, the reviewer’s task is to articulate

those deficiencies and explain why they may have had a significant impact on the process of formulating the opinions that have been communicated to the court by the evaluator in his or her advisory report (Austin et al., 2011; Gould et al., 2011; Martindale & Gould, 2008). Though it is appropriate that reviewers identify missing information and opine concerning the likely consequences of formulating an opinion without the identified information, reviewers should not attempt to gather the missing information, fit the missing pieces into the puzzle (as assembled by evaluator), and present the completed puzzle to the court (Austin et al., 2011; Gould et al., 2011). The Pursuit of Excellence In an article in which she reported on psychology licensing board disciplinary actions, Van Horne (2004) wrote, “Our increasingly litigious society leaves many professional psychologists with a sense of vulnerability” (p. 170). Knapp and VandeCreek (2003) opined that “fear of being the target [of disciplinary] action has had a chilling effect on many psychologists” (p. 301) and that the 2002 Ethics Code “revision process took place in an atmosphere of anxiety and frustration concerning the disciplinary processes impacting psychologists” (p. 301). It is not surprising, therefore, that suggestions that standards be progressively ratcheted up elicit visions of how the higher standards would be used to the disadvantage of forensic psychologists in the course of litigation and in board actions. Such visions stimulate resistance to the progressive bar-raising process proposed by us (e.g., Martindale & Gould, 2004). Improvements in forensic psychological services, elevation of the image of organized psychology, and protection for individual practitioners will never be achieved if we do not strive for incremental changes in what we demand from ourselves. We believe that our services should reflect our respect for the concepts of self-determination, autonomous decision making, transparency, and competence. Clarity and Specificity in Ethics Codes The interests of society, consumers of psychological services, well-intentioned practitioners, and the profession of psychology are best met when our ethical standards are reasonably specific and clearly written. Because no ethics code will ever be able to address all the thorny situations in which psychologists are likely to find themselves, all codes must afford individual practitioners some leeway. Ethics codes are most useful to all those who are affected

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by them when the paths to be chosen and avoided can be clearly identified. Practitioners who want to do the right thing but are not entirely clear concerning what practices constitute “the right thing” are offered more effective guidance when ethical standards are articulated with clarity. Two axioms follow from this. The first is: If you do not know where you are going, you are likely to end up somewhere else. The second is: It’s easier to do what’s expected of you when what’s expected of you is clearly stated. The profession is better served when groups (like ethics committees and licensing boards) that have the responsibility of responding to complaints against psychologists have unambiguously worded standards to guide them in their deliberations. Presumably, when the rules are clear, what does and does not constitute a deviation from those rules is also clear. Thus, it is easier to exonerate wrongly accused practitioners and easier to take effective action against practitioners whose actions constitute deviations from the rules. Clearer rules also make the educational function of ethics committees and licensing boards easier. The public is also better served when standards of practice for service providers are clearly articulated. The public has a better understanding of what is to be expected and the public has more effective recourse when service providers (including psychologists and other professionals) deviate from the standards. The ethical standards by which we are judged are those that we have developed. Our society has become increasingly litigious and it is not surprising that psychologists involved in revising an ethics code may contemplate how the ethical standards might be used to their disadvantage in litigation. Elevating the level of psychological practice by raising the ethical bar must take precedence over concern for the litigationrelated apprehensiveness of psychologists.

deal with professionals who suggest that they know more than they really do or can accomplish more than they will be able to accomplish. When we examine the failings of other professions, we often express the view that these professions should more effectively regulate the professional behaviors of their members. We should reflect on this as we debate issues concerning the regulation of the professional behavior of forensic psychologists. The critical eye that is so easily focused outward when we are the service recipients needs to be focused inward when we are the service providers. Too frequently, forensic psychologists do to others that which we criticize when, in our capacity as regular folks, it is done to us by members of other professions. We criticize medical professionals for providing us with insufficient information; for making decisions that are ours to make; for requiring us to sign documents that we have not had sufficient opportunity to read and contemplate; and, in some cases, for suggesting that they have answers that they do not really have. We criticize police officers who bend the rules because they are absolutely certain that they can distinguish the guilty from the innocent. We criticize computer technicians for delving into problems that we never asked them to tackle. All these professional sins have been committed by forensic psychologists. We urge forensic psychologists to treat those with whom they interact as they would wish to be treated if the roles were reversed. Forensic psychologists conducting evaluations should endeavor to view the evaluation process from the perspective of those being evaluated, the collateral sources, the attorneys, the judge, and those likely to be affected by the evaluators’ work.

Perspectives on Regulation

Data collected and made publicly available by ethics committees and by state licensing boards are not grouped based on the identified specialties of the psychologists. Thus, we do not have data that might reveal what complaints of ethical improprieties are most commonly filed against psychologists offering forensic psychological services. In consultation with colleagues offering different types of forensic psychological services, we have compiled a list of what appear to be the major areas in which ethical infractions are alleged.

People often have attitudes that are mutually inconsistent. We tend to resist regulation when we are the ones whose actions are being regulated and endorse regulation when we are its beneficiaries. When we drive, we think like drivers; when we walk, we think like pedestrians. Many of the unfortunate interactions between vehicles and pedestrians would be avoided if drivers adopted the mindset of pedestrians and pedestrians thought back to the last time they were behind the wheel of a car. Forensic psychologists are just as inconsistent as others. In many cases, our views concerning regulation depend on whether we are service providers or service recipients. As service recipients, we are angered when we

IMPLICATIONS AND APPLICATIONS

Preparation Notwithstanding the clear wording of ethical Standards 2.01 (a) and 2.01 (f), psychologists with no “education,

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Nature of the Field

training, supervised experience, consultation, study, or professional experience” [wording taken from 2.01 (a)] specific to any psychological specialty are often drawn to psychology’s various specialties. Because the bulk of our work is in the area of litigated child custody disputes, we acknowledge that selective attending may be coloring our view of this dynamic, but it seems to be a particularly troublesome occurrence in the custody arena. Even after having obtained some professional experience, it seems that many psychologists offering forensic psychological services fail to “become reasonably familiar with the judicial or administrative rules governing their roles” [wording taken from 2.01 (f)]. In New Jersey, a state that looks with disfavor on ipse dixit opinions, an evaluator who has been asked to articulate the bases for his opinions cites his years of experience and his clinical judgment. His testimony is deemed to be without value and the court, citing earlier decisions, describes “a prohibition against speculative testimony” [Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), cert. denied, 154 N.J. 607 (1997)]. The court adds that “[u]nder this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities” [Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div.), cert. denied, 122 N.J. 333 (1990)]. When a forensic psychologist testifies, the concepts and data that are the basis of the proffered opinion should reflect the generally accepted and current state of knowledge in the field (Mnookin, 2008). We have often observed testimony from well-credentialed colleagues who present perspectives that were accepted seven or eight decades ago but that have little, if any, basis in current peerreviewed writings or who present perspectives that reflect an idiosyncratic view of the research rather than reflecting that which is generally accepted. Forensic psychologists need to continually ask themselves whether the opinions offered to the court have adequate indicia of reliability (Faigman et al., 2002). The need to base forensic psychological opinions and testimony on scientifically informed knowledge is addressed in SGFP, draft 6 (Committee to Revise, 2001), Guideline 4.05. It reads: When providing opinions and testimony that are based on novel or emerging principles and methods forensic practitioners, when possible, make known the limitations of these principles and methods. Forensic practitioners seek to provide opinions and testimony that are sufficiently based upon adequate scientific foundation, and reliable and valid

principles and methods that have been applied appropriately to the facts of the case. (p. 7)

Marketing Section 5 of our Ethics Code (American Psychological Association, 2002) addresses Advertising and Other Public Statements. Psychologists are not discouraged from marketing their professional services, but a new letterhead does not transform a psychologist in general practice into a forensic psychologist. Standard 5.01directs, in part: Psychologists do not knowingly make public statements that are false, deceptive, or fraudulent concerning their . . . practice. . . . Psychologists do not make false, deceptive, or fraudulent statements concerning (1) their training, experience, or competence; (2) their academic degrees . . . [or] (3) their credentials. . . .

In a text published by the American Bar Association and intended primarily for attorneys, Zervopoulos (2008) urged attorneys to ensure that board certification credentials claimed by psychologists offering forensic psychological services have not been obtained through “certification mills” (p. 41). Zervopoulos related the experience of Steve Eichel, a Pennsylvania psychologist who secured board certification for his cat, Zoe, from an organization boasting that its credentials were awarded to a “select group of professionals who, by virtue of their extensive training and expertise, have demonstrated their outstanding abilities in regard to their specialty” (p. 41). Zoe, identified on her application as Zoe D. Katze, PhD did little more than lick the envelope into which Eichel inserted the application and required fee, and, soon thereafter, Zoe’s credentials arrived (Hansen, 2000). In medicine, psychology, and social work, the traditional certifying boards granting diplomate status (board certification) in recognition of proficiency in a specialty all emerged from and were supported by the parent organizations of the professions (American Psychiatric Association, American Psychological Association, and National Association of Social Workers). In each case, there was a desire among members of the parent organization to develop a procedure by which members with a demonstrably advanced level of knowledge, training, and experience in a specialty could submit themselves to a peer-conducted review of evidence of their mastery and obtain formal recognition of their proficiency upon successful completion of the process (Golding, 1999; Martindale, 2005a).

Ethics in Forensic Practice

Until the mid-1990s, when a mental health professional declared that she or he was board certified, the meaning of the term was clear. In the field of psychiatry, it referred to certification by the American Board of Psychiatry and Neurology; in psychology, it referred to certification by the American Board of Professional Psychology; and, in social work, it referred to certification by the American Board of Examiners in Clinical Social Work. Each of these boards established rigorous standards and the diplomate credential, when awarded, was evidence of a significant achievement. In the mid-1990s it became apparent to various entrepreneurs that, in many fields, there are practitioners who wish to be perceived as proficient in a specialty but who would prefer the appearance of proficiency to the reality of proficiency because the look can be obtained much more easily. A psychologist’s participation in litigation carries with it an obligation to contribute clarity, not misleading complexity. Psychologists ignore their responsibility to assist triers of fact when they create confusion concerning their own credentials, and, more specifically, when they create confusion about what it means to be board certified. Whether or not the presentation of vanity board credentials by a psychologist constitutes a violation of Standard 5.01’s admonition regarding false or deceptive statements concerning their training, credentials, and so on, is debated, and the point at which puffery becomes deception may be hard to pin down. We urge psychologists not to create veneers of faux proficiency. The integrity of the judicial system is adversely affected when professionals who have been designated as experts engage in the deliberate distortion of information, even if the information relates to the experts’ credentials rather than to substantive issues in the case before the court. Informed Consent and Assent Standard 4.02 (a) (2) obligates psychologists to discuss “the foreseeable uses of the information generated through their psychological activities.” And Standard 4.02 (b) reads, “Unless it is not feasible or is contraindicated, the discussion of confidentiality occurs at the outset of the relationship and thereafter as new circumstances may warrant.” It seems that many psychologists conducting forensic psychological evaluations fail to explain what will occur when their evaluations have been concluded. Forensic psychologists should specify (preferably in written form) whether reports will be prepared and, if reports will be prepared, those to whom their reports will be

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released, those who will have access to the information contained in their reports, and what mechanisms (if any) will be in place to prevent the disclosure of report contents to those with no legally recognized need for the information. (See SGFP, draft 6 [Committee to Revise, 2001], Guidelines 5.03, 8.02, 8.03, and 10.) Methodological Integrity In Ethical Standard 3.05 (a) a definition of multiple relationship is provided. At the conclusion of the definition, the following admonition appears: “A psychologist refrains from entering into a multiple relationship if the multiple relationship could reasonably be expected to impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist. . . .” There are among us psychologists who express confidence that neither their objectivity, competence, nor effectiveness will be impaired simply because they are involved in multiple relationships with those whom they are evaluating or intend to evaluate. SGFP, draft 6 (Committee to Revise, 2001), Guideline 6.02 addresses multiple relationships in a manner consistent with the Ethics Code’s (Section 3.05). We urge psychologists who believe that the multiple relationships in which they find themselves are of a type “that would not reasonably be expected to cause impairment” to familiarize themselves with the vast literature on cognitive biases (Arkes, 1981, 1991; Beattie & Baron, 1988; Borum, Otto, & Golding, 1993; Crano, 1977; Dailey, 1952; Davies, 2003; Garb, 1994; Haverkamp, 1993; Heider, 1946; Klayman & Ha, 1987; Koriat, Lichtenstein, & Fischhoff, 1980; Kuhn, 1962; Leeper, 1935; Martindale, 2005a, 2005b; Northcraft & Neale, 1987; Rosenhan, 1973; Rosenthal, 1966; Sandifer, Hordern, & Green, 1970; Skov & Sherman, 1986; Snyder & Swann, 1978; Strohmer, Shivy, & Chiodo, 1990; and Tversky & Kahneman, 1974). Rosenhan’s (1973) study, “On Being Sane in Insane Places,” dramatically demonstrated that, once formed, opinions concerning individuals’ personality characteristics are not amenable to change. Opinions formed within the context of an interpersonal, professional, or social relationship are likely to significantly interfere with the objectivity needed in forensic psychological evaluations. In a recent article describing a “hybrid model for consulting with attorneys” in child custody disputes, Lee and Nachlis (2011) urged the forensic practitioner to partner “with the attorney and the parent” acting as an

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“equal member of the team” (p. 97). Lee and Nachlis (2011) wrote: The advantage that this provides is that the [forensic practitioner] is less likely to end up in a position where she is advocating a position that is based upon facts previously selected by the attorney or the parent who has hired her. . . . Another factor that helps the [forensic practitioner] maintain a scientific and objective, and therefore, ethical stance is the constant focus on the child’s best interest [sic] combined with a vigilant awareness that one only has partial information. (p. 97)

It is our contention that “a vigilant awareness that one only has partial information” should lead the forensic practitioner to recognize that she lacks the ability to “focus on the child’s best interest [sic].” One cannot focus on that which cannot be seen, and the parenting plan most likely to be in a child’s best interests cannot be seen when all that is available is partial information. Lee and Nachlis (2011) encouraged the forensic psychologist to “suggest strategies to the parent that will help the child deal with issues that arise from living within a shared parenting environment during the course of an evaluation. This latter function may be very similar to what has been described as ‘coaching’ or ‘witness preparation’ in the literature” (p. 95). Although the goal of assisting a parent to help a child during the evaluation process is a noble one, this is the responsibility of a clinician and not a forensic psychologist consulting with an attorney on a legal dispute. Work product doctrine protects from discovery actions by a consultant that are related to the attorney’s trial preparation. Lee and Nachlis (2011) recommended directly assisting the parent in his or her parenting—an activity that is not an aspect of an attorney’s trial preparation. It is possible that records of actions by a consultant that are unrelated to providing assistance in trial preparation might be the subject of a discovery demand. In 1996, the Fourth Circuit Court of Appeals ruled that there were two discernibly different types of work product—opinion work product, which is “absolutely immune” from discovery, and non-opinion work product, which is discoverable upon a showing of substantial need (In re Grand Jury Proceedings, 102 F.3d 748, 750 [4th Cir. 1996]). Litigant coaching performed by a retained consultant is non-opinion work product; therefore, consideration must be given to the risk that information pertaining to those activities might be discoverable. The discovery of litigant coaching by a forensic psychological consultant would be likely to undercut the

attorney’s trial strategy, resulting in harm to the client and possibly to the child at the center of the controversy. Ethical standard 3.04 reads: “Psychologists take reasonable steps to avoid harming their clients/patients, students, supervisees, research participants, organizational clients, and others with whom they work, and to minimize harm where it is foreseeable and unavoidable.” Though Lee and Nachlis’s discussion of the hybrid model relates to forensic psychological services performed in the context of child custody litigation, professional activities “described as ‘coaching’ or ‘witness preparation’ in the literature” (p. 95) are also encountered in other areas of forensic psychological practice. We recommend that when such coaching is being considered, forensic psychologists alert retaining attorneys to the attendant risk. Ethical Standard 2.04 obligates psychologists to base their work “upon established scientific and professional knowledge of the discipline.” Standard 9.02, addressing Use of Assessments, emphasizes, in section (a) using techniques “in a manner and for purposes that are appropriate in light of the research . . .” on or evidence of the usefulness and proper application of the techniques. Section (b) calls attention to the importance of established “validity and reliability . . . for use with members of the population tested.” Notwithstanding what seems to us to be the unambiguous message of Ethical Standard 2.04, forensic psychologists frequently utilize assessment techniques and instruments the usefulness of which for forensic purposes has not been demonstrated and the reliability and validity of which have never been established. More than five decades ago, Meehl (1960) expressed concern regarding “the cultural lag between what the published research shows and what clinicians persist in claiming to do with their favorite devices . . .” (p. 26). More than four decades ago, Chapman and Chapman (1967), in discussing the use of drawings in assessments, called attention to the possibility that “clinicians simply perpetuate . . . erroneous principles of interpretation . . .” (p. 193). There is little doubt that various drawing tasks remain high on the list of inappropriate assessment techniques employed with disturbing frequency in the context of litigated custody disputes (Ackerman & Ackerman, 1997; Bow, 2006; Keilin & Bloom, 1986). In describing students of psychology, Gottfredson (2009) observed that they “do not come to academic subjects as blank slates but often with basic misconceptions that create barriers to learning . . .” (p. 58). The same observation could be made of psychologists who were educated and trained as treatment providers and who subsequently became interested

Ethics in Forensic Practice

in forensic psychology. It is essential that psychologists offering specialized psychological services honor their obligation to secure the requisite knowledge and skills and to close the gap between what the research shows and their choices of assessment methods. Reports and Testimony Ethical Standard 9.06, Interpreting Assessment Results, obligates us to articulate any significant limitations to the interpretations offered by us. The adversarial atmosphere in which forensic psychologists operate stimulates in many a reluctance to voluntarily disclose the limitations of our data. We remind forensic psychologists who slip into this mindset that the objective when functioning in consulting roles is to call the attention of retaining attorneys to all the relevant data; to explain the nexus between those data and the issues in dispute; and, with supportive and non-supportive data in mind, to assist in the development of litigation strategies. In contrast, when functioning as testifying experts, the objective of forensic psychologists is to assist triers of fact, not to win the game for the team that retained them. SGFP, draft 6 (Committee to Revise, 2001), Guideline 13 addresses several aspects of the importance of transparent communication in oral and written testimony. Pope, Butcher, and Seelen (2006), in a text used by many attorneys, reminded readers that there are several software programs that interpret test data and generate interpretive reports. These reports, referred to as computer-based test interpretations (CBTIs), differ with respect to the quantity of the information provided and the accuracy of the interpretations offered. Standard 9.09 (b) of the Ethics Code states, “Psychologists select scoring and interpretation services (including automated services) on the basis of evidence of the validity of the program and procedures as well as on other appropriate considerations.” The question to which there is no satisfactory answer is: How do practitioners “select scoring and interpretation services” and make their decisions “on the basis of evidence of the validity of the program,” when meaningful validity data have not been published? In an earlier edition of their text, Pope, Butcher, and Seelen (2000) stated that “[i]n most published studies of CBTI validity, the CBTIs’ recipients (usually clinicians) rate the accuracy of computer interpretations on the basis of the clinicians’ knowledge of test respondents” (p. 10). What Pope et al. described as “studies of CBTI validity” are in other venues (such as advertising and product marketing) referred to as customer satisfaction data.

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The participants in the studies are, inevitably, satisfied customers. If they were not satisfied with the fit between their own impressions and the CBTI narratives, they would have stopped ordering the narratives and, by virtue of that decision, their names would no longer have appeared on the lists from which potential survey participants were selected. In referring to the collected survey data as validity data, Pope et al. (2000, p. 10) blurred the important line between reliability and validity. Even if we view the surveys that have been alluded to as a means by which to compare the impressions of one judge (the clinician) with another judge (the computer), good levels of agreement would merely establish good inter-judge reliability. The clinician/computer agreement survey is flawed in other ways as well. A more reasonable study would require that clinicians prepare narratives and that other clinicians be asked to rate the agreement between the clinician-prepared narratives and the CBTIs. No discussion of the ethical factors involved in our Reports and Testimony would be complete without mention of the all-too-common cutting and pasting of CBTI segments into the reports of forensic psychologists. Standard 8.11, addressing Plagiarism, reads, “Psychologists do not present portions of another’s work or data as their own, even if the other work or data source is cited occasionally.” It seems clear to us that forensic psychologists who have taken detailed descriptions of the personality characteristics of evaluees directly from CBTIs and have presented these descriptions “as their own” are plagiarizing. The utilization of CBTI-provided data interpretations also indirectly suggests a failure to meet the obligation imposed by Standard 9.09 (c) to retain responsibility for the interpretation of their test data. Alex Caldwell, developer of Caldwell Reports, has expressed a perspective that is dramatically at odds with ours. In a message posted to the Child Custody listserv on September 3, 2009 (quoted with permission), Caldwell likened the purchase of a computer-generated interpretive report (CBTI) to “an assessment consultation” with a specialist. He stated that knowing the basis for a particular interpretive statement “is not the examiner’s responsibility—it is the specialist’s.” Caldwell added that when forensic psychologists are being peppered with difficult questions from cross-examining attorneys, it is “straightforward” to say that the bases for the data interpretations provided in the witness’s report, but provided to the witness in a CBTI, are the responsibility of the person whose name appears on the CBTI and to state: “If you want to identify them, it is your right to retain him

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and ask him.” SGFP, draft 6 (Committee to Revise, 2001), Guideline 12 addresses many aspects of these important elements of the use of assessment techniques in forensic psychological services. Show Me the Bases We begin by calling attention to the fact that showing occurs prior to trial and that telling occurs at trial. The obligation of testifying experts to articulate the bases for their opinions is clear. (Refer to SGFP, draft 6 [Committee to Revise, 2001], 13.03.) There is, however, wide interjurisdiction variation with regard to rules governing both the quantity and specificity of the information that must be disclosed prior to trial concerning an expert’s anticipated testimony. In many jurisdictions, identified expert witnesses are not required to disclose the bases for their opinions prior to trial. Particularly in situations in which forensic psychologists are functioning as court-appointed examiners, we urge them, both in their reports and in their testimony, to articulate in reasonable detail and with reasonable specificity the bases for their opinions. Though hard data are impossible to obtain, there is broad agreement that, in many forensic matters, reports prepared by examiners often become instruments to be constructively employed in settlement negotiations, as opposed to ordnance used by one side against the other during warfare-by-litigation. When evaluators include in their reports reasonably detailed information concerning the bases for opinions expressed and present that information in a fair and balanced manner, the probability is increased that the litigating parties will be able to use the reports in a constructive manner, thereby empowering them to resolve their disputes without going to trial. Where there is lack of clarity or perceived lack of fairness, the probability is increased that evaluators’ reports, instead of being tools in a resolution process, will become something to be fought over in court. Releasing Test Data In an earlier section (“Withholding Data”) we offered commentary on what we believe to be the problems associated with refusals by psychologists to release test data to non-psychologists when the data have been gathered for purposes of litigation. The American Psychological Association’s position on the release by psychologists of test data to non-psychologists changed significantly between 1992 and 2002, and the change is reflected in the 2002 Ethics Code. Stephen Behnke, APA’s Ethics Director and

writer of the Ethics Rounds column in each issue of the Monitor, devoted an entire column to that topic (Behnke, 2003). In his column, entitled “Release of Test Data and the APA’s New Ethics Code,” Behnke wrote: “In the 1992 Code, psychologists presumed that test data would be withheld, unless certain conditions were met. In the new Ethics Code, the presumption favors release unless the specified exceptions are present” (p. 71). Behnke pointed out that withholding data “in the context of a legal obligation [emphasis in original] to release the data . . . may result in adverse legal consequences” (pp. 71–72). The SGFP, draft 6 (Committee to Revise, 2001), Guideline 12.05 is consistent with the Ethics Code in directing forensic psychologists to “recognize the importance of documenting all data they consider with enough detail and quality to allow for reasonable judicial scrutiny and adequate discovery by all parties. This documentation includes, but is not limited to . . . assessment and test data, scoring reports, and interpretations. . . .” Spoliation of Records Ordinarily, urging forensic psychologists to create and preserve detailed records might seem superfluous, but the landscape was changed by the publication of a text in which the destruction of records was advocated. In this text, the authors endorsed the erasure of tapes (Benjamin & Gollan, 2003, p. 35). Courts do not take lightly to the destruction of records: “Spoliation is the destruction or significant alteration of evidence or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation” (West v. Goodyear Tire & Rubber Co., 167 F.3d. 776 [2d.Cir. 1999], at 778). Forensic psychologists have foreknowledge that their records are likely to be needed if the cases in which they have been involved proceed to trial. (Refer to SGFP, draft 6 [Committee to Revise, 2001], 12.05.) The destruction by forensic psychologists of their own records is a self-serving act. Such destruction makes effective cross-examination impossible. When forensic psychologists alter, conceal, or destroy portions of their files, efforts to thoroughly explore their methods and procedures are frustrated and the risk is increased that errors will go undetected. In Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), the United States Supreme Court observed: “Confrontation is designed to weed out not only the fraudulent analyst, but the incompetent one as well” (p. 13). Applying that logic to the work of forensic psychologists, even those who have been appointed by the court sometimes err. For that reason, the work of court-appointed

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forensic psychologists should be subjected to no less scrutiny than the work of retained experts. The Development of Our Ethics Codes Those psychologists who accept responsibility for developing ethics codes for our profession must master two specific balancing acts. They must balance statements communicating aspirational goals with statements articulating enforceable standards. They must also balance the needs of the profession with the needs of those who are served by psychologists and those who are indirectly affected by the quality of psychological services. Peanuts and Psychologists In mid-January 2009, our confidence in the safety of peanut butter and other peanut products was rocked by a major recall of peanut products. Commentators in the various media called attention to the fact that this was the latest in a series of increasingly serious food contamination scares. On February 2, 2009, Consumers Union posted an editorial on its Web site (www.consumerreports.org) headlined: “Peanut Recall Raises Questions About Ethics and Competence.” The Consumers Union editorial writers asked rhetorically: Are they insufficiently motivated to do the job right or do they lack the requisite competence? This question, of course, raised another: If they were sufficiently motivated to do the job right, how difficult would it have been to secure the requisite competence? Celia Fisher (2003), who served as Chair of the Task Force that developed the 2002 Ethics Code (American Psychological Association, 2002), wrote that, beginning with the 1992 Ethics Code (American Psychological Association, 1992), “[f]or the first time, clear distinctions were made between aspirational principles that articulated foundational values of the discipline and specific decision rules articulated in 180 distinct ethical standards that would be subject to enforcement by the APA, other organizations, and licensing boards that adopted them (citation omitted)” (Fisher, 2003, p. 6). We question the wisdom of the “clear distinctions” to which Fisher alluded. The process of teaching psychologists to think ethically is impeded when we repeatedly accentuate the demarcation between aspirational goals and enforceable standards. A Pitch for Requiring Aspiring It is likely that some of those who offer commentary on decisions handed down by the United States Supreme

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Court felt that Potter Stewart’s often-quoted observation regarding “hard-core pornography” (“I know it when I see it”; Jacobellis v. Ohio, 378 U.S. 184 [1984], 197) did nothing to elucidate the defining characteristics of hard-core pornography, but it is a statement that has heightened our awareness that there are certain things that are understood when encountered but that are difficult to define (Burton, 2008). With Potter Stewart in mind, we reflect upon whether aspirations can be reasonably inferred based on observed behavior. In discussions of our Ethics Code (American Psychological Association, 2002), we are often reminded that the Principles that appear at the beginning of the document are “aspirational goals [that] should be considered by psychologists in arriving at an ethical course of action” (Fisher, 2003, p. 3). It logically follows that in order to pursue aspirational goals, one must engage in goaldirected behaviors. In the course of growing up, many children hear from a parent, a teacher, or a coach the accusation: “You’re not trying hard enough.” It is not our contention that those who sit in judgment of colleagues accused of wrongdoing can measure effort with reasonable precision, but there are situations in which it is clear that a practitioner whose actions are under scrutiny has, in simple terms, failed to try hard enough. Where professional goals to which we aspire are difficult to achieve, the failure to achieve them may not reflect deficient effort. When, however, that to which we claim to aspire is easily achieved with minimal effort, it can reasonably be inferred that failure to reach the goal reflects inadequate efforts to arrive at an ethical course of action. Beauchamp and Childress (2008) opined that, while beneficence is often viewed as voluntary rather than obligatory, the concept of obligatory beneficence is not oxymoronic. It is our contention that all ethical principles and standards are derived from and are elucidations of the ethic of reciprocity —the concept that each of us is entitled to just treatment and bears a reciprocal obligation to treat others in a just manner (Paden, 1997, 2003; Stace, 1937/1975). When we are the service recipients, we expect that service providers will perform their services to the best of their ability. Recipients of forensic psychological services are entitled to expect that we will perform our services to the best of our ability. Our reading of the SGFP, draft 6 (Committee to Revise, 2001), Guideline 2.05 is that the conduct and competencies of forensic psychologists evolve. Those who have worked in the field for several decades are expected to have developed a standard of professional conduct

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and competencies that are further advanced along the continuum of adequacy than those who have recently begun forensic practice. Implicitly, the SGFP, draft 6 (Committee to Revise, 2001) encourages forensic psychologists to strive toward the “best possible” pole of the continuum of adequacy. We believe that each of us should work toward making our next forensic work product better than the last. We should always be moving further along the adequacy continuum toward that which is the “best possible.” We should strive for excellence. Barge Towing and Forensic Psychology The year 1944 began inauspiciously for the Carroll Towing Company. On January 3, one of the company’s barges, the Anna C, broke free of its mooring lines, drifted into a tanker, and sank. The United States, the lessee of the barge, sued Carroll Towing. Three years later, Carroll Towing’s loss became tort law’s gain, when Judge Learned Hand created what came to be known as the Hand Rule [U.S. v. Carroll Towing Co., 159 F.2d 169 at 173 (2d Cir. 1947)]. The Hand Rule suggests that, in liability matters, we should consider the probability that a negative event will occur, the gravity of the harm that would result, and the cost of taking adequate steps to prevent the negative event. Justice Hand’s reasoning can be applied to the decisions that psychologists make as they contemplate entry into a specialty area such as forensic psychology. Survey data (Bow & Martindale, 2009) suggest that in the specialty of child custody evaluation, commencing practice without first having acquired sufficient knowledge and developed the requisite skills is disturbingly common. Among 138 child custody evaluators completing a survey, 32% stated that they had attended no workshops or seminars on evaluation methodology prior to conducting their first evaluations, 30% reported having attended one or two workshops prior to accepting their initial evaluation assignments, 12% reported that they had read no books or journal articles, 7% reported that they had read one article or book, and 17% reported that they had read two articles or books. In the same survey, information was obtained concerning the manner in which interest in conducting child custody evaluations had been stimulated. Eighteen percent of the respondents reported that they had been invited to conduct an evaluation by an attorney and 6% reported that a psychotherapy case had morphed into a custody evaluation. On the basis of these data, it is reasonable to infer that a sizeable percentage of the psychologists currently

conducting evaluations began without first having given reasonable consideration to the likelihood that they might harm those who were relying upon them to provide useful expertise. We urge psychologists who are contemplating performing forensic psychological activities to obtain the requisite knowledge and skill and, subsequently, to “keep abreast of developments in the fields of psychology and the law and engage in continuing study and education” (SGFP, draft 6 [Committee to Revise, 2001], Guideline 4.02). In any of the forensic psychological evaluation activities that involve submission of reports to courts or offering testimony, those who proceed without first having prepared themselves adequately are not considering the probability that they will employ inappropriate methods, formulate erroneous opinions, and communicate those opinions to courts that may be led to hand down misguided opinions as a result of having accepted flawed advisory input. Striving for Excellence In the search for ethics, organized psychology has lost its way. Softly spoken messages urging us to aim higher are not heard when, in a thundering voice, the American Psychological Association keeps lowering the performance bar in the area of professional ethics. Psychology has consistently exhibited appropriate modesty with regard to its ability to predict future behavior. It should come as no surprise, therefore, that those who predicted that the creation of the “clear distinctions” between aspirations and standards to which Fisher (2003) alluded would elevate the level of psychological practice appear to have been mistaken. With the “clear distinctions” referred to by Fisher has come an understandable concern among psychologists with what they are required to know in order to stay out of trouble. And they are required to be reasonably familiar with the enforceable ethical standards (that is, the rules). There will be no quiz on the Ethical Principles, and they have lost importance. D´ej`a Vu All Over Again More than eight decades ago, Landis (1927) observed that ethics codes were not being written in a manner that would meaningfully contribute to efforts by professional organizations to enforce exhortations to their members that they practice ethically. It is likely that if Landis were surveying the scene today, he would offer a similar observation. More than six decades ago, Hobbs (1948) opined that our profession needs “not only a code that will make

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possible effective discipline of those engaged in malpractice but also, and more importantly, a code that will provide real guidance to the psychologist who is making an honest effort to practice his profession in the best ethical tradition” (p. 81). He opined, further, that the standards contained in our code “should be of palpable aid to the ethical psychologist in making daily decisions” (p. 81). Hobbs, writing on “the development of a code of ethical standards for psychologists,” reported that, in the late 1940s, the American Psychological Association decided to create “an empirically developed code” based on an investigation of the ethical dilemmas encountered by a “representative sample of members” (p. 83). As described by Hobbs, “[t]he research itself would involve the collection, from psychologists involved in all of the various professional activities, of descriptions of actual situations which required ethical decisions” (p. 83). Though we have been unable to locate a writer who has identified the point at which we peaked, numerous ethics commentators have suggested that the 1992 code was a weakened version of the 1982 code, and the 2002 code is a weakened version of the 1992 code, particularly with respect to those portions of the code that relate to forensic psychological activities (e.g., Campbell, 2002; Tippins, 2011). Bersoff (1994) reported that many critics of the 1992 code (American Psychological Association, 1992) had “criticized the code for its lack of clarity, its rampant qualifying language, and for seeming to protect the profession rather than the public” (p. 382). Sieber (1994) opined that the 1992 code’s vagueness rendered it “analogous to an etiquette book that simply advises readers to be considerate” (p. 369). Carolyn Payton (1994), a former member of APA’s Policy and Planning Board and Public Policy Committee, wrote: “All previous codes seemed to have been formulated from a perspective of protecting consumers. The new code appears to be driven by a need to protect psychologists. . . . It reads as though the final draft was edited by lawyers in the employment of the APA” (p. 317). It was Payton’s conclusion that the 1992 code had been “diluted almost to the point of uselessness” (p. 319). Keith-Spiegel (1994), commenting on the 1992 code, opined that each ambiguous word or phrase creates a “yawning gap through which many interpretations can flow” (p. 367). Vasquez (1994) observed that the 1992 code contained an excessive amount of “qualifying language” and that, in so doing, it created “loopholes for psychologists” (pp. 321–322). In commenting on the 1992 code, Koocher (1994) opined that its wording “is largely reflective of the style

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of lawyers . . . and seems more intended to narrow one’s liability than to stir one to the highest plane of ethical functioning” (p. 361). He expressed the hope that, in developing the next code, “the voice of defense and liability lawyers . . . should be tempered with equal input from advocates of public interest and social responsibility” (p. 361). In his commentary on the 1992 code, Bersoff (1994) opined that earning and maintaining the public’s trust would require that we develop an ethics document that reflects our moral integrity and our primary mission of promoting human welfare” (p. 386). Both Koocher (1994), in his reference to “input from advocates of public interest and social responsibility,” and Bersoff (1994), in his reference to our need for a “document that reflects our moral integrity and our primary mission of promoting human welfare,” pointed our national association in the right direction. The APA was not attentive. With regard to ethical issues in forensic psychology, Pope and Vetter (1992, p. 399) reported data collected in a national survey of ethical dilemmas encountered by APA members. Many of the dilemmas related to forensic psychological practice. Though participants in the Pope and Vetter survey had expressed concern regarding ethical dilemmas linked to forensic practice, our 2002 Ethics Code (American Psychological Association, 2002) saw the elimination of six ethical standards pertinent to “Forensic Activities” (section 7 of the 1991 code) and the removal of Standard 1.23 (b), which read: “When psychologists have reason to believe that records of their professional services will be used in legal proceedings . . . , they have a responsibility to create and maintain documentation in the kind of detail and quality that would be consistent with reasonable scrutiny in an adjudicative forum.” Psychologists involved in the creation of our 2002 Ethics Code have engaged in some mutual back-patting. Fisher (2003), the Chair of the Ethics Code Task Force, wrote: “Each subsequent revision of the APA Ethics Code has been driven by the desire for standards that would encourage the highest endeavor of psychologists, ensure public welfare, promote sound relationships with allied professions, and promote the professional standing of the discipline (citation omitted)” (p. 3). It is difficult to discern how our profession ensures the public welfare when we eliminate from our ethics code a record creation and record keeping requirement such as that which appeared in the 1992 Ethics Code’s Standard 1.23 (b), referenced earlier. Fisher (2003) also assured readers of her commentary on the Ethics Code that “[a] core value of the discipline

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Nature of the Field

of psychology as articulated in the Preamble of the 2002 Ethics Code is the welfare and protection of the individuals and groups with whom psychologists work” (p. 7). Our profession’s core values are best judged not by assurances of good intentions, but by what we require of the members of our profession, and what we require is set forth in standards that are dramatically at odds with our stated aspirations. One of the purposes of an ethics code, according to Fisher, “is to gain public trust by demonstrating that psychologists are members of a responsible and substantial profession with high standards. A code can serve a public relations value by being seen as a contract with society to act in consumers’ best interest. A professional ethics code also provides standards against which the public can hold psychologists accountable” (Fisher, 2003, p. 7). We are in agreement with these sentiments; however, it is the reality that the public can point to ethical standards as a means by which to “hold psychologists accountable” that has led the American Psychological Association to pursue a practitioner protection goal by shortening the list of professional activities concerning which complaints can be lodged and increasing the ambiguity of the manner in which the remaining items are defined. Knapp, a member of the Ethics Code Task Force, and VandeCreek (2003) stated that a “goal of the Ethics Committee Task Force was to reduce the potential of the Ethics Code to be used to unnecessarily punish psychologists” (p. 301). Barnett (2003), in his commentary on the Task Force objectives, asserted: “A main goal of the ECTF [(Ethics Code Task Force)] was to create a revised Ethics Code that provides better protection for psychologists” (p. 9). Reacting to Barnett’s commentary, Tippins (2008) stated: “The real question that confronts the psychology profession—the pachyderm in the parlor that must be acknowledged—is whether guidelines, practice protocols, and ethical codes are intended to protect the public from substandard services or whether their purpose is to lower the bar for the APA’s members and shield from criticism those practitioners who deliver a shoddy work product” (p. 12). There is reason for concern that protecting the legitimate rights of consumers of psychological services has been subordinated to reducing the complaint-anxiety of forensic psychologists.

LOOKING FORWARD It is essential that forensic psychology examine its aspirations and decide what steps can be taken to achieve

its goals. Roughly a decade ago, the Honorable Stephen Hjelt (2000), the presiding Administrative Law Judge for the California Office of Administrative Hearings in San Diego, addressing himself to psychologists, wrote: “[Y]our profession has strong roots as a discipline that has a foundation in the scientific method. However, some of you simply stopped using it” (p. 12). Timothy Tippins (2008), an attorney witnessing the same departure from science alluded to by Judge Hjelt, wondered if psychology will “continue to fall away from its roots into the murky world of speculation simply because there is an economic market for such speculation” (p. 12). Goldstein (2007) opined that because forensic psychology has grown significantly, “the need for a standard of care—those steps the reasonably prudent forensic mental health expert should take to ensure quality, ethical, relevant opinions, reports, and testimony that are data-based [emphasis added]—is even more critical” (p. 6). A disservice was done to the specialty of forensic psychology in the creation of the 2002 Ethics Code (American Psychological Association, 2002). Specifically, we are in strong disagreement with the assertion by Knapp and VandeCreek (2003) that “there was no loss in protection of the public” (p. 307) as the 1992 Ethics Code (American Psychological Association, 1992) was transformed into a “revised Ethics Code that provides better protection for psychologists” (Barnett, 2003, p. 9). Tippins (personal communication, February 2011, e-mail on file, quoted with permission) observed that [t]he extent to which the APA diluted its ethics code in 2002 indicates that trade unionism trumped professional responsibility. This is extremely unfortunate in that it makes those forensic psychologists whose testimony can alter the lives of litigants less accountable. The diluted standards may make life easier for individual psychologists, but they make the psychology discipline seem less respectable.

Protection for consumers of forensic psychological services and for those affected by those services has been significantly diminished by a revised Ethics Code (American Psychological Association, 2002) that relieves psychologists whose work will be used in legal proceedings of the responsibility “to create and maintain documentation in the kind of detail and quality that would be consistent with reasonable scrutiny in an adjudicative forum” [Standard 1.23 (b) of the 1992 Ethics Code]. Protection for litigants has been significantly diminished by a revised ethics code in which psychologists are no longer urged to “recognize limits to the certainty with which diagnoses, judgments, or predictions can be

Ethics in Forensic Practice

made about individuals” [Standard 2.04 (b) of the 1992 Ethics Code]. We agree with the assertion by Knapp and VandeCreek (2003) that “it is important to have a code that reflects the consensual values of the profession” (p. 307). Unfortunately, the values of the profession are communicated through the Ethical Principles, which Fisher (2003) and others have emphasized must be distinguished from the enforceable standards. In their commentary on the Ethics Code, Knapp and VandeCreek (2003) made it clear that psychologists, in numbers sufficient to attract the attention of the American Psychological Association, had been expressing discontent with the process by which complaints against psychologists are being dealt with. Knapp and VandeCreek (2003) reported that the APA Ethics Code “has been used by state psychological associations, licensing boards, malpractice courts, and institutional employers . . . [and] the fear of being the target of [a disciplinary or legal] action has had a chilling effect on many psychologists” (p. 301). Knapp and VandeCreek (2003) added that “some psychologists viewed the prior Ethics Code as an antipsychology document. . . . Consequently, the ECTF established as one of its goals to reduce the ways in which the Ethics Code might be used unfairly to penalize psychologists” (p. 302). There is reason to hypothesize that the “fear of being a target” exists in a data vacuum. Though data reported by Kirkland and Kirkland (2001) are now more than a decade old, no more recent data were available as this chapter was being prepared. Kirkland and Kirkland, surveying licensing board actions taken in response to complaints lodged in connection with child custody matters, reported that 1% of the complaints resulted in disciplinary action by the board. Van Horne (2004) observed that “[t]he perception of disciplinary actions taken by licensing boards is dependent on the vantage point of the observer” (p. 170). Van Horn concluded, “Realistically, for those psychologists who follow practice standards, recognize their own limits, document their services, and utilize consultation, risk of adverse action against their licenses is negligible” (p. 177). Notwithstanding the reassurance provided by Van Horn, the concerns of the psychologists alluded to by Knapp and VandeCreek (2003) must be addressed. We submit, however, that those concerns are not constructively addressed by reducing the number of enforceable rules, inserting calculated ambiguity into many of the remaining rules, and emphasizing the distinction between aspirational statements and enforceable rules. In her article, Van Horn has

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alluded to “the complexity of board procedures” (p. 170). In our view, the concerns of psychologists can be more effectively addressed if we direct our efforts at improving the procedures employed by licensing boards. Licensing Boards Securing better protection for psychologists can be accomplished without a concomitant reduction in protection for consumers of psychological services. Without placing either psychologists or the public at a disadvantage, we can reexamine and, where necessary, revamp the methods employed by disciplinary boards when complaints against psychologists are being investigated. Though ethics committees have not yet gone the way of the dinosaur, complaints alleging ethical infractions by psychologists are much more commonly addressed by state licensing boards. Forensic psychologists are often underrepresented (or not represented at all) on licensing boards, thereby creating a unique problem for forensic psychologists against whom complaints have been lodged. An examination of the manner in which our boards handle complaints can begin by systematically gathering the answers to questions such as those that follow. 1. How are investigations initiated? (a) Must there be a complainant, or can the board initiate an investigation sua sponte (on its own), rather than in response to a complaint? (b) Does the organization accept anonymous complaints? 2. Does the investigative agency act on complaints registered by organizations (such as a state psychological association)? 3. Does the organization investigate the actions of practitioners not yet under its jurisdiction (such as practitioners who are not yet licensed but presumably wish to be licensed in the future)? 4. Does a withdrawn complaint stop the investigative process or does an investigation, once started, continue? 5. What is the organizational structure of the board? From what broader agency does the board derive its authority? (Is it, for example, under the aegis of the Department of Consumer Affairs?) 6. What is the source of the board’s funds, and what data are sought by oversight groups when funds are being sought? (In fighting for its budget, is the board encouraged to demonstrate that it has investigated and disciplined an impressive number of practitioners?) (a) What other agencies compete for whatever funds are available?

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7. What is the composition of the board? (How many of the board members are familiar with forensic work?) (a) How are members of the board selected? 8. What are the investigative and operational procedures? (a) Is the focus of the investigation limited by the allegations contained in the complaint? (Does the board investigate aspects of an evaluator’s professional practice concerning which no allegations have been made?) (b) Are consultants retained? (c) If so, how are they selected? (d) What information is given to them? (e) Can consultants, once retained, request that their assigned tasks be broadened or changed? (f) If a practitioner has been previously investigated and no disciplinary action has been taken, can a new complaint result in a review of earlier complaints and the use of information obtained during the investigation of earlier complaints? (g) Are plea bargains offered? (h) What is the range of possible outcomes? (i) What are the complainant’s rights? (j) Can the complainant offer testimony during the investigative inquiry? Can the complainant call witnesses? (k) Can the complainant search for others who have been displeased with the results of evaluations and encourage them to join in the complaint? (l) Can the complainant retain his or her own expert? (m) What are the rights of the practitioner under investigation? (n) Is the practitioner shown a copy of the complaint and supporting documents? (o) If not, what information is provided? If a consultant has been retained, does the practitioner have access to the consultant’s report? (p) Can the practitioner seek the exclusion of the consultant’s report if it is felt that there is a conflict of interest? (q) Are helpful instructions given to the practitioner relating to what documents must be produced? The professional services offered by forensic psychologists are often provided in an atmosphere of conflict and animosity. Particularly in offering evaluation services, we must employ procedures designed to avoid fueling suspicion and contributing to the acrimony. The integrity of a forensic psychological evaluation is dependent on transparency—openness to scrutiny, including scrutiny by those who might be motivated by a desire to cast doubt on the value of the work done. If forensic psychologists wish to assist triers of fact, they should presume that everything in their files is subject to disclosure, unless they have been informed otherwise by the court. Withholding or destroying components of the file undermines an essential element of our system of

justice: Courts, not psychologists, decide what is and what is not discoverable.

CONCLUSION Slightly more than a decade ago, Jeffrey Younggren (2000), a former Chair of the American Psychological Association’s Ethics Committee, opined that “[t]he regulation of psychology is not going away and psychology is being held accountable for what it does and how it presents itself in the courtroom” (p. 9). Younggren predicted that those who yearn for less regulation were unlikely to see their wishes granted. Unfortunately, Younggren’s prediction turned out not to be correct. Younggren concluded that “if we do not claim and define psychology, someone else will do it for us and we will have to deal with the result” (p. 9). With Younggren’s cautionary statement in mind, we urge the task force working on our next ethics code to embark on the task with the objective of providing better protection for consumers of psychological services, rather than the “better protection for psychologists” that was alluded to by Barnett (2003, p. 9).

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Martindale, D. A. (2007a). Forensic consultation in litigated custody disputes. Journal of Psychiatry and Law, 35 (3), 281–298. Martindale, D. A. (2007b). Setting standards for custody evaluators. Invited manuscript for the Journal of Psychiatry and Law, 35 (Summer), 173–199. Martindale, D. A., & Gould, J. W. (2004). The forensic model: Ethics and scientific methodology applied to custody evaluations. Journal of Child Custody: Research, Issues, and Practices, 1 (2), 1–22. Martindale, D. A., & Gould, J. W. (2008). Evaluating the evaluators in custodial placement disputes. In H. Hall (Ed.), Forensic psychology and neuropsychology for criminal and civil cases (pp. 527–546). Boca Raton, FL: Taylor & Francis. Martindale, D. A., & Martindale, J. L. (1993, May). Assessment of comparative custodial fitness: A call for standards. Presented at the Annual Convention of the New York State Psychological Association, Rye Brook, NY. Martindale, D. A., & Martindale, J. L. (1994, October). Performing custody evaluations and appearing as an expert witness. Presented at a meeting of the Suffolk County Psychological Association, Dix Hills, NY. Martindale, D. A., Martindale, J. L., O’Leary, K. D., Schwartz, M., Farneti, J., Friedenberg, M. R., . . . Tabat, G. H. (1994, March). The evaluation of a mental health report. Presented at a workshop for attorneys sponsored by the Matrimonial and Family Law Committee of the Suffolk Academy of Law. McCurley, M. J., Murphy, K. J., & Gould, J. W. (2006). Protecting children from incompetent forensic evaluations and expert testimony. Journal of the American Academy of Matrimonial Lawyers, 19 (2), 277–320. Meehl, P. E. (1960). The cognitive activity of the clinician. American Psychologist, 15, 19–27. Mnookin, J. L. (2008). Expert evidence, partisanship and epistemic competence. Brooklyn Law Review, 73, 587–611. Morse, S. J. (1978). Law and mental health professionals: The limits of expertise. Professional Psychology, 9, 389–399. Northcraft, G. B., & Neale, M. A. (1987). Experts, amateurs, and real estate: An anchoring-and-adjustment perspective on property pricing decisions. Organizational Behavior and Human Decision Processes, 39, 84–97. Paden, R. (1997). Reconstructing Rawls’s law of peoples. Ethics and International Affairs, 11 (1), 215–232. Paden, R. (2003). Alan Wolfe, moral freedom: The search for virtue in a world of choice. Journal of Value Inquiry, 37 (1), 121–125. Payton, C. R. (1994). Implications of the 1992 ethics code for diverse groups. Professional Psychology: Research and Practice, 25, 317–320. Pope, K. S., Butcher, J. N., & Seelen, J. (2000). The MMPI, MMPI2, & MMPI-A in court: A practical guide for expert witnesses and attorneys (2nd ed.). Washington, DC: American Psychological Association. Pope, K. S., Butcher, J. N., & Seelen, J. (2006). The MMPI, MMPI2, & MMPI-A in court: A practical guide for expert witnesses and attorneys (3rd ed.). Washington, DC: American Psychological Association. Pope, K. S., & Vetter, V. A. (1992). Ethical dilemmas encountered by members of the American Psychological Association: A national survey. American Psychologist, 47, 397–411. Ramsey, S. H., & Kelly, R., F. (2004). Social science knowledge in family law cases: Judicial gate-keeping in the Daubert era. University of Miami Law Review, 59 (1), 1–81. Rosenhan, D. L. (1973). On being sane in insane places. Science, 179, 250–258. Rosenthal, R. (1966). Experimenter effects on behavioral research. New York, NY: Appleton-Century-Crofts.

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CHAPTER 4

Legal Contours of Expert Testimony STEVEN K. ERICKSON AND CHARLES PATRICK EWING

INTRODUCTION 62 THE LAW OF EXPERT TESTIMONY 65 EFFECTIVE PRACTICE OF EXPERT TESTIMONY

SUMMARY 73 REFERENCES 74 70

expert witness in a number of celebrated trials, Professor M¨unsterberg asserted that the legal process would be well served by greater use of psychological principles and expertise. Clearly anticipating the development of what is now known as forensic psychology, M¨unsterberg (1908) made numerous optimistic claims for psychology’s value to the courts and to the legal system as a whole. For example, in describing an instrument he and his colleagues used to measure minute time intervals, Munsterberg wrote, “the chronoscope of the modern psychologist has become, and will become more and more, for the student of crime, what the microscope is for the student of disease” (p. 77). M¨unsterberg also wrote that the psychology of associations (the relationships among thoughts and other mental processes) “has become, indeed, a magnifying-glass for the most subtle mental mechanism, and by it the secrets of the criminal mind may be unveiled” (p. 108). While praising his own discipline, M¨unsterberg (1908) harshly criticized the legal system for failing to rely more heavily on the developing science of psychology. He noted, for example, that

INTRODUCTION A major aspect of the practice of forensic psychology involves providing expert testimony in trials, hearings, and administrative proceedings. As is clear from many of the other chapters in this volume, today, expert testimony is offered by psychologists on a host of issues, including, but far from limited to, child custody, personal injury, disability, substituted judgment, competency to waive rights, competency to stand trial, insanity, and diminished capacity. This chapter briefly examines the history of expert testimony by psychologists, explains the general legal rules governing expert testimony, and then details selected practical aspects of the current process of providing such testimony, with specific emphasis on the types of expert testimony given by forensic psychologists and related mental health professionals. The Historic Roots of Modern Expert Testimony Expert testimony that today would be regarded as within the province of forensic psychology was offered in U.S. courts as early as 1846 (see, e.g., Gravitz, 1995). But modern-day expert testimony by forensic psychologists and other psychological experts probably owes its birth most clearly to Hugo M¨unsterberg, a Harvard University professor, experimental psychologist, and contemporary of Freud and Watson. In 1908, M¨unsterberg published the first textbook of forensic psychology. In his now-classic On the Witness Stand , a collection of chapters in which he recounted many of his own pioneering experiences as an

while the court makes the fullest use of all the modern scientific methods when for instance a drop of dried blood is to be examined in a murder case, the same court is completely satisfied with the most unscientific and haphazard methods of common prejudice and ignorance when a mental product . . . is to be examined. (pp. 44–45)

M¨unsterberg found it “astonishing that the work of justice is ever carried out in the courts without ever consulting the psychologist. . . .” (p. 194). 62

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M¨unsterberg’s work was part of an incipient movement that used behavioral science data to advocate legal prescriptions. In 1908, Louis Brandeis—who would later become an influential member of the Supreme Court— authored a brief in the highly contested case of Muller v. Oregon (1908), which concerned an Oregon law limiting the hours women could be made to work in a factory or laundry. Muller was fined for making a female employee work more than 10 hours a day in his laundry, and he argued that the law was unconstitutional under the Court’s legendary case of Lochner v. New York (1905). In order to demonstrate the constitutionality of Oregon’s law, Brandeis had to argue that women were the weaker sex and needed the exceptional protections of the law even if it would be unconstitutional to restrict the hours men could work under Lochner. By modern standards it is an odd brief, exceeding 100 pages and consisting mostly of quotes from experts, legislators, and statutes. But it was one of the first to employ broadly social science data to argue for a formal legal outcome, something prescient of modern legal discourse. Nonetheless, given the existing state of psychology as a science and profession in the early 20th century, Brandeis’s and M¨unsterberg’s claims for the benefits of psychology in the courtroom were undoubtedly premature, if not grandiose. Thus, not surprisingly, M¨unsterberg’s words, in particular, clearly irritated judges, lawyers, and legal scholars, many of whom complained—and not without good cause—that psychology had yet to develop the data and methods needed to back up his claims. In a scathing, satirical article published in 1909 in the Illinois Law Review, Professor John Henry Wigmore, the leading evidence law scholar of the day, described an imaginary legal proceeding in which a jury examined M¨unsterberg’s assertions about the value of psychology to the legal system. Wigmore’s fictional trial took place on April 1, 1909 (April Fool’s Day) in the Superior Court of Wundt County, a jurisdiction undoubtedly named for Wilhelm Wundt, the father of experimental psychology. M¨unsterberg’s views were advanced by an attorney named X. Perry Ment, and almost instantly rejected by the jury. In Professor Wigmore’s caricature, M¨unsterberg is ridiculed as the author of “The Psychology of the Wastebasket” (a study relating personality characteristics to “the number of times the letter M occurred on the scraps thrown into the basket”), “Studies in Domestic Psy-collargy,” and “The Psychology of the Collar Button (the results of over 9,000 observations of the behavior of the ordinary collar button)” (p. 402). In Wigmore’s fictional crossexamination of the “defendant,” the examining attorney

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caustically derides M¨unsterberg’s unduly optimistic view of psychology and his unwarranted criticism of the legal system. After reviewing the works of other psychologists who were less positive than M¨unsterberg about what psychology could offer the courts, the plaintiff’s attorney asked the psychologist-defendant the following longwinded but telling question: Now then, professor, I want you to be good enough to explain to this jury how anyone could have predicted . . . that precisely you would commit the whimsical mistake of bearing testimony against our innocent profession . . . for neglecting to use new and “exact” methods which were and still are so little “exact” and so incapable of forensic use that even their well-wishers confess that thousands of experiments and years of research will be required before they will be practicable, if ever? (p. 414)

To this, as well as to the succeeding barrage of challenging questions, the humiliated “M¨unsterberg” has “no answer.” Though Wigmore’s biting parody was widely read, well received by judges and lawyers, and probably reflected the sentiments of most knowledgeable legal professionals and scholars of the day, it was M¨unsterberg who really had the last laugh. By 1923, when a second edition of M¨unsterberg’s book was published, it included a foreword by Attorney Charles S. Whitman, Former Governor of New York, past District Attorney of New York County, and a man of unquestionable stature in the American legal community. Whitman described M¨unsterberg’s treatise as “an instructive exposition of what may be termed ‘legal psychology’” (1923, p. xii) and, noting that the articles in the book had initially been published 14 years earlier, concluded that “they have lost none of their timeliness, interest, or helpfulness [and] contain lessons in experimental psychology which are invaluable to any one interested in the administration of justice” (p. xii). M¨unsterberg was a psychologist trying to educate the legal system regarding psychology. The next major influence in the history of forensic psychology came not from psychology but from within the legal establishment. American legal theory, from the mid-18th century through the dawn of the 20th, largely accepted without question the conception of law as “a set of rules deduced by logic from eternal principles” (Aichele, 1990, p. 23). Oliver Wendell Holmes, who once wrote “The life of the law has not been logic; it has been experience” (1881, p. 1), joined several other prominent jurists and legal scholars in challenging this conception as early as the late-19th century. But it was not until the early 20th

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century that legal scholars began to consider empirically testing the many behavioral assumptions and propositions of law. Early in the century, Roscoe Pound, the Harvard Law School Dean, armed with both a law degree and a PhD in botany, helped establish what would come to be called sociological jurisprudence. In 1910, Pound urged those in the legal profession to “look to economics and sociology and philosophy, and cease to assume that jurisprudence is self-sufficient” (pp. 35–36). Still, Pound and other early adherents to sociological jurisprudence were essentially jurists and legal philosophers. It was not until the 1920s and 1930s that there developed what has come to be called a school of legal realism. The legal realists, a group of law professors at a handful of elite Eastern law schools, not only attacked traditional legal theory and emphasized the social and political functions of the law, but also attempted to impose both an objectivity and an empiricism on the study of law. Most significantly, many legal realists not only saw principles of law as essentially psychological but also believed that legal assumptions could and should be tested empirically in keeping with the then-infantile but rapidly developing methods of psychology and the other behavioral sciences. That attitude is perhaps nowhere better or more strongly captured than in a 1935 book, Law and the Lawyers, written by Edward Stevens Robinson, a psychologist who served on both the psychology and law faculties at Yale University. Robinson’s (1935) book, which he proudly presented as “part of the realistic movement in American jurisprudence,” begins with this sentence: “This book attempts to show that jurisprudence is certain to become one of the family of social sciences—that all of its fundamental concepts will have to be brought in line with psychological knowledge” (p. v). Later in the volume, Robinson wrote, “The law is concerned with the regulation, mitigation, and composition of human disputes. The fundamental stuff with which it deals is therefore psychological” (p. 72). Then, almost echoing M¨unsterberg, Robinson (1935) took the legal system to task for its reliance on theories and assumptions that cannot withstand the empirical scrutiny of psychology and the other social sciences: Of all the social studies jurisprudence has collected perhaps the largest assortment of theories which, though obviously in disagreement with the facts, are said to be convenient. Falsifications of history, economics, and sociology as well as psychology, are the devices by means of which juristic thought simplifies a baffling world. (p. 73)

The promise of legal realism was never fully met, and the pronouncements of Robinson, like those of M¨unsterberg before him, were greeted with considerable skepticism by many jurists and legal scholars. Still, it must be acknowledged that the realist movement of the 1920s and 1930s set the stage for much of the modern interface between law and psychology and helped pave the way for forensic psychology by framing many legal issues as concerns that psychologists would later be well equipped to address. Certainly, the early jury studies and other pioneering psycholegal research on issues such as the accuracy and limitations of eyewitness testimony were stimulated in large measure by the critiques of the realists and their successors. Until the advent of the field of clinical psychology in the second half of the 19th century, psychological contributions to the legal system came mostly in the form of research, consultation, and occasional expert testimony on issues related to memory, perception, intellect, and other cognitive issues. However, even after clinical psychology was clearly established as a recognized profession and psychological specialty, psychologists rarely were involved in the kinds of legal issues that are the bread and butter of today’s forensic psychologists. Until as recently as the early 1960s, forensic issues such as insanity, competence to stand trial, psychological injury, and other major psycholegal concerns were defined by the courts as almost exclusively the province of psychiatrists and the role played by psychologists in the legal system was similar to what it was in the mental health field more generally: Psychologists were regarded as adjuncts to the dominant profession of psychiatry. That role was well described in 1952 by Guttmacher and Weihofen, two psychiatrists who wrote the classic text, Psychiatry and the Law. According to Guttmacher and Weihofen: “The clinical psychologists are those most frequently confused with psychiatrists, and understandably so. They have special training in evaluating the intelligence and personality structure of healthy and mentally disordered individuals” (p. 9). These authors went on to explain how and why clinical psychologists were already becoming “dissatisfied with mere testing” and were clamoring for a larger professional role “under the guidance of the psychiatrist” (Guttmacher & Weihofen, 1952, p. 9). To their credit, Guttmacher and Weihofen seemed open to the thought of clinical psychologists playing an expanded role in consulting directly with counsel without the need for physician oversight. Their colleagues in the American Psychiatric Association, however, were not so open-minded.

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In the watershed case of Jenkins v. United States (1962), the D.C. Circuit Court of Appeals was presented with the question of whether a clinical psychologist could testify that a criminal defendant had a mental disease when he committed the crimes charged. Three highly qualified doctoral-level clinical psychologists had so testified, but the trial court had instructed the jury to completely disregard their testimony because they were not physicians. On appeal of the defendant’s conviction, both the American Psychiatric Association and the American Psychological Association weighed in with amicus briefs. The American Psychological Association argued that clinical psychologists were professionally qualified to diagnose mental illness and should not be barred from presenting testimony regarding such a diagnosis (American Psychological Association, 1962). In its amicus brief, the American Psychiatric Association repeatedly emphasized that, although they might be good at administering psychological tests, psychologists were not physicians, functioned merely as assistants to psychiatrists, and were not qualified as experts in the diagnosis or treatment of mental illness (American Psychiatric Association, 1962). A ruling in favor of the psychiatrists’ position would undoubtedly have been a serious setback to the development of the newly emerging field of forensic psychology. Fortunately for this nascent profession, the court held in favor of psychology and against psychiatry. Writing for the majority of the court, Judge David Bazelon recounted the extensive training and qualifications of clinical psychologists and held that such psychologists were not, as a matter of law, precluded from testifying in court regarding mental illness simply because they were not physicians. Although the Jenkins decision is now a mere footnote—if it is mentioned at all—in most law and psychology texts, its importance to the history of forensic psychology cannot be underestimated. While this decision dealt solely with the admissibility of forensic psychological testimony regarding criminal responsibility, it opened the courtroom doors for psychologists more generally and helped pave the way for modern rules that clearly permit psychologists to provide expert testimony on a host of issues.

THE LAW OF EXPERT TESTIMONY Expert testimony in all courts is generally governed by well-defined rules of evidence. Many jurisdictions have formal codes of evidence. California and the federal system are two notable examples. The California evidence

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rules are contained in the California Evidence Code, and the rules for the federal courts can be found in the Federal Rules of Evidence. The Federal Rules of Evidence govern the admissibility of expert testimony in the federal courts of the United States, regardless of their location, and have served as a model for many state evidence codes. In some states, such as New York, for example, there is no code of evidence; in those states, the rules of evidence, including those governing expert testimony, are embodied in case law (the published decisions of the state’s appellate courts). Whether found in codes or cases, the rules of evidence always provide the legal structure for expert testimony, which obviously varies somewhat among jurisdictions. To simplify matters, this chapter relies heavily on the Federal Rules of Evidence and the California Code of Evidence. Thus, readers must bear in mind that the rules discussed in the following may not be those governing testimony in their particular states. Any doubt about local rules should always be resolved by seeking the advice of legal counsel. Additionally, it is worth noting that while some rules of evidence of any particular jurisdiction are constitutionally bound, most rules are statutory and subject to the legislative process. Thus, rules can change over time as amendments supersede old statutory criteria. The federal rules have been amended several times since their original enactment in 1975, with the last amendments effective at the end of 2011. Not all amendments provide substantive changes, however, and the amendments of 2011 were stylistic and intended only to make the rules easier to read and comprehend. In most courts of law, the rules of evidence permit witnesses to testify only to that which they have personally perceived (i.e., seen, heard, touched, tasted, or smelled). Witnesses are generally limited to testifying regarding facts about which they have firsthand knowledge and are generally barred from offering opinions or conclusions. For example, under Federal Rule of Evidence 701: If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Perhaps foremost among several exceptions to this “no opinion” rule is that permitting certain specially qualified witnesses to offer opinions and/or conclusions in their testimony. In all jurisdictions, witnesses recognized by the courts as “experts” are generally allowed to testify

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not only to facts and perceptions but also to opinions and conclusions.

Who Is an Expert? Who are these “experts” granted this exception to the general “no opinion” rule that governs lay witnesses, and why are these witnesses allowed this exceptional latitude in their testimony? The rules in most American courts set a fairly low standard for determining who qualifies as an expert witness. Under California Evidence Code Section 720, for example, “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” Under Federal Rule of Evidence 702, If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

experience may qualify. Indeed, the Advisory Committee to the U.S. Congress, which recently amended Federal Rule of Evidence 702, specifically noted: Nothing in this amendment is intended to suggest that experience alone—or experience in conjunction with other knowledge, skill, training, or education—may not provide a sufficient foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that an expert may be qualified on the basis of experience. In certain fields, experience is the predominant, if not sole, basis for a great deal of reliable expert testimony.

Indeed, an absence of formal education does not prohibit a person from qualifying as an expert provided that the requisite experience of the potential witness closely matches the area of proffered testimony. But education that falls outside of an area of expertise without additional relevant expertise usually prohibits a person from qualifying as an expert. Thus, clinical psychologists may testify about criminal responsibility matters, but experimental psychologists are usually barred. Why a Special Rule for Experts?

As explained by the Advisory Committee of Congress, which enacted this federal standard: The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the “scientific” or “technical” but extend to all “specialized” knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by “knowledge, skill, experience, training, or education.” Thus, within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called “skilled” witnesses, such as bankers or landowners testifying to land values. (Federal Rules of Evidence Handbook, 2000–2001, 2000, p. 104)

Whether a witness has the necessary knowledge, skill, experience, training, or education to testify as an expert is generally left to the sound discretion of the trial judge. As a rule, before being recognized by the court as an expert, unless there is no objection, the party calling the witness to testify must present the witness’s qualifications. California Evidence Code Section 720 provides, for example: “Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” Courts are generally lenient in determining whether a witness qualifies as an expert. Possessing relevant formal education is often sufficient, but neither a degree nor a title is essential, and knowledge and skill acquired from

The rule allowing expert witnesses to offer opinions and conclusions stemmed initially from the concern that some issues of fact were too complex, difficult, or technical for lay jurors to resolve without assistance from witnesses allowed to state opinions or conclusions. Indeed, the common law standard for expert testimony was, and remains in some jurisdictions, that such testimony be concerned with subject matter or issues “beyond the ken” (i.e., outside the understanding) of the average lay juror. Under that standard, the role of the expert was to provide the jury with guidance in the form of an opinion or conclusion. Gradually, this common law rule has given way, in the federal courts and many others, to a “helpfulness” standard. As the Advisory Committee of Congress, which enacted the Federal Rules of Evidence, explained: Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. (Federal Rules of Evidence Handbook, 2000–2001 2000, p. 104, quoting Ladd, 1999)

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Proper Subjects for Expert Testimony On what subjects may a witness offer expert testimony? Most expert testimony, particularly that given by forensic psychologists and those in related professions, rests at least partially on science. From 1923 to 1993 in the federal courts, the admissibility of scientifically based expert testimony was controlled by the Frye test. This test was first enunciated in Frye v. United States (1923), a District of Columbia Court of Appeals decision on the admissibility of evidence derived from an early version of the polygraph. In Frye, the court established a general acceptance test for scientific testimony: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (p. 1014)

In Frye, the court essentially held that to be admissible, expert testimony must be based on generally accepted scientific theories and methods. Thus, for example, expert testimony would be inadmissible as a matter of law unless the judge concluded that the majority of experts in the relevant scientific discipline subscribed to the theory and/or methods on which the testimony was based. Although the Frye test remains the standard in some state courts to this day, in federal courts its use came to an end in 1993, when the U.S. Supreme Court rendered its decision in Daubert v. Merrell Dow Pharmaceuticals. In Daubert, the Court held that expert testimony in the federal courts is governed by Federal Rule of Evidence 702, which the Court ruled superseded Frye when adopted in 1975. According to the Court, the Federal Rules of Evidence require the judge to determine whether proffered scientific evidence is “relevant,” “reliable,” and likely to assist the trier of fact (as required by Federal Rule of Evidence 702). To meet those criteria, the Court said, testimony must be “grounded in the methods and procedures of science” and “scientifically valid.” The Court held that although such testimony need not be “certain,” it must have “a valid scientific connection to the pertinent inquiry” or issue at stake in the trial. Offering some “general observations” to trial courts that would be called on to serve as “gatekeepers” under this new rule, the Court suggested that trial judges may, but are not required to, consider

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the following factors in deciding whether to admit expert testimony with a purportedly scientific basis: 1. Whether the principles and methodology underlying the testimony have been or can be tested. 2. Whether they have been subjected to peer review and publication. 3. Whether the known or potential error rate is acceptable. 4. Whether the underlying principles have gained general acceptance in the scientific community. Although the fourth factor clearly echoes the Frye test, neither that standard nor any of the three others is by itself a necessary or sufficient basis for admitting scientifically based expert testimony. Indeed, none of these suggested criteria is in itself dispositive. Instead, as the Daubert Court noted: The inquiry envisioned by Rule 702 is, we emphasize, a flexible one. Its overarching subject is the scientific validity—and thus the evidentiary relevance and reliability—of the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. (1993, pp. 594–595)

The flexibility of the determination, as well as the broad discretion of the judge in deciding whether to admit expert testimony, was reinforced by the Supreme Court in two important decisions that followed Daubert. In General Electric Co. v. Joiner (1997), the Court held that a trial judge’s decision to allow or reject expert testimony under Rule 702 may not be overturned on appeal unless the judge’s ruling constituted a clear abuse of discretion—a very difficult standard to meet. More recently, in Kumho Tire Co. v. Carmichael (1999), the Supreme Court held: Daubert’s general holding—setting forth the trial judge’s general “gatekeeping” obligation—applies not only to testimony based on “scientific” knowledge, but also to testimony based on “technical” and “other specialized knowledge.” We also conclude that a trial court may consider one or more of the more specific factors that Daubert mentioned when doing so will help determine that testimony’s reliability. But, as the court stated in Daubert, the test of reliability is “flexible,” and Daubert’s list of specific factors neither necessarily nor exclusively applies to all experts or in every case. Rather the law grants a district court the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination. (p. 142)

In a passage from the Kumho decision perhaps most relevant to the expert testimony of forensic psychologists,

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whose testimony is often based on a combination of science and professional experience, the Court reemphasized the importance of Daubert’s gatekeeping requirement: The objective of that requirement is to ensure the reliability of and relevancy of expert testimony. It is to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. (Kumho Tire Co. v. Carmichael, 1999, p. 152)

It is important to note that the gatekeeping function prescribed in Daubert and its progeny does not invite the trial court to decide whether the testimony is right or wrong in any substantive sense; rather, the relevant inquiry is whether the testimony is grounded in a reliable methodology. Thus, merely qualifying an expert’s credentials is not sufficient; trial courts must confront the reliability of expert testimony irrespective of the expert’s qualifications or designation as an expert. Likewise, testimony based on new approaches or techniques is not excluded merely because of its novelty. Again, the relevant inquiry is the reliability of methods used to generate the testimony, the fit between the proffered testimony and the facts of the case, and whether the testimony will unfairly prejudice the opposing party or confuse the fact finder. Other Limitations on Expert Testimony In addition to the preceding rules, expert testimony is also governed by several other general legal doctrines. Notice and Discovery Requirements Although there is considerable variability across jurisdictions, introduction of expert testimony almost always must be preceded by some sort of notice to opposing parties and, in many instances, the opportunity for opposing parties to discover the substance if not the basis of the proposed testimony. Prior to presenting expert testimony, a litigant must notify opposing counsel of the intent to do so and usually identify the expert who will testify. Additionally, opposing counsel virtually always is entitled to be informed in advance of the substance of the proposed expert testimony. Depending on the nature of the case and the jurisdiction’s discovery rules, such advance notice may require nothing more than a brief written notice. However, in many cases, especially civil matters, would-be expert witnesses may be required, prior to trial, to respond to questions posed by opposing counsel.

Generally, such examination before trial is done in the form of a deposition, a procedure in which opposing counsel has the opportunity to question the proposed expert witness directly, under oath, and with the questions and answers recorded verbatim. Sworn Testimony Any testimony, including expert testimony, whether provided at trial or deposition, regardless of jurisdiction, virtually always will have to be given under oath or affirmation. Generally, there is no prescribed language for an oath or affirmation; the witness must simply promise to tell the truth. Bibles often are used and the name of God sometimes invoked, but neither is required. For example, as Federal Rule of Evidence 603 commands: “Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’s conscience and impress the witness’s mind with the duty to do so.” Cross-Examination The law in every jurisdiction provides for what is called the order of examination. Witnesses, including experts, first are questioned by the attorney who calls them to testify; they then are subject to questioning, known as crossexamination, by opposing counsel. Cross-examination is always limited to the scope of the questions asked on direct examination, but the issue of scope is often liberally interpreted. Consequently, experts may expect to be cross-examined about any issue related to their direct testimony. Federal Rule of Evidence 611(b) states, for example, “Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.” That last phrase, “as if on direct examination,” is significant for reasons to be explained shortly. After cross-examination, there may be redirect examination, that is, questioning again by the attorney who called the witness. Redirect is limited to the scope of the preceding cross-examination; that is, attorneys may not use redirect to ask simply questions they have forgotten or failed to ask on direct examination. After redirect examination, there may be further crossexamination, often referred to as recross, more redirect, more recross, and so on, until the attorneys have exhausted their questions. Sometimes, the questioning will

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go back and forth for several rounds, with each successive round of questions becoming briefer because of the scope requirement. Once the attorneys have completed their questioning, the witness is generally excused. It should be noted, however, that in most jurisdictions, judges also have the prerogative to question witnesses. Though rare, when judicial questioning of a witness occurs, it opens up at least the possibility of more redirect and cross-examination by the attorneys. In addition, in a minority of jurisdictions, jurors are permitted to pose questions to witnesses, although this practice is exceedingly uncommon. In addition to specifying the order of examination of witnesses, the rules of most courts dictate what type of questions are allowed during cross-examination as opposed to direct examination. In both the federal and state courts, leading questions, those essentially calling for a yes-or-no answer, are generally prohibited on direct examination but allowed on cross-examination. An exception, at least in federal courts, occurs when, for example, Federal Rule of Evidence 611(b) permits cross-examination to deal with matters other than those dealt with during direct examination. According to 611(b), in that case, the questioning will proceed “as if on direct examination.” That means without leading questions. Voir Dire A final aspect of questioning related to cross-examination is the process of voir dire. Generally, experts are questioned about their credentials by the attorney who calls them to testify. These questions serve two purposes, one practical, and the other legal. As a practical matter, these questions on direct examination are used to enhance the expert’s credibility in the eyes of the trier of fact. More important, as a legal matter, the questions are aimed at qualifying the witness as an expert so that he or she may offer opinion testimony. To prevent a witness from providing expert testimony before opposing counsel has the chance to question the witness regarding his or her credentials, the law in most jurisdictions provides for voir dire. Voir dire is an opportunity for opposing counsel to interrupt the direct examination and essentially cross-examine the witness regarding his or her qualifications as an expert. If questions on voir dire raise sufficient doubt as to the basis for the witness’s claimed expertise, the judge has the discretion to refuse to allow the witness to offer expert testimony. Proper Basis for Expert Opinion Traditionally, American courts required that expert opinions be based on facts in evidence (i.e., evidence that

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has previously been introduced and admitted at trial). In practice, of course, few expert witnesses, particularly forensic psychological experts, base their opinions on any such artificially limited realm of data. Recognizing that experts often rely on data that has not been, indeed, may never be admitted in court, the modern trend has been toward a more liberal rule allowing experts to rely on facts or data of the sort normally relied on in their field of expertise, whether or not those facts or data are admissible in court. This modern approach is reflected most clearly in Federal Rule of Evidence 703: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

Disclosing Basis for Opinion Most rules of evidence, whether statutory or common law, require experts to specify the bases for their opinions. Interestingly, however, many jurisdictions leave that option to the cross-examining attorney. In these jurisdictions, which include the federal courts and those in California, an expert is not required to state the basis for his or her opinion unless asked to do so on cross-examination. Under Federal Rule of Evidence 705, “The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.” Pursuant to California Code of Evidence Section 721(a)(3), an expert witness may be “fully cross-examined as to . . . the matter upon which his or her opinion is based and the reasons for his or her opinion.” There remains, however, the problem of what to do with facts or data that underlie an expert’s opinion but are not themselves admissible. To allow an expert to reveal otherwise-inadmissible facts or data to the trier of fact, it has been argued, is to circumvent the general rules of evidence and to allow a litigant to use an expert witness as a conduit of information that may be untrustworthy and/or otherwise barred from consideration. One remedy has been to instruct the trier of fact that the data or “facts” in question are not to be regarded as factual, but only as part of the basis for the expert’s opinion. Although that approach remains valid in some jurisdictions, the

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modern trend, as reflected in Federal Rule of Evidence 703, is not to allow an expert to testify to inadmissible facts or data unless the judge determines that “their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” Ultimate Issue Rule Traditionally, until the mid-20th century, courts generally proscribed experts from offering opinions that went to what the courts called the ultimate issue: the specific question before the trier of fact. This prohibition was based on the argument that experts who testified to the ultimate question were invading the province of, or usurping the function of, the trier of fact. That reasoning has now been largely rejected and most jurisdictions allow ultimate opinion testimony. This modern trend was reflected fully in the Federal Rules of Evidence until 1984, when Congress amended Federal Rule of Evidence 704, adding subdivision (b): (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

As the rule notes, despite the permissive view of ultimate issue testimony, experts may not testify as to the ultimate issue in cases where a defendant claims excuse based on mental impairment. This exception was a direct result of the acquittal of John Hinckley, who was accused of attempting to kill former president Ronald Reagan. This ban is not typical of most state jurisdictions and experts often do freely offer testimony on ultimate issues related to mental impairment and culpability.

EFFECTIVE PRACTICE OF EXPERT TESTIMONY In keeping with the various rules of evidence, expert testimony generally follows a fairly predictable pattern. Understanding this pattern and its dynamics enables forensic psychologists and related professionals to better prepare and deliver their testimony.

Expert Qualifications As noted earlier, although expert witnesses must be qualified by knowledge, skill, experience, training, or education, courts have wide discretion and are often lenient in qualifying witnesses as experts. In practice, opposing attorneys sometimes stipulate to a witness’s qualifications, thus obviating the legal need for any extensive recitation of qualifications. Even then, however, as a practical matter, it is often important for the retaining attorney to allow the witness to present his or her credentials so that they are heard by the trier of fact, who will be judging not only the content of the expert testimony but also the credibility of the individual giving that testimony. Thus, even when a judge readily agrees to qualify a witness as an expert or the opposing attorney agrees to stipulate that the witness is an expert, it is ordinarily preferable to present the witness’s full qualifications on direct examination. The nature of the case as well as the actual qualifications of the witness generally dictate precisely what questions are asked, but as a general matter, forensic psychological experts should be asked many of the following inquiries: What is your profession? What is your current employment? What positions have your held previously? Do you specialize in any particular areas of psychology? What has been your experience in these areas of professional practice? Where did you receive your education? Are you licensed? When were you first licensed? What does it mean to be a licensed psychologist? Are you board certified in any specialty? What organization board certified you? When did you become board certified? What does board certification mean? By what process did you become board certified? Are you a member or fellow of any professional organizations? Have you published any books, papers, or articles? Do you hold any editorial positions? Have you conducted any independent research in the field of psychology? Have you received any grants to support your research? Have you received any awards or honors in the field of psychology? Have you previously qualified as an expert witness? In what courts? On what subject matter?

Legal Contours of Expert Testimony

The witness should be well aware of what questions are to be asked in the qualification process and prepared to answer them fully and, of course, truthfully. This is not a time for modesty; neither is it a time for exaggeration. The witness should anticipate that his or her qualifications might be questioned if not challenged on voir dire. Most aspects of qualification are straightforward. One that has begun to cause problems in many proceedings, however, is the issue of board certification. With rare exceptions, there is no explicit requirement in any court that a witness be board certified (or have any other particular credential) to offer expert testimony. However, because some psychologists, including forensic psychologists, are in fact certified by the American Board of Professional Psychology (and its affiliated boards, including the American Board of Forensic Psychology), many psychologists who have not been so certified recently have begun to seek certification from so-called vanity boards. These vanity boards, for the most part, have few if any real standards and lack the rigorous evaluative procedures of the American Board of Professional Psychology and its affiliated boards. In some cases, little more than a check or credit card payment is required for “certification” by these boards (Otto & Heilbrun, 2002). Witnesses who attempt to present themselves as board certified when all they possess are certificates from one or more of these vanity boards increasingly are finding themselves embarrassed by effective voir dire and/or cross-examination aimed at revealing the process by which they became “board certified.” Discrediting the Expert Expert witnesses are occasionally discredited on the basis of their credentials, or lack thereof. More commonly, their credibility is attacked on the basis of bias or conflict of interests. These attacks are most frequently based on two concerns: the expert’s fee and any other relationship the expert may have with one or more of the parties. The fee issue is a simple one. Most expert witnesses are compensated for their professional time. Clearly, being compensated for the time preparing for and delivering expert testimony is no bar to that testimony. However, courts almost invariably allow cross-examination of an expert to include questions about his or her fee in the matter. Indeed, in some jurisdictions, this issue is made explicit in the rules of evidence. For example, California Evidence Code Section 722(b) provides, “The compensation and expenses paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of his testimony.”

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The more difficult issue arises when the witness has a relationship—other than that of expert witness—with one or more of the parties. Perhaps the most common conflict of this sort occurs when a psychologist (or other mental health professional) is called on to serve as an expert witness with regard to a patient or client he or she has been treating. There is significant ethical debate as to the propriety of the treating professional assuming the role of expert in such a case, but courts are rarely bothered by such apparent conflicts. Instead of seeing such conflicts as a bar to expert testimony, courts generally regard them as fodder for cross-examination and issues to be considered by the trier of fact in judging the expert’s credibility. As an example of how extreme a conflict of interest would have to be before a court would view it as a bar to expert testimony, consider the decision of a federal court in Illinois. In Baskerville v. Culligan (1994), the plaintiff in a sex discrimination case sought to present expert testimony regarding her “psychological condition, treatment, and prognosis.” The proposed expert witness was not only the plaintiff’s treating psychologist but also her sister. The defendant argued that the psychologist’s expert testimony should be disallowed because it “would violate the American Psychology Association [sic] (‘APA’)’s ethical code” because under “APA’s code of ethical principles, psychologists must refrain ‘from entering into [a] personal, scientific, professional, financial, or other relationship . . . if it appears likely that such a relationship reasonably might impair the psychologist’s objectivity’” (pp. 9–10). The defendant also argued that the court should preclude this expert testimony “to preserve the public confidence in the fairness and integrity of the judicial proceedings” (p. 10). The court disagreed: If at trial the court determines that Dr. Bell may testify as an expert, the court would not be sponsoring her testimony or vouching for its objectivity. Rather, it would be the jury’s function to assess the credibility of Dr. Bell’s opinions and to determine the weight to be given her testimony. Culligan shows that Dr. Bell’s professional relationship with Baskerville is unorthodox and raises serious questions regarding Dr. Bell’s objectivity. However, these are appropriate subjects for Culligan’s cross-examination of Dr. Bell. The testimony is not excluded. (pp. 10–11)

Impeaching the Expert Like all witnesses, experts are subject to impeachment on cross-examination. The most common and often most effective form of impeachment is that using prior inconsistent statements (i.e., statements previously made by an

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expert that conflict with statements made in his or her current testimony). Experts are particularly vulnerable to this kind of impeachment for two reasons. First, their testimony in prior cases has been recorded and is a matter of public record available to opposing attorneys. Second, many experts have published books and articles in which they have made known their positions on various issues related to their professions. Clearly, an expert’s previous testimony and writings may be used to impeach him or her, but they are not the only sources of ammunition available to opposing attorneys. Another important impeachment technique often used with expert witnesses is the so-called learned treatise method, which involves confronting expert witnesses on cross-examination with authoritative published works that contradict or otherwise undermine their opinions. For example, a psychologist who has testified to an interpretation of certain psychological test results might be confronted with one or more books or articles indicating that such results should lead to interpretations other than that offered by the psychologist. Traditionally, learned treatises used in such a fashion must either have been relied on in formulating the expert’s opinion or acknowledged by the expert as authoritative. Modern evidence law, however, is much less restrictive. The California Evidence Code, for example, specifies three instances in which a learned treatise may be used in cross-examining an expert witness. Rule 721(b) states: If a witness testifying as an expert testifies in the form of an opinion, he or she may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless any of the following occurs: (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his or her opinion. (2) The publication has been admitted in evidence. (3) The publication has been established as a reliable authority by the testimony of the witness or by other expert testimony or by judicial notice.

Expert Witness Immunity In most jurisdictions, it has long been the law that a witness in a judicial proceeding may not be subjected to civil liability for the content of his or her testimony. This privilege, which pertains to all witnesses, including experts, has generally protected any other communications preliminary to a proposed judicial proceeding in which the witness may anticipate testifying, if those communications have some relation to the proceeding.

Recently, however, several case decisions have cast doubt on what was once considered an absolute privilege, at least as that privilege is applicable to expert witnesses. The first of these cases involved a psychologist who was disciplined by a state licensing board on the basis of work he performed as an expert witness in child custody cases. In Deatherage v. State of Washington Examining Board of Psychology (1997a, 1997b), the licensing board brought disciplinary proceedings against a psychologist, alleging that he “failed to meet professional ethical standards in work that formed the basis of his expert testimony in several child custody suits” (1997a, p. 1269) by his “failure to qualify statements, his mischaracterization of statements, his failure to verify information, and his interpretation of test data” (1997b, p. 829). After a hearing, the board found the psychologist “had committed misconduct . . . and suspended his license for 10 years” (p. 829). The psychologist then sought judicial review of the board’s decision, claiming that witness immunity prevented the board from disciplining him on the basis of his testimony in the child custody cases in question. The Supreme Court of Washington concluded that the doctrine of witness immunity could not be used as a defense in a state licensing board’s professional disciplinary proceeding. More recently, courts in two other states, Connecticut and Louisiana, have considered placing additional limitations on the doctrine of absolute immunity for expert witnesses. Most previous cases dealt with the question of whether an expert could be sued by an opposing party for testimony or other pretrial involvement in litigation against that party. These cases dealt with whether litigants may sue their own expert witnesses for malpractice in trial preparation or testimony. This question, which has important implications for all expert witnesses, was answered differently by two trial courts. In Pollock v. Panjabi (2000), a Connecticut Superior Court denied a motion to dismiss a lawsuit against a medical biomechanics expert. The expert, who had been retained by the quadriplegic plaintiff in a police brutality suit to help determine the cause of the plaintiff’s paralysis, concluded that a police officer’s wrestling hold on the plaintiff was the cause of the paralyzing injury. Three times, however, a trial court barred the expert from testifying, finding that he had based his expert opinion in part on improperly conducted analyses. Despite winning a $783,000 judgment against the police department, the injured plaintiff filed a breach of contract lawsuit, alleging that the expert improperly conducted the tests he had been hired to perform. In allowing the lawsuit to continue, the Connecticut judge ruled that the point of contention was

Legal Contours of Expert Testimony

not the expert’s testimony but his alleged failure to meet his contractual obligation to provide scientifically supportable conclusions. In Marrogi v. Howard (2000), the defendants were experts in medical billing retained by a physician to assist in his lawsuit against a former employer. The physician, who claimed he had been underpaid by the employer, retained the defendants to analyze billing records and testify on his behalf. When the physician’s lawsuit against the employer was dismissed, he blamed the experts, alleging that the dismissal was the result of their “substandard expert performance” (p. 2). In dismissing the physician’s lawsuit against the experts, a U.S. District Court cited “a line of Louisiana cases that uniformly recognize absolute immunity to witnesses in judicial or quasi-judicial proceedings” (p. 7). Although the issue has rarely been litigated in the past, a small number of courts have ruled, as the court did in Pollock v. Panjabi, to allow lawsuits to be brought against expert witnesses by the litigants who hired them. Others, however, have refused to limit the doctrine of expert immunity and have dismissed similar lawsuits. For example, in Murphy v. A. A. Mathews (1992), the plaintiff hired the defendant engineering firm to investigate and provide testimony about the plaintiff’s claims for additional compensation in an arbitration proceeding. Following the testimony Murphy sued, “alleging that Mathews was negligent in its performance of professional services involving the preparation and documentation of [the plaintiff’s] claims” and that, as a result, the plaintiff “was unable to support its claims for all of the additional compensation” (p. 672). The Missouri Supreme Court ultimately sided with the plaintiff, holding that “witness immunity does not bar suit if the professional is negligent in providing the agreed services” (p. 672). As the court explained: Witness immunity is an exception to the general rules of liability. It should not be extended unless its underlying policies require it be so. In Missouri, this immunity generally has been restricted to defamation, defamation-type, or retaliatory cases against adverse witnesses. This narrow restriction is consistent with the historical development of immunity. . . . While witness immunity might properly be expanded in other circumstances, we do not believe that immunity was meant to or should apply to bar a suit against a privately retained professional who negligently provides litigation support services. (Murphy v. A. A. Mathews, 1992, p. 680)

In a similar lawsuit, however, the Supreme Court of the State of Washington reached the opposite conclusion. In Bruce v. Byrne-Stevens & Associates (1989), the court

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held that witness immunity applies not only to an expert’s testimony but also to actions taken by the expert in preparation for testimony. Acknowledging some merit to the plaintiff’s claim that “the threat of liability would encourage experts to be more careful, resulting in more accurate, reliable testimony” (p. 670), the court offered two justifications for refusing to exempt experts from the traditional witness immunity rule: First, unless expert witnesses are entitled to immunity, there will be a loss of objectivity in expert testimony generally. The threat of civil liability based on an inadequate final result in litigation would encourage experts to assert the most extreme position favorable to the party for whom they testify. . . . Second, imposing civil liability on expert witnesses would discourage anyone who is not a full-time professional expert witness from testifying. Only professional witnesses will be in a position to carry insurance to guard against such liability. The threat of liability would discourage the one time expert—the university professor, for example—from testifying. Such one time experts, however, can ordinarily be expected to approach their duty to the court with great objectivity and professionalism. (Bruce v. Byrne-Stevens & Associates, 1989, p. 670)

Despite the entrenched immunity doctrine represented in Byrne-Stevens the door has opened allowing suits against friendly experts by their clients. As stated by the Supreme Court of Pennsylvania in LLMD of Michigan, Inc. v. Jackson-Cross Co. (1999): The goal of ensuring that the path to truth is unobstructed and the judicial process is protected, by fostering an atmosphere where the expert witness will be forthright and candid in stating his or her opinion, is not advanced by immunizing an expert witness from his or her negligence in formulating that opinion. (p. 306)

Rather, as the court later elucidated, the best practice against liability remains rendering “services to the degree of care, skill, and proficiency commonly exercised by the ordinarily skillful, careful, and prudent members of their profession” (LLMD of Michigan, Inc. v. Jackson-Cross Co., 1999, p. 307). Given the continued influence of expert testimony, the wise expert will heed the words of the Pennsylvania court and embrace best practices as the best defense against liability arising from his or her services.

SUMMARY The law governing expert testimony changed significantly over the last decade of the 20th century (see, e.g., Daubert

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v. Merrell Dow Pharmaceuticals, 1993; revised Federal Rule of Evidence 702, Deatherage v. State of Washington Examining Board of Psychology, 1997a, 1997b; Kumho Tire Co. v. Carmichael, 1999; Pollock v. Panjabi, 2000), and exert testimony by psychologists and other mental health professionals remains controversial. However, nearly a century after M¨unsterberg published his groundbreaking treatise, On the Witness Stand (1923), and four decades after a federal court’s watershed decision in Jenkins v. United States, the role of forensic psychology in the American courtroom remains not only secure but, in many realms, indispensable. REFERENCES Aichele, G. J. (1990). Legal realism and twentieth-century American jurisprudence: The changing consensus. New York, NY: Garland Press. American Psychological Association. (1962). Brief Amicus Curiae, Jenkins v. United States (U.S. Court of App., D.C. Circuit, 1962). Baskerville v. Culligan International Company, 1994 U.S. Dist. LEXIS 5296 (1994). Bruce et al. v. Byrne-Stevens & Associates Engineers, Inc. et al., 776 P.2d 666 (Washington, 1989). Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Deatherage v. State of Washington Examining Board of Psychology, 932 P.2d 1267 (Washington, 1997a).

Deatherage v. State of Washington Examining Board of Psychology, 943 P.2d 662 (Washington, 1997b). Federal Rules of Evidence Handbook, 2000–2001. (2000). Cincinnati, OH: Anderson. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). General Electric Company et al. v. Joiner et ux., 522 U.S. 136 (1997). Gravitz, M. A. (1995). First admission (1846) of hypnotic testimony in court. American Journal of Clinical Hypnosis, 37, 326–330. Guttmacher, M. S., & Weihofen, H. (1952). Psychiatry and the law . New York, NY: Norton. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999). Ladd, M. (1952). Expert testimony. Vanderbilt Law Review, 5 (3), 414–431. LLMD of Michigan, Inc. v. Jackson-Cross Co., 740 A.2d 186 (Pa. 1999). Lochner v. New York, 198 U.S. 45 (1905). Marrogi v. Howard, No. Civ.A. 00–368., 2000 WL 777914 (E.D.La., June 15, 2000). Muller v. Oregon, 208 U.S. 412 (1908). M¨unsterberg, H. (with Whitman, C. S.). (1908). On the witness stand: Essays on psychology and crime (2nd ed.). New York, NY: Clark, Boardman. Murphy v. A. A. Mathews, 841 S.W.2d 671 (Mo. 1992). Otto, R. K., & Heilbrun, K. (2002). The practice of forensic psychology: A look toward the future in light of the past. American Psychologist, 57 (1), 5–18. Pollock v. Panjabi, 47 Conn. Supp. 179, 781 A.2d 518 (Superior Court, Conn., 2000). Robinson, E. S. (1935). Law and the lawyers. New York, NY: Macmillan. United States v. Jenkins, 420 U. S. 358 (1975).

CHAPTER 5

Forensic Report Writing RICHART L. DeMIER

INTRODUCTION 75 LITERATURE REVIEW 76 PRACTICAL IMPLICATIONS OF THE LITERATURE 82 ACHIEVING UNDERSTANDING 83 REPORT STRUCTURE 85 COMMON REPORT ELEMENTS 87

THE PROBLEM OF POTENTIALLY INCRIMINATING INFORMATION 93 INCLUSION OF IRRELEVANT DATA 94 IMPROVING READABILITY 94 CONCLUSION 96 REFERENCES 97

INTRODUCTION

psychologist. Without the ability to practice competently, the ability to write well will be of little use. The judicial system will not benefit when a psychologist writes eloquently about a substandard or deficient evaluation. Conversely, without the ability to communicate well, even the best evaluation will not be understood by those who seek the services of forensic psychologists. Much has been written about how to engage in competent forensic practice, but less has been written about how to produce an excellent forensic report. The link between the two is undeniable. Indeed, it may be folly to conceptualize their separation. Nevertheless, this chapter is about forensic report writing, not forensic practice, and it presupposes that the reader is a competent forensic psychologist. It should be acknowledged, however, that this is a two-way street. Good practice promotes better writing, and careful writing engenders better practice. Following a brief review of the research on forensic report writing, this chapter presents several principles that form a foundation for effective forensic report writing. Various models for forensic reports are explored, and the impact of the report’s structure on its overall efficacy is examined. Common elements of forensic reports are identified and practical guidance regarding those elements is offered. Issues regarding the inclusion of incriminating information and irrelevant data are discussed. Finally, recommendations are offered to improve the readability of forensic psychological reports.

There is an inextricable link between the quality of a forensic psychological report and the degree to which the author of that report understands his or her role as a forensic psychologist. To communicate in a manner that is most helpful to the referral source the psychologist must recognize that the reader likely lacks a sufficient understanding of the psychological concepts that are central to a specific legal issue. The forensic report is the psychologist’s most common vehicle for imparting that understanding. When the psychologist understands the roles of a forensic examiner—to investigate, understand, and explain—the resulting report provides an essential service to the judicial system. That inextricable link is the underlying theme of this chapter. Research suggests that deficient forensic reports share common problems, and many of those problems can be traced to an inadequate or inaccurate understanding of the forensic psychologist’s role. Attention to certain bedrock principles of forensic psychology—in both practice and writing—will produce higher quality reports. When a forensic clinician is grounded in a commitment to accuracy, objectivity, integrity, and transparency, the resulting reports inevitably benefit. This chapter provides practical guidance for clinicians who write reports that address psycholegal questions. But an assumption is necessary: To write a good forensic report, the author must be a competent forensic 75

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LITERATURE REVIEW The available literature in the area of forensic report writing is somewhat limited. What does exist includes articles and commentaries that are conceptually driven, as well as empirical studies. The studies vary considerably in their empirical rigor; some reflect results of surveys of practitioners, whereas others define criteria to measure the quality of forensic reports. Heilbrun and Collins (1995) identified “a period of 25 years in the absence of virtually any published empirical data on the characteristics of forensic mental health assessments” (p. 61). Only 10 years later, however, Wettstein (2005) commented on the variety of empirical studies about expected contents of forensic reports, problems with reports, and prevalence of testing. This growth in the literature is encouraging. As detailed in the following, researchers have employed a variety of approaches to critically analyze both the content and the quality of reports. Impact of Reports The forensic report is important. As Heilbrun and Collins (1995) indicated, the most frequent basis for a court’s decision is the report itself. Although those authors sought to investigate forensic evaluations, they acknowledged that their data came from reports. Similarly, Wettstein (2010) described the forensic report as “a window into the forensic evaluation” (p. 46) that may or may not reflect the quality of the underlying evaluation. Researchers have consistently found a great deal of agreement between the opinions of forensic psychologists and the ultimate findings of legal decision makers (Hart & Hare, 1992; Melton et al., 2007; Williams & Miller, 1981), but there is a statistical confound at work here. The high rate of agreement likely reflects the fact that findings in psychological reports are often accepted uncritically by courts. Such high rates of agreement do not necessarily speak to the quality of the underlying reports or the judiciary’s opinion of the work the reports describe. Because judges and other fact finders rely so heavily on forensic reports, it is incumbent on the field of forensic psychology to produce high-quality reports. Insofar as forensic reports reflect the evaluation process, they necessarily reflect information about the psychologist. Otto (2009) noted that the report provides the psychologist with the opportunity to demonstrate her or his efficacy and thoroughness: “The only time the expert is in complete control of the information that is and is not

presented is when writing the report. As a result, it is when writing a report that one can clearly meet ethical obligations.”

Referral Questions The content of forensic reports varies according to their purpose. Regarding criminal forensic reports, Conroy (2006) cited statutory law as the best source to guide the content of a report. Referrals that present questions defined by statute are particularly common. When a referral comes in the form of a court order, the specific questions should be adequately delineated (and when they are not, the court should be contacted for clarification). Some referral sources will ask questions that do not correspond precisely to their underlying statutes. Such referrals are more likely to emanate from one party in a legal dispute. In such cases, consultation with the referral source to clarify the issues will aid the psychologist in limiting the report content to those specific questions. Bow and Quinnell (2001) reported that the primary sources for child custody evaluation referrals were attorneys and judges, who each accounted for 41% of referrals in their sample. Those authors found that 84% of child custody evaluations were court-ordered, which reflected more than a threefold increase over the figure of 26% reported by Keilin and Bloom (1986), who indicated that almost half of child custody evaluators were retained by one party in the custody dispute. Similarly, Ackerman and Ackerman (1997) reported that almost all child custody evaluators surveyed preferred to be retained by the court, a guardian ad litem, or jointly, by both parties.

Early Evaluations of Forensic Reports As early as the 1960s, the quality of forensic work was identified as an area of concern (Vann, 1965). However, much of that literature was conceptually driven. For example, Morse (1978) sought to “explore the degree to which professionals can give scientific, helpful answers” (p. 389), but he did not address report writing. In their prominent works, Ziskin (1970, 1975) and Ziskin and Faust (1988) focused on the limitations of expert testimony of mental health professionals, and they offered advice for attorneys who needed to effectively challenge testimony that was offered without an adequate foundation. Elwork (1984) stressed that forensic psychology would benefit the judiciary only if the standard of practice improved.

Forensic Report Writing

Grisso (1986) summarized early criticisms of forensic assessment. Because it is difficult to disentangle problems related to overall competence to perform forensic evaluations from problems with written reports, some of the issues he identified are quite broad, such as failure of experts to use appropriate psycholegal standards. Other problems, however, were related to the content of reports. One such issue was the tendency of experts to offer ultimate opinions that speak directly to the legal question before the court. As discussed ahead, this is particularly problematic when the psychologist does not adequately explain her or his reasoning. Indeed, Grisso also addressed the failure to collect adequate information on which to base an opinion as a significant problem. Of course, even when adequate information is collected, its omission from the report will make the findings difficult to understand. Among the earliest empirical reviews was a work by Petrella and Poythress (1983) comparing the forensic reports of psychiatrists to those of “nonmedical” examiners (primarily psychologists). They noted that most previous studies had been “uniformly uncomplimentary to mental health professionals engaging in forensic work” (p. 84). Their analyses suggested that legal experts preferred more thorough reports that relied more heavily on outside sources of information. Skeem, Golding, Cohn, and Berge (1998) summarized research in the area of competency1 evaluations and noted five areas of concern that reflect problems with both forensic evaluation practice and report writing. First, they noted that competency evaluations failed to address the referral question or confused the legal standard for competency with other legal standards, such as standards for insanity or civil commitment. Second, forensic reports focused on diagnosis of defendants rather than their ability to understand and participate in the legal process, which was the intended focus of the assessments. Third, commentators noted an overreliance on clinical data to assess functional abilities relevant to psycholegal questions. Fourth, many practitioners failed to collect third-party information to corroborate their opinions. And finally, forensic reports included conclusory opinions without explanation of the underlying reasoning. Nicholson and Norwood (2000) noted that early critiques of forensic reports often relied heavily on anecdotal examples of poor practice. However, they noted that

1

To increase readability of this chapter, the term competency is used to indicate “competency to stand trial” or “competency to proceed” unless otherwise noted.

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substantial research evidence had emerged that addressed both the content and the quality of forensic reports. Analyses of Forensic Report Content Several surveys and empirical studies have examined the content of forensic reports. These contributions do not necessarily provide information about the quality of forensic reports, but they went beyond previous conceptually driven articles to provide a clearer picture about what comprised forensic reports. One of the first important contributions to the literature in this regard was a survey conducted by Borum and Grisso (1995) that sought to provide information about the prevalence of psychological test use in forensic evaluations. Forensic psychologists and psychiatrists were surveyed regarding their use of psychological tests in forensic evaluations. To gain information about the attitudes of these practitioners regarding psychological testing, they surveyed practitioners who were board certified or had at least five years of experience conducting forensic evaluations. These practitioners were asked to rate psychological testing as essential, recommended, optional, or contraindicated. Results indicated that approximately half of those surveyed thought psychological testing was recommended or essential in competency evaluations, and roughly two thirds thought it was recommended or essential in sanity evaluations. Interestingly, there were no significant differences between psychologists and psychiatrists in these areas. The data also suggested that forensic assessment instruments were being used with more frequency. Borum and Grisso concluded that experts in forensic psychology and psychiatry value psychological testing, but that testing is not necessary to meet the standard of practice. They cited Heilbrun (1992) and agreed that relevance and reliability should guide decisions about the use of psychological testing in forensic contexts. Using a similar methodology, Borum and Grisso (1996) surveyed forensic psychologists and psychiatrists regarding their beliefs about necessary and appropriate content in reports summarizing evaluations addressing issues of defendants’ competency or sanity. In that study, they conceptualized three types of information that reports included: data, opinions, and reasoning. They noted that few studies had addressed the types of data gathered and cited concerns that some reports did not offer relevant opinions (or offered irrelevant ones). Finally, they identified a third content area: a description of how an opinion is reached. To gain information about how forensic

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practitioners viewed these types of information, they surveyed practitioners who were either board certified or had at least five years of experience conducting forensic evaluations. Practitioners were asked to rate each of 57 elements as essential, recommended, optional, or contraindicated. Based on the survey results, Borum and Grisso (1996) identified 10 types of data as essential: identifying information, identification of the referral source, current charges, purpose of the evaluation, evaluation location, evaluation date, report date, list of data sources, description of evaluation provided to the defendant, and description of notification of limits of confidentiality. While not deemed essential, a description of the defendant’s understanding of the purpose of the evaluation was viewed as important by the respondents. Clinical data elements that were deemed essential in either competency or sanity evaluations included psychiatric history, current mental status, and current use of psychiatric medication (Borum & Grisso, 1996). Additional data elements deemed essential in sanity evaluations included police observations of the defendant’s behavior at the time of the alleged offense and information about the presence or absence of substance use. In contrast, only about one in four psychologists considered psychological testing to be essential in sanity evaluations. Some data elements surveyed were specific to either competency or sanity reports (Borum & Grisso, 1996). Elements considered essential in competency reports included the defendant’s understanding of the charges and potential penalties, appreciation of the consequences of a guilty plea, ability to communicate with and consider advice from legal counsel, and the ability to make decisions that are not compromised by mental illness. Almost half (45%) of all respondents considered inclusion of a defendant’s statements about his or her behavior around the time of the alleged offense to be contraindicated in a competency report, although that information was deemed essential for sanity reports. Collateral information, including information from witnesses, also met the criteria to be deemed important in sanity evaluations. Although the survey revealed less consensus regarding opinion elements, the following items were deemed important: opinion about the presence or absence of a mental disorder, the reasoning that underlies that opinion, a formal diagnosis, and the reasoning regarding the relationship between the disorder and the psycholegal capacities (Borum & Grisso, 1996). Results also indicated the belief among practitioners that it is important to acknowledge other potential explanations for deficits in

psycholegal abilities, such as malingering or lack of fundamental knowledge about the legal system. Finally, there was considerable disagreement about inclusion of ultimate opinions in forensic reports as some of the professionals surveyed deemed this essential while others believed it was contraindicated (Borum & Grisso, 1996). However, there was a consensus that it is inappropriate to offer opinions that were not requested by the court. Heilbrun, Rosenfeld, Warren, and Collins (1994) examined a sample of 593 criminal forensic reports to identify the frequency with which third-party information was used. The authors noted offense information was routinely included in reports, suggesting that evaluators considered such information important. They noted that mental health records were much more likely to be reviewed when they were readily accessible, whereas statements from victims or witnesses were relatively infrequent. The authors acknowledged that in some cases, third-party information may have been sought but not obtained by the examiners, but they expressed concerns that the omission of such information may be due to a failure to appreciate the difference between forensic and clinical roles. Heilbrun and Collins (1995) identified several deficits in a sample of 277 criminal forensic reports. Specifically, many reports lacked a description of the notification provided to the defendant by the examiner. Although 97% of reports completed in inpatient settings described this notification (perhaps reflecting an institutional policy of some sort), only 30% of reports from community-based evaluators contained that information. Heilbrun and Collins described variable use of collateral information: “The majority of reports were written without the evaluator having reviewed important information such as the arrest report (52%) or prior mental health evaluations (70%)” (p. 66). Some positive findings were reported as well, and the authors found it “very encouraging to note that the majority of evaluators directly addressed the relevant components of trial competency” (p. 66). Robbins, Waters, and Herbert (1997) evaluated 66 competency reports from New Jersey and Nebraska. Among those reports, 15 (23%) contained no mention of thirdparty information, only 11 (17%) used more than one data source beyond the clinical interview, and only 3 (5%) referenced use of a forensic assessment instrument. Sixtytwo reports (94%) contained a conclusion regarding the ultimate issue. Skeem et al. (1998) evaluated 100 competency reports—two reports on each of 50 defendants. Although this study focused on the quality of forensic reports (and

Forensic Report Writing

is discussed in that context ahead), it also contained information about the content of reports in their sample. Only about two thirds of the reports (63%) indicated that the purpose of the evaluation was explained to the defendant, and only 47% indicated any discussion of the limits of confidentiality. Just over two-thirds of the reports incorporated psychological testing; intellectual testing was most common (57%), followed by personality testing (52%). Few reports (12%) cited mood inventories, whereas a quarter of them referenced use of a forensic assessment instrument. Third-party data cited by examiners included investigative materials (65%) and the defendant’s mental health records (37%). Bow and Quinnell (2001) surveyed psychologists to examine procedures used in the completion of child custody evaluations. Although their focus was on the evaluation procedure rather than the written report, some of their observations are nonetheless relevant to this discussion. Almost all (99%) of respondents in their survey reported they routinely informed participants of the limits of confidentiality, but they did not examine actual reports to determine how often this was reflected in their reports. Respondents reported the average amount of time they spent writing was 7.32 hours per evaluation, which was twice as long as any other single aspect of the evaluation, suggesting that these practitioners recognized the need to carefully document the evaluation and conclusions. Report lengths ranged from 4 to 80 pages, with a mean of 21 pages. Almost all (94%) the respondents reported making specific recommendations about custody or visitation, and it is assumed that those recommendations were included in the written reports in the majority of cases. Budd, Poindexter, Felix, and Naik-Polan (2001) examined 190 evaluations of parents conducted in the context of child abuse and neglect cases in an urban circuit court in the Midwest. The reports were coded for 170 characteristics recommended in the forensic literature, but results indicated frequent failures to meet those criteria. Only about a third of the evaluations reported a description of the purpose of the evaluation or the limits of confidentiality. Similarly, many reports failed to report any limitation of the forensic product. In an examination of 172 evaluations of juvenile offenders completed prior to disposition, Hecker and Steinberg (2002) found that many reports lacked essential types of information relevant to the psycholegal referral question. They wrote: Many reports lacked information about a youth’s criminal, mental health, and drug and alcohol histories. This is especially troubling, given that these three content areas have

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been empirically linked to the prediction of recidivism, an issue of great importance when attempting to determine an appropriate disposition. (p. 305)

Although not an empirical study, Conroy (2006) delineated elements that every criminal forensic report should include: description of the charge, the specific reason for the referral, documentation of the notification process, a list of sources of collateral information, and a description of the evaluation procedures. She noted that, to meet the standard in the field, reports should also include a discussion of evidence and reasoning leading to the forensic conclusions, as well as a discussion of evidence that is inconsistent with or does not support the evaluator’s opinions. Conroy cautioned forensic psychologists against using professional jargon and biased language and including information that is not relevant to the referral question or information that is more prejudicial than probative.

Report Length Few people would contend that a report’s length is a good measure of its quality. However, several researchers have observed that longer reports are more thorough; the inference is that such reports are likely to offer more than a diagnosis or conclusory opinion. Petrella and Poythress (1983) indicated that the legal experts who rated quality dimensions in that study “consistently rated the longer reports of the nonmedical examiners higher than the (shorter) reports of the psychiatrists” (p. 84). Heilbrun and Collins (1995) commented, “The mean length of reports—approximately four single-spaced pages for evaluations based both in the community and the hospital—indicates that clinicians were generally documenting their evaluations in more than a brief, conclusory fashion” (p. 67). Christy, Douglas, Otto, and Petrila (2004) reported a mean length of about five-and-one-half pages for reports summarizing juvenile competence-to-proceed evaluations. Nicholson and Norwood (2000) commented on reports consisting of a single page: “Such brevity assuredly limits the information provided to the courts, and increases the likelihood that poorly substantiated conclusions were offered. Nevertheless, longer reports are not necessarily better reports” (p. 18).

Analyses of Forensic Report Quality Evaluations of report quality present greater methodological challenges than studies of report content. Foremost among those is the development of criteria for assessing

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quality. The studies discussed in this section used various approaches to operationalize quality, but the underlying conclusions of the studies are similar. In their 1997 study, Robbins et al. evaluated 66 competency reports from New Jersey and Nebraska. To rate report quality, they derived operational definitions of six characteristics conceptualized by Grisso (1986): functional, contextual, causal, interactive, judgmental, and dispositional. The authors concluded that the reports typically addressed functional abilities related to competency. However, difficulties in articulating a causal relationship between clinical findings and psycholegal conclusions were apparent. While many reports offered a diagnosis, they did not adequately explain how specific symptoms affected deficits in functional abilities. The authors recommended “a standardized method of conceptualizing and writing [competency] evaluations” that would lead to “relevant and thorough reports in which forensic examiners remain within their scope of expertise” (p. 481). In their empirical study of competency reports, Skeem and Golding (1998) identified three fundamental deficits. First, reports failed to address competency-related abilities, and they tended to focus on foundational competency to the exclusion of decisional competency. Second, report authors failed to provide a description of their reasoning, including the precise link between clinical findings and psycholegal conclusions. Third, examiners failed to use methods of assessment that were best suited to the forensic task. In their analysis of the first problem, Skeem and Golding (1998) found that most reports discussed foundational abilities, such as the defendant’s awareness of the charges, the potential penalties, and the adversarial nature of the proceedings. However, far fewer reports addressed “the higher-order decisional capacities that lie at the heart of the ‘rational’ language of the Dusky standard” (p. 360). In his conceptualization of a dichotomy between foundational and decisional competencies, Bonnie (1992) emphasized that the choice of a defense strategy belongs to the defendant, not the attorney. Skeem and Golding highlighted the fact that an inquiry into the defendant’s ability to make such decisions is much more difficult than less complicated abilities, such as assessing rote knowledge about the roles of participants in courtroom proceedings. As they noted, “It is infinitely more difficult to define and assess rational decision-making. Nevertheless, there are compelling pragmatic, legal, and empirical reasons for ensuring that a defendant’s reasoning with respect to his or her legal choices is clear” (1998, p. 361.) Moreover, it

is essential to include that information in a report, so that the legal professionals who read the reports will understand that the evaluators assessed the defendant’s abilities in the context of the defendant’s unique situation. Second, Skeem and Golding (1998) posited that examiners’ conclusions can be organized into three categories: the defendant’s psychopathology, the defendant’s competency-related abilities and impairments, and any relationship between functional impairments and symptoms of psychopathology. Moreover, they concluded that such reasoning—which makes this link between psychopathology and legally relevant deficits—is necessary to rule out competing explanations. Skeem and Golding described these crucial connections as variable and poorly substantiated in the written reports. Third, Skeem and Golding noted that the examiners failed to utilize appropriate methods of assessment. Reports in their study rarely explicitly discussed the link between test results and the relevant psycholegal abilities, and “none of the reports detailed a concrete relationship between the two” (1998, p. 364). In another study, Skeem, Golding, Cohn, and Berge (1998) examined in more detail a sample of competency reports. The reports were considered to “reflect basic operationalizations of competence that fail to incorporate legally relevant facets such as a defendant’s decisional capacities” (p. 519). Additionally, although the clinical findings of the reports were sound, they did not adequately describe the reasoning that led to the psycholegal conclusions. In this study, expert raters coded two reports regarding each of 50 randomly chosen defendants (100 reports total). The raters coded each report to reflect whether report content addressed 11 global psycholegal domains and 31 nested subdomains. Additionally, when a defendant was described as impaired in one of the domains, raters judged the degree to which the report authors linked the defendant’s psychopathology to the identified deficit. Descriptions of this relationship were coded along an ascending hierarchy: absent (no description), implied (by examples or quotes), asserted (by an author’s statement that a relationship exists), or substantiated (whereby the report author “specifies how the defendant’s [competencyrelated] impairment is linked to psychopathology, providing specific supporting data” [1998, p. 528]). Skeem et al. (1998) sought to examine reports to determine whether “examiners assess and substantiate any nexus between symptoms of psychopathology and deficits in competence” (p. 521). They found that reports typically provided adequate reasoning regarding clinical findings.

Forensic Report Writing

This stood in stark contrast to the reasoning about psycholegal deficits, however. Reports about defendants who were deemed incompetent generally provided little data to support that opinion. Specifically, 34% of the reports described no relationship between the psychopathology and the legally relevant impairment, and 36% asserted that such a relationship existed without providing support for that contention. Skeem et al. noted “Very few reports provided data or reasoning to specifically describe how a defendant’s psychopathology compromised [competency-related] abilities (M = 10%, SD = 5)” (p. 533). Moreover, they found that only 12% of the reports considered competency-related abilities in the context of the specific demands of defendants’ cases, and most reports reflected only a superficial operationalization of the psycholegal construct of competency. While reports supported clinical findings well, they generally failed “to provide any link between psycholegal deficits and symptoms of psychopathology” (p. 538). In their review of the quality of forensic psychological reports, Nicholson and Norwood (2000) identified several empirical studies of the quality of criminal forensic reports, but none which systematically examined reports from civil domains of forensic assessment, such as child custody or personal injury. Among studies of criminal forensic work, they observed a consistent pattern that the relationship between clinical and psycholegal findings was poorly described. Although Nicholson and Norwood found evidence of improvements in the quality of forensic reports as the field matured, they concluded that the practices of forensic psychologists left much room for improvement. A 2004 study by Christy et al. examined the quality of 1,357 reports addressing competency among 674 juveniles (due to the source of the reports, all the reports were completed on juveniles who had been adjudicated incompetent). Reports were coded for the following information: location of assessment, sources of information accessed, assessment techniques employed, clinical and diagnostic descriptions, competency standards, and competency conclusions (as required by Florida statute). These researchers found numerous deficiencies in the reports. In only about half of the reports (52%) could the reader discern where the evaluation occurred. A significant percentage of reports contained no references to third-party information. Of those reports, 60% contained no information from legal materials (arrest reports, delinquency petitions). Given that the individuals being evaluated were juveniles, information from family members or schools would seem particularly important. However, examiners

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reported interviews with family members in only 54% of the reports, and academic records were reviewed in only 12%. Regarding clinical and diagnostic descriptions, Christy et al. (2004) indicated, “Examiners often failed to offer a comprehensive and rich description of the examinee’s clinical adjustment and functioning and to document important behaviors of clinical relevance” (p. 384). Indeed, 14% of reports contained “no Axis I or Axis II diagnostic information.” The majority of the reports reviewed by Christy et al. (2004) addressed specific competency-related abilities. To some extent, however, this good practice may be attributed to the nature of the Florida statute, which requires examiners to address six specific elements related to competency. Nevertheless, the investigators concluded that “examiners failed to provide specific support based on their assessment data for their conclusions about legal areas of competence on a consistent basis” (p. 385). Moreover, Christy et al. reported: The basis or predicate condition for the examiner’s recommendations of incompetence (i.e., mental retardation, mental illness, age) could be identified for 847 (62.42%) of the reports, even though Florida law requires that the “basis for the determination of incompetency must be specifically stated in the evaluation.” (p. 386)

Christy et al. recommended additional research and enhanced professional training to improve report quality. Robinson and Acklin (2010) reviewed 150 reports summarizing competency evaluations in Hawaii and found “pervasive mediocrity with respect to quality” (p. 131). The investigators identified six elements that are considered crucial in forensic reports: “data elements” (that is, identifying information, referral source, identification of charges, etc.); “ethical elements” (notification of the purpose of the evaluation, limits of understanding, and a confirmation that such information was understood); “historical elements” (relevant background information); “collateral elements” (from third-party sources); “clinical elements” (current mental state, psychological test results, diagnostic information); and “opinion rationale elements” (information upon which the forensic opinion is based). Report quality was then assessed by assigning a numerical “quality coefficient” score to each element to achieve an overall percentage score for each report. Robinson and Acklin (2010) found that the quality coefficient scores were normally distributed. Scores

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ranged from 21.7 to 100 (M = 68.95, SD = 15.21) and one-quarter of the reports achieved scores of 80 or above. However, 66% of the reports failed to document the notification process. Finally, they found that reports of community-based evaluators were significantly better after the evaluators attended a three-day forensic training conference.

PRACTICAL IMPLICATIONS OF THE LITERATURE A perusal of this literature highlights three central points. First, there are several elements of a forensic report that are accepted as essential, even though some surveys suggest that they are still absent from a large number of reports. Second, the reasoning that underlies the opinion should be clear to the reader. Third, although the controversy about provision of an ultimate opinion persists, a thorough explanation of one’s reasoning may obviate this concern. Essential Elements Numerous sources delineated the essential elements of a report (Ackerman, 2006; Allnutt & Chaplow, 2000; Borum & Grisso, 1996; Christy et al., 2004; Conroy, 2006; Robinson & Acklin, 2010). However, the available literature highlights significant deficiencies in practice. An alarming number of forensic reports failed to document a discussion with the examinee about the nature and purpose of the evaluation, a discussion of how information may be used, or the limits of confidentiality (Budd et al., 2001; Heilbrun & Collins, 1995). Although forensic evaluators appeared to be using some third-party information in the majority of cases (Heilbrun & Collins, 1995), a significant minority of reports failed to incorporate such information, which is deemed a hallmark of forensic work. Robbins et al. (1997) reported that 23% of the reports they reviewed contained no third-party information, and an additional 39% of reports referenced only a single source. In their study of reports summarizing juvenile competence evaluations, Christy et al. (2004) noted that family members were interviewed in only 54% of cases, and academic records were considered in only 12% of cases. Several studies revealed that appropriate methods are not always used, and forensic assessment instruments were infrequently used (Borum & Grisso, 1995; Christy et al., 2004; Robbins et al., 1997; Skeem & Golding, 1998).

There was near-universal agreement that an analysis of functional abilities is essential to a forensic evaluation (Grisso, 2003; Heilbrun, 2001; Heilbrun, Grisso, & Goldstein, 2009). Indeed, this was an area where significant progress appeared to have been made during recent decades. However, the forensic psychologist must be able to discern which functional abilities are relevant in a particular case. In their analysis of competency reports, Heilbrun and Collins (1995) found that an alarming proportion (25%) addressed legal issues other than the referral question. Similarly, Robbins et al. (1997) reported that while most reports addressed functional abilities, some reports addressed abilities that were not relevant to the referral question. In their analysis of reports summarizing evaluations of juvenile offenders prior to dispositional placement, Hecker and Steinberg (2002) noted, “Results point to the need of practicing psychologists and judges to become more aware of the relevant domains of assessment for this type of evaluation” (p. 300). Transparency of Reasoning A fundamental task of a forensic psychologist is to carefully link clinical findings to the psycholegal question. This link should be explained in a manner that allows the report reader to understand the connection. Melton et al. (2007) encouraged forensic psychologists “to ‘build’ a case, organizing the investigative data in a manner that invites the reader to reason along with the author” (p. 583). If the reader cannot “reason along” with the psychologist, he or she may reach conclusions that the report author never contemplated. Seeking to assess “the degree to which examiners assess and substantiate any nexus between symptoms of psychopathology and deficits in competence” (p. 521), Skeem et al. (1998) concluded: Examiners typically presented sufficient reasoning to substantiate the clinical conclusions, but provided almost no reasoning to support their psycholegal conclusions. A typical report contained little or no reasoning addressing the nexus between clinical descriptions of symptomatology and impairments in [competency-related] abilities. (p. 540)

Similarly, Skeem, and Golding (1998) found that within a sample of competency reports, “The reports very seldom substantiated (M = 10%, SD = 5) that there was a relationship by providing data or reasoning that specifically described how a defendant’s psychopathology compromised his or her [competency-related] abilities” (p. 363). Christy et al. (2004) also noted a failure among

Forensic Report Writing

examiners to “provide specific support based on their assessment data for their conclusions about legal areas of competence” (p. 385). Allnutt and Chaplow (2000) noted the link between the strength of the forensic psychologist’s reasoning and the impact the report would likely have on its intended audience. They explained that an opinion will have greater weight when the reasoning that underlies it is clear. A similar conclusion was reached by Wettstein (2005): One of the most common report weaknesses is the failure to substantiate expert opinions and the related failure to relate psychopathology to expert opinions regarding psycholegal abilities. The relationships among symptoms, diagnosis, psychological test-identified deficits, and psycholegal functional impairment are too often neglected. Failure to explicate these links comprehensively, including the evaluator’s reasoning in reaching opinions, is likely to render the evaluation report less useful and cogent to the attorney or court that requested it (p. 168).

As Conroy (2006) wrote, “The evaluator needs to explain the step-by-step process of how he or she reached specific clinical findings and how these findings led to the particular psycholegal opinions” (p. 240). Ultimate Issue Opinions One of the most enduring debates in forensic psychology is whether forensic reports should address the ultimate issue, that is, the final issue to be decided in a legal proceeding (Heilbrun et al., 2009; Melton et al., 2007; Tippins & Wittmann, 2005). Grisso (1986, 2003) expressed concern about intrusion into the province of the legal fact finder. Slobogin (1989) identified two arguments against the inclusion of language that addresses the legal issue. First, addressing the ultimate issue arguably goes beyond the scope of the forensic psychologist’s expertise, as ultimate legal conclusions—whether a person is sane or insane, whether one parent is better suited than another, whether one person owes another damages for an emotional injury—are moral determinations, not psychological ones. A second argument is that forensic psychologists, with their advanced degrees and technical language, will have undue sway over the legal fact finder. Alternatively, Rogers and Ewing (1989) argued that such opinions are not out of place, and indeed, may be unavoidable. They suggested that such opinions are the inevitable outcome of forensic evaluations and that their prohibition would cause myriad problems. A review of the empirical literature on forensic report writing leads to a different conclusion: The “ultimate issue

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issue” is a red herring. It distracts from a more critical issue—the degree to which forensic psychologists explain their opinions. When forensic reports contain adequate explanations of their reasoning, the legal fact finder is free to draw conclusions independent of those proposed by the expert. Although Slobogin (1989) wrote about testimony, his ideas can be easily applied to forensic psychological reports as well. He posited, “The worth of such testimony is largely a function of how it is presented” (p. 265). Heilbrun and Collins (1995) added that although reaching an explicit psycholegal conclusion might be intrusive: The more important question is how such conclusions were reached. Was the clinical description of the defendant adequate? Were the thoughts, feelings, and capacities relevant to the legal test likewise described in appropriate detail? Was the reasoning underlying the conclusion, and the relationship between clinical condition and legal criteria, described as well? (p. 67)

When the report author can say yes, the opinion is less likely to be perceived as intrusive. Skeem and Golding (1998) went as far as to assert that providing an opinion is “the least important part” of the forensic examiner’s task. The much more crucial role is “advising the court about the defendant’s specific abilities and deficits and explaining one’s reasoned inferences about the bases for those deficits” (p. 358). Failure to do so will preempt the judicial decision-making role, but a clear explanation of the data, the inferences, and the link between those inferences and the psycholegal conclusion will allow the fact finder to arrive at an independent and informed opinion. Each of these points underscores the importance of understanding one’s role as a forensic psychologist. When a forensic psychologist evaluates essential data sources and explains their meaning in a report, the legal decision maker benefits. When attorneys, judges, and jurors can follow the psychologist’s reasoning, they are in a better position to understand the psychologist’s conclusions. When the reasoning behind opinions is clear, the reader can draw his or her own conclusions. The psychologist who misunderstands the forensic role, or who confuses or oversteps boundaries, is less likely to be helpful to the referral source.

ACHIEVING UNDERSTANDING Report writing does more than simply convey information. It helps the psychologist define and frame the referral

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question, organizes her or his thinking, makes information that is likely foreign to the reader understandable, conveys conclusions or opinions, and may even shape eventual testimony. And in each of these areas, it reflects the quality of the psychologist’s work. Clearly, forensic examiners strive to understand referral questions at the outset of any evaluation. But some referral questions are ambiguous, muddled, or confused. In some cases, the referral source does not fully understand what questions he or she wants addressed by the forensic psychologist. Even the most careful efforts to clarify the referral question may fall short of a comprehensive understanding between the referral source and the psychologist. In such cases, the report provides an opportunity for the psychologist to explicitly state the question or questions as he or she understood them. Identifying the precise focus of the report orients the reader to the information that is to follow. Early in the report, the author can frame the question in such a way that the results are more easily understood. Doing so provides the reader with a roadmap of the report. For example, in a case where there is equivocal evidence about malingering, a psychologist might explain that she intends to present behavioral observations and collateral information that suggest the presence of mental illness, and then present behavioral observations and collateral evidence that suggest symptom exaggeration or fabrication by the examinee. She could also alert the reader that she will follow these sections with the reasons she believes mental illness is the more compelling explanation, and then discuss how that finding relates to the psycholegal referral question. When the reader is provided with insight regarding the vantage point of the psychologist, it is easier to absorb and understand the information presented. The forensic report provides a vehicle for the clinician to analyze the data, and in so doing, clarify his or her thinking. The process of writing a report requires the author to organize all the pieces of data and present them in a comprehensible fashion. In cases with many data sources, the very task of organizing them in a report imposes a structure onto the information that facilitates understanding of the big picture. In such a case, it is in the act of writing the report that the psychologist fully appreciates the relationships among the various data points, and defensible conclusions emerge from the process. Many psychologists can recall a case in which the data were equivocal, and it was while writing the report that the pieces came together and the conclusions or opinions

came to light. For example, a complicated diagnostic issue can be clarified when subjected to the careful attention that writing requires. When a clinician is struggling between the diagnoses of schizophrenia and schizoaffective disorder, the process of explaining the differences in simple language and citing the evidence that supports or refutes each can bring clarity to the issues for the report writer. The act of writing a risk assessment report that requires analysis of both risk factors and protective factors may be instrumental in helping the psychologist realize the import of the data that lie before him or her. The act of writing forces organization of the data, and it is from that process that the opinion emerges. Forensic psychologists are cognizant of the fact that they possess specialized knowledge to impart to a lay audience. The forensic report should provide that knowledge in an understandable manner to the lay reader. The report author is therefore an educator. A paramount goal is to provide the necessary explanations to help the reader understand the psychologist’s conclusions and the process by which she or he arrived at those conclusions. This can be difficult. It may require explanations of scientific phenomena that are quite foreign to the reader. For example, in discussing the nature of a hallucination, the report author must anticipate the reader’s possible preconceived notions of pink elephants or little green men. A fair amount of explanation is required to help the reader understand the actual phenomenon of the auditory hallucinations that are characteristic of schizophrenia. Similarly, a report regarding a claim of psychological damages might require careful explanation of the expected course of an illness or the likely results of a particular therapeutic intervention. It is easy to forget how foreign such knowledge is to laypersons and attention is necessary to guard against explanations that will be beyond the grasp of the reader. It is not uncommon for an attorney to begin preparing for testimony with a psychologist by saying, “I’ll just follow your report.” Whether that is a good starting point depends on many factors, but a well-written report contains a structure that may translate well to an oral explication. At the least, the psychologist will have increased confidence that the attorney understands the ideas contained in the report. Ideally, direct examinations that follow the structure of reports will provide the lay listeners with the facts and opinions that are necessary to inform their decisions. Moreover, on cross-examination, the psychologist can note that weaknesses or limitations of the opinions were addressed in the report, that alternative hypotheses were contained in the report, and that

Forensic Report Writing

the reasons the psychologist favored one hypothesis over another were carefully explained. Finally, it is helpful to consider forensic reports as reflective of the overall quality of a forensic psychologist’s work. Unfortunately, many substandard reports have led to some unsavory conclusions about forensic psychologists and their capacity to aid courts or legal professionals. Melton et al. (2007) noted that “even when clinicians have something useful to say and are eager to maintain their integrity, their message is often obscured or confused. Their reports are perceived as conclusory and filled with jargon, their testimony as hard to follow (on direct) and befuddled (on cross)” (p. 577). A well-written report will remedy many such reactions. Appelbaum (2010) observed, “The quality of our reports is often the most tangible and visible measure of our professionalism” (p. 43). Discussions with legal professionals or testimony during depositions and trials are time-limited events. Reports, however, persist indefinitely. What you see is what you get; when the psychologist is not present to explain the content of the report, it must stand on its own.

REPORT STRUCTURE For a report to be effective, it requires an organizational structure that imposes coherence on the work as a whole. That structure, thoughtfully considered, provides a logical framework for the report. It separates data into manageable chunks and it orders the sequence of the presentation. It sensitizes the reader to the natural flow of information in the report. A sound structure allows the reader to make connections between the data points and follow the examiner’s reasoning. When one has a thorough understanding of the role of the forensic clinician, this structure is more likely to emerge naturally. Grisso2 (personal communication, April 2008) commented on the “architecture” of a forensic report, and he conceptualized three aspects of a report: organization, content, and substance. The report’s organization provides a framework for the inclusion of the content within the report. It dictates the sequence in which the information will be presented. Choices about the report’s 2

The source for much of the information in this section was a presentation by Thomas Grisso, which he shared at a meeting of the faculty of examiners of the American Board of Professional Psychology. These ideas were later incorporated into workshops he presented for the American Academy of Forensic Psychology.

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organization are dependent on the goals of the report. For example, a court-ordered sanity report is intended to provide legal decision makers with information that should be considered in justly resolving the case. A child custody report is intended to provide legal decision makers with information relevant to parenting capacity, and the likely advantages and disadvantages of various parenting arrangements. In either case, the selection of content for the report requires thoughtful and defensible choices about what information to include and what information to exclude. The substance of the report reflects the author’s choices about how that content is most effectively conveyed. The choices are made with the product’s endpoint in mind; they facilitate the report’s objectives. Grisso (2008) provided six principles to guide forensic psychologists in preparation of their reports. First, the forensic question can both guide and limit report content. Of course, for a forensic report to do so, the report’s author must understand why the task is a forensic one. If the psychologist does not adequately grasp the difference between this report and a report written to facilitate therapeutic change, then clinical considerations, not forensic ones, will alter the shape and function of the report. The second principle also relates to the content of the report. Grisso (2008) recommended: “Report what is necessary. Do not report what is not necessary.” Choices regarding inclusion and exclusion of content are among the most important that a report author makes. Both must be defensible. Decisions to include material must be based on the relevance of that material. The psychologist should consider whether (and how) that information will assist the reader. The information should be relevant to the referral question, or to a concept that the reader must understand in order to properly consider the referral question. In some cases, the absence of a single, crucial piece of information will prevent the reader from understanding the examiner’s reasoning and/or conclusions. However, the easy solution to simply “include everything” should be avoided. Many reports suffer from the inclusion of irrelevant information. For example, while it may be appropriate to note that a patient received a physical examination to rule out a contributing medical condition, it would be inappropriate to include that patient’s HIV status when that information has no bearing on the psycholegal referral question. Examiners should consider the amount of detail that is necessary to respond appropriately to the forensic question, knowing that this varies on a case-by-case basis. Third, sequence and describe information in a manner that will make sense to the reader (Grisso, 2008). Proper sequencing is an effective way to facilitate the reader’s

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understanding of the information. The various data points are the building blocks of a diagnostic conclusion or a forensic opinion. As such, the forensic psychologist must provide a firm foundation for the reader by providing the proper context in which to assimilate new information. For example, it would not be particularly helpful to a lay reader to describe a treatment response that attenuated a patient’s symptoms without first describing the relevant symptoms in sufficient detail. Grisso’s fourth principle (2008) admonishes the forensic psychologist to separate facts and inferences. This important distinction receives little attention in graduate training, as the common assumption is that people tell psychologists the truth because they seek assistance. The entire legal system, in contrast, is based on the premise of conflict (Melton et al., 2007). A case may well turn on whether a piece of information is a legal “fact.” It is therefore incumbent upon the forensic clinician to understand the difference between a fact and an inference and carefully differentiate one from the other in reports. A fact can be verified. Inferences reflect what is suggested by the fact (or a pattern of facts). By definition, an inference requires the process of deductive reasoning; a psychologist draws a conclusion through an inferential process. In order for the consumers of forensic reports to understand this process (and to judge whether the inferences are proper ones), it is incumbent on the forensic psychologist to clearly link inferences to the facts that support them. It is insufficient to simply offer the inference. The reader should be able to follow the reasoning of the report author, to see how he or she arrived at a particular inference. Next, Grisso (2008) advised psychologists to favor explanations that show why they think what they think. Forensic reports should not merely detail what psychologists think; equally crucial are explanations of why they think it. As noted, a large part of the forensic examiner’s job is that of an educator. It is incumbent to educate the reader in as transparent a manner as possible. When the report author invites the reader to “reason along” (Melton et al., 2007, p. 583), she or he will naturally write with the goal of helping the reader understand the situation through the psychologist’s eyes. The best forensic reports show the reader how the psychologist got from the data to the conclusion. For example, a competency report might first explain an examinee’s symptoms, then link those symptoms to the abilities necessary to participate meaningfully in a trial, then explain how these particular symptoms do (or do not) affect those abilities. Finally, Grisso (2008) recognized the importance of explaining one’s rejection of competing conclusions

or opinions. By doing so, the forensic psychologist accomplishes several things. First, a forensic psychologist can demonstrate that he or she was sensitive to—and actively considered—alternative hypotheses. This increases the psychologist’s credibility by demonstrating objectivity. A psychologist who shows that alternative hypotheses were considered will likely be perceived (accurately) as one who is committed to presenting a complete picture, not just those aspects that benefit a particular party. Of course, it is not sufficient to simply acknowledge alternative hypotheses. The best reports overtly explain how the data best supports the conclusions offered and why one explanation is superior to the alternatives. Explanations of the rationale for rejecting some ideas can be as compelling as explanations of the rationale for retaining others. This is a key to transparency in one’s thinking. Of course, there is no single proper way to structure a report. Many forensic psychologists develop a report template over the course of time. This is quite reasonable, especially for the psychologist who does the same type of reports on a frequent basis. Indeed, an effective template is one way to monitor one’s work for inclusion of the necessary information. Some psychologists even incorporate stock passages into reports (such as a description of what was discussed during a typical notification process). There is no need to reinvent the wheel with each report. However, psychologists should take care not to become beholden to their templates. When a psychologist struggles to fit the appropriate information into an existing template, it is a sure clue that a particular report is not well-suited to that template. Psychologists are free to vary the structure of their reports in ways that enhance the effectiveness of the communication. Even minor changes can have a major impact on a reader’s ability to understand a report. Headings and subheadings are an example of minor changes that effectively impose structure and coherence on a forensic report. A psychologist who does not use headings should consider doing so, as headings orient the reader by highlighting the content or purpose of each section (Allnutt and Chaplow, 2000; Harvey, 1997). A particularly long section (like a complicated but relevant personal history) might benefit from subheadings. Subheadings make a long section less cumbersome. Headings and subheadings also provide natural places to stop and reflect on the content of a report, thus maximizing the opportunity for the reader to understand the content. Some forensic psychologists typically reach their conclusions at the end of a report, while others offer a summary at the outset of the report. Presenting conclusions

Forensic Report Writing

at the beginning should be considered in a particularly long or complicated report as doing so makes it easier for the reader to follow the psychologist’s analysis, much like reading an abstract facilitates reading and understanding what follows in a scientific article. If the reader knows what outcome to expect, he or she can assimilate new information one piece at a time in a manner that helps build the case as interpreted by the psychologist.

COMMON REPORT ELEMENTS Because there is no universal structure to forensic reports, the sections contained in reports will vary. However, there are numerous sections that are common to reports across many different types of forensic evaluations, and these will be discussed individually. Although forensic psychologists may or may not choose to divide their reports into the sections described ahead, the practical advice offered in each of the following sections may nevertheless be applicable. Referral Information The first section of a forensic report identifies the individual being evaluated. In most cases, it does so by using a name and other identifying information, such as age or date of birth, case numbers, or unique numbers issued by hospitals, prisons, or courts. Examinees should be identified as men or women, not males or females. Man or woman sounds more human—and less clinically detached—than male or female, terms that describe an individual’s chromosomal makeup. This section also explains how the evaluation came about. This is the forensic psychologist’s opportunity to clearly state the purpose of the forensic evaluation. Even when the purpose of the referral is clear, a clear statement about the purpose of the report communicates to the reader that the psychologist understands the issue and is prepared to address it. In cases in which the referral question is not clear, this section becomes even more important. It provides the psychologist with the opportunity to explain the referral questions as he or she understands them, and clarify the parameters of the evaluation and report. For example, forensic psychologists sometimes get referrals that are not sufficiently clear. Some referrals begin with little more than, “I want somebody to see this person and tell me what they think.” Obviously, psychologists have an obligation to attempt to ascertain what the referral source

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wants to know (but there are occasions when that referral source does not really know, either). In such cases, a section on referral information provides the psychologist with the opportunity to define the questions that were addressed. Even if those end up being different from what the referral source sought (but failed to communicate), the psychologist can detail what was done. For example, such a section might read: Mr. Smith was originally referred for a mental health evaluation. Following consultation with counsel, it was determined that the evaluation should address the relationship between the recent motor vehicle accident and a subsequent decline in his work performance. Counsel clarified that the report should address the plaintiff’s mental health history prior to the accident, current impairments in functioning, diagnosis (if applicable), prognosis regarding any evident mental disorder, and an opinion regarding whether the accident was the proximal cause of any current impairment.

By articulating the specific referral question or questions, the psychologist defines the parameters of the evaluation. Additionally, the referral section should identify the legal standard employed in response to the referral question, so that the reader knows what standard the examiner applied. Citing a particular statute might be appropriate. There are also advantages to articulating the legal standard employed in language that is familiar to both the legal professional and the forensic psychologist. For example, in an evaluation of a pretrial defendant’s competency, this section might indicate, “Mr. Anderson was referred to determine whether he had any mental disease or defect which would preclude his ability to understand the nature and consequences of the proceedings against him or to assist properly in his own defense” (language that mirrors the federal statute governing competency evaluations).

Notification This section describes what and how the examinee was told about the nature and purpose of the evaluation, the procedures to be employed, and the manner in which the information gathered will be used. It typically contains a detailed explanation of the limits of confidentiality or privilege. It may be important to differentiate between consent and assent in this section. Finally, the section should include information about the degree of understanding expressed by the person being evaluated. The term forensic warning should be avoided. A “warning” is necessary when a person is in danger. While forensic evaluations sometimes have undesired

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consequences for the person being evaluated, there is nothing inherently dangerous about a forensic evaluation. Individuals who receive a “warning” about their evaluation are likely to approach it with trepidation and a response style that will make it more difficult for the forensic psychologist to gather the information necessary to answer the referral question. Moreover, in a criminal context, the term warning is so heavily associated with Miranda warnings that this is a potential source of confusion. Individuals being evaluated by psychologists do not need to be “Mirandized”; that is a function for law enforcement officers in certain contexts. However, examinees should nevertheless receive a detailed explanation of the nature and purpose of the evaluation. Being informed is different from being warned. In some forensic evaluations, informed consent is acquired at the outset of the interaction. In other situations, consent is not required, but appropriate professional practice dictates that the psychologist attempt to gain assent. It is therefore necessary to understand the important distinctions between consent and assent. Consent is an agreement to do something or to allow something to happen. Informed consent implies that the individual giving consent does so only after achieving an understanding of what is involved. It presupposes that the individual giving consent is able to weigh the potential benefits and risks inherent in the activity to which he or she is consenting. In the context of a forensic evaluation, it acknowledges that the individual has the power and capacity to make a decision about participating in the evaluation. Consent can be provided reluctantly. For example, an individual may choose to participate in a forensic evaluation at the behest of an attorney, and be less than enthusiastic about participating, but the informed consent implies that there was a choice in the matter, and the examinee exercised the choice to participate after weighing the advantages and disadvantages. In contrast, assent refers only to one’s affirmative and voluntary agreement to what has been proposed. Assent differs from informed consent in that the person need only “go along”; it is not necessary for the person to make a reasoned choice in the matter. For example, an individual whose decision-making capacity is impaired by symptoms of psychosis may assent to participate in a court-ordered evaluation, even if those symptoms preclude the person’s ability to give informed consent. Naturally, it is important to use these terms properly in the notification section of a report. Misusing them, confusing one for the other, or asserting that a person

gave informed consent when only assent was obtained will cast doubt on the psychologist’s understanding of the parameters of the evaluation if not on his or her ability to understand and use legal concepts. The notification section typically documents a vital part of the evaluation. The finding by Heilbrun and Collins (1995) that only 30% of forensic reports even referenced the notification process suggests that this is an area that is often overlooked. Not only should this interaction be documented in the report, that documentation should be fairly precise. The forensic examiner should specify the information provided to the person being evaluated. Perhaps even more importantly, the report should document the understanding evidenced by the examinee. Many reports acknowledge the notification process in a perfunctory manner: “The limits of confidentiality were explained, and the defendant provided informed consent.” It is far preferable to document what information was provided, how the individual responded, and how the forensic psychologist determined the sufficiency of the understanding. Table 5.1 lists several potentially important considerations. Sources of Information Traditionally, forensic reports contain a list of the sources considered during an evaluation. Although this sounds simple, there are varying interpretations regarding what should be included and in what detail. For example, one psychologist might simply note that records were reviewed from a 4-day inpatient admission to City Hospital. Another psychologist might identify each document reviewed within that record and its date. A third might TABLE 5.1 Notification Checklist Does the notification section include . . . • The nature of the relationship between the forensic psychologist and the referring party? • A description of what the psychologist told the person being evaluated about the evaluation? • Information about those parties to whom the report could be disclosed? • A description of how any information could be used? • The rights of the person being evaluated regarding participation or refusal? • Potential consequences of refusal to participate? • How the person being evaluated responded to the explanation? • Specific statements or behaviors that indicated whether the information was initially understood? • Specific statements or behaviors that indicated whether the information was retained?

Forensic Report Writing

even add the length of each document. To some degree, the level of detail reported is a matter of style. However, a better guide is a consideration of the degree to which that information is necessary for the reader to understand the opinion. Certainly, there are cases where such details as the length of a document might be relevant, but in many cases it is sufficient to simply list the document reviewed. The forensic psychologist should make these decisions thoughtfully, however, and not rely on a boilerplate format. Manageability of the information is another consideration. In a report in which only three records were considered (motion for examination, arrest report, and medication summary, for example), a simple list would suffice. However, in cases with a very large number of documents (like some child custody cases), the information will seem more accessible to the reader if it is organized by category. Such categories will be defined by the specific details of a particular case, but some examples might include referral documents, prior forensic reports, inpatient medical records, outpatient medical records, school records, employment records, legal records, and third-party interviews. Some sources are reviewed or considered, but the information has no bearing on the psychologist’s conclusions. Both thoroughness and transparency demand that such sources be identified. Some practitioners make a distinction between sources that are “reviewed” or “considered,” and those that are “relied upon,” that is, those that were instrumental to the formation of conclusions or opinions. Background Information Almost every forensic psychological report contains historical information, but the degree of detail varies widely, based on both the case and the style of the author. Given the importance of presenting data prior to drawing conclusions, the historical section can be of paramount importance. It is here that the data points are laid out for the reader. In some cases, those data points converge to create hypotheses in the reader’s mind before the reader reaches the synthesis of data presented by the psychologist. Goals for this section include organization, accuracy, clarity, and relevance. Regardless of the amount of detail necessary, careful organization is vital when discussing historical information. An organizational principle will assist the author in presenting the information in a manner that will be easiest to understand. Information can be organized chronologically, by life domain (e.g., childhood, education, substance

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abuse), or by source of information. Each has advantages in particular kinds of cases. For example, organization by life domain may be most sensible in a report where the chronological account is too discombobulated. Organizing information by source is particularly helpful when different sources contain contradictory information. Accuracy and clarity go hand-in-hand. It is important to precisely convey the information gathered, while recognizing that some of that information has not been verified (sometimes, it cannot be verified). For that reason, the forensic psychologist should be careful to attribute each piece of information to its source. Impressions of others are appropriate for the historical section, whether those impressions are accurate or not: “Clinicians at the state hospital described him as entitled and narcissistic.” Whether a particular piece of information is true or not matters little if that piece is not relevant to the referral question. Granted, some subjective judgments are necessary in this regard. However, relevance should be the rule of thumb regarding inclusion in or exclusion from the report. Remaining cognizant of the report’s purpose, the psychologist’s role, and the individual’s dignity can guide such decisions. Behavioral Observations Descriptions of behaviors directly observed by the forensic psychologist can be remarkably rich. Moreover, few sources of data have more intuitive appeal than behavioral observations. In many cases, behavioral observations lay the foundation for conclusions regarding current mental status and the diagnostic formulation. The reader will better understand the diagnostic process when a report author describes the behaviors witnessed and interprets them in language that is accessible to the lay reader. Choices are necessary regarding what behavioral observations to include. Behaviors that are relevant to diagnostic conclusions or psycholegal opinions will help the reader understand the report’s conclusions. The nature of behavioral observations may well vary based on the setting of the evaluation. The greater the amount of contact, the greater the opportunity to observe behaviors from which one can draw inferences. Naturally, evaluations that span several interviews or are conducted in an inpatient setting are likely to produce more relevant behavioral observations than an evaluation completed in single meeting in an outpatient setting. When evaluations involve more than a single meeting, it may be useful to describe any differences in behavioral presentation of the person being evaluated, noting significant changes

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between interviews. Clinically significant events should be noted, such as suicide precaution status, a change in a person’s privilege level in a hospital, or behavioral indices of clinical improvement. Details about activities of daily living (that is, information about eating, sleeping, or selfcare) are relevant to several diagnostic categories. In many such instances, the behavioral descriptions should be followed by a careful explanation of the implications of those observations. Despite the fact that fewer opportunities for behavioral observations exist in an outpatient setting, valuable information can still be gathered. While it may be preferable to incorporate behavioral observations into a discussion of mental status, particularly telling behaviors might require highlighting and explanation. Behavioral observations are especially important in considering the possibility of symptom exaggeration or fabrication, when the defendant’s inconsistent behavior supports the conclusion that such a response style is present. It takes no special training for a lay reader to draw the obvious and important conclusions that attach in a case of egregious behavioral inconsistency. For example, consider an individual who has claimed to be unable to identify letters of the alphabet. When a psychologist observes that person reading a novel and discussing it intelligently, this evidence of symptom exaggeration or fabrication will not be missed by the lay reader. Psychological Testing Whether psychological testing is indicated in a particular forensic evaluation is a decision for the clinician. As the literature makes clear, forensic psychologists frequently use testing as a component of the evaluation process (Borum & Grisso, 1995; Bow & Quinnell, 2001; Christy et al., 2004; Nicholson & Norwood, 2000). When to use psychological tests or forensic assessment instruments is beyond the scope of this chapter; the focus here is on how to report information about testing in a written report. The forensic psychologist needs to pay particular attention to the manner in which psychological testing is addressed. In no area are lay readers more susceptible than to the sway held by “formal psychological testing.” It is little exaggeration to assert that many individuals view psychological testing as a procedure with magical powers, that psychologists can use testing as an X-ray of the mind to reveal a person’s most carefully guarded desires, motivations, deceptions, and other secrets. Clearly, an important task of the forensic psychologist is to disabuse the reader of such thinking. The best

way to do so is to articulate the rationale for a particular test, and to acknowledge any limitations of that test (or limitations specific to the current evaluation). Obviously, the competent psychologist must have a thorough understanding of the psychometric instruments that she or he chooses to use. The forensic psychological report should identify all psychological tests or forensic assessment instruments used in the evaluation. These are most commonly listed early in the report, in the section that identifies sources used. In the body of the report, the psychologist should indicate why a particular measure was chosen. This need not involve an extensive discussion, but a comment on test choice reminds the reader that the psychologist did not choose tests without considering their relevance to the referral question. A sentence will often suffice: “A comprehensive assessment of intellectual ability, the Wechsler Adult Intelligence Test-IV, was used to determine whether the defendant had cognitive deficits which would preclude her ability to understand courtroom proceedings,” or “Given that this individual appeared to be exaggerating cognitive deficits, the Validity Indicator Profile was administered to assess response style, that is, the degree to which he was exerting appropriate effort during the evaluation.” If any nonstandard testing procedures are employed, the clinician must detail the variations and the reasons they were necessary. Additionally, the potential impact of the deviation from standard testing procedure should be noted, consistent with Standard 5.2 of the Standards for Educational and Psychological Testing (American Educational Research Association, American Psychological Association, and National Council on Measurement in Education, 1999). If the deviations were small and likely to result in minimal changes to the results, this can be very brief. For example, an individual who claims to have difficulty reading might be given an audio recording of the MMPI2-RF along with the question booklet. Even though this would not be anticipated to have any adverse effect, this simple fact is noteworthy. Moreover, there is no reason not to acknowledge such a deviation, but if it is not mentioned, the psychologist opens himself or herself to unnecessary questions about the omission of the explanation in the written report. It is imperative to describe the findings of all the psychological tests and instruments employed. It is especially important to discuss test results that are at odds with the examiner’s conclusions. Failing to do so could sharply diminish the psychologist’s credibility, especially after one party intimates that the psychologist is “hiding”

Forensic Report Writing

data. Discussing discrepancies in a clear manner with a matter-of-fact tone underscores the examiner’s objectivity. More importantly, this approach helps the reader understand the psychologist’s interpretation of the data and the impact of that data on the psychologist’s reasoning process. And it may prompt the psychologist to consider his or her opinion in a new light, as well. The results or findings of psychological tests or forensic assessment instruments should be discussed in plain language. This is an area in which a psychologist can easily use jargon that will be lost on the legal audience or lay reader (Groth-Marnat & Horvath, 2006; Harvey, 1997, 2006). When graduate students in psychology first learn to write reports, their audiences are professors of psychology who generally know more about the tests than the students. Other clinical experiences in graduate school typically involve writing reports for other mental health professionals who “know the language.” Consider this sentence: “Elevations on Scales 1 and 3 suggest somatization as a probable defensive response to both situational anxiety and endogenous depression.” An attorney or judge is much more likely to understand: “This individual’s results suggest that when under stress, she tends to experience her psychological distress by experiencing physical symptoms, such as headaches or back pain. She appears to lack the insight that these physical symptoms are the result of psychological stressors rather than genuine physical problems.” It may require a concerted effort for a psychologist to write a report in a manner that is accessible to a judge or attorney. Harvey (2006) noted that readability is improved “when practitioners imagine themselves as report recipients and revise accordingly, or when they write reports as though they are writing for their grandmothers” (p. 15). An empathic understanding of the reader and his or her knowledge base will help forensic psychologists craft reports that can be easily understood. The forensic psychologist understands that psychological test results (or even forensic assessment instrument results) do not translate neatly into psycholegal opinions. Rather, the process of psychological testing should be understood as a means of gathering data and generating hypotheses, not as a panacea to conclusively answer psycholegal questions. It is precisely because these may be the na¨ıve assumptions of the legal professional or lay person that the forensic psychologist should take such care to discuss psychological test results in a manner that denotes their appropriate weight. Specific phrases like “this result suggests” will help the reader conceptualize the findings as hypotheses, and as the forensic psychologist links

TABLE 5.2

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Schema for Discussing Psychological Testing

1. Identify each test or measure and its purpose. 2. Explain why the test or measure was chosen in this particular case. 3. Identify and explain any deviations from standardized administration procedures. 4. Describe the results in plain language. 5. Link those results to hypotheses about the individual being evaluated. 6. Discuss hypotheses raised by discrepant data.

disparate bits of data to confirm or refute a hypothesis, the reader can do the same. A schema for discussing psychological testing is presented in Table 5.2. Finally, there are controversies about the degree to which psychological reports or testimony should disclose specific information about tests or raw test data. The central questions juxtapose the protection of test integrity with the rights of an individual in a legal proceeding to challenge data that helps form an opinion (for discussion, see Barth, 2000; Lees-Haley & Courtney, 2000a, 2000b; Shapiro, 2000; Tranel, 1994, 2000). Although a thorough examination of this issue is beyond the scope of this chapter, the forensic psychologist should be aware of the relevant arguments on both sides of this controversy and make deliberate and defensible decisions about the degree of detail disclosed in the forensic report. Current Mental Status Whether the focus of the psycholegal question is on a past, current, or future mental state, the current mental status of the person being evaluated is relevant. The current mental state may have important ramifications regarding the quality or accuracy of information obtained by the evaluator. Also, the current status of a person’s mental state can provide important diagnostic information. Many clinicians have a template regarding the information that should be included regarding patient’s mental state. Such lists typically include things like the presence or absence of particular symptoms. As such, the current mental status section of a report may be among the easiest to fill with jargon. Judges and attorneys may not know what to think about a plaintiff who is “oriented times three with no loose associations, tangentiality, or clanging.” As psychologists begin to rewrite current mental status sections in a manner that is accessible to individuals outside the field of mental health, they will likely find that the effort necessary to “translate” the jargon into everyday

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language will result in clearer, richer, and more accurate descriptions of their examinees. Diagnostic Formulation Most psychologists devote a section to their understanding of the clinical condition of the person being evaluated. Such sections are variously headed as “Diagnosis,” “Diagnostic Formulation,” “Clinical Conceptualization,” and so on. As Skeem and Golding (1998) noted, in some cases, the actual diagnosis upon which the psychologist settles will be the least important part of this section. Diagnoses are simply shorthand for clinicians to exchange information in an efficient manner. While the phrase bipolar I disorder, hypomanic, recurrent, in partial remission contains a wealth of information for a psychologist, it is not likely to be meaningful to the intended recipient of a forensic report. Despite the fact that many clinicians prefer to retain diagnoses in their reports (and the fact that several statutes require specific diagnoses), psychologists should recognize the limited value of the diagnosis in a forensic context. Rather than focusing on the diagnostic label, psychologists should strive to educate the recipients of their reports about the relevant clinical conditions of those who are evaluated. The most efficient manner for doing so is a narrative discussion of diagnostic hypotheses and related issues. Diagnoses, ultimately, are the end point of a process of reasoning. They result from consideration of various hypotheses, and from weighing the factors that make them more or less applicable within a particular clinical context. A narrative explanation of this reasoning process will likely be of great value to the reader. Thoroughness should be a goal within this section. The reader should be able to glean insight from this section regarding why a psychologist reached particular diagnostic conclusions. Clinicians typically go through a process of considering differential diagnoses. Forensic psychologists should explicitly discuss competing diagnostic possibilities as well as their reasons for favoring one conclusion over the others. Especially when the issue is a close one, the reader will benefit from transparency in the psychologist’s reasoning regarding clinical conclusions. For example, a report might contain a description like this: The defendant’s most prominent symptoms are depressive symptoms such as lack of energy, loss of appetite, sleep disturbance, and concentration difficulties. Diagnoses of major depression and adjustment disorder with depressed mood were considered. In the present case, the symptoms appear

to be in response to the defendant’s arrest and subsequent incarceration. He lacks the more debilitating symptoms of major depression, such as a loss of enjoyment in activities, suicidal thoughts, or pervasive hopelessness. For these reasons, adjustment disorder with depressed mood is the more appropriate diagnosis.

By providing descriptions of symptoms that were present as well as those that were not, this language demonstrated that the psychologist attended to two possibilities and provided justification for the diagnostic conclusion. Greenberg, Shuman, & Meyer (2004) argued that diagnoses are not necessary in forensic work and are potentially problematic. They went as far as to recommend against their inclusion in reports summarizing forensic evaluations. Whether a psychologist chooses to follow that recommendation or not, it is beneficial to understand the underlying reasoning. The authors posed the question, “When do diagnoses assist and when do they confuse in the forensic setting?” (p. 1). They posited that diagnoses may not satisfy the “trustworthiness threshold” (p. 1) necessary for forensic work. They noted that the presence of diagnoses might distract or even confuse. In lieu of providing diagnoses, they recommended increasing the emphasis on functional analyses. In other words, it is incumbent on the forensic clinician to guide the reader away from the conclusion that the diagnosis has any particular psycholegal meaning. By emphasizing functional abilities (i.e., what the examinee can and cannot do, how the illness does or does not preclude completion of certain job components, or how a symptom would or would not impact the emotional bond with a child), the psychologist provides the legal professional with the opinion that is actually being sought. As noted, in many circumstances, psychologists will choose to offer a diagnosis, and statutes controlling some forensic evaluations require that they do so. In some cases, however, it is perfectly appropriate to inform the reader that the specific diagnosis, though provided, is not the crucial element. For example, a report might indicate, Fortunately, diagnostic precision is not required to address the question raised by the Court. Whether his condition is better conceptualized as schizophrenia or schizoaffective disorder, the defendant had the requisite abilities to competently waive his Miranda rights, as described below.

Psycholegal Opinion By the time the reader reaches the psycholegal opinion section of a report, she or he should have a fairly good

Forensic Report Writing

idea of what the opinion is. In this sense, the forensic report is the opposite of a suspense novel: There should be no surprises here. The reader, after reading the psychologist’s opinion, should respond with, “Of course.” A carefully structured report has laid out the data for the reader and then drawn inferences from that data in as transparent a manner as possible. In the psycholegal opinion section, those inferences are given meaning by the forensic psychologist. They are interpreted in light of the appropriate legal standard for the question posed by the referral source. It should be an easy task for the reader to connect the dots. The data points are the dots, the inferences are the connections, and the psycholegal opinion is the picture that emerges from the data. A crucial part of this process, and the one that the literature suggests is easiest to overlook, is the explanation of the psychologist’s thought process. As Conroy (2006) indicated, a good report describes the step-by-step process by which the report author reached the conclusions.

THE PROBLEM OF POTENTIALLY INCRIMINATING INFORMATION In criminal forensic evaluations, the examiner must pay particular attention to the inclusion of potentially incriminating information in a report. Especially at the pretrial stage of criminal forensic work, the psychologist may have access to information about the alleged offense that the prosecution has not seen, and as a legal matter, should not see. The most obvious example involves a competency evaluation in which a defendant describes the details of the crime committed. The forensic evaluator is clearly interested in the defendant’s ability to relate his or her perceptions of the behavior around the time of the alleged offense, but those details should not be included in a report that will be seen by the prosecutor. This dilemma provides one of the strongest arguments that a psychologist in forensic practice must understand the forensic role. The Specialty Guidelines for Forensic Psychology (Committee on the Revision of the Specialty Guidelines for Forensic Psychology, in press) caution: Forensic practitioners are encouraged to limit discussion of background information that does not bear directly upon the legal purpose of the examination or consultation. Forensic practitioners avoid offering information that is irrelevant and that does not provide a substantial basis of support for their opinions, except when required by law.

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The U.S. Supreme Court, in Estelle v. Smith (1981) limited the uses of a competency evaluation to the narrow issue of competency. As a result, it is inappropriate to include incriminating information in a competency report. Nevertheless, it may be essential to gather potentially incriminating evidence in the process of completing the evaluation. To ascertain whether a defendant understands the nature of an alleged offense, it is often necessary to ask for that defendant’s perception of events at the time of the offense. The necessity of asking the question, however, does not mandate a reporting of the answer. The forensic psychologist can include statements that describe the defendant’s ability to discuss the facts without including the facts themselves. For example, a report might indicate: The defendant was able to describe his behavior and that of relevant others at and around the time of the alleged offense conduct in a clear, coherent, and sequential fashion that did not appear to be influenced by symptoms of a thought disorder. Even though he voices some odd beliefs, those beliefs do not appear to preclude the defendant from responding to questions about the circumstances surrounding alleged offense in a manner that is likely to be meaningful and helpful to his defense attorney.

By using such wording, the report author is communicating the essential information about the defendant’s ability to communicate with the defense attorney without divulging the content of the specific response. (Of course, this is one of the few instances where the specific factual basis for the opinion should not be included in the report.) In some cases, referral questions are such that the content of the defendant’s responses are crucial to the report’s opinion. The most common example is a court-ordered referral for evaluations of both competency and sanity. While it is rarely necessary to disclose the defendant’s version of the alleged offense in a competency evaluation, that version is often central to the forensic psychologist’s reasoning about the issue of sanity. In such a case, it is recommended that the psychologist prepare separate reports for each issue. A submission of two reports, each addressing a distinct issue, allows the judge to distribute the competency report to the parties, while withholding the sanity report from the prosecution until such time that the defendant asserts an insanity defense. Such a submission should be accompanied by a thoughtful letter for the judge that explains the rationale for the separate reports. This approach protects both the psychologist, who fulfills the obligation to ethical practice,

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and the defendant, whose statements can be preserved in a separate report until he or she places the issue of mental state before the court.

INCLUSION OF IRRELEVANT DATA A common problem with forensic reports is the inclusion of data that are not relevant to the question before the court (Heilbrun & Collins, 1995). As noted by Melton et al. (2007): A referral for forensic evaluation is not a license to inquire into any aspect of the client’s life or behavior. . . . Examiners should confine themselves to inquiries legitimately raised by the referral source and should restrict the substance of their reports accordingly. (p. 585)

Griffith, Stankovic, and Baranoski (2010) expressed a similar sentiment when they cautioned, “Including in the report pejorative or embarrassing information that is irrelevant to the legal issue may demonstrate a completeness of the interview, but it does so at the cost of the client’s dignity” (p. 39). Again, a psychologist’s understanding of the forensic role will serve as a safeguard against the inclusion of irrelevant or inappropriate information. The dangers of including irrelevant data go beyond incrimination or embarrassment of the examinee, however. In some cases, the reader of the report will struggle to discern its meaning. The reader might think, “The psychologist included this information in the report; it must mean something.” Ultimately, the consumer of the report may reach an unwarranted conclusion or infer a meaning that was never intended by the psychologist. This would be an easy problem to solve if the decisions about what to include were always easy ones. The reality, however, is that psychologists are sometimes required to make difficult decisions about the content of a report. In situations that at first glance appear equivocal, the psychologist should conduct an analysis of the information’s probative value and its prejudicial value. The probative value of a piece of data is the degree to which it will help the fact finder reach a conclusion; this must be weighed against the risk that the information will have a unfairly prejudicial impact, that is, that the fact finder will be unduly influenced by the information. The forensic psychologist should consider how helpful the information will be to the court in understanding the results of the report, and weigh this in light of the unintended consequences that could result from the inclusion of the information.

IMPROVING READABILITY A final topic that merits discussion is the report’s readability. The ongoing need to improve report readability has been well-documented (Groth-Marnat & Horvath, 2006; Harvey, 1997, 2006). Issues of grammar, word choice, bias, jargon, and readability can affect the likelihood that the forensic report will benefit the intended audience. As Harvey (1997) indicated, reports are written to communicate, but poor writing undermines effective communication. Grammar It should go without saying that proper grammar is important in a legal document. While empirical studies have addressed more substantive issues, the importance of grammar should not be understated. Appelbaum (2010) wrote, “At a basic level, misspellings, typographical errors, and poor grammar suggest carelessness, if not a lack of respect for the reader” (p. 43). His observation that psychologists’ professionalism will be measured by the quality of their reports underscores the need to avoid errors in spelling, grammar, and syntax. Word Choice Word choice matters. Indeed, there is something particularly satisfying in finding just the right word to convey a particular meaning. Harvey (1997) recommends that psychologists “write clearly and choose vocabulary that has common usage and a precise meaning” (p. 271). Psychologists tend to write at an advanced level, and this is reflected in both vocabulary and complex sentence structure. However, attention to word choice can go far toward alleviating the problems associated with complicated writing. When two words are synonymous, the more common word is usually better. Words like utilized and verbalized are unnecessary—and maybe even pretentious—when used and said will do just fine. Pirates never made anybody “ambulate the plank.” Readability is also enhanced when report writers vary their sentence structure. Varying one’s words helps the reader maintain interest in the report. Imagine a report in which 75% of the sentences begin with, “The examinee indicated. . . .” Such reports exist, and they are tiresome to read. Bias The forensic psychologist should be particularly sensitive to the meanings of words. Some words reflect biases,

Forensic Report Writing

and others can convey a prejudicial tone. Allnutt and Chaplow (2000) note that a risk of bias is inherent in any forensic work, and that findings related to mental health issues are “vulnerable to influence of social and cultural variables” (p. 986). Conroy (2006) recommends “that language remains pristinely professional” (p. 241). Some examples of bias or prejudice are easy to avoid (e.g., “this deadbeat father”). It takes much more care to guard against subtle forms of bias. Certain words carry positive or negative connotations that are quite subtle, and some of those words are frequently used without regard to their implications. Consider, for example, admit and deny. Admit has several definitions, but in a context that might involve bad behavior, this is a word that should be used judiciously, because one prominent meaning carries the connotation of wrongdoing. People admit guilt or wrongdoing; an assertion that somebody “admitted” dropping out of high school casts a subtle but perceptible value judgment. Similarly, the word deny sometimes suggests dishonesty: “She denied that there was any malicious intent.” To say that somebody “denies” having children may be intended to communicate that they have no children, but it may insinuate that they are unwilling to acknowledge their children. Any word or phrase that conveys an element of mood or affect should be used carefully. For example, “He insisted that he has no drinking problem” suggests that he does. This is not to say that such words are off-limits. Indeed, they may be indicated at times (e.g., “Although the criminal history provided for review indicated the defendant had two prior convictions for larceny, he denied any contact with the criminal justice system before his arrest on the current charge”). The carefully chosen word can convey a precise meaning, but words with subtle connotations should be used carefully and deliberately. Jargon Few things threaten readability like clinical jargon. Jargon has its place, of course. It provides an efficient mechanism for communicating complicated psychological constructs in a few words. (How long would it take to convey the ideas of “cognitive dissonance” or “word salad” if there were not names for such?) Clinical jargon saves time and effort when mental health professionals are communicating among themselves. But the same words can render a forensic report confusing if not aggravating (Conroy, 2006).

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Overuse of clinical jargon is one of the most common problems with psychological reports in general (GrothMarnat & Horvath, 2006; Harvey, 1997, 2006) and with forensic reports in particular (Allnutt & Chaplow, 2000; Conroy, 2006). Groth-Marnat and Horvath urge psychologists to write at a level commensurate with the audience. There are times when it will be helpful, if not essential, for the reader of a forensic report to understand the concept that is conveyed by clinical jargon. The forensic report provides an opportunity for the psychologist to engage in that role which is central to the specialty—that of educator. Clinical jargon can be introduced with a careful explanation of its meaning. Such explanations should use everyday language, and they should be bolstered by examples. At other times, clinical jargon is unnecessary. No report to a legal professional should describe an individual as “oriented times three.” It is more effective to indicate that he or she was or was not aware of the location, date, and situation. Instead of describing a mood as “euthymic,” a report author can describe a mood as “normal,” or “neither elevated nor depressed,” or “appropriate to the circumstances.” The forensic psychologist should recognize that some words have both common, everyday meanings, as well as precise technical meanings. Depression and obsession are examples of words that mean one thing in common usage and something far more exact and behaviorally grounded in psychology. Report authors should recognize that unless the scientific meaning of such words is articulated, the readers will naturally resort to the meaning they know. Psychological testing is another area in which psychologists are prone to use language that would be familiar to other psychologists (such as the ones who taught them to write psychological reports in graduate school), but not to legal professionals. A “relative strength” in an intellectual assessment references an entirely different theory of relativity than the reader likely imagines. Because so much clinical jargon is second nature to psychologists, it requires vigilance to ensure that psychological reports contain understandable language. Harvey (1997) recommended that psychologists develop lists of scientific or technical terms that can be used to explain concepts that recur in psychological reports. While such definitions may require some fine-tuning to convey an exact meaning for a particular individual, a store of useful definitions would prevent the psychologist from having to reinvent the wheel with every report.

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Nature of the Field

Pat Phrases While a collection of definitions may be efficient, one should exercise caution about inclusion of common phrases that are included in reports as a matter of routine. For example, indicating that an individual “appears his stated age” adds little to a report. To the extent that psychologists have expertise in estimating ages (and few graduate schools include this in the curriculum), this information is important only if the person does not appear his or her stated age. Similarly, the fact that a parent arrived for an evaluation in “casual clothing” or a prisoner was “attired in prison garb” is probably irrelevant. When an individual comes to an evaluation dressed in a toga or a superhero costume, this should be mentioned, but dress that does not depart from the expected can likely be assumed. The language used by forensic psychologists reflects their knowledge of the field and their expertise. An accurate understanding of the psychologist’s role in legal proceedings will influence that language. Two specific examples merit mention. Many psychologists include in their opinions, as a matter of course, that the opinion is held to a degree of “reasonable psychological certainty.” Indeed, this has been recommended by some commentators (e.g., Ackerman, 2006). However, such language should be used only if it is truly meaningful. The forensic psychologist who uses this phrase must be prepared to both define the phrase and defend that it applies in a particular circumstance. Forensic psychological reports should identify their weaknesses and limitations; to the extent that those limitations decrease confidence in an opinion, this should be noted. Including a phrase about “reasonable psychological certainty” should be done deliberately, not routinely. A second element of some forensic reports is the use of legal language to describe the psychologist’s opinion. For example, a report might indicate, “It is my opinion by a preponderance of the evidence that the defendant is competent.” This reflects a misunderstanding of the psychologist’s role. Forensic psychological reports do not weigh the evidence; they are the evidence. Of course, various data points may carry different weight toward supporting or refuting a hypothesis, and it is proper for psychologists to weigh the data in arriving at opinions. But psychologists should refrain from stating that opinions were formed using a legal test. Forensic psychological reports should indicate their conclusions, the basis for those conclusions, and when appropriate, a statement about their confidence in those opinions. The legal fact

finder then weighs that opinion with and against other evidence to determine whether the legal test is met. Reading Levels Finally, research by Harvey (1997) shows that psychologists tend to write reports that require a reading comprehension level above the 12th-grade level. When psychologists write at a level consistent with their own education, she notes that the resulting prose can be “unreasonably dense and . . . in danger of being misunderstood or ignored” (p. 271). She recommends that psychologists measure the readability of their writing using the Flesch Reading Ease Score and the Flesch-Kinkaid Grade Level score. Some prominent word processing programs include the ability to check those scores. Grisso (2008) recommended that forensic reports contain Flesch Reading Ease scores of 40 to 50, and Flesch-Kinkaid Grade Level scores of 9th to 11th grade. Harvey (1997) offers other suggestions for increasing readability. Shorter sentence lengths, simpler words, and liberal use of subheadings all serve to make a report more readable. She concludes that “it is entirely possible to write a psychological report at a comprehensible level and still communicate essential psychological information” (p. 273).

CONCLUSION The competent forensic psychologist recognizes the forensic report as the most effective vehicle for communicating with legal professionals. A well-constructed report is consistent with the forensic psychologist’s proper role as an objective expert, an educator whose involvement in the legal system illuminates information that would otherwise be misunderstood by the fact finder. The forensic psychologist lets the referral question guide the structure of the report. Information is included in (or excluded from) the report on the basis of its relevance to the referral question. The best reports are easy for the legal professional to read. They are written in plain language, and any necessary jargon is carefully defined and illustrated with examples. Most importantly, the reasoning of the clinician is explained clearly, such that the legal professional can track the psychologist’s logical inferences. Making thoughtful choices in these areas will yield a forensic report that does more than inform the reader of the clinician’s conclusions. The reader will know how those conclusions are reached. As a result, the legal professional can better determine the value of those conclusions.

Forensic Report Writing

REFERENCES Ackerman, M. J. (2006). Forensic report writing. Journal of Clinical Psychology, 62, 59–72. Ackerman, M. J., & Ackerman, M. C. (1997). Custody evaluation practices: A survey of experienced professionals (revisited). Professional Psychology: Research and Practice, 28, 137–145. Allnutt, S. H., & Chaplow, D. (2000). General principles of forensic report writing. Australian and New Zealand Journal of Psychiatry, 34, 980–987. American Educational Research Association, American Psychological Association, & National Council on Measurement in Education. (1999). Standards for educational and psychological testing. Washington, DC: American Educational Research Association. Appelbaum, K. L. (2010). Commentary: The art of forensic report writing. Journal of the American Academy of Psychiatry and the Law, 38, 43–45. Barth, J. T. (2000). Commentary on “Disclosure of tests and raw test data to the courts” by Paul Lees-Haley and John Courtney. Neuropsychological Review, 10, 179–180. Bonnie, R. J. (1992). The competence of criminal defendants: A theoretical reformulation. Behavioral Sciences and the Law, 10, 291–316. Borum, R., & Grisso, T. (1995). Psychological test use in forensic evaluations. Professional Psychology: Research and Practice, 26, 465–473. Borum, R., & Grisso, T. (1996). Establishing standards for criminal forensic reports: An empirical analysis. Bulletin of the American Academy of Psychiatry and the Law, 24, 297–317. Bow, J. N., & Quinnell, F. A. (2001). Psychologists’ current practices and procedures in child custody evaluations: Five years after American Psychological Association Guidelines. Professional Psychology: Research and Practice, 32, 261–268. Budd, K. S., Poindexter, L. M., Felix, E. D., & Naik-Polan, A. T. (2001). Clinical assessment of parents in child protection cases: An empirical analysis. Law and Human Behavior, 25, 93–108. Christy, A., Douglas, K. S., Otto, R. K., & Petrila, J. (2004). Juveniles evaluated incompetent to proceed: Characteristics and quality of mental health professionals’ evaluations. Professional Psychology: Research and Practice, 35, 380–388. Committee on the Revision of the Specialty Guidelines for Forensic Psychology. (in press). Specialty guidelines for forensic psychology. American Psychologist. Also available at www.ap-ls.org/ aboutpsychlaw/SpecialtyGuidelines.php Conroy, M. A. (2006). Report writing and testimony. Applied Psychology in Criminal Justice, 2, 237–260. Elwork, A. (1984). Psycholegal assessment, diagnosis, and testimony: A new beginning. Law and Human Behavior, 8, 197–203. Estelle v. Smith (1981), 451 U.S. 454. Greenberg, S. A., Schuman, D. W., & Meyer, R. G. (2004). Unmasking forensic diagnosis. International Journal of Law and Psychiatry, 27, 1–15. Griffith, E. E. H., Stankovic, A., & Baranoski, M. (2010). Conceptualizing the forensic psychiatry report as performative narrative. Journal of the American Academy of Psychiatry and the Law, 38, 32–42. Grisso, T. (1986). Evaluating competencies: Forensic Assessments and Instruments. New York, NY: Plenum Press. Grisso, T. (2003). Evaluating competencies: Forensic Assessments and Instruments (2nd ed.). New York, NY: Kluwer Academic/Plenum. Grisso, T. (2008, April). Personal communication. Groth-Marnat, G., & Horvath, L. S. (2006). The psychological report: A review of current controversies. Journal of Clinical Psychology, 62, 73–81.

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Hart, S. D., & Hare, R. D. (1992). Predicting fitness to stand trial: The relative power of demographic, criminal, and clinical variables. Forensic Reports, 5, 53–65. Harvey, V. S. (1997). Improving readability of psychological reports. Professional Psychology: Research and Practice, 28, 271–274. Harvey, V. S. (2006). Variables affecting the clarity of psychological reports. Journal of Clinical Psychology, 62, 5–18. Hecker, T., & Steinberg, L. (2002). Psychological evaluation at juvenile court disposition. Professional Psychology: Research and Practice, 33, 300–306. Heilbrun, K. (1992). The role of psychological testing in forensic assessment. Law and Human Behavior, 16, 257–272. Heilbrun, K. (2001). Principles of forensic mental health assessment. New York, NY: Kluwer Academic/Plenum. Heilbrun, K., & Collins, S. (1995). Evaluations of trial competency and mental state at time of offense: Report characteristics. Professional Psychology: Research and Practice, 26, 61–67. Heilbrun, K., Grisso, T., & Goldstein, A. M. (2009). Foundations of forensic mental health assessment. New York, NY: Oxford University Press. Heilbrun, K., Rosenfeld, B., Warren, J., & Collins, S. (1994). The use of third-party information in forensic assessments: A two-state comparison. Bulletin of the American Academy of Psychiatry and the Law, 22, 399–406. Keilin, W. G., & Bloom, L. J. (1986). Child custody evaluation practices: A survey of experienced professionals. Professional Psychology: Research and Practice, 17, 338–346. Lees-Haley, P. R., & Courtney, J. C. (2000a). Disclosure of tests and raw test data to the courts: A need for reform. Neuropsychological Review, 10, 169–174. Lees-Haley, P. R., & Courtney, J. C. (2000b). Reply to the commentary on “Disclosure of tests and raw test data to the courts.” Neuropsychological Review, 10, 181–182. Melton, G. B., Petrila, J., Poythress, N. G., Slobogin, C., Lyons, P. M., & Otto, R. K. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press. Morse, S. J. (1978). Law and mental health professionals: The limits of expertise. Professional Psychology, 9, 389–399. Nicholson, R. A., & Norwood, S. (2000), The quality of forensic psychological assessments, reports, and testimony: Bridging the gap between promise and practice. Law and Human Behavior, 24 , 9–44. Otto, R. K. (2009, September). Expert testimony and report writing. Workshop presented for the American Academy of Forensic Psychology, Sarasota, Florida. Petrella, R. C., & Poythress, N. G. (1983). The quality of forensic evaluations: An interdisciplinary study. Journal of Consulting and Clinical Psychology, 51, 76–85. Robbins, E., Waters, J., & Herbert, P. (1997). Competency to stand trial evaluations: A study of actual practice in two states. Journal of the American Academy of Psychiatry and the Law, 25, 469–483. Robinson, R., & Acklin, M. W. (2010). Fitness in paradise: Quality of forensic reports submitted to the Hawaii judiciary. International Journal of Law and Psychiatry, 33, 131–137. Rogers, R., & Ewing, C. P. (1989). Ultimate opinion proscriptions: A cosmetic fix and a plea for empiricism. Law and Human Behavior, 13, 357–374. Shapiro, D. L. (2000). Commentary: Disclosure of tests and raw test data to the courts. Neuropsychological Review, 10, 175–176. Skeem, J. L., & Golding, S. L. (1998). Community examiners’ evaluations of competence to stand trial: Common problems and suggestions for improvement. Professional Psychology: Research and Practice, 29, 357–367.

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Skeem, J. L., Golding, S. L., Cohn, N. B., & Berge, G. (1998). Logic and reliability of evaluations of competence to stand trial. Law and Human Behavior, 22, 519–547. Slobogin, C. (1989). The “ultimate issue” issue. Behavioral Sciences and the Law, 7, 259–266. Tippins, T. J., & Wittmann, J. P. (2005). Empirical and ethical problems with custody recommendations: A call for clinical humility and judicial vigilance. Family Court Review, 2, 193–222. Tranel, D. (1994). The release of psychological data to nonexperts: Ethical and legal considerations. Professional Psychology: Research and Practice, 25, 33–38. Tranel, D. (2000). Commentary on Lees-Haley and Courtney: There is a need for reform. Neuropsychological Review, 10, 177–178. Vann, C. (1965). Pre-trial determination and judicial decision-making: An analysis of the use of psychiatric information in the administration of criminal justice. University of Detroit Law Journal, 43, 13–33.

Wettstein, R. M. (2005). Quality and quality improvements in forensic mental health evaluations. Journal of the American Academy of Psychiatry and the Law, 33, 158–175. Wettstein, R. M. (2010). Commentary: Conceptualizing the forensic psychiatry report. Journal of the American Academy of Psychiatry and the Law, 38, 46–48. Williams, W., & Miller, K. S. (1981). The processing and disposition of incompetent mentally ill offenders. Law and Human Behavior, 5, 245–261. Ziskin, J. (1970). Coping with psychiatric and psychological testimony. Marina Del Rey, CA: Law and Psychology Press. Ziskin, J. (1975). Coping with psychiatric and psychological testimony (2nd ed.). Marina Del Rey, CA: Law and Psychology Press. Ziskin, J., & Faust, D. (1988). Coping with psychiatric and psychological testimony (4th ed.). Marina Del Rey, CA: Law and Psychology Press.

PART II

Forensic Evaluations in Civil Proceedings

CHAPTER 6

Child Custody Evaluations: Current Literature and Practical Applications JONATHAN W. GOULD AND DAVID A. MARTINDALE

CHAPTER OVERVIEW 101 CHANGES IN LAW REGARDING THE BEST INTERESTS OF THE CHILD 101

INTEGRATING LITERATURE WITH EVALUATION RESULTS: THE SEEDS OF A SCIENTIFICALLY INFORMED MODEL 113 COMPLEX ISSUES IN CHILD CUSTODY ASSESSMENT 123 DOMESTIC VIOLENCE 130 SUMMARY 131 REFERENCES 133

CHILD CUSTODY LAW 102 CHANGES IN THE PRACTICE OF CHILD CUSTODY EVALUATIONS 108 PROFESSIONAL PRACTICE GUIDELINES 109

CHAPTER OVERVIEW

turn of the 19th century, the paternal presumption was replaced with a maternal, or “tender years,” presumption. The “tender years” were generally viewed as those from birth through roughly 7 years of age. The “tender years” presumption stated that, throughout these childhood years, it was in the best interests of children to be in the sole custody of their mothers (Mason, 1999). Fathers were often awarded “visitation” (Elrod & Dale, 2008). Unwed fathers did not have legal rights to their children and seldom sought parenting time or custody. Social policy was built around the notion of a centralized family unit with the mother at home, the father at work, and very young children preparing to enter the workforce (Elrod & Dale, 2008). With the advent of Freudian theories that placed the mother–child relationship at the center of developmental progress, psychologists stressed the need for children to spend extensive time with the primary maternal caretaker. Little, if any, attention was paid to the role of fathers in raising their children. Social policy was modified to provide a more prolonged childhood with greater attention on children’s relationship with their mothers and less attention on children entering the workforce at a young age (Gould, Friedman, & Loveless, 2010; Kelly & Lamb, 2000; Lamb & Kelly, 2009). Throughout the 1940s to 1960s, psychoanalytic theory began to dominate ideas about mental health, and as such,

The purpose of this chapter is to update changes in the child custody arena. However, this chapter does not replace the “Child Custody Evaluation” chapter by Otto, Buffington-Vollum, and Edens (2003) in the first edition of this volume. Instead, we offer a somewhat different approach by placing greater emphasis on the evaluation process in child custody assessment. As such, this chapter should extend the discussion in Otto et al. (2003). CHANGES IN LAW REGARDING THE BEST INTERESTS OF THE CHILD Over the past century, child custody determinations and ideas about the best interests of the child have undergone several swings of the pendulum and paradigm shifts (Elrod & Dale, 2008). For centuries, the paternal presumption prevailed, in which the law viewed children as the property of their fathers (Mason, 1994). The U.S. Industrial Revolution saw the emergence of the women’s rights movement and calls for women to have custody rights equal to those of the father (Elrod & Dale, 2008). By the We wish to acknowledge the extraordinary assistance of Milfred “Bud” Dale, PhD, JD, and William G. Austin, PhD, in the preparation of this chapter. 101

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the legal presumption of the “tender years” found further support for mother-focused child rearing. Most research during the 1950s and 1960s that examined attachment, parenting, and child development was based on research samples that included young children and their mothers (Kelly & Lamb, 2000). The focus on mothers was a matter of convenience, because the American middleclass family was generally composed of a stay-at-home mother and a work-outside-the-home father. For this reason, research regarding child development, child rearing, attachment formation, and parenting was often based only on studies that examined the mother–child relationship— not because fathers were unimportant, but because fathers were generally unavailable to participate in the research because of their work-related responsibilities (Gould et al., 2010; Lamb & Kelly, 2009). Consequently, this narrowly focused mother–child research generated findings that perpetuated the notion of the “tender years” and children’s developmental attachment to their mothers. Little, if any, corresponding research examined how children formed attachments to their fathers. It was not until the late 1960s that researchers began to include fathers in their research (Lamb & Kelly, 2009). At the same time as researchers began to examine the father’s role in child development (Lamb, 2010), changes in the law brought about a shift in legal standards from the “tender years” presumption to the “best interests of the child” standard. Interestingly, despite almost 50 years of legal precedent supporting the “best interests of the child” standard, most judges continue to hold personal beliefs about the greater value of the “tender years” standard as contrasted with the “best interests” standard (Elrod & Dale, 2008). As research into the role of fathers in child development continued (Lamb, 2010), research into children’s attachments also progressed beyond the simple mother– child dyad (Calloway & Erard, 2009; Cassidy & Shaver, 2008). During the 1980s, research supported the view that children were able to form attachments to multiple caretakers. The theory of attachment hierarchies also emerged, describing situations in which children became more attached to parents (who were at the top of the hierarchy) than to other caretakers (who were in lower positions). The idea that children were able to form attachments to multiple caretakers without any risk to their development was contrary to the earlier beliefs found in the psychoanalytic formulations and the “tender years” doctrine (Kelly & Lamb, 2000). During the 1990s, researchers focused on what each parent contributes in his or her respective parenting style.

Early research suggested that father-absent children were at a significantly higher risk for developing maladaptive behaviors than children who had relationships with their fathers (Lamb, 2010). As research methodology has become more sophisticated, findings have revealed some of the father-specific contributions to the development of their children, the short- and long-term negative developmental effects of poor child–father relationships, and the negative impact of poor interparental communication regarding a child’s short- and long-term development (Lamb, 2010). More recent research illustrates that boys may react differently than girls to multiple, nonparental caretakers during their infant and toddler years (Pruett, Ebling, & Insabella, 2004). Other research shows differences between mothers’ and fathers’ parenting techniques (Pleck, 2010; K. Pruett, 1999). The consensus among experts is that children are best served when they develop strong and secure attachments to both parents, and, when such attachments are developed, strong and secure attachments need to be enhanced rather than disrupted during separation and following divorce (Kelly & Emery, 2003).

CHILD CUSTODY LAW1 Predicting and providing for the best interests and future of children are the goals of every child custody legal proceeding. The now-familiar “best interests of the child” standard (BIOC) has its origins in the 1881 Kansas Supreme Court case In re Bort: “We understand the law to be, when the custody of children is the question, that the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that” (In re Bort, 1881).2 The “best interests of the child” standard found prominence when articulated in 1925 by Judge Cardozo in Finlay v. Finlay: The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile 1

This section draws heavily on an unpublished manuscript provided by Milfred Dale, PhD, JD, which we used with his permission. 2

We note that the Kansas Supreme Court in In re Bort used the terms best interests and best interest interchangeably in its discussion of the best interests of the child. The context of the court’s discussion leads one to believe that the court’s emphasis was on best interests.

Child Custody Evaluations: Current Literature and Practical Applications

of the parents. It has its origin in the protection that is due to the incompetent or helpless. . . . The chancellor in exercising his jurisdiction upon petition does not proceed on the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against any one. He acts parens patriae to do what is best for the interest of the child. He is to put himself in the position of a “wise, affectionate, and careful parent” (citations omitted), and make provision for the child accordingly. (Finlay v. Finlay, 1925)

The “best interests of the child” standard has served as the foundation of child custody statutes since the 1970s. Today, decisions about custody in most U.S. jurisdictions are determined in accordance with BIOC (Elrod & Dale, 2008). While the majority of divorcing parents voluntarily make custody and access arrangements and make adequate postdivorce adjustments (Kelly, 2002), one fourth to one third of divorcing couples report significant hostility and discord in the daily care of their children many years after separation (Johnston et al., 2009; Maccoby & Mnookin, 1992; Wallerstein & Kelly, 1980). When the adjudication of disputes concerning custody and access is guided by the best interests of the child standard, those with decision-making authority must recognize that not all children have the same needs and not all children are affected in the same way by divorce (Elrod & Dale, 2008).

BIOC: A Dispute-Settlement Task for the States In domestic cases, courts perform two functions: privatedispute-settlement and child-protection (Mnookin, 1975). These fall to state courts for two reasons. First, the Tenth Amendment has traditionally safeguarded state regulatory power over families from federal oversight.3 In In re Burrus (1890), the U.S. Supreme Court noted that “[t]he whole subject of domestic relations of husband and wife, parent and child, belongs to the laws of the State, and not the laws of the United States” (pp. 593–594). Second, almost 100 years later, the Court reiterated what has become known as the “domestic relations exception.” The Court noted that, although the Constitution does not mandate exclusion of domestic relations cases from federal court jurisdiction,

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state courts are more eminently suited to work of this type than are federal courts, which lack the close association with state and local government organizations dedicated to handling issues that arise out of conflicts over divorce, alimony, and child custody decrees. (Ankenbrandt v. Richards, 1992, p. 689)

U.S. Supreme Court Support for the BIOC The U.S. Supreme Court has upheld the primary and paramount consideration of the BIOC objective in state court custody determinations. For example, in deciding a case between parents who were issued conflicting orders by two states, the Court noted: Virginia law, like that of probably every State in the Union, requires the court to put the child’s interests first. The Supreme Court of Appeals in Virginia has stated this policy with unmistakable clarity: “In Virginia, we have established the rule that the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate.” (Ford v. Ford , 1962)

The Child Protection Function of the BIOC The U.S. Supreme Court has also addressed the child protection function of the BIOC. The BIOC assigns to the court the task of acting on behalf of the children through parens patriae, a doctrine referencing the state’s power “to protect all who cannot protect themselves.”4 Palmore v. Sidoti (1984) involved a custody dispute in which a white mother who was the primary caretaker of a child married a black man and the district court changed custody. The Court remanded for a consideration of what was best for the child rather than a custody determination based upon race. The Court noted: The State, of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years. In common with most states, Florida law mandates that custody determinations be made in the best interests of the children involved. The goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause. (Palmore v. Sidoti, 1984, p. 433)

3

See, e.g., Naim v. Naim, 87 S.E.2d 749, 756 (Va. 1955) (rejecting constitutional challenge to antimiscegenation law partly on the ground that “[r]egulation of the marriage relation is . . . distinctly one of the rights guaranteed to the States” by the Tenth Amendment).

4

Parens patriae is Latin for “father for the people.” In U.S. law, parens patriae commonly refers to the State’s legal role as a guardian protecting the interests of children and others who cannot take care of themselves.

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BIOC: A Gender-Neutral Solution to a Unique Legal Problem The BIOC standard emerged as a gender-neutral solution to a complex, unique legal problem. Unlike most other legal proceedings in which appeals are eventually exhausted, child custody determinations are modifiable until the child reaches the age of majority, usually 18. Child custody determinations are also person-oriented predictions of the future rather than act-oriented investigations of the past (Mnookin, 1975). The law’s paradigm shift to the gender-neutral BIOC standard in the 1970s radically altered the child custody landscape. The BIOC standard in child custody emerged in response to a transformative constitutionalization of family law that occurred during the latter part of the 20th century. Using the Fourteenth Amendment, the U.S. Supreme Court expanded Constitutional guarantees of equality and recognized broad notions of family-related autonomy or individual rights. This in turn led to the striking down of a host of family laws discriminating on the basis of race, sex, and illegitimacy (Meyer, 2008). Historically, the Court has used the Equal Protection Clause to protect the right to marriage and procreation (Skinner v. Oklahoma ex. Rel Williamson, 1942); strike down antimiscegenation laws (Loving v. Virginia, 1967); and prevent a family court from transferring custody of a child based on her mother’s decision to marry a man of a different race (Palmore v. Sidoti , 1984). In the 1970s, Court rulings and the Uniform Parentage Act ultimately eliminated the network of punitive measures that discriminated against nonmarital children, thus eliminating the idea of illegitimate children (Levy v. Louisana, 1968). In four cases involving unwed fathers, the Court outlined constitutional requirements and protections for fathers who had seized the opportunity for legal fatherhood and assumed responsibility for their children (Caban v. Mohammad , 1979; Lehr v. Robertson, 1983; Quilloin v. Walcott, 1978; Stanley v. Illinois, 1972). Finally, in the 1970s, by replacing the maternal preference for custody with the BIOC standard, the Court’s use of the Fourteenth Amendment moved the states toward gender equality (Elrod v. Dale, 2008). Strengths and Weaknesses/Limitations of the BIOC The individualized nature of the BIOC is both its greatest strength and greatest vulnerability (Elrod & Dale, 2008). Its strengths include its “child-centered focus, its flexibility, its minimal a priori bias relative to the parties” (Wyer, Gaylord, & Grove, 1987) and its ability to respond to

changing social mores, values, and situations in a diverse society (Elrod & Dale, 2008; Kelly, 1997, 2002). The BIOC standard requires courts to consider parents based on the merits of their parenting and the strength of their parent–child relationships rather than on their gender, economic situation, or sexual orientation or preference (Kelly, 1997). A BIOC determination requires a careful consideration of each child’s developmental and psychological needs and eliminates a presumptive focus on parental demands, social stereotypes, and cultural traditions. A focus on the BIOC represents the willingness of the court and law to consider children on a case-by-case basis rather than conceptualizing children as a class or homogeneous grouping (Elrod & Dale, 2008). When compared to the variety of legal presumptions it replaced (e.g., the maternal preference rule, the tender years doctrine, the psychological parent preference rule, and the fault concept), the strength of the BIOC standard lies in its use of unweighed, unprioritized factors that are indeterminate (Mnookin, 1975). Neither among mental health professionals nor the judiciary has consensus been achieved concerning what factors, viewed collectively, define the BIOC standard (Gould, 1999; Gould & Martindale, 2009). As a result, the standard has been applied in unpredictable ways, fueling conflict because of their unpredictable application (American Law Institute, 2002; Elrod, 2001; Mnookin, 1975) and often leaves judges to make decisions based on personal experiences and beliefs rather than scientific knowledge about what is best for the child (Kelly, 1997). For example, the U.S. Supreme Court, in articulating its reasoning in the case of Troxel v. Granville, 530 U.S. 57 (2000), noted (at 61) that the trial court had deemed it appropriate to “look back at some personal experiences. . . .” BIOC: State-Specific Presumptions and Factors In making individual custody decisions, many states have identified in statutes or case law BIOC factors to be considered when adjudicating custodial placement of children. These factors provide guidance to judges when determining custodial placement but do not identify the relative value of each factor. Determination of the weight to be placed on one or more factors is generally seen as a decision made by the judge in each case. Some states’ statutes include specific BIOC factors that guide judges in custodial decision making (e.g., Michigan). Other state statutes provide no guidance to judges about specific BIOC factors to guide custodial decision making but have case law that provides some indication

Child Custody Evaluations: Current Literature and Practical Applications

of factors to be considered in a BIOC analysis (e.g., North Carolina). In deference to the rights of parents to the care, custody, and control of their children (e.g., Troxel v. Granville, 530 U.S. 57 [2000]) parental agreements after dissolution of a marriage or relationship are presumed to be in the best interests of the children. In the 1980s, notions of gender equality and social science research on the benefits of two cooperating parents led many states to adopt joint custody presumptions. A review of statutes and case law from the 50 states and the District of Columbia indicates: 1. Eight states have statutes or case law that make clear that joint custody is the presumptively favored arrangement. 2. Seven states have statutes or case law directing that joint custodial arrangements are preferred where both parents agree. 3. Six states have statutes or case law that encourages arrangements in which time spent by children with their parents will be apportioned as equally as possible. These states do not address the issue of decision making, however. 4. Nineteen states and the District of Columbia have statutes or case law that encourage frequent and continuing contact between the child(ren) and both parents, but it is presumed that one of the parents will function as the primary (and legal) custodian—the decision maker. 5. Eleven states do not address the matter in statutory language and case law is unclear. 6. In one state (New Jersey), there is clear case law favoring joint custody. 7. In one state (New York), there is clear case law suggesting that joint custody (as a court-imposed option) is to be avoided. However, this has not been a panacea for children and families (Elrod & Dale, 2008). Attempting to promote cooperation via joint custody in every case may be beyond the cooperation capacities of the parents and result in conflict that is harmful to children (Johnston et al., 2009; Martindale, 2011). In 2002, the American Law Institute Principles of Family Dissolution proposed the “approximation rule,” calling for courts to: Allocate custodial responsibility so that the proportion of custodial time the child spends with each parent approximates the proportion of time each parent spent performing caretaking functions for the child prior to the parents’ separation or, if the parents never lived together, before the filing of the action. (§§ 2.08, 2.10)

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Proponents of the approximation rule argue that this approach offers an easier to administer and more predictable process (Barlett, 2002; Kay, 2002) that could benefit children by reducing conflict (Emery, Otto, & O’Donahue, 2005). Opponents view the rule as gender-biased, a return to the maternal preference, and unlikely to reduce conflict (Warshak, 2007). The current debate about the approximation rule aptly illustrates how the adversarial system and gender dynamics permeate system reform attempts (Elrod & Dale, 2008). Although only one state (West Virginia) has adopted a presumption for custody with the primary caretaker, courts often note that “stability, continuity, and a loving relationship are the most important criteria for determining the best interests of the child” (Burchard v. Garay, 1986). Beyond these presumptions, statutory and judicial lists of “best interests” factors have steadily increased in many states. Factors are restricted only by their relevance; that is, the court should consider only parental behaviors or factors that have a direct impact on the child and/or the parent–child relationship (Uniform Marriage & Divorce Act, 1979). For example, awareness of the adverse effects of domestic violence on children (Hannah & Goldstein, 2010) led all 50 states to consider spousal abuse as a factor in custodial decision making, with 24 states having a rebuttable presumption against awarding custody to the abusive parent (Gonzalez & Reichmann, 2005). A child custody evaluator needs to be familiar with state statutes and case law pertaining to the child custody determination. Evaluators need to be aware of new custody-related legal decisions published by appellate and supreme courts. Child custody evaluations can be affected by a number of factors, including, but not limited to, the admissibility of certain types of testimony and a parent’s request to relocate with one or more children when the other parent does not choose to move. There have been numerous attempts to reign in judicial discretion with new presumptions, preferences, or lists of factors, particularly by those critical of the BIOC standard (Sampson, 1999). Evaluators should routinely ask their legal colleagues for copies of recently published appellate level decisions, relevant articles that appear in legal publications addressing psycholegal factors in family law, and changes in statutes that govern both child custody determination and expert testimony. Parenting Plans Statutory, historical, and cultural forces often determine which care arrangements are in a child’s best interests

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(Kelly, 1997, 2002; Kelly & Lamb, 2000; Lamb & Kelly, 2009). The mechanisms through which parents plan and care for the future of their children after parental divorce or separation are commonly called “parenting plans.” Parenting plans range from informal, mutually understood, postdivorce agreements to more formal, detailed, written documents enforced by court orders when conflict persists (Elrod & Dale, 2008). Some jurisdictions require parents to submit parenting time plans prior to appearing before a judge (Elrod & Dale, 2008). Parenting plans typically address issues of legal and physical custody. Legal custody is defined as the care, control, and maintenance of a child. Often state law divides legal custody into two components: a decisionmaking component and a residential placement. The decision-making component of legal custody refers to the awarding of legal authority to one or both parents after divorce to make all decisions that are involved in rearing the minor child. These decisions include decisions about residential placement, education, health and mental health care, and religious upbringing. Physical custody involves the day-to-day care of a child and establishes where a child will live (residential placement). The parent with physical custody generally has the right to have his or her child live with him or her although the court often defines a specific distribution of time (parenting access plan) that the child may live with each parent. If the court orders that the child lives primarily with one parent, in most jurisdictions, that parent is said to be the custodial parent. The other parent would be considered the noncustodial parent and would typically have visitation rights to his or her child. If a child lives equally or close to half the time with each of his or her parents, the court may define this as a joint physical custody arrangement. In some joint physical custody arrangements, a parent that has more time with the child may be denoted as having primary physical custody of his or her child while the other parent has secondary physical custody. There is no consensus across the country regarding terms used in describing legal and physical custody. Some states’ laws refer to legal and physical custody under the term parental responsibility (e.g., Colorado) while other states use the term conservatorship. Evaluators would be wise to know the terms used by the courts in each jurisdiction in which they practice. In addition to parenting plans addressing issues of legal and physical custody, they typically include information about holiday and vacation access; parent-to-parent communication and information exchange; provisions for cooperation and collaboration;

health-care and school decisions; and mechanisms for review and revision. Obviously, few parenting plans cover every conceivable possibility, and this is their inherent weakness when used with high-conflict families. Parents in high conflict seem to possess uncanny abilities to find “soft” spots in the plans and to make unreasonable demands. Sometimes parental conflict and psychopathology overwhelm some of the best-laid plans in ways that place children at risk for the adjustment, academic, conduct, and relationship problems that research indicates too frequently characterize children of divorce. Courts are struggling with how to structure parenting plans that meet the needs of children from different families. Some courts have informal guidelines for all children of particular ages, regardless of situation. Other courts have informal guidelines that are used in a more casesensitive manner. The lack of a uniform approach is in part the result of lack of consensus in the mental health field about what current, empirically based literature reveals about parenting plans that foster children’s best interests (Tippins & Wittmann, 2005a). Children of Assisted Reproductive Technology and the BIOC Children born via assisted reproductive technology can often find themselves in a precarious position with respect to their “parents” both at the time of their births and at the time of any divorce or family dissolution. The Centers for Disease Control (2006) reported that, in 2006, more than 40,000 children were born via assisted reproductive technology (ART) (e.g., artificial insemination [AI], in vitro fertilization, [IVT] intrauterine insemination, and surrogacy). In all 50 states, husbands of wives who conceive a child by artificial insemination are considered legal fathers of the child. In the states that allow same-sex marriages, the presumptions of parentage arguably apply (Elrod, 2011). If the child is born via ART to a single mother or to a same-sex partner, however, the child may have only one legal parent (Elrod, 2011). Efforts to establish a second legal parent through adoption are possible in the four states that allow second-parent adoption. When faced with requests to protect intended, functional, or de facto parent–child relationships, many courts have denied parental rights to the nonbiological parent, which effectively terminated this relationship. Cases are beginning to appear, however, in which courts have protected children’s relationships with nonbiological parents when the biological parents clearly consented and provided

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opportunities for the children to establish parent–child relationships with their partners. In these cases, the courts have combined BIOC arguments with principles of equitable estoppel and de facto or psychological parenting. This follows, at least in principle, the idea that one who intentionally consents to the production of a child or to the formation of a relationship with a child cannot create a temporary relationship that can be assumed and disclaimed at will (Elrod, 2011).5 Relocation Law In the United States, laws regarding relocation of children are established by states rather than by the federal government. Each state and the District of Columbia develops its own procedures and standards regarding relocation cases (Austin, Langley, & Atkinson, in press). Twenty years ago, most states allowed a parent with sole legal and physical custody of a child to move with the child following divorce or determination of paternity. Since the mid1990s, states have followed divergent approaches, but the trend has been to decide cases based on their own facts without a strong presumption for or against relocation (Atkinson, 2010; Elrod, 2006). The modern view is reflected by New York’s Court of Appeals (the state’s highest court): [W]e hold that each relocation request must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child. . . . [I]t serves neither the interests of the children nor the ends of justice to view relocation cases through the prisms of presumptions and threshold tests that artificially skew the analysis in favor of one outcome or another. [Tropea v. Tropea, 87 N.Y.2d 727, 739-40, 665 N.E.2d 145, 150-51 (1996)]6 5 Debra H. v. Janice R., 930 N.E.2d 184 (N.Y. 2010). V.C. v. M.J.B., 748 A.2d 539, 546 n.3 (N.J. 2000) (describing terms as interchangeable but preferring psychological parent); In re L.B., 122 P.3d. 161, n.7 (Wash. 2005) (distinguishing the three terms); C.E.W. v. D.E.W., 845 A.2d 1146, 1151 (Me. 2004) (recognizing equal parental rights of a lesbian co-parent who was conceded to be a de facto parent by the biological parent). 6 Other

cases since the mid-1990s reflecting the trend toward examining the facts of each case without a strong presumption for or against relocation include: In re Marriage of Ciesluk, 113 P.3d 135 (Colo. 2005); Bodne v. Bodne, 277 Ga. 445, 588 S.E.2d 728 (2003); In re Marriage of Smith, 172 Ill. 2d 312, 665 N.E.2d 1209, 1213 (1996); and Latimer v. Farmer, 360 S.C. 375, 602 S.E.2d 32 (2004). In addition, In re Marriage of LaMusga, 32

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The trend in case law in the 37 states that have relocation statutes has been for the court to apply the BIOC standard with a list of relocation factors (Atkinson, 2010). The most frequently cited factors include: (a) the motives of the parent seeking to relocate; (b) the motives of the parent opposing relocation; (c) the quality of relationship and frequency of contact between the child and each parent; (d) any history or threats of domestic violence; (e) the likelihood of improving quality of life for the child; (f) the likelihood of improving quality of life for the custodial parent and the degree to which benefit to custodial parent will provide benefit to child; and (g) the feasibility of restructuring parenting time (or visitation) in order to preserve or promote the relationship between the child and the parent who is not relocating (Atkinson, 2010; Austin et al., in press). After a court has considered the relevant factors, its primary decision is to allow or not allow the parent to relocate with the child. Additional remedies include adjusting parenting time (or visitation); including modification of custody; allocating transportation costs or adjusting child support; and allocating attorneys’ fees (Austin et al., in press).7 States differ, for example, regarding the degree to which a benefit to the custodial parent that would result from a relocation will be considered to be beneficial to the child without direct proof of benefit to the child from relocation (Atkinson, 2010). Procedural aspects of relocation vary somewhat from state to state. In most states, a primary custodian wishing to relocate with a child must provide notice of that intent in advance of moving—usually between 30 and 90 days. Common elements of notice include the address of the intended relocation, the date of the planned relocation, the reason for the relocation, the proposed revised parentingtime schedule, and the rights of the other parent to object to the relocation (Austin et al., in press).8 Courts Cal. 4th 1072, 88 P.3d 81, 12 Cal. Rptr. 3d 356 (2004) softened what appeared to be a strong presumption in favor of allowing the custodial parent to move that had been articulated in In re Marriage of Burgess, 13 Cal. 4th 25, 913 P.2d 473, 51 Cal. Rptr. 444 (1996). 7 Examples of statutes with remedies such as these include: Ala. Code §§ 30-3-169.2–30-3-169.9 (2008); Fla. Stat. Ann. §§ 61.13001(9) (2008); Iowa Code § 598.21D (2008); La. Rev. Stat. §§ 355.14 & 355.16 (2008); Wash. Code §§ 26.09.510 & 26.09.550 (2008); Wis. Stat. § 767.327(2)(c) (2008). 8 Examples

of notice statutes with such requirements include: Ala. Code § 30-3-165 (2008); Fla. Stat. Ann. § 61.13001(3) (2008); La. Rev. Stat. § 355.4 (2008); Wash. Code § 26.09.440 (2008).

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generally may waive or modify notification requirements in exceptional circumstances, such as cases involving a threat to the safety of the parent or child (Austin et al., in press). Summary In this section, changes in law regarding the BIOC standard were discussed. Strengths and weaknesses of the BIOC standard were described. Definitions were provided for the concepts of legal custody, physical custody, and parenting plans. We stressed the need for an evaluator to become familiar with state statutes and case law decisions addressing child custody determination within each jurisdiction in which he or she practices. In the next section, we describe changes in the professional practice guidelines pertaining to conducting child custody evaluations and related forensic psychological activities such as reviewing a colleague’s child custody report.

CHANGES IN THE PRACTICE OF CHILD CUSTODY EVALUATIONS We begin this section by discussing recent literature in which concerns have been raised about the training and professional practices of child custody evaluators. Survey data suggest that many professionals offering their services as custody evaluators are doing so without first having obtained formal training (Bow & Martindale, 2009). In addition, many practitioners are performing evaluations that do not meet the needs of the courts that have appointed them (Gould, 2006). With increasing frequency, judges have expressed concern with the poor quality of the reports being submitted to them by evaluators (Bow & Quinnell, 2004; Martindale & Gould, 2008), and problems with the custody evaluation process have become the subject of front-page articles in newspapers such as the New York Times (Eaton, 2004). In response to much publicly expressed discontent, in June 2004, Chief Judge Judith S. Kaye of New York appointed a Matrimonial Commission to review all aspects of matrimonial litigation and make recommendations for improving the manner in which the courts handle such litigation in both Family Court and Supreme Court (Miller, 2006). The most recent data available reveal that licensing complaints against evaluators have increased dramatically (Kirkland & Kirkland, 2001), as have malpractice actions (Marine & Bogie, 2002). Bow and Martindale (2009)

reported that more than half of the 138 child custody evaluators who responded to their survey reported having had at least one licensing complaint filed against them. This represents a significant increase from survey data previously reported in which only 35% reported a board or ethics complaint (Bow & Quinnell, 2001). Despite the sobering message that these data convey, child custody evaluators report a reasonable degree of satisfaction in conducting child custody assessments (Bow & Martindale, 2009). In 2001, forensic psychology was officially recognized as a specialty by the American Psychological Association’s Committee for the Recognition of Specialties and Proficiencies in Professional Psychology (CRSPPP). Recognition of forensic psychology as a specialty should make “clearer to psychologists in other areas and to applied psychologists who do forensic work that a recognized field associated with a body of knowledge and standards of practice should be learned and respected when practicing in forensic contexts” (Otto & Heilbrun, 2002, p. 9). Child custody evaluations fall squarely within forensic psychology. The authors of the previously published chapter in this handbook addressing child custody evaluations (Otto et al., 2003) acknowledged that: “[c]hild custody evaluations may be the most complex, difficult, and challenging of all forensic evaluations” (p. 179). It is critically important to understand the ethics, literature, and laws governing child custody evaluations. The fourth guideline of the American Psychological Association’s child custody guidelines—formally, the Guidelines for Child Custody Evaluation in Family Law Proceedings (American Psychological Association, 2010)—addresses the importance of developing and maintaining specialized competencies. Laws change, existing methods are refined, and new techniques are identified: [In child] custody evaluations, general competence in the clinical assessment of children, adults, and families is necessary but is insufficient in and of itself. The court will expect psychologists to demonstrate a level of expertise that reflects contextual insight and forensic integration as well as testing and interview skills. (p. 864)

A similar value is found in the Association of Family and Conciliation Courts’ Model Standards of Practice for Child Custody Evaluation (AFCC, 2007) model standard 1.1: “[E]valuators shall gain specialized knowledge and training in a wide range of topics . . . [s]ince research and laws pertaining to the field of divorce or separation and child custody are continually changing and advancing,

Child Custody Evaluations: Current Literature and Practical Applications

child custody evaluators shall secure ongoing specialized training” (pp. 72–73). Despite the strongly worded recommendations included in these guidelines and model standards, many professionals new to child custody evaluation begin practice without adequate preparation. In a recent survey of 138 child custody evaluators (CCEs) (Bow & Martindale, 2009), one third of the respondents reported not having attended any workshops or seminars on the topic, one third reported reading two or fewer articles or books on the topic, and one third reported receiving no supervision.

PROFESSIONAL PRACTICE GUIDELINES Since the publication of this Handbook ’s previous edition, two of the most comprehensive sets of child custody evaluation practice guidelines have been updated. The American Psychological Association’s 1994 Guidelines for Child Custody Evaluations in Divorce Proceedings have been replaced with the Guidelines for Child Custody Evaluation in Family Law Proceedings (American Psychological Association, 2010) and the Association of Family and Conciliation Court’s 1994 Model Standards of Practice for Child Custody Evaluations have been replaced with the 2007 Model Standards of Practice for Child Custody Evaluations (Association of Family and Conciliation Courts, 2007). The developers of these two sets of professional practice guidelines for child custody evaluators appear to have taken different paths. APA’s Guidelines for Child Custody Evaluation in Family Law Proceedings (hereafter: Child Custody Guidelines) appear to have been written with an eye toward maintaining the status quo by broadly defining the scope and purpose of the evaluation, the role of the evaluator, and the procedural safeguards necessary to conduct a satisfactory child custody evaluation. Compared with the first version of the AFCC Model Standards of Practice for Child Custody Evaluations (hereafter: Model Standards), the revised Model Standards provide increased specificity and definition of the evaluation task, the role of the evaluator, and the procedural safeguards necessary to conduct a satisfactory evaluation. The Model Standards, approved by the AFCC in 2006 and published in 2007, are noteworthy for the following reasons: (a) There is an emphasis on the use of reliable and valid methods; creation and documentation of detailed records; and acknowledgement of the limitations of assessment procedures and data; (b) evaluators are reminded that the evaluative task is investigative in nature

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and they must be familiar with applicable legal principles, with case law, and with statutes relevant to their work; (c) the importance of role delineation is addressed in detail; (d) the advantages of providing information in written form are explained; (e) evaluators are reminded of their obligations to non-party participants; and (f) the importance of tapping the knowledge base of the mental health fields is stressed. APA’s Child Custody Guidelines As stated in the American Psychological Association’s Child Custody Guidelines (2010), the purpose of a child custody evaluation is “to assist in determining the psychological best interests of the child” in which the examiners “function as impartial evaluators” (p. 864). Evaluators are advised to embrace a “clinically astute and scientifically sound approach to legally relevant issues” (p. 864). Guideline 3 reads: “The evaluation focuses upon parenting attributes, the child’s psychological needs, and the resulting fit” (p. 864). Among the limitations of APA’s Child Custody Guidelines is the lack of operational definitions for important concepts. Neither the Child Custody Guidelines nor the peer-reviewed literature provide a consensus regarding operational definitions for such terms as parenting attributes, child’s developmental needs, and fit. A distinction must be drawn between a conceptual definition and an operational definition. Faigman et al. (2002) reminded us that “talking about concepts in the abstract is one thing (e.g., aggressiveness, intelligence, reasonable decision, disability). Defining precisely what observations are to count as an instance of the concept and what is not—that is, an operational definition . . . is far more difficult. Moreover, one can make the world appear to be quite a different place merely by using different operational definitions of something” (p. 123). The Child Custody Guidelines provide conceptual definitions of terms such as parenting attributes, child’s developmental needs, and fit. APA was wise not to have provided a single operational definition for each term. The lack of an articulated operational definition for each concept affords evaluators opportunities to identify and define specific target behaviors for examination in each evaluation (Gould & Martindale, 2009). Our reviews of the reports written by other child custody evaluators reveal that few provide operational definitions of the variables they reported assessing. We encourage the committee overseeing the next revision of the Child Custody Guidelines to direct evaluators to operationally define the specific terms that they intend to evaluate.

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Providing an operational definition of a concept allows for a direct comparison of the observations drawn from both parents. When different operational definitions are used to measure the same abstract concept, different measures of the concept cannot logically be compared and contrasted with one another. A consumer of a forensic evaluation has to satisfy himself or herself that the investigator’s operational definitions adequately capture the concept that the investigator is purporting to evaluate. It is important to define a specific set of questions at the outset of an evaluation (Gould & Martindale, 2009). Included in the development of these specific questions are operational definitions of each concept intended to be assessed (Gould, 1999; Gould & Martindale, 2007; Martindale & Gould, 2004). The more tailored the hypotheses are to the specific needs of the court, the more likely that the evaluator’s focus will be on gathering information relevant to the needs of the particular family under scrutiny (Amundson, Duda, & Gill, 2000). Another limitation of the APA Child Custody Guidelines is the relative lack of focus on assessment of the larger family system. The Child Custody Guidelines read: “When conducting child custody evaluations, psychologists are expected to focus on factors that pertain specifically to the psychological best interests of the child, because the court will draw upon these considerations in order to reach its own conclusions and render a decision” (APA, 2010, p. 864). We have previously raised concerns that neither the initial nor the revised child custody guidelines sufficiently emphasized the importance of assessing and understanding the child within the context of the family from the child’s point of view (Gould & Martindale, 2007). It is critical for the evaluator to generate hypotheses concerning the family/relational contextual variables that may have fueled the custodial dispute and may be preventing an out-of-court resolution. It is also critical for the evaluator to understand family/relational variables from multiple perspectives, one of which includes learning to view the family landscape through the eyes of the children (Gould & Martindale, 2009; Parkinson & Cashmore, 2008; Smart, 2002). As Bronfenbrenner and Crouter (1983) noted over a quarter-century ago, a comprehensive understanding of the ecology of family functioning requires an assessment of how family members may be affected by other interpersonal events and processes within that family system. Evaluators need to think about divorced families as composed of two separate but intersecting families. Ahrons (1987) referred to this as a binuclear family. When

evaluating divorced families, evaluators may need to assess multiple levels of family functioning. Assessment of multiple family levels may include, but will not be limited to, the parent-to-parent unit, the parent-to-child unit, the sibling-to-sibling unit, the parent-to-grandparent unit, the child-to-grandparent unit, and the child-to-parent-tograndparent unit. When parents remarry, additional factors are added to the possible units for analysis, and when parents remarry and stepparents bring stepchildren into the family system, yet other potential units of analysis are added. Each of these units may need to be understood as independent elements. Each unit may need to be understood as elements that together constitute subsystems that are reciprocally interrelated (Belsky, Rovine, & Fish, 1989). AFCC Model Standards In 2005, Grisso observed that calls for reform have been heard for years but “[t]he real world will not yield to logic until some practical dilemmas are faced and resolved” (p. 224). Grisso pointed out that professional organizations representing specific disciplines are torn by competing responsibilities—an obligation to the public and accountability to their members. Grisso opined that there would be no “serious impact on practice until [standards and guidelines] can be developed through interdisciplinary collaboration” (p. 225). It is such collaboration that made development of the Model Standards possible. Work on the Model Standards was begun in October 2004, by a Task Force that included evaluators from the fields of social work and psychology, employed in courtconnected facilities and in private practice; a reviewer of evaluations, consulting to evaluators, attorneys, and regulatory agencies; an attorney; and a judge. The group was charged with developing a set of model standards that would guide the practice of evaluators with different professional backgrounds and operating in different contexts, and would also be useful to attorneys, judges, and others involved in the adjudication of disputes concerning custody and access. In its earliest discussions concerning its objectives, the AFCC Task Force was determined to create a document that would serve the needs of families in distress and courts charged with the responsibility of adjudicating custody and access disputes. Providing protection for forensic mental health professionals was not among the goals. Model standards, as defined by the Task Force Reporter, are most simply put: ideas for standards (Martindale, 2007). The model standards were developed with the hope

Child Custody Evaluations: Current Literature and Practical Applications

that legislators and others charged with the responsibility for developing enforceable standards would be constructively influenced by the AFCC’s ideas for standards. The authors of the Association of Family and Conciliation Court’s (AFCC) Model Standards (Task Force for Model Standards of Practice for Child Custody Evaluation, 2007) wrote: The child custody evaluation process involves the compilation of information and the formulation of opinions pertaining to the custody or parenting of a child and the dissemination of that information and those opinions to the court, to the litigants, and to the litigants’ attorneys. Child custody evaluators shall secure from the court and/or attorneys reasonably detailed information concerning their role and the purpose and scope of the evaluation. (p. 5)

Departing from the previous Model Standards (AFCC, 1994) and the APA Child Custody Guidelines (APA, 1994; 2010) in which specific criteria were identified, the current AFCC Model Standards provide a detailed definition of the evaluative task: The scope of the evaluation shall be delineated in a Court order or in a signed stipulation by the parties and their counsel. . . . (a) Evaluators shall establish the scope of the evaluation as determined by court order or by a signed stipulation by the parties and their attorneys. If issues not foreseen at the outset of an evaluation arise and if it is the evaluator’s professional judgment that the scope of the evaluation must be widened, the evaluator shall seek the approval of the court or of all attorneys prior to going beyond the originally designated scope of the evaluation. Any changes in the scope of the evaluator’s assigned task shall be memorialized in writing and signed by the court or by all attorneys, as applicable. . . . (b) Evaluators shall employ procedures that are most likely to yield information that will meet the needs of the court and shall conduct the data gathering phase of their evaluations in a manner consistent with state, provincial, or territorial statutes, or with judicial rules governing such evaluations. When circumstances demand that an evaluation be limited in scope, evaluators shall take steps to ensure that the boundaries to the evaluation and the evaluator’s role are clearly defined for the litigants, attorneys, and the court. (pp. 13–14)

We find it difficult to identify criticisms of the Model Standards, in part, because we recognize our bias in favor of the document. Martindale was the reporter who penned the document for AFCC (Task Force for Model Standards of Practice for Child Custody Evaluation, 2007) and the model articulated in the Model Standards is consistent with that which Gould has written about since 1998 (i.e., Gould, 1998). In addition, we are unaware of any peer-reviewed literature that has offered criticism of the

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AFCC Model Standards upon which we would ordinarily rely when summarizing scholarship on a particular issue.

Brief History of Evaluation Concepts and Models That Have Informed Current Practice During the 1980s and early 1990s, the literature describing how to conduct child custody evaluations was in its infancy. Texts and peer-reviewed articles describing the evaluation process identified no particular underlying model to guide an evaluator’s behavior or methodology. Some authors suggested clinical evaluation models be applied to child custody assessment (Skafte, 1985; Stahl, 1994) and others introduced an evidence-based approach to child custody evaluations (Ackerman, 2006; Schutz, Dixon, Lindenberger, & Ruther, 1989). Through the 1990s and 2000s, authors encouraged evaluators to employ forensic methods and procedures (Gould, 1998; 2006) and urged evaluators to be guided by the forensic model applied to child custody evaluations (Gould & Martindale, 2007; Martindale & Gould, 2004). In this section, we present a very brief summary of the literature that has guided the development of the field of child custody assessment. Griggs v. Duke Power Company In 1971, the U.S. Supreme Court handed down a decision in a matter only remotely related to custody evaluations (Griggs et al. v. Duke Power Company), yet the ruling contained an admonition that custody evaluators would be wise to heed. The Griggs case focused on tests used in industry for purposes of guiding decisions regarding employment, placement, or promotion. The Griggs court declared that our assessment “devices and mechanisms” must be demonstrably reasonable measures of job performance (at 436) and “what Congress has commanded is that any tests used must measure the person for the job and not the person in the abstract” (at 436, emphasis added). These italicized words are critical. Individuals who employ psychological tests must “measure” and describe only those aspects of the person that relate directly to the job for which the person is being evaluated. The lesson that custody evaluators can take from the Griggs decision is that our attempts to assess the characteristics that bear directly upon parenting are more likely to meet with success if we conceptualize parenting as a job and focus our attention on those attributes, behaviors, attitudes, and skills that are reliably related to the demands of the job. Examining an attribute in the absence of evidence

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of its connection to parenting effectiveness leaves an evaluator open to criticism on several fronts. Grisso’s Competency-Based Model Grisso (1986, 2003) wrote that forensic evaluations should focus on functional abilities. Applying this concept to child custody evaluations, a custody evaluation should be an evaluation of functional parenting abilities. The first step is to examine state statutes and case law to determine if and how functional parenting abilities have been defined. If an evaluator is practicing in a state that has outlined specific statute and case law for parenting abilities in custodial placement disputes, the primary objective of the evaluation is to assess those abilities. When these have not been articulated, it is the evaluator’s task to clearly identify the functional parenting abilities being assessed and offer research support for his or her contention that these parenting abilities are related to effective parenting. The next step is to obtain information that sheds light on the causes of any observable deficits in competency abilities (Grisso, 1986). The evaluator examines the parent within a specific context or role. Knowledge of the law is particularly important with regard to this component of the evaluation. In some jurisdictions, the causes of parenting deficits are not deemed pertinent, and evaluators are discouraged from offering recommendations that presume that certain deficits can be addressed therapeutically. The third step is to assess the degree of practical significance of each parent’s parenting strengths and deficits in light of the specific demands linked to the best interests standard. Only rarely do evaluators find, either in statutes or in case law, terminology that suggests the weight to be assigned to the various factors that collectively define the best psychological interests of the child or definitions of the best interests of the child. In preparing their advisory reports, evaluators should address the weight assigned to the various factors that were considered and articulate the rationale for the decisions. Elaborating on the Competency Model Otto and Edens (2003) elaborated upon Grisso’s (1986, 2003) functional abilities model by including an analysis of functional components, causal components, and interactive components in a parenting evaluation. Functional components were defined as a parent’s characteristics and abilities to care for children. The focus of a child custody evaluation was defined as an examination of the caretaker’s child-rearing abilities. Otto and Edens (2003) wrote that “forensic assessments that describe only

diagnoses, personality characteristics, or general intellectual capacities of parents and fail to assess the caretaker’s child-rearing abilities are of little value” (p. 250). The competency concept requires assessment of the caretaker’s knowledge, understanding, beliefs, values, attitudes, and behaviors pertaining to parenting each child. Otto and Edens (2003) argued that, to adequately complete a competency-based evaluation, the evaluator must be clear about the specific functional abilities being measured and how an assessment of those abilities relates to this particular parent’s parenting competencies. They provide a list of parenting tasks for the evaluator to consider. We see in Otto and Edens’s call for clarity about the specific functional abilities being measured a call for evaluators to operationally define each of the specific functional abilities to be measured. Otto and Edens (2003) also provided an integration of custody and child protection literature in their discussion of parenting factors. For example, drawing on Barnum (1997), they described “two basic responsibilities of parents: advocacy/protection and socialization” (p. 251), and drawing on Azur, Lauretti, and Loding (1998), they described “five broad domains of parenting” (p. 251), which include an assessment of parenting, social, selfcontrol, and stress management skills. To this list, Otto and Edens (2003) added the need to assess parenting style. When parenting deficiencies are identified, Otto and Edens (2003) recommended that the evaluator identify the cause(s) of these parenting deficiencies. The final component of a competency-based analysis is the interactive component, or what APA Child Custody Guidelines (2010) refer to as the goodness of fit criterion. Children vary in their needs and differ in their developmental readiness. Parents also vary in their abilities to adequately parent children at different stages of the child’s development. Goodness of fit refers to the specific functional abilities of each parent to meet the unique developmental needs of each child. Otto and Edens (2003) reminded us that “deficiencies in certain parenting abilities may have greater or lesser significance in various cases, depending on the needs of the specific child in question” (p. 255). Among relevant variables that they recommend be assessed are the parents’ • prior and current relationship with the children; • historical and current responsibility for caretaking; • communication with the children about • the divorce; • the parents’ attitude toward each other;

Child Custody Evaluations: Current Literature and Practical Applications

• goals for visitation and decision making should she or he be awarded custody; • parent–child interactional style; • current and anticipated living and working arrangements; • emotional functioning, and mental health; • the child’s preferences; • the child’s description of relationship with each parent; and • the child’s emotional, social, academic functioning, and mental health prior to and during the divorce process. INTEGRATING LITERATURE WITH EVALUATION RESULTS: THE SEEDS OF A SCIENTIFICALLY INFORMED MODEL Many authors have extended the forensic assessment model used in other areas of criminal and civil forensic evaluation practice to child custody work (Galatzer-Levy, Kraus, & Galatzer-Levy, 2009; Gould, 1998, 2006; Gould & Martindale, 2007; Rohrbaugh, 2008; Schutz et al., 1989). Gould (1998) argued that the criteria articulated by the Supreme Court in Daubert v. Merrill Dow Pharmaceuticals were relevant and should be considered when crafting a child custody evaluation. Whether or not a particular state adopted the Daubert criteria or a Frye standard for expert testimony, he suggested that the Daubert criteria, stressing reliance on scientifically derived knowledge and crafting of evaluation procedures that emphasized scientific process, would likely result in a more reliable, relevant, and helpful work product for the court, thereby reflecting the usefulness of the psychological sciences as applied to child custody decision making. Conceptual differences between a scientifically informed model and a clinical-judgment informed model of child custody assessment began to be examined. Gould and Stahl (2000) argued that child custody evaluations should employ the scientific process as articulated in the literature on forensic methods and procedures (e.g., Melton, Petrila, Poythress, & Slobin, 2007) and the application of empirically based research findings to development of developmentally appropriate parenting plans. They also opined that science without context provides a meaningless report. Scientific process and empirical findings drawn from peer-reviewed literature need to be integrated into an advisory report through the judicious use of clinical judgment: Although competent and well-intentioned practitioners may differ in how they conduct a proper child custody evaluation,

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it is necessary that each practitioner logically, coherently, and competently defend his or her approach to a child custody evaluation from within the framework of the behavioral science literature. (Gould & Stahl, 2001, p. 398)

Gould and Stahl (2001) also challenged custody evaluators to be intellectually honest both with themselves and with the courts when offering expert testimony: It is one thing for unsuspecting but well-intentioned judges to allow as evidence clinical opinions that are believed by the mental health practitioner to be an admissible scientific work product but are in fact data and recommendations based on clinical rather than forensic standards [footnote not cited]. However, it is quite another to deliberately use a quasiforensic methodology that, as an a priori assumption, deliberately excludes scientific methods and procedures that are precisely designed to both increase the reliability and validity of the gathered data and meet minimal standards of admissibility as scientific evidence. (p. 410)

Their focus on the art and science of child custody evaluations also acknowledged the need to help families maintain their dignity through the custody evaluation process. Toward this end they recommended “providing a thorough evaluation with sensible recommendations, staying focused on the children and their needs, and avoiding the temptation to join the ‘he said/she said’ battle of the parents . . . without becoming advocates of settlement, without switching roles and mediating a settlement, and without advocating for either parent, evaluators can thereby indirectly assist in efforts toward the settlement and encourage parents to reduce their litigation and conflict with one another” (Gould & Stahl, 2001, pp. 408–409). They concluded that the art of conducting a child custody evaluation lies in the integration of the scientific method with clinical acumen. They argued that a robust evaluation model includes careful attention to the totality of the evaluation data and careful application of current behavioral science research to those data. It also should include the evaluator’s clinical assessment of family dynamics, the child’s functioning and needs, and the ability of each parent to meet the needs of each child. The art of crafting recommendations in child custody evaluations is to integrate current research with clinical experience to develop creative solutions for each unique family configuration. Although science informs clinical judgment, the evaluator is never a technician applying research results without understanding the context of each family system, nor is the evaluator an experiential therapist applying clinical intuition without considering relevant research. There is no standard parenting plan protocol that fits all

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families. There is no one-size-fits-all solution to child custody disputes. A competent custody evaluator never paints only by the numbers (Gould & Stahl, 2001). The Forensic Model as Applied to Child Custody Evaluations Schutz et al. (1989) began the movement of using scientifically informed procedures to assess child custody matters, and they called attention to the importance of integrating and building upon discussions of peer-reviewed research literature. Gould (1998, 2006) extended this by asserting the need to employ reliable procedures consistent with rules for admissibility of expert evidence. He stressed the importance of defining specific questions to guide the investigative focus, employing reliable psychological tests and measures, and investigating only those factors relevant to the questions posed at the beginning of the evaluation. Gould (1998, 2006) also asserted that child custody evaluators have an ethical responsibility to limit their opinions to those for which there is empirical support and to explain the relevant research and its limitations, and to provide citations to such scholarly work within the body of their reports so that others may retrieve and review it (Martindale & Gould, 2007). Until 2004, no one had taken the separate ideas in the custody literature that addressed the evaluation process as a whole and articulated a comprehensive model. Martindale and Gould (2004) integrated the components of a forensic model applied to child custody assessment, which addressed the relationship between psychological ethics and scientifically informed methodology that is critical to a competently crafted child custody advisory report. The forensic model applied to child custody evaluations was articulated by Martindale and Gould (2004). As applied to child custody evaluations, the essential components of the forensic model are as follows: 1. The evaluator’s role, the purpose of the evaluation, and the focus of the evaluation are defined by the court. 2. Where possible, the evaluator obtains (at the outset) a list of specific psycholegal issues concerning which the court seeks advisory input. 3. The evaluator conducts all professional activities in accordance with regulations and/or guidelines promulgated by state regulatory boards. 4. The procedures employed by the evaluator are informed by the psychologists’ Ethics Code (APA, 2002), the “Specialty Guidelines for Forensic Psychologists” (Committee on Ethical Guidelines, 1991), APA’s Custody Evaluation Guidelines (APA, 1994), and similar

documents developed by organizations that conceptualize the child custody evaluation as an inherently forensic psychological activity. 5. The selection of assessment instruments is guided by the 1985 and 1999 editions of the Standards for Educational and Psychological Testing (AERA, APA, & NCME, 1985, 1999) and particular attention is given to the established reliability and validity of instruments under consideration (Heilbrun, 1992, 1995; Otto, Edens, & Barcus, 2000). 6. Detailed records of all aspects of the evaluation are created and preserved and are made available in a timely manner to those with the legal authority to inspect or possess them. 7. All professional activities are performed with a recognition of the investigative nature of the task: a. An acknowledgment of the limitations inherent in our evaluative procedures b. An understanding of the distinction between psychological issues and the specific psycholegal questions before the court c. An appreciation of the need not to engage in therapeutic endeavors before, during, or after the evaluation The Forensic Model, as applied to child custody evaluations, served as a foundation for AFCC’s Model Standards. The Forensic Model is premised in part on the integration of legal and scientific principles in crafting a child custody evaluation. In their summary of changes in the child custody arena over the past 50 years, Elrod and Dale (2008) argued that the work product of child custody evaluators needs to meet the requirements of expert testimony: “Many argue that if society and courts wish to use mental health evaluators as experts and to make child custody cases into truly interdisciplinary endeavors, then law and science should demand rigorous scrutiny so that courts are informed consumers of expert evidence” (Elrod & Dale, 2008, p. 417). Changes in Methodology Based on the Forensic Model In the Preamble to the Model Standards (AFCC, 2007), the following admonition appears: “Evaluators shall perform their professional activities with a recognition of the investigative nature of the task . . . ” (p. 71). This perspective is also reflected in the writings of Austin and Kirkpatrick (2004), Kirkpatrick and Austin (2006), Galatzer-Levy et al. (2009), Gould (2006), Gould and Martindale (2007), Rohrbaugh (2008), and Stahl (2010),

Child Custody Evaluations: Current Literature and Practical Applications

all of whom emphasize the importance of the evaluative tasks actively pursuing avenues of third-party information relevant to the issues before the court. The Forensic Model is now the dominant model used by child custody evaluators across disciplines (Ackerman & Kane, 2010, 2011). The most recent research findings suggest that psychologists who conduct child custody evaluations follow the procedures identified in the 1994 APA Child Custody Guidelines (Bow, 2006; Bow & Quinnell, 2001; 2004). Ackerman and Kane’s (2010; 2011) summary of current research supports the view that custody evaluators across disciplines embrace the methodological elements that comprise the Forensic Model, though psychiatrists and social workers place less value on the role of psychological testing in the evaluation process. As of the writing of this chapter, no research has been published examining the degree to which psychologists conducting child custody evaluations follow the procedures recommended by the 2010 Child Custody Guidelines (APA, 2010). Kirkpatrick (2004) identified 26 evaluation-related custody evaluation practices that constituted a set of minimal practice standards that went beyond the aspirational goals of existing “guidelines” and “parameters.” He asserted that these 26 evaluation-related practice ideas constitute a floor rather than a ceiling for conducting child custody evaluations that reflected “a consensus about where the field is now” (p. 67). Today, there is a consensus in the mainstream forensic literature about which methods and procedures should be included in a competently conducted examination (Ackerman & Kane, 2010; Bow & Quinnell, 2002; Gould, 2006; Heilbrun, 2001; Kirkland, 2002; Otto et al., 2003; Rohrbaugh, 2008; Stahl, 2010): 1. Formulating questions that guide the evaluation (Amundson et al., 2000; Gould, 1999; Gould & Bell, 2000; Gould & Martindale, 2008; Gould & Stahl, 2000) 2. Collecting forensic interview data using a semistructured interview format (Bow & Quinnell, 2002; Gould, 2006) 3. Obtaining self-report data (Ackerman & Kane, 2010; Gould, 2006) 4. Administering and interpreting psychological tests and self-report measures that have appropriate foundation and relevance to the psycholegal questions posed (Flens & Drozd, 2005; Gould, Martindale, & Flens, 2009; Otto, Edens, & Barcus, 2000) 5. Obtaining relevant collateral interview data and reviewing relevant records (Austin, 2002; Kirkland, 2002; Kirkland, McMillan, & Kirkland, 2005)

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There has also been increased awareness on the part of evaluators that their work product must meet legal standards for admissibility of scientific evidence (Elrod & Dale, 2008; Gould, 2004, 2006; Gould & Martindale, 2007). Applying the Forensic Model of Assessment to Child Custody Evaluations In this section, we discuss the procedures used in a child custody evaluation that are informed by the Forensic Model. A competently conducted child custody evaluation must be based on data gathered by reliable methods and procedures (Gould & Bell, 2000). The obtained data must be gathered in a manner that complies with sound scientific methods, and the techniques used to evaluate the data must be valid. Additionally, information about parental behavior, child behavior, or parent–child interaction should have a reasonable expectation of assisting the fact finder in determining a fact in issue. A child custody evaluation should follow the scientific process which, at its most elementary level, involves three steps: observation, inference, and hypothesis generation. Observation is the act of recognizing or noting a fact or an occurrence. Inference is a conclusion based upon observation. A hypothesis is a proposed explanation or interpretation of the conclusion derived from the observation, and can be tested through further investigation. We recommend using this three-step process when recording data obtained from face-to-face or telephonic interviews, parent–child interactions, and record review. Model Standard 12.2 of the AFCC’s Model Standards (2007) directs, “In their reports and in their testimony, evaluators shall be careful to differentiate among information gathered, observations made, data collected, inferences made, and opinions formulated” (p. 89). Neither emotions, motives, perceptions, nor thoughts are observable. When they need to clearly label as inferences any statements that they make about litigants’ emotions, motives, perceptions, and thoughts, far too frequently evaluators make statements concerning litigants’ motives in a manner that suggests that the motives have been articulated by the litigants, when, in fact, they have not. Evaluators also need to be reminded that they do not possess an impressive ability to detect deception, so statements made by litigants concerning their emotions, motives, perceptions, or thoughts may or may not be truthful. A global assertion as to what is or is not in a child’s best interests has little probative value unless empirical data indicate that the specifics upon which that opinion is

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based have predictive value. Unlike commonly accepted methods used in a therapeutic context, forensic methods and procedures are designed to produce a trustworthy set of data that allows an expert to offer a reliable opinion. The degree to which independent sources of information converge to support a hypothesis is a measure of the consistency of the data. When each of the four data-gathering sources leads to similar inferences about parenting practices, an increased probability exists that the opinions drawn from these data are accurate. Reliability decreases as fewer of the independent sources of information support a particular hypothesis. Semistructured Interview Format Interview formats may be defined along a contimuum from unstructured to structured. In the unstructured format, the interviewer asks open-ended questions and the interviewee is permitted the freedom to respond in any way that the answer may take him or her. A structured interview is the polar opposite of the clinical interview. A predefined set of questions are asked and the interviewee is expected to provide specific answers to specific questions. Often such interviews are used when attempting to gather data in an effort to rule out or rule in a specific psychiatric diagnosis. A semistructured interview is a hybrid of the unstructured and structured interview formats. A semistructured interview format allows the same set of questions to be asked of each parent as would occur in a structured interview. The evaluator may inquire into additional areas specific to the parent or to the context of the particular evaluation, but the initial set of information obtained from both parents should be based upon the same set of general questions (Gould, 1998; 2006). Although no research findings have been reported in which the reliability of semistructured interviews has been examined using a population of parents undergoing child custody assessment, it has been generally reported in the forensic psychology literature that information gathered through semistructured interview formats has higher levels of reliability than information gathered through unstructured interview formats (Rogers, 2001). “The versatility of clinical interviews, which allow the full exploration of casespecific information, is achieved at the expense of standardization. Particularly when interviews are not coupled with structured interviews, the potential for biased evaluations increases” (Rogers & Shuman, 2000, pp. 151–152). Semistructured interview formats allow for development of interview questions directly related to the content areas identified by the court, the parties, or the attorneys as relevant areas of investigation. That is, questions can be asked

of both parents regarding psycholegally relevant areas of parental or family functioning. Too many child custody evaluators focus the attention of their parent interviews on historical information about relationships and marital behaviors. Often, there is little information gathering about areas relevant to parenting, the parent–child relationship, parent-to-parent communication history, parent-to-parent cooperation, parent–child attachment, sibling relationships, and other child- and parenting-related issues. In reviewing reports prepared by evaluators, it becomes clear that an evaluator’s focus is lost when there is extensive coverage of each litigant’s strengths and deficiencies as a spouse, rather than on each litigant’s strengths and deficiencies as a parent. When, in the course of pretrial discovery, an evaluator’s records are produced and reviewed, it is not at all uncommon to encounter records that clearly reflect that more information was gathered about marital interactions than parent–child dynamics and issues. An evaluator can also lose focus when recommendations reflect attentiveness to the needs of one or both of the parents and relative inattentiveness to the best interests of the children. In Ford v. Ford (1962), the U.S. Supreme Court, confirming an earlier opinion by the Supreme Court of Appeals in Virginia, declared “the rule that the welfare of the infant is the primary, paramount, and controlling consideration of the court in all controversies between parents over the custody of their minor children. All other matters are subordinate [citation omitted]” (at 193). In Palmore v. Sidoti , the U.S. Supreme Court ruled that “the goal of granting custody based on the best interests of the child is indisputably a substantial governmental interest for purposes of the Equal Protection Clause” (at 433). Both in Ford v. Ford and in Palmore v. Sidoti, the Court asserted that children’s best interests are elevated above the interests of their parents. We too often observe that evaluators provide little relevant information about how children experience life in their binuclear family units (Ahrons, 1987). Often, little, if any, information is provided in custody reports about each child’s experiences with issues relevant to the investigative questions before the court. The writings of Smart (2002) provide a useful framework for developing a childcentered interview format aimed at gathering information about each child’s experiences with each parent. Evaluators should consider the weight they assign to interview data in a particular assessment. Considerable literature in the behavioral sciences illustrates the imprecision with which FMHPs can judge credibility based upon

Child Custody Evaluations: Current Literature and Practical Applications

interview data (DePaulo, Charlton, Cooper, Lindsay, & Muhlenbruck, 1997; Ekman & O’Sullivan, 1991; Feely & Young, 1998; Frank & Feeley, 2003). In a forensic context such as a child custody evaluation, it is critical that interview data be checked against other sources of information such as data from psychological tests, collateral informants, and direct behavioral observations. It is virtually impossible for an evaluator to determine the forensic value of interview data without the support of information from independent sources (Gould, 2006; Martindale & Gould, 2004). In a forensic context such as a child custody evaluation, it is critical that interview data be checked against other sources of information such as data from psychological tests, collateral informants, and direct behavioral observations. It is virtually impossible for an evaluator to determine the forensic value of interview data without the support of information from independent sources (Gould, 2006; Martindale & Gould, 2004). Courts are best served when evaluators focus their inquiries on issues relevant to the matters before the court. To do so means asking, “Were specific questions about particular areas of concern in this family asked in a direct manner?” For example, if there are concerns about domestic violence, did the interviewer use a peer-reviewed domestic violence interview protocol in conducting the interview? Was each family member interviewed about each event of concern to the court? If there are concerns about parental discipline techniques, did the evaluator ask questions about parenting style, discipline style, parenting philosophy, religious affiliation and philosophy, corporal punishment, anger expression, impulsivity, alternative disciplinary strategies, and other relevant factors that contribute to an understanding of a parent’s disciplinary style? Were the children asked about these behaviors of concern? Were the children interviewed more than once to examine the consistency of their responses over time? Did the evaluator carefully note similarities and differences between children’s statements after having been transported by one parent versus the other? Were the children and the parents interviewed together in an effort to talk about allegations of concern? Among the more recent changes reflected in the literature is an increasing awareness that some children are eager to participate in some ways in decision making about residential placement (Gould & Martindale, 2009). There is a myth about children’s reluctance to participate in legal proceedings regarding their custodial placement (Parkinson & Cashmore, 2008). Recent studies have shown that children want their opinions to be known and

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taken seriously; however, they do not want to be the decision makers. Research findings have shown that children’s acceptance of the decisions made about their custody are better accepted when they perceive the decision-making process as fair, even if the outcome is not desirable. In other words, when children perceive that decision makers have taken time to listen and take their ideas seriously, children report higher levels of satisfaction with the residential placement outcome (Parkinson & Cashmore, 2008). We have written elsewhere about the growing awareness of the need for evaluators to spend more time interviewing and assessing children’s views of their lives with each parent (Gould & Martindale, 2007; 2009). We have called on evaluators to focus increased attention on exploring children’s wishes, preferences, and descriptions of the day-to-day life at each parent’s home. Child accounts of family life frequently are overshadowed by their parents’ interpretation of family events (Smart, 2002). When evaluators interview children about their experiences in each family, child accounts of life in each parent’s home often vastly differ from their parents’ accounts (Smart & Neale, 2000). Smart (2002) states: It is not that children’s accounts obliterate or correct the parents’ accounts; nor is it the other way around. Rather, it is to acknowledge that people stand in different relationships to one another, have access to different resources, and regard different things as important. (p. 309)

Taking children’s stories seriously means giving legitimacy to their experiences on the same level as that given to parents’ experiences. One is not necessarily more important than the other. Each experience needs to be thoroughly understood (Gould & Martindale, 2009). Questions that might be useful in examining the relevance and reliability of this method include: 1. Did you operationally define the specific behaviors to be investigated/observed? 2. Did you describe how each behavior was assessed? 3. Did you describe the reliability and validity of the assessment measures and their limitations? 4. Did you obtain interview data from each parent/child about the specific areas of functioning that are the focus of the court’s concern? 5. Did you explain how credibility of interview data was assessed? 6. Did you interview each parent about the other parent’s allegations? 7. Did you interview each child about his or her experiences within the family?

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8. Did you interview each child and each parent together and observe how they talked/interacted with each other? 9. Did you interview the parents together and observe how they talked with each other? 10. Did you describe your observations in behavioral terms? 11. Did you employ open-ended, nonsuggestive interviewing methods? 12. Did you identify the hypotheses drawn from the interview data? 13. Did you examine the support from other, independent data sources for each of these hypotheses? Psychological Tests The purpose of psychological testing in child custody evaluations is to provide a set of data that can be used to compare each parent’s scores against those from a normative population. The construction of a psychological test is based on one or more theories held by test developers. The test manual should provide information about the test’s underlying theory of science, established reliability and validity statistics, normative data, and other measurementrelated criteria. Examination of the psychometric integrity (e.g., reliability and validity) of the measurement tools used in a child custody evaluation goes to the heart of the question of reliability. If the tools used to measure a factor do not have adequate reliability and validity, the data upon which the interpretations, conclusions, and recommendations are based are seriously flawed. Evaluators should consider the reliability and validity of the measurement tools they use in a child custody evaluation. Child custody evaluators need to examine whether the measurement tool has an appropriate level of reliability and validity with regard to the specific issue in dispute (see Gould et al., 2009; Otto et al., 2000, for a discussion of criteria needed for a test to be used in a forensic context). Evaluators need to ask whether the test has contextspecific normative data for male and female custody litigants. More and more, researchers have reported data revealing how male and female custody litigants score on psychological tests commonly used in child custody assessment (Bathurst, Gottfried, & Gottfried, 1997; McCann, Flens, Campagna, Colman, Lazzaro, & Conner, 2001). There is also an increasing awareness of the limitation of some psychological tests used in child custody evaluations (Hynan, 2004). Interpretation of any psychological test requires an understanding of several variables that may affect the test

data and their interpretation. It is important for custody evaluators to include a discussion of the interpretation of each parent’s validity scales, addressing, at the very least, their possible effects on the certainty and usefulness of the test data (Gould et al., 2009). The APA Ethics Code (APA, 2002) addresses the need for psychologists to be aware of threats to the reliability of test data and interpretations: When interpreting assessment results, including automated interpretations, psychologists take into account the purpose of the assessment as well as the various test factors, testtaking abilities, and other characteristics of the person being assessed, such as situational, personal, linguistic, and cultural differences, that might affect psychologists’ judgments or reduce the accuracy of their interpretations. They indicate any significant limitations of their interpretations. (p. 24)

Among the more relevant situation variables in custody litigation is the stress placed on the parents by the divorce, litigation, personal living arrangements, and the changes in the relationship with their children. Though responses to stress vary among individuals, the presence of stress is almost universal in divorce. The stress that results from involvement in custody litigation can be enormous. Litigants often believe that the most important elements of their lives, their relationship to their children, and their sense of self-worth, are at stake (Galatzer-Levy et al., 2009). During the course of the legal dispute, many parents live under a microscope where dayto-day problems become the bases for emergency ex parte motions, or at least seem likely to become factors in litigation. The resulting intense pressure and scrutiny may affect how parents respond to questions on psychological tests (Gould et al., 2009). Some parents react negatively to having their parenting abilities investigated. Other parents become angry over the idea that someone outside of the family may influence whether or when they may spend time with their children. Such negative reactions may affect how a parent responds to questions on psychological tests. Many parents’ scores on psychological tests may reflect how they are responding to the context of the custodial dispute or to the pressures involved in custodial assessment. Psychological test scores may reflect the influence of situational or contextual variables. Interpretation of test data must include discussion of how these situation or contextual variables may affect interpretation of test scores (Gould et al., 2009). Questions that might be useful in examining the relevance and reliability of a child custody evaluator’s

Child Custody Evaluations: Current Literature and Practical Applications

selection, administration, scoring, and interpretation of psychological tests include: 1. Upon what theoretical or rational basis was the test selected for use in the present evaluation? 2. Did each objective test possess the psychometric characteristics suggested by Otto and Edens (2003)? If not, why not? 3. Did you explain in the body of the report why each test was chosen and how its results would be used? 4. Have you reviewed and referenced in your report the peer-reviewed literature describing the use of this test in child custody assessment? a. What literature supports its use? b. What literature does not support its use? 5. Was each psychological test administered in a manner consistent with ethical standards and professional practice guidelines? 6. Was the specific test administered in a manner consistent with its standardized administration as described in the test manual? 7. Did you explain how test response style/bias was interpreted? 8. Did you seek external support from collateral sources to lend support to your interpretation of test scores? 9. Was the choice of each objective test clearly relevant to answering the psycholegal questions that are the focus of the evaluation? [This may include explaining how one or more tests were chosen for the purpose of obtaining information concerning the test-taker’s general mental/emotional functioning, as opposed to obtaining information that bears specifically on the psycholegal questions identified either in the court order or in the pleadings.] a. If not, what is the justification for this choice? 10. Was the indirect relationship between choice of objective tests and the psycholegal questions clearly explained in the report? 11. Did you clearly identify the hypotheses drawn from the psychological test data? 12. Did you examine the support from other independent data sources for each of these hypotheses? 13. Did you compare discrete sources of data drawn from the objective test data and compare them to information obtained from third-party collateral sources? Questionnaires and Self-Report Inventories Custody evaluations often include questionnaires, selfreport inventories, and other measures of parenting or

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parent–child behavior that appear relevant to the questions at hand (Dies, 2007). Self-report measures are a peculiar type of measurement tool. Some have well-established reliability and validity and have been supported for use in child custody evaluations. Some have well-established statistical properties, but have no support in the literature for use in child custody evaluations. Others have no published reliability or validity information and have been used for years in child custody evaluations, despite the lack of a proper scientific foundation. Still others have no published statistical information, and no historical use in child custody evaluations, yet are included in an evaluation because of an evaluator’s personal preference, unsupported by the literature. (See Gould, 1998, for a discussion of advantages and limitations of self-report measures used in child custody evaluations.) How the evaluator uses the information obtained from self-report measures is critical in understanding the relative weight assigned to the information. One might use information obtained from self-report measures in a manner similar to that attained from interview data. Evaluators may choose to examine the degree to which information obtained from a self-report measure is consistent with information obtained from other independent data sources. Results from self-report measures should be treated like information attained from face-to-face interviews. Questions that might be useful in examining the relevance and reliability of these methods include: 1. Did you explain how credibility of self-report data was assessed? 2. Did you obtain self-report data from each parent/child about the specific areas of functioning that are the focus of the court’s concern? 3. Was the choice of each self-report measure clearly related to the psycholegal questions that are the focus of the evaluation? 4. If not, was the indirect relationship between choice of self-report measure and the psycholegal questions clearly explained in the body of the report? 5. Did each self-report measure possess adequate psychometric characteristics for use in a forensic context? 6. If not, what limitations are imposed on these data as a result of their reduced psychometric integrity? 7. Did you describe the rationale for choosing each questionnaire and how its results would be used? 8. Did you identify the hypotheses drawn from the selfreport measures? 9. Did you examine the support from other independent data sources for each of these hypotheses?

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Behavioral Observations of Parent and Child The fourth area of data collection is the evaluator’s behavioral observation of each parent with each minor child and, if appropriate, behavioral observation of each parent with all minor children (Lampl, 2009). When no restraining orders or other legal impediments to faceto-face contact would make such observations unwise or potentially dangerous, direct observation of parent-toparent communication may also be an important source of information. Currently, there is no standard in the field of child custody evaluations that addresses how to conduct the observational component of the evaluation. The AFCC Model Standards direct evaluators engaged in observational tasks not to become participants in the observation. Model Standard 10.1, addressing the awareness of observer effects, states: “Evaluators shall be mindful of the fact that their presence in the same physical environment as those being observed creates a risk that they will influence the very behaviors and interactions that they are endeavoring to observe.” If the simple fact of their presence has a distorting effect, becoming an active participant increases the distortion exponentially and, most importantly, the “direction” of the distorting effect cannot be discerned, and therefore, cannot be factored or accounted for in some manner. The evaluator should be minimally involved in any participation during the parent–child observations. During the parent–child observation, the evaluator should create a context that as closely as possible represents how the parent and child interact. The more that the evaluator interacts during the parent–child observation, the less the observation is a measure of what the parent and child do when alone. It is a valid criticism that the act of observing during a home visit creates enough change for the parent–child interactions to be deemed unrepresentative. We suggest minimizing evaluator-imposed behaviors. Similar concerns apply to parent–child observations occuring in the evaluator’s office. The office is not an environment with which the child is familiar. Additionally, the office context is not representative of the child’s natural environment. Evaluators need to consider how the type of environment may affect the parent’s behavior, the child’s behavior, and their interaction. Upon completion of the parent–child observation, we encourage evaluators to speak with each parent and child about the ways in which the observed interaction was or was not similar to their typical means of interacting.

During the parent–child observation, the evaluator should not talk with the parent, nor should he or she talk with or engage with the child. The evaluator should observe, not participate. When such observational distance is not possible, the evaluator needs to take steps to minimize his or her involvement in the parent–child interactions. Evaluators are wise to set ground rules for the observation. One important ground rule is to advise that the evaluator will not engage in conversations with the parent or children during the observation. Another important ground rule is that the evaluator will not accept documents or other materials that would otherwise be provided during an interview. It has been our experience that parents try to engage in conversation when ground rules are not clearly articulated. A third ground rule is that only parents and/or caretakers who are parties to the litigation can attend and participate in the observations. The ground rules should clearly indicate that the observation time is for observation and not for the exchange of documents and not for the imparting of information about the other parent. Knowing the degree of evaluator involvement in the observation may significantly alter how family members relate to each other. It is important that the evaluator describes how the observation was conducted and his or her degree of involvement with different family members during the observation. It is important to note that we are not suggesting that the evaluator describe the impact of his or her participation in the interactions. Another important area of examination is what specific aspects of parent–child interaction are targeted for assessment and how they were assessed. It is essential for the evaluator to take contemporaneous notes or to make an audio recording of parent–child observations. These observational data should be descriptive rather than interpretative. For example, the data should reflect behavioral descriptions such as: The parent sat next to the child, looking at the child and smiling. The child responded by smiling and reaching toward the parent. The child hugged the parent and placed her head on mother’s shoulder. The parent responded by hugging and kissing the child on her head. Both parent and child kissed each other on the cheek. The child let go of the parent and asked to be placed back on the floor. The parent placed the child on the floor and the child returned to the dolls.

By contrast, an interpretive statement is, “The parent was loving toward her child.” Little useful information is conveyed to the reader when labels such as loving are

Child Custody Evaluations: Current Literature and Practical Applications

provided. Different people have different definitions of what defines loving. Providing behavioral descriptions of observed interactions allows the reader to make independent judgments of the meaning of the behavior. Questions that might be useful in examining the relevance and reliability of this method include: 1. How did you record the observational data? 2. When did you record the observational data (e.g., during the observation, immediately after the observation, one day after the observation, etc.)? 3. How did you determine what behaviors to observe and record and what behaviors to ignore? 4. Did you operationally define the specific behaviors to be investigated/observed? 5. Did you describe the behavior interactions between parent and child? 6. Did you describe the behavior interactions between or among the children? 7. Did you use similar methods of recording parent– child interactions? If not, how did the methods differ? 8. What hypotheses did you develop based upon the observed parent–child interactions? 9. Did you examine the support from other independent data sources for each of these hypotheses? 10. What steps did you take to minimize your involvement in the parent–child interactions? 11. Did you describe how your physical presence and participation might have affected the observed parent– child interaction? 12. If non-family members were present for the observation visit, why did the parent violate the ground rules set for the observation? 13. Were there opportunities for observation of parent– child observation in the natural environment? If yes, was this option used? 14. Were these observational data described in behavioral terms? 15. Did you discuss the comparative data about each observed parent–child interaction? 16. Did you observe parent–child interaction for more than one observational period to obtain information about consistency of observed behavior over time?

Collateral Record Review and Collateral Interviews Acquisition of reliable and relevant collateral information is arguably among the most important components of a child custody evaluation (Austin & Kirkpatrick, 2004;

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Gould, 2006; Kirkland et al., 2005). A critical component of a child custody evaluation is obtaining information from third-party observers about parent–child interactions. The idea is to obtain information about parent–child interactions that is representative of day-to-day parent–child experiences from people outside the immediate family (Austin, 2002; Gould, 2006; Kirkland, 2002; Kirkland et al., 2006). Any competently conducted custody evaluation must include information from third-party sources about how the parent and child have been observed in their daily lives outside the artificial and contrived circumstances of the evaluator’s office. Information from people who have observed the parent and child interact in different situations is often the most important data obtained in a child custody evaluation. Similarly, obtaining historical records may shed light on important aspects of parental cooperation and conflict, parenting challenges, difficulties, or triumphs, as well as historical components to the parent–child relationship. Several authors have described limitations and cautions associated with the use of collateral informants (Austin, 2002; Heilbrun, 2001). Austin and Kirkpatrick (2004) pointed out that those most emotionally distant from the custodial dispute are likely to be the most objective. Information obtained from them is therefore likely to be of greater accuracy than is information obtained from people such as relatives or close friends. This leads some evaluators to eliminate lists containing the names of people who are indisputably allied with one of the litigants from collateral sources. We believe this to be a mistake. Our use of the term collateral source information has an unintended and unfortunate consequence. Far too many evaluators conceptualize the input from collaterals only as information and fail to recognize its incalculable value as stimulus material in subsequent interviews with the litigants. Some of the most useful information obtained from the litigants emerges when they respond to statements offered by collaterals. Questions that might be useful in examining the relevance and reliability of this method include: 1. Did each parent provide a list of collateral interview sources knowledgeable about each parent’s relationship with the minor child? 2. Were the collateral informants interviewed in a consistent manner, asking a common set of questions from which the evaluator could compare responses across information sources? 3. Were additional questions asked? If yes, what were they?

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4. Were the questions asked of the collateral informants focused on specific questions of concern in this specific evaluation as well as more general questions about parenting skills? 5. What hypotheses were generated as a result of the collateral information? 6. How did you examine similarities and differences across interviewee data (convergence of data)? 7. How did you assess the credibility of collateral informants’ information? 8. Did you obtain names of other people to interview from the collateral sources? Were these people interviewed? 9. Were the choices of collateral interview sources representative of people involved in the child’s life across a wide range of activities, compared with limiting interviews to family and friends? 10. Were the limitations of the obtained collateral data described? Integrating Peer-Reviewed Research With Evaluation Findings With only rare exceptions, the information imparted by custody experts in their reports and testimony is not information that they uncovered. Experts are, in reality, perpetual students. Good experts devour the professional literature, critically examine published research, and draw upon the knowledge base of an entire profession each time they conduct an evaluation. The task of the skilled evaluator is to decide what research is applicable to the specific family that is the focus of the court’s attention, to apply the research, and to explain how the cited research sheds light on the particular issues in dispute (Martindale & Gould, 2007). The position of the AFCC, as reflected in its Model Standards, is seen in Model Standard 4.6 (b): Evaluators are strongly encouraged to utilize and make reference to pertinent peer-reviewed published research in the preparation of their reports. Where peer-reviewed published research has been alluded to, evaluators shall provide full and accurate references to the cited research. (p. 78)

Our position concerning citations to scientifically informed research finds support in Standard 2.04 of APA’s Ethics Code (APA, 2002, p. 1064), which directs psychologists to base their work “upon established scientific and professional knowledge of the discipline . . . [and] established scientific and professional knowledge” found in peer-reviewed literature.

Judge Alex Kozinski, writing for the Court [Daubert v. Merrill Dow Pharmaceuticals, Inc. (on remand) 43 F.3d. 1311 (9th Cir. 1995)], declared that “[s]omething doesn’t become ‘scientific knowledge’ just because it’s uttered by a scientist . . .” (at 1315–1316). The Court’s task, Kozinski wrote, “is to analyze not what the experts say, but what basis they have for saying it” (at 1316). It is worthy of note that this was not the first time that a respected jurist emphasized the importance of experts articulating the bases for their opinions. In 1967, David Bazelon, in his opinion in Washington v. United States [390 F.2d 444 (1967)], declared that the court was “deeply troubled by the persistent use of labels and by the paucity of meaningful information” presented by experts (at 447). He added that in the case at bar, the experts had provided “only the conclusions without any explanation of . . . what facts . . . [were] uncovered, and why these facts led to the conclusions” (at 447). Judge Hjelt (2000) has presented a perspective with which no one can disagree: “[D]eference paid to poor testimony logically creates poor judicial outcomes” (p. 9). In our view, both in preparing their reports and in offering testimony, evaluators should integrate case-specific facts with the knowledge base of the mental health fields (Gould & Martindale, 2008; Martindale & Gould, 2007). Questions that might be useful to consider when writing a child custody report include: 1. Have I cited relevant research that supports my opinions? 2. Have I discussed relevant research that does not support my opinions? 3. Have I explained the basis for my opinion, describing the strengths and weaknesses of each hypothesis considered and why the hypotheses chosen are the best fit for the current family system?

Summary In this section, we provided a description of the procedures used in a child custody evaluation. We explained the relevance of each procedural step in developing a comprehensive data set. We provided a list of questions to guide evaluators when examining the thoroughness of the work product. In the following section, we discuss several areas of child custody assessment that require specialized knowledge beyond that provided in general training programs aimed at teaching child custody methods and procedures.

Child Custody Evaluations: Current Literature and Practical Applications

COMPLEX ISSUES IN CHILD CUSTODY ASSESSMENT The field of child custody evaluations has no shortage of challenging and complex issues to consider. Some issues involve writing a report in terms of the appropriateness of including diagnostic labels. Other issues involve specialized knowledge including relocation, domestic violence, child sexual abuse, alienation dynamics, and gatekeeping analysis. In this section, we provide a brief overview of some of the complex issues that may require an evaluator’s attention. Many of the complex issues that are examined in a child custody evaluation are related to allegations of child maltreatment and the potential risk such behavior poses to the child. When there are allegations of child maltreatment, a rival hypothesis must be simultaneously considered: “Is the person alleging the maltreatment attempting to interfere with or thwart the child’s relationship with the alleged perpetrator?” Similarly, when there is a request to relocate to a geographically distant community, a rival hypothesis that must be examined is: “Is the person requesting the court to allow the minor child to relocate attempting to interfere with or thwart the child’s relationship with the non-moving parent?” Gatekeeping Research findings have generally supported the proposition that children are best served when they have strong and healthy relationships with both parents (Kelly & Emery, 2003). These relationships develop through children’s frequent and continuous contact with each parent, especially during children’s early years (Kelly & Lamb, 2000; Lamb & Kelly, 2001, 2009). In child custody disputes, among the most frequently occurring assessment issues is how to develop and maintain a child’s unfettered access to each parent. Many child custody disputes concern the extent of paternal involvement in parenting children. The study of gatekeeping within a child custody context should provide useful ideas to be applied in development of parenting plans. Over the past decade, several scholars have begun examinations of a gatekeeping framework applied to child custody matters (Austin et al., 2006, 2010; Pruett et al., 2004, 2007). Gatekeeping includes one parent’s attitudes and behaviors toward the other parent and his or her parenting abilities and the other parent’s involvement with and access to their children (Adamson, 2010). It is a bidirectional or mutual influence process that occurs both

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in intact families and in postseparation and never-married family systems (Adamson, 2010; Trinder, 2008). A distinction must be drawn between caretaking and gatekeeping. Caretaking refers to those parental activities that address daily health, safety, security, and other similar functions in the lives of children. Gatekeeping refers to the process by which one parent controls the ability of the other to function as an effective caretaker. In particular, a restrictive gatekeeper does not allow the other parent to participate in meaningful parenting activities, by limiting access to the child. With limited access to the child, there can be no meaningful parenting activities that facilitate the development in the child of a perception of both parents as effective caretakers. When conducting a child custody evaluation, it is important to investigate the role of parental gatekeeping from the child’s birth forward. Examining the ways in which the primary caretaker provided access to the other parent to their newborn child may help to inform the evaluator about the role of gatekeeping during the marriage. The evaluator also needs to examine the degree to which the other parent took advantage of opportunities to engage in child care provided by the primary caretaker. Investigating the historical and current role of gatekeeping in each family is an important component of a child custody evaluator’s assessment of family functioning. Research findings have shown that the extent and the quality of parental involvement are among the main factors in predicting children’s adjustment and future development (Galatzer-Levy et al., 2009; Kelly & Emery, 2003). Relocation Analysis Among the most difficult challenges facing divorcing families is the decision by one parent to relocate with the children to a geographically distant community, leaving the other parent behind. Nearly half of children of divorce relocate after the divorce is finalized. Some of these relocations entail residential changes within the former family community, while about one third of these relocations entail residential changes out of the geographic area within two years postseparation (Braver & O’Connell, 1998). Evaluators need to be familiar with jurisdiction-specific statutory requirements and case law decisions pertaining to relocation (Stahl, 2010). Many states have statutes that address factors to be considered by the court when determining whether a child may relocate with his or her parent (Elrod, 2006).

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Several current child custody texts include extensive discussions about assessment of requests to relocate (Ackerman, 2006; Ackerman & Kane, 2005, 2010; Gould, 2006; Rohrbaugh, 2008; Stahl, 2010). Several models guiding evaluation of requests to relocate are presented in the forensic psychological literature. Shear (1996) has argued that evaluators must appreciate that a move within the context of divorce is one factor in a long line of events, experiences, and changes that may have a significant impact upon a child. A request to move away must not be examined in isolation but as part of the larger story of a child’s emerging life. How the child has coped with previous changes, that is, the manner in which the child adjusted to stressors and other change agents, informs us of the tolerance the child may have to another significant change. Weissman (1994) suggested a three-factor test for custody evaluators to guide evaluation of the psychological components relevant to move-away cases. These three areas of examination are drawn from case law involving move-away issues and represent a set of factors commonly assessed in relocation cases. The first inquiry is investigation of the potential advantages and disadvantages of the proposed move and the likelihood that it would substantially improve the quality of life for the custodial parent and child. The second inquiry is examination of the genuineness of the motives for and against the move, providing that the move is not motivated to frustrate the visitation rights or development of a healthy relationship between the child and noncustodial parent. The third inquiry is examining whether there can exist a realistic, substitute visitation arrangement that will adequately foster an ongoing relationship between the child and the noncustodial parent. A more contemporary perspective focuses attention on empirically determined risk factors to the child (Austin, 2000a, 2000b, 2000c; Austin & Gould, 2006). Relocation presents a significant number of risk factors for children (Austin, 2008a, 2008b), including: 1. Developmental age of the child. The younger the child, the more likely the risk to the child’s relationship with each parent (Austin, 2000a). Research has identified two groups of children who appear more likely to be harmed by relocation: children 6 and under and children 12 and older. The 6-to-12-year-old children appear to be the group to incur less detriment (Austin, 2008a). However, research also shows that relocation, in general, presents a risk to children of all ages, thereby increasing the likelihood of emotional and behavioral

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problems by about 25% (Austin, 2008b). Children relocating with intact families have a 25% increase in experiencing emotional and academic problems. Children relocating after divorce have about a 38% increase in experiencing emotional and academic problems, about 13% more than children in intact families (Austin & Gould, 2006). The geographic distance of the move. The farther the move, the more likely the risk to the child’s relationship with the non-moving parent (Austin, 2008a, 2008b). The degree of prerelocation involvement of the noncustodial parent in the child’s daily activities. The higher the degree of prerelocation involvement, the greater the risk to the child’s relationship with the nonmoving parent as well as the greater the risk to the child’s psychological well-being (Austin, 2000a, 2008b). The history of parental conflict. The higher the level of interparental conflict, the greater the risk to the child. Some moves tend to exacerbate parental conflict, which adversely affects the child’s psychological wellbeing (Austin, 2000a, 2008a, 2008b) while other moves reduce parental conflict (Austin & Gould, 2006). The sex of the child. Boys have decreased opportunities to learn from their biological fathers about sex role identification. Girls have decreased opportunities to learn from their biological fathers about socializing behaviors (Austin, 2000a; Gould, 2006). Prerelocation involvement of each parent in the child’s extracurricular activities. The greater the noncustodial parent’s prerelocation involvement, the greater the risk to the child’s psychological well-being (Austin, 2000a, 2008b). The child’s temperament. The more difficulty children have adjusting to change, the more difficult will be the child’s adjustment to the move (Gould et al., 2010). The relative contribution of each parent to each child’s life. Fathers and mothers tend to bring different parenting resources and opportunities to their children. Children are at greater risk when the unique contribution of one parent is diminished due to the relocation (Austin, 2008b; Austin & Gould, 2006). Loss/gain of social capital resources. Relocation may involve losing or gaining interpersonal, social, familial, and community resources that have an influence on a child’s life (Austin, Flens, & Kirkpatrick, 2010; Austin, Gould, Kirkpatrick, & Eidman, 2006). Among the factors to be examined are loss of extended family involvement, loss of peer-group involvement, loss of community involvement, and so forth (Austin et al., 2010; Austin & Gould, 2006).

Child Custody Evaluations: Current Literature and Practical Applications

We recommend that when evaluators explain their evaluation results, they organize the data obtained during the evaluation around two criteria: the behavioral science model such as Austin’s factors, and the specific factors articulated in the state statute or case law decision from the state in which the evaluation is being conducted. Never-Married Parents and Parents in Short-Lived Relationships A significant minority of children are born out of wedlock (Emery, Otto, & O’Donahue, 2005). Increasingly, custody disputes between two never-married parents lead to a child custody evaluation. Although the evaluation methodology remains unchanged in the assessment of relevant variables, there may be unique factors to consider when making recommendations to the court about custodial placement and parental access. Parents of short-lived relationships may differ from married parents in a number of ways (Raisner, 1997). Never-married parents often have not established a separate family unit, and they may not know each other very well, particularly if the pregnancy occurred during a shortterm relationship. A second difference is that often the child has had little or no contact with the nonresidential parent. Some of these children have been raised with a parent-substitute. This often adds another important dimension. The parentsubstitute, or stepparent, may have been identified to the child as his biological father or taught that his biological father does not care and therefore has no legitimate right to visit. Under such circumstances, visitation plans may be necessary to provide for increased time for the child to learn about and to adjust to the concept of his biological parent. Time may also be necessary for the child to become accustomed to the participation of the biological parent in his life. Similar concerns are focused on the child’s need to adjust to new siblings (stepsiblings and halfsiblings), stepmother, grandparents, and other extended family members (Gould, 2006). Children may also have significant emotional reactions to the knowledge and understanding of the role of the biological father. Some of these children may need to participate in counseling, family therapy, or some other form of intervention. The respective parents may need to attend counseling sessions or some type of mediation through which they can negotiate unresolved issues that may interfere with the healthy establishment of a parent– child relationship.

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Particularly with younger unmarried parents, there may be a need to educate them about the purpose and focus of psychological or psychoeducational interventions. Nevermarried parents “have extra anger, resentment, suspicion, or fear if they are being forced—by a court—into renewing a relationship with the other parent” (Raisner, 1997, p. 92). The educational focus may be, in part, to assure them that they need not repair their former relationship, but instead focus on ways to develop a working relationship through which their child can enjoy the support of each parent in encouraging their child’s relationship with the other. Besides concerns about how the child can learn to incorporate a new parent or extended family into his or her life, there is also the concern that some never-married parents have had their child reared by other relatives. Thus, the introduction of the biological father into the child’s life may result in feelings of displacement on the part of those who raised the child. These people and their feelings also need to be addressed in some respectful way. A final factor is unique to same-sex relationships. Gay and lesbian parents who never married but lived within a structured, committed relationship in which parental roles were defined may struggle with their parental roles after the love relationship dissolves. In the case of the nonbiological parent, there is seldom, if ever, any legal status for the nonbiological parent, homosexual partner who wishes to maintain an ongoing relationship with the child. A similar situation occurs when the never-married parent eventually marries and then divorces the stepfather after many years. This is not unique to never-married parents, of course, as these issues are also problematic when birth parents have married, divorced, and remarried, and when biological mothers subsequently divorce the stepfather after many years. The stepfather may have had significant influence in the child’s life, and the continuing relationship with the stepfather may significantly affect either positively or negatively the child’s best psychological interests. Often the legal status of the stepfather was never clarified through formal adoption. At some point, the biological father reenters the picture. The evaluator may need to consider not only the visitation issues related to the biological father, but also the child’s need to maintain an ongoing relationship with the stepfather. Useful parenting planning may include a focus on educational information about child development for the parent who has had little contact with the child. There is also a need to spend time helping the parents create a workable communications system. This may include a

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stepparent or the primary caretaker who may feel displaced. The intervention needs to focus more on problemsolving and conflict resolution skills than on exploration of feelings and introspection. As Raisner (1997) states, “Teach parents how to make and respond to a request, how to structure a discussion, and how to use solution-based decision-making techniques” (p. 99). Assessing Sexual Abuse Allegations Within the Context of a Child Custody Evaluation Current myths about children and sexual abuse suggest that sexually abused children act in certain ways that make easy and reliable the identification of those who have been abused. Some states have case law that supports this unfounded notion.9 The behavioral science literature provides little, if any, foundation upon which to make clear, consistent statements about our ability to identify who has been abused, who has done the abusing, and when the child has been abused (Kuehnle, 1996; Kuehnle & Connell, 2009). Custody evaluators are often asked to offer opinions to the court about whether a child is at risk of sexual abuse within the context of custodial determinations. There is some empirical support for the notion that professionals believe that allegations occurring within a custody context are less likely to be true. Evaluators have been found to view abuse as more likely when there are multiple rather than single episode reports. Reports in which there was a prior allegation were seen as more likely than those with no prior report (U.S. Department of Justice, 2000a, 2000b). For many years, it was believed that certain statements or behaviors made by children enabled one to discriminate between abused and nonabused children. Among the most popular was the display of age-inappropriate sexual knowledge. The assumption was that sexually abused children would possess developmentally advanced concepts about sexuality and sexual behavior as a result of their exposure to sexually exploitative or abusive behavior. Research has demonstrated that both abused and nonabused children display sexual behaviors, with sexually 9 See

State of North Carolina v. Ronnie Lane Stancil, 559 S.E.2d, 788 (2002), in which the Supreme Court of North Carolina declared that “an expert witness may testify, upon a proper foundation, as to the profiles of sexually abused children and whether a particular complainant has symptoms or characteristics consistent therewith.”

abused children revealing significantly higher frequency of sexual behaviors in certain categories (Friedrich, 2002; Friedrich, Fisher, Broughton, Houston, & Shafran, 1998). Making matters more difficult for evaluators, only a minority of sexually abused children exhibit sexual problem behavior, while some children who have not been sexually abused act out sexually (Friedrich, 2002). Another commonly held belief not supported by research is that sexually abused children are hesitant to talk about the experience of abuse. The assumption was that sexually abused children feel ashamed or will have been threatened or bribed not to disclose the abuse. It is just as likely that a child may tell adults who have been supportive and helpful, thus increasing the likelihood that the child will talk openly about the abuse (Ceci, Kulkofsky, Klemfuss, Sweeney, & Bruck, 2007; Ceci, Papierno, & Kulkofsky, 2007; Kuehnle & Connell, 2009; Pipe et al., 2007). There are many different models describing how to conduct an evaluation of alleged child sexual abuse within the context of a custody determination. We believe that the most comprehensive books guiding such evaluations are Kuehnle’s (1996) book, Assessing Allegations of Child Sexual Abuse, and Kuehnle and Connell’s (2009) book, The Evaluation of Child Sexual Abuse Allegations. Among the most comprehensive models guiding the assessment of alleged sexual abuse is the APSAC’s (1995) Guidelines for Psychosocial Evaluation of Suspected Sexual Abuse in Children and Adolescents. Another useful approach to the evaluation of child sexual abuse is offered by the American Academy of Child and Adolescent Psychiatry’s (1988) Guidelines for the Clinical Evaluation of Child and Adolescent Sexual Abuse. APA’s Guidelines for Psychological Evaluations in Child Protection Matters (Committee on Professional Practice and Standards, 1999) is a useful professional practice guideline for psychologists involved in conducting evaluations in child protection matters. A final resource is the suggestions of your state professional association. Different states have different laws surrounding the reporting of child sexual abuse during a custody evaluation. It is wise to know your state laws and ethical obligations under those laws. The evaluator must be familiar with the considerable behavioral science literature involving directly relevant aspects of investigating allegations of child sexual abuse. We recommend that evaluators have the following references: Kuehnle and Connell (2009); Pipe, Lamb,

Child Custody Evaluations: Current Literature and Practical Applications

Orbach, and Cederborg (2007); and Kuehnle and Drozd (2005). We also recommend that the evaluator become familiar with the multiple hypotheses framework articulated by Kuehnle (1996). We encourage evaluators to address in the body of their report the support for or against each of these hypotheses: 1. The child is a victim of sexual abuse, and the allegation is credible and accurate. 2. The child is a victim of sexual abuse, but due to age or cognitive deficits, does not have the verbal skills to provide a credible description of his or her abuse. 3. The child is a victim of sexual abuse, but due to fear, will not disclose his or her abuse. 4. The child is a victim of sexual abuse, but due to misguided loyalty, will not disclose his or her abuse. 5. The child is not a victim of sexual abuse and is credible but has misperceived an innocent interaction. [A variation of this hypothesis might be that the child is truthful, but has misperceived an ambiguous or innocent situation, or has misidentified an alleged suspect.] 6. The child is not a victim of sexual abuse but has been unintentionally contaminated by a concerned or hypervigilant caretaker or authority figure. 7. The child is not a victim of sexual abuse but has been intentionally manipulated by a caretaker or authority figure into believing that he or she has been abused. 8. The child is not a victim of sexual abuse but knowingly falsely accuses someone of sexual abuse because of pressure by caretakers or authority figures who believe the child has been abused. 9. The child is not a victim of sexual abuse but knowingly falsely accuses someone of sexual abuse for reasons of personal aggrandizement or revenge.10

Child Alienation Over the past 25 years, considerable discussion has focused on the dynamics and processes of child alienation. Several different models describe child alienation. 10 Although preadolescent and adolescent children may be capable of knowingly falsely accusing someone of sexual abuse for secondary gains (i.e., escape from the family, revenge, removal of an adult from the family, etc.), preschool and young schoolage children are probably not cognitively sophisticated enough to initiate a false sexual abuse allegation.

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The first professional writings about child alienation were offered by Reich (1949), who wrote about parents who seek “revenge on the partner through robbing him or her of the pleasure in the child” (p. 265). Wallerstein and Kelly (1980) were the first to identify, in a population of divorced families, a child’s irrational rejection of a parent and her resistance or refusal to visit the parent. The initial formulation of an alienated child posited a pathological alignment between an angry parent and an older child or adolescent that sprang from the dynamics of the separation, including the child’s reaction to the divorce (Wallerstein & Kelly, 1980). It was Gardner who developed a more elaborate and detailed description of this alienation process. He also offered a series of criteria for assessing this alienation process and described a continuum of alienating behaviors ranging from mild to severe. Parental Alienation Syndrome (PAS) was first defined by Gardner (1985) as a conscious or unconscious attempt by one parent to behave in such a way as to alienate the child or children from the other parent. In his initial writings, Gardner identified the mother as most often the parent engaged in systematic attempts to alienate a child from the other parent (Gardner, 1992). In his later writings, Gardner (2002) indicated that fathers were becoming as likely as mothers to engage in the process of alienation. According to Gardner, the purpose of PAS is to align the child with one parent by forcing the other parent out of the child’s life (Gardner, 1985). PAS includes, but is not limited to, conscious, intentional programming techniques. Time is the alienating parent’s most powerful ally. The longer the alienating parent has direct control over the child, the greater will be the alienating influence. As the alienating parent is able to dominate the child’s time, the target parent is unable to spend time with the child. The result is a widening of the gap between the child’s strengthening alliance with the alienating parent and the child’s weakening alliance with the target parent. Eventually, the child adopts the malicious, intolerant, rejecting attitude of the alienating parent toward the target parent, resulting in a belief system in which the child views the target parent with hatred and fear (Gardner, 1992). Several authors have argued for the usefulness of the PAS concept, most notably Dunne and Hedrick (1994), Rand (1997a, 1997b), and Warshak (2000, 2001, 2002, 2010). Another concern is what Cartwright (1993) terms virtual allegations: They refer to those cases in which the abuse is only hinted, its real purpose being to cast aspersions on the character of

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the noncustodial parent in a continuing program of denigration. For the alienator, virtual allegations avoid the need to fabricate incidents of alleged abuse with their attendant possibility of detection and probability of punishment of perjury. (pp. 208–209)

Bruch (2001) criticized Gardner’s PAS, citing several areas of concern. She noted that “Gardner confounds a child’s developmentally related reaction to divorce and high parental conflict (including violence) with psychosis. In doing so, he fails to recognize parents’ and children’s angry, often inappropriate, and totally unpredictable behavior following separation” (p. 530). She further criticized Gardner for positing that PAS occurs primarily in young children, suggesting that the current literature does not support the notion that young children are most vulnerable to alienation pressures. Another concern voiced by Bruch is how the use of PAS focuses attention away from potentially dangerous or abusive behavior on the part of the parent seeking custody to that of the custodial parent. In 2001, Kelly and Johnston published a reformulation of alienation dynamics and proposed a continuum of child–parent relationships after separation and divorce. Kelly and Johnston provided a roadmap for evaluators to use in distinguishing the alienated child (who persistently refuses and rejects visitation because of unreasonable negative views and feelings) from other children who also resist contact with a parent after separation based upon a variety of normal, realistic, and/or developmentally predictable reasons. At the healthiest end of the continuum are the majority of separated children who have positive relationships with both parents. They value both parents and wish to spend significant (often equal) amounts of time with each parent. The next step along the continuum describes children who have an “affinity” for one parent while also desiring continuity and contact with both parents. Affinity for one parent is characterized by the ways in which children feel closer to one parent than the other. It may result from temperament, gender, age, shared interests, sibling preferences of parents, and parenting practices. Such affinities may shift over time with changing developmental needs and situations. “Although these children may occasionally express an overt preference for a parent, they still want substantial contact with and love from both parents” (Kelly & Johnston, 2001, p. 252). The third step along the continuum describes children who have developed an “alliance” with one parent.

During the marriage or separation, these children demonstrate or express a consistent preference for one parent over the other. They often want limited contact with the nonpreferred parent after separation. Allied children generally do not fully reject the other parent nor do they seek to terminate all contact. They tend to express some ambivalence toward this parent, including anger, sadness, and love, as well as resistance to contact. Kelly and Johnston (2001) noted that such alliances may have their roots in family dysfunction that preceded the divorce insofar as children may have been encouraged to take sides or carry hostile messages between the parents. Alliances appear to occur more often in older schoolchildren in response to the dynamics of the marital breakup. Older children tend to make moral assessments and judgments about which parent caused the breakup, who is most hurt, who is most vulnerable, and who needs and/or deserves the child’s unfettered help and support. A fourth step along the continuum finds children who are realistically “estranged” from one of their parents as a consequence of that parent’s history of family violence, abuse, or neglect, and they need to be clearly distinguished from alienated children. These children have taken sides in the family because of a fact-based history of violence or explosive outbursts of a parent during the marriage or after separation. Sometimes the children have been targets of violence and abusive behavior from this parent, and in some cases it has been other family members. These children may find that the only time they can feel safe enough to reject the violent or abusive parent is after the separation when the child is protected by the custodial parent. These children do not have to be direct witnesses to violence. They may witness the aftermath of intimate partner violence or they may be traumatized by an act of violence that from an adult’s perspective may not have been very serious or injurious. Kelly and Johnston (2001) stated, “The mix of intense anger towards the abusive parent, and phobic reactions to that parent caused by subconscious fear of retaliation looks like alienation. But unlike alienated children, the estranged children do not harbor unreasonable anger and/or fear” (p. 253; emphasis added). Children who have suffered exposure to abuse or been victims of abuse generally suffer from some type of traumatic stress reaction. Evaluators need to assess for trauma reactions. If no trauma reaction is found, then the evaluator might wish to consider alienation among other possible alternative hypotheses.

Child Custody Evaluations: Current Literature and Practical Applications

Among the reasons children may become estranged from a parent include: 1. Severe parental deficiencies including persistent immature and self-centered behaviors 2. Chronic emotional abuse of the child or preferred parent 3. Physical abuse that goes undetected 4. Characterologically angry, rigid, and restrictive parenting styles 5. Psychiatric disturbance or substance abuse that grossly interferes with parenting capacities and family functioning

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3. Subsequent divorce conflict and litigation that can be fueled by professionals and extended kin 4. Personality dispositions of each parent 5. Child-related factors such as age, cognitive capacity, and temperament They also identified several intervening variables that may moderate or intensify the child’s response to these critical background factors: 1. Parenting beliefs and behaviors 2. Sibling relationships 3. Child’s own vulnerabilities within the family dynamics

Kelly and Johnston (2001) reminded us that, [u]nfortunately, the responses of these realistically estranged children following separation are commonly and incorrectly interpreted and played out in custody disputes as PAS cases. The deficient, abusive, or violent parent frequently accuses the other parent of alienating the child against him or her. They vigorously resist any suggestion that marital violence or severe parenting deficiencies have negatively impacted the parent–child relationship. (p. 254)

At the extreme end of the continuum are children who are alienated from a parent after separation and divorce. They tend to express their rejection of that parent stridently and without apparent guilt or ambivalence. They also may strongly resist or completely refuse any contact with that rejected parent. Often, the parent who has been rejected has been less involved in the child’s life than the other parent or possesses somewhat less robust parenting competencies. The child’s complaints and allegations about the rejected parent may reflect some true incident that has been grossly distorted and exaggerated, resulting in the child holding highly negative views and feelings. It is the gross distortion and exaggeration without a reality-based foundation that makes this a pathological response. Systemic Processes That Potentiate Child Alienation Kelly and Johnston (2001) recommend an evaluation model based upon systems theory. They suggest two broad factors. Background factors are viewed as directly or indirectly impacting on the child. These may include, but are not limited to: 1. A history of intense marital conflict 2. A humiliating separation

Kelly and Johnston (2001) suggest a set of “risk factors that may potentiate alienation” (p. 255): 1. Triangulation of child in intense marital conflict 2. Child experiences separation as deeply humiliating 3. Parents are involved in highly conflicted divorce and litigation 4. “Tribal warfare” or the contributions of new partners, extended kin, and professionals Drozd and Olesen (2004) proposed an assessment model to distinguish children who are abused from those who are alienated, arguing that a conceptual framework organizing multiple hypotheses is needed when assessing allegations and counterallegations of abuse and alienation. They proposed several hypotheses to examine when a child resists visiting one or both parents. The first hypothesis examines the child’s resistance to visit a parent as a normal developmental variation in his or her development and/or the result of normal variations in family dynamics. A second hypothesis is that the child has been exposed to intimate partner violence and/or substance abuse in the home and/or is the target of direct abuse or neglect. A third hypothesis is that the child’s resistance to visit a parent is the result of poor parenting on the part of one or both parents. Included in this analysis is investigation of one parent’s parenting behaviors that are alleged to undermine the child’s relationship with the other parent (alienation) as well as investigation of allegations of rigid or insensitive parenting on the part of the rejected parent. Drozd and Olesen have recently added an analysis of more complex interactions among four primary factors. These hybrid analyses include examination of complex interactions among some combination of poor parenting, protective

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parenting, alienating behaviors, and/or abuse (Drozd & Olesen, 2010).

DOMESTIC VIOLENCE The forensic assessment of allegations of domestic violence remains among the hot topics for research. It presents a unique challenge to evaluators not only because of the complexity of psychological variables involved in a comprehensive assessment but also because of the political aspects to many issues involved in domestic violence (Gould & Martindale, 2007). There are several reasons why a systematic exploration of allegations of domestic violence (DV) is critical in child custody evaluations. The first involves concerns about placing a child in a family context in which parental violence occurs. Children living in homes in which parental violence occurs are more likely to be targets of violence themselves (Jaffe, Crooks, & Poisson, 2003; Jaffe, Lemon, & Poisson, 2003). The second is that children living in a family context in which domestic violence occurs are psychologically affected by their exposure to parental violence (Bascoe, Davies, Sturge-Apple, & Cummings, 2009; Davies & Cummings, 2006; Davies & Sturge-Apple, 2007; Davies, Sturge-Apple, Cicchetti, & Cummings, 2007; Davies, Sturge-Apple, Winter, Cummings, & Farrell, 2006). A third concern is that parents involved in domestic violence tend to be poorer supervisors of their children’s behavior. Typically, the victim of the parental violence tends to be more depressed and often focused on his or her safety issues rather than on the needs of the child (Gould & Martindale, 2007). Another concern is that children raised in homes in which domestic violence occurs often identify with the aggressor, resulting in children attributing less parenting legitimacy to the victimized parent (Bancroft & Silverman, 2002a, 2002b). Recent research findings have strongly suggested that the population of those who allege domestic violence while undergoing custody evaluations are drawn from a different population than those who allege domestic violence and are living in domestic violence shelters (Dutton, 2005a, 2005b). Understanding differences between these populations on factors such as lethality risk, type of physical violence, frequency of physical violence, and intensity of domestic violence may be important for the evaluator to explore and the court to better understand (Dutton, Hamel, & Aaronson, 2010).

Austin’s Model of Assessing Allegations of Domestic Violence Austin (2000d) suggested that there may be a strategic advantage in child custody disputes for one party to be viewed as the victim of marital violence and for the other party to be falsely accused of being a perpetrator. A high percentage of men and women in contested custody cases report being abused in their marriages (Newmark, Harrell, & Salem, 1995). Bow and Boxer (2003) reported that more than one third of custody referrals contain allegations of domestic violence, and that 57% of custody cases that included allegations of domestic violence were supported. That is, in more than half of the cases in which DV was alleged the allegations were substantiated. Bow and Boxer (2003) also recommended that evaluators involved in assessing allegations of domestic violence utilize the Forensic Model described in this chapter by relying on interview data, test data, observational data, and collateral record review and interviews. Austin’s model helps to further refine the specific steps needed to be taken by an evaluator in a competent evaluation of allegations of domestic violence. Austin (2000d) suggested a six-factor test of credibility to evaluate the plausibility of interspousal domestic violence when there is not a legal substantiation of marital violence: 1. Objective verification through record review 2. Pattern of abuse complaints prior to the start of the custody dispute 3. Corroboration by credible others such as former romantic partners 4. Absence of disconfirming verbal reports by credible third parties 5. Psychological profile and past history of abusive behavior by the alleged perpetrator of marital violence 6. Psychological status of the alleged victimized spouse These steps define the minimal number of investigative steps needed to conduct a competent evaluation. Drozd et al.’s Model for Assessing Allegations of Domestic Violence Drozd, Kleinman, and Olesen (2000) suggested that investigators of allegations of domestic violence within the context of a custody and visitation dispute need to recognize the larger family system context. When an allegation of

Child Custody Evaluations: Current Literature and Practical Applications

domestic violence is raised, evaluators should also examine rival hypotheses that include, but are not limited to, the motivation of the reporting party. A comprehensive evaluation should include at least the following: 1. Obtaining civil and criminal complaints and judgments from police, courts, and other relevant venues 2. Obtaining work records 3. Assessing for weapons access 4. Examining substance and alcohol use 5. Evaluating risk assessment 6. Investigating collateral contacts including former romantic partners 7. Examining power and control variables in relationship 8. Examining how parents argued (type of interaction) 9. Examining how parents resolved the argument (methods of resolution) 10. Examining triggers for creating fights 11. Investigating parents’ understanding of the fight triggers and how to avoid them 12. Assessing psychological variables that may contribute to propensity toward violence, for example, impulsiveness, low frustration tolerance, rigid versus flexible thinking, authoritarian worldview, and sex role perspective 13. Evaluating parental insight into their anger and its management 14. Evaluating parental insight into the cycle of violence within their relationship, that is, how it starts and what attributions each parent makes about the other parent’s motivation 15. Examining psychological/emotional abuse variables 16. Examining financial/economic abuse variables 17. Examining sexual abuse variables 18. Investigating exposure of child to forms of violence and conflict 19. Examining child disciplinary techniques (what is used) 20. Examining deployment of child disciplinary techniques, and assessing parents’ awareness and use of multiple disciplinary strategies sans corporal punishment The Drozd et al. model provides a more complex and comprehensive list of factors to consider than does the Austin model. Both models would provide a competent set of data from which to address allegations of familial violence.

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We encourage evaluators to employ a model similar to that offered by Austin or Drozd et al. to guide their information gathering and investigative procedures, as both include the most comprehensive set of variables to examine for forensic evaluation. The Drozd et al. model provides the most detailed set of factors and incorporates the factors suggested by Austin, while the Austin model points the evaluator toward data-gathering sources necessary to acquire for a competent evaluation. SUMMARY Mental health professionals who conduct forensic evaluations are guests of the legal system because we offer specialized knowledge and analysis beyond the scope of the judge, the lay witnesses, and the attorneys. As invited guests, it is important to respect and play by their rules, particularly when it comes to the rules of evidence. It is also crucial to keep up with changes in case law relevant to their areas of practice. There is a rub, however. At times, judges and attorneys invite mental health professionals to opine on matters that are beyond the scope of their expertise. In these circumstances, it is incumbent upon us to politely refuse (Gould & Martindale, 2007). Evaluators must also know the standards for admissibility in their jurisdictions in addition to practicing and appreciating the importance of using reliable and valid techniques in forensic assessments. Each state has case law that helps to define the limits of expert testimony. We urge evaluators to read case law regarding the admissibility of scientific evidence. It is most preferable to obtain the original case that set the precedent in their jurisdiction and follow any clarifications or modifications that may have appeared in subsequent decisions. Then, evaluators should develop an investigative methodology that is consistent with the state’s legal definitions of reliability and relevance. Evaluators are also encouraged to be familiar with the laws and rules of child custody decision making in the states in which they practice. It is important to obtain state statutes that define the best interests of the child and other relevant parenting-related concepts and to examine case law that may have further defined the statutory concepts. For example, a state may have a statutory presumption allowing a custodial parent to relocate with the child. Case law decisions may have defined a set of factors that the court needs to consider when adjudicating relocation disputes. Factors derived from case law may

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give evaluators guidance about relevant psychological variables to investigate. We discussed several concepts critical to competent, ethical practice. There is little, if any, disagreement among scholars and teachers in forensic psychology about the importance of scientifically informed methodology. This is exemplified by the substantial use of multiple interviews, psychological tests, direct behavioral observations, third-party record review, and collateral interviews (Ackerman & Kane, 2005, 2010; Bow & Quinnell, 2001; Galatzter-Levy et al., 2009; Gould, 2006; Gould & Martindale, 2007; Kirkland et al., 2005; Rohrbaugh, 2008; Stahl, 2010). Conducting a child custody evaluation is an inherently forensic endeavor. When we are acting as mental health experts on issues being adjudicated by courts (with definable foreknowledge), we are rendering a forensic mental health service (Committee on Ethical Guidelines for Forensic Psychologist, 1991). The primary goal is to assist the court. Child custody evaluators need to recognize that the court shall be conceptualized as the primary recipient of the evaluator’s advisory report. This means that important information of identified parenting deficiencies cannot be omitted from our reports in order to protect the identified parent from the hurt of reading the report. It is unrealistic to believe that we can facilitate a family’s postdispute adjustment by preparing reports in which we address parental strengths but neglect to mention any parental shortcomings. Evaluators should create their records with the needs of the legal system in mind. As such, they should anticipate outside review, and in reasonable detail, all records should be carefully maintained and made available to those who are legally entitled to examine them. Our primary concern is to focus on mental health professionals’ obligation to present themselves and their custody cases as transparently as possible. Included in this transparency is acknowledging the strengths and limitations of their opinions and conclusions (Mnookin & Gross, 2003), making available the full file for attorneys and the court to review, and knowing and abiding by rules of the court, evidence, and professional conduct. There are several threats to the practice of child custody, one of which is proffering sweeping conclusions based primarily on years of experience and clinical judgment, intuition, or hunches. Evaluators need to move away from impressionistic testimony best captured by the phrases, “I know good parenting when I see it” or “My

years of experience have taught me what good parenting is.” Although competent evaluators must demonstrate sound clinical judgment, it is reliance on reliable methods and relevant research that best informs our conclusions and opinions. Evaluators do a disservice to families in conflict, to the court system, and to the professional image of child custody evaluators when they confuse perceived helpfulness with actual helpfulness (Martindale, 2006). A second threat is the presentation of personal beliefs under the guise of professional opinion (Gould, 1998, 2006; Mnookin, 2007). When a custody evaluator testifies, the concepts and data that are the basis of the proffered opinion should reflect claims that are generally accepted in the field (Mnookin, 2007). Evaluators need to continually ask themselves whether the substance of the opinion offered to the court has adequate indicia of reliability (Faigmen et al., 2002). We do not suggest that there is only one way to interpret current peer-reviewed literature on any particular topic in our field. Scientific disagreements among learned colleagues are not uncommon (Mnookin, 2007, 2008) and are an integral component of scientific inquiry. The evaluator’s task is not to embrace partisanship in an effort to advocate for a legal or scientific position. Instead, the evaluator’s task is to provide a dispassionate explanation of the advantages and disadvantages of various scientifically informed positions and to advocate for interpretations that best fit the family under scrutiny. At the beginning of this chapter, we talked about the mercurial manner in which some courts have made custody determinations without consulting child development theories, research, and expert psychological opinions. An evaluator’s primary responsibility as a testifying expert is to present to the court scientifically informed opinions about children’s psychological best interests that are based upon the data and inferences developed during the assessment process. Judges may be more open to integrating behavioral science research and expert psychological opinions into their judicial determinations as they gain greater confidence in the scientific integrity of the child custody evaluation process (Gould & Lehrmann, 2002). Knowledge is derived from inquiry, and professional activity stimulates inquiry. If child custody evaluators are to assist the legal system, evaluators must be mindful of their limitations and respond to the call for clinical humility (Gould & Martindale, 2005; Tippins & Wittmann, 2005a). To do this, evaluators must not only articulate those limitations, but also work diligently to develop

Child Custody Evaluations: Current Literature and Practical Applications

scientifically informed methods and procedures for child custody assessment and for advisory reports that more accurately reflect the experience and needs of children.

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CHAPTER 7

Assessment in a Child Protection Context KAREN S. BUDD, MARY CONNELL, AND JENNIFER R. CLARK

INTRODUCTION 139 OVERVIEW OF THE LEGAL CONTEXT 140 EMPIRICAL FOUNDATION AND LIMITS 144 FORENSIC MENTAL HEALTH CONCEPTS AND FRAMEWORKS 152

METHODS OF DATA COLLECTION 157 COMMUNICATION OF ASSESSMENT FINDINGS SUMMARY 167 REFERENCES 167

INTRODUCTION

provide legal representation, advocacy, and child welfare services) (Stauts, 2000). The weightiness of the task is further heightened by its importance—the stakes for the child and the parent are enormous. Considering the challenges in child maltreatment cases, caseworkers, attorneys, and judges sometimes turn to psychologists or other mental health professionals for expert guidance. Mental health information may be requested regarding a child’s emotional or psychological needs, the impact on the child of separation from caretakers or termination of parental rights, a parent’s caregiving capabilities, the risk and protective factors associated with placement or visitation, or intervention strategies that may assist with parenting and child development. Conducting such evaluations requires psychologists to have solid clinical and forensic skills as well as knowledge of child development, parenting, and the child welfare system. Furthermore, the consumers of child protection evaluations (attorneys and social services personnel) may be unfamiliar with professional jargon, psychological principles and theories, and assessment instruments and may find reports more useful when written in language they can understand. This chapter addresses issues and methods of forensic mental assessment of children, parents, and the parent– child relationship in cases of child abuse and neglect. The chapter covers five topics pertinent to assessment in child protection cases: (1) overview of the legal context, (2) empirical foundations and limits, (3) forensic mental health concepts and frameworks, (4) methods of data collection, and (5) communication of assessment findings. For a discussion of evaluations involving allegations of

Among the most respected and deeply held values in Western society is the sanctity of the relationship between parents and their children. Society intervenes to disturb this relationship only in extraordinary circumstances, such as abuse or neglect by the parent. Although childhood currently is viewed as a unique phase in which development occurs under the watchful eye of adults, it was not always so. Contemporary conceptualizations of the child as fragile and in need of nurturance have evolved over the past hundred years as industrialization, social justice movements, and science have brought attention to the mistreatment of children and, most importantly, to the problem of child abuse and neglect (Miller-Perrin & Perrin, 2007; Myers, 2004). The changing conceptualization of children, through the adolescent years, as in need of care and protection produced a number of social policy changes, including the creation of a juvenile court system, mandatory child reporting laws for suspected child abuse and neglect, and a child protection services system. When child maltreatment occurs, the courts and child protection services system are responsible for protecting the child’s safety and well-being, providing remedial services to the child and family, and establishing permanent care arrangements (Haskins, Wulczyn, & Webb, 2007). Eventually, if maltreating parents cannot be rehabilitated, the court considers terminating parental rights. Decision making in child maltreatment cases is complicated, due in part to the multiple and sometimes conflicting roles of the state in protecting children (e.g., to 139

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child sexual abuse please see Kuehnle and Connell, this volume. In this chapter, we use the terms assessment and evaluation interchangeably. More detailed discussion of the issues presented in this chapter may be found in Evaluation of Parenting Capacity in Child Protection (Budd, Connell, & Clark, 2011).

OVERVIEW OF THE LEGAL CONTEXT This section provides a brief overview of the history of child protection and the legal basis for state intervention. Both the courts and federal legislation have shaped the development of our current child protection system. Political, social policy, and scientific advances have influenced the legal framework for child protection, and it is likely that the framework will continue to evolve over time. Case Law and Federal Legislation Affecting Child Protection Respect for parental rights and authority has long been recognized as a basic tenet of society. The Supreme Court has repeatedly determined that the Fourteenth Amendment protects the fundamental liberty of parents to make decisions regarding their children (e.g., Griswold v. Connecticut, 1965; Meyer v. Nebraska, 1923; Pierce v. Society of Sisters, 1925; Santosky v. Kramer, 1982). Parents are assumed to act on children’s behalf unless evidence demonstrates otherwise. Set against this backdrop of the right to parent one’s children is another value, a generally recognized responsibility of society to protect its children. Parens patriae, or “parent of the fatherland,” is a term invoked to suggest that the government has a strong interest in the care and nurturing of children and others who cannot function independently (Otto & Melton, 1990). The Supreme Court determined that, despite the primary role of the parents, parental authority is not absolute and can be permissibly restricted if doing so advances the interest of a child’s welfare (Prince v. Massachusetts, 1944). Laws pertaining to the custody of children and termination of parental rights have arisen because society assumes the responsibility to protect children when families are disrupted or dysfunctional. The burden of proof is greatest when the state seeks to terminate parental rights. In Santosky v. Kramer (1982), the Supreme Court held that the state may only terminate parental rights by showing “clear and convincing” evidence, rather than the lower standard, “fair preponderance,” that was applied in some jurisdictions. The

court determined that the fundamental liberty interest of natural parents in the care, custody, and management of their child, as protected by the Fourteenth Amendment, does not “evaporate simply because they have not been model parents or have lost temporary custody of their child to the State” (p. 753). Until the early 1960s, states viewed the care and protection of children as primarily a family concern requiring limited state oversight (Myers, 2004). Child abuse and neglect were not seen as requiring state intervention and were, at most, handled by charitable organizations. A number of factors brought increasing attention to child maltreatment cases and, during the 1960s and 1970s, remarkable advances occurred to coordinate intervention when children were in need of protection. Kempe and colleagues (1962) introduced the term battered child syndrome, heightening awareness within the medical community of the plight of the severely abused or neglected children whose injuries sometimes came to the attention of doctors but whose need for intervention nonetheless went unrecognized. Television further raised community consciousness of the existence of severe abuse, widely publicizing Kempe et al.’s work (1962) on the phenomenon of child battering and of dangers children might face in their own homes (Myers, 2004). Governmental attention to the problem increased through the establishment of the National Institute of Child Health and Human Development in 1963. Funding was made available for broad implementation of preventive intervention and for response to existing cases of abuse and neglect through the passage of the landmark Child Abuse Prevention and Treatment Act (CAPTA) of 1974. CAPTA also encouraged states to enact legislation to mandate the reporting of child abuse and neglect, further fueling public awareness and highlighting the need for governmental response (Myers, 2004). The response could include investigation, provision of in-home and foster care services to help parents meet caretaking challenges and remedy deficits, and, when remediation was not possible, termination of parental rights and placement for adoption. As states developed statutes and intervention strategies to deal with child maltreatment, “child welfare” offices were established in the most densely populated areas. Although state and local governments have employed various titles for these agencies, the generic term child protective services (CPS) is easily understood and, for the purposes of economy, is used in this chapter to refer to any state’s agency that investigates and provides services when child maltreatment is suspected.

Assessment in a Child Protection Context

Several federal acts have provided direction and funding to states for child protection. Some of the major acts are listed in Table 7.1. Federal acts requiring state compliance in order to ensure ongoing funding have served to standardize, to some extent, the approach taken by the courts and CPS systems. Federal legislation has reduced what could otherwise be vast differences in philosophies about removal of children from their parents and differences in practice, for example, with regard to family reunification versus permanency planning and inclusion of foster parents in case planning and disposition. Federal legislation impacting child protection policies and services over the years reflects evolving social, political, economic, and philosophical influences. Table 7.1 shows that, from the mid-1970s to the mid-1990s, there was growing support for governmental intervention, as well as increasing efforts to preserve children in their biological families. The Adoption Assistance and Child Welfare Act (AACWA) in 1980 established a strong preference for the child’s biological family as the permanent option and required funded states to make “reasonable efforts” to serve children in their own homes, prevent

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out-of-home placement, and facilitate family reunification following placement. The Family Preservation and Support Initiative of 1993 continued the emphasis on reunification as the preferred permanent outcome. Concern arose in the child protection community, however, that the reasonable efforts requirement of AACWA meant that child welfare agencies were obligated to return children to unsafe homes (Youth Law Center, 2000). Beginning in the mid-to-late 1990s, federal legislation shifted to emphasize seeking permanency for children who must be removed from their homes for their protection from maltreatment. In the Adoption and Safe Families Act (ASFA) (1997), the requirement that states make reasonable efforts to preserve and reunify families was continued; however, states were also required to find permanent homes more quickly for children in foster care by terminating parental rights more efficiently and encouraging adoptions. The AFSA made the child’s health and safety needs paramount in making decisions about the removal or return home of a child. Over the past 30 years, then, an emphasis on prevention and in-home services in support of remediation has been deemphasized and accompanied

TABLE 7.1 Federal Legislation Relating to Child Protection Year

Title

Key Provisions

1974

Child Abuse Prevention and Treatment Act (CAPTA)

Provided for the first-time funding to states to prevent, identify, and treat child abuse and neglect. Required states, for federal funding, to adopt laws requiring mandatory reporting to authorities of suspected child abuse, to ensure confidentiality of agency records and court proceedings, and to appoint a guardian ad litem for every child in maltreatment proceedings.

1975

Social Services Block Grant, Title XX

Provided funding for child protection, including prevention, treatment programs, and foster care and adoption services. Specific services were designed to meet the special needs of children, individuals with developmental disabilities, and those with substance-abuse problems, and to provide for child care and for the needs of low-income families and individuals.

1978

Indian Child Welfare Act

Required states to provide specific protections to American Indian children in maltreatment and juvenile proceedings. Established a protocol of preferences for placement of children removed from their homes, giving priority to family members, tribe members, and other American Indian persons.

1980

Adoption Assistance and Child Welfare Act (AACWA)

Required funded states to make “reasonable efforts” to serve children in their own homes, prevent out-of-home placement, and facilitate family reunification following placement. Established case plan requirements, out-of-home placement directives, guidelines for voluntary placement, and timelines for court reviews and hearings.

1993

Family Preservation and Support Initiative

Funded services that were intended to assist vulnerable children and families prior to any maltreatment.

1997

The Adoption and Safe Families Act (ASFA)

Required states to move foster children more rapidly into permanent homes by terminating parental rights more quickly and by encouraging adoptions. Required states to begin seeking an adoptive placement for any child in foster care for 15 of the most recent 22 months, concurrent with the petition to terminate parental rights.

2003

Keeping Children and Families Safe Act (KCFSA)

Modified CAPTA by requiring that states have procedures to address the needs of drug-exposed infants and triage procedures for referral of children not at imminent risk of harm to community or preventive services. Required states to have provisions to refer children under age 3 in families with child maltreatment to receive early intervention services.

Funded family preservation services to help families resolve crises that would otherwise lead to foster care for their children.

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by a focus on investigation of abuse and swift protective action. Although reunification remains the default goal, remedial intervention has been displaced, to some extent, by foreshortened intervention and termination of parental rights to move children from abusive situations into adoption. Child’s Best Interests The idea that society should respect the best interest of the child is fundamental in contemporary culture. Society in much of the world views children as its most vulnerable citizens and as the embodiment of its future. Determinations of what is in a child’s best interests are made by a legal decision maker (usually a judge) in family and dependency court proceedings. This decision was once guided by the notion of children being “chattel” or possessions of the parent, and thus generally of the father, who was in English common law the owner of all property of the marriage (Mason, 1994). By the end of the 19th century, courts recognized that children, particularly those of “tender years,” might need the care a mother can provide. This tender years doctrine, which held that mothers were best qualified to care for their children, emerged and for a time prevailed. With shifting views of sex roles and the advent of “no-fault” divorce in the 1960s, courts began to discard the tender years presumption. For example, in State ex rel. Watts v. Watts (1973), New York’s highest court held, “The simple fact of being a mother does not, by itself, indicate a willingness or capacity to render a quality of care different than that which a father can provide.” The tender years doctrine has since been replaced with the best interest of the child standard in custody and divorce matters in which division of parenting responsibilities is at issue (Otto & Edens, 2003). In a child protection context, best interest is defined differently in various state statutes (Child Welfare Information Gateway, 2010a), and in some states it is determined by case law. The definition is sufficiently indeterminate (Goldstein, Freud, & Solnit, 1979) to require a case-by-case analysis of what is in the child’s best interests. In child protection proceedings, generally the concept of best interest is invoked in consideration of disposition, visitation and permanency planning, and the termination of parental rights. The Illinois Juvenile Court Act (705 ILCS 405/1-2), however, reflects elements included in many state statutes, including the child’s (a) age and developmental needs, (b) physical safety and welfare, (c) emotional, physical, and mental status or condition, (d) background and ties, including family, culture, and

religion, (e) sense of attachments, (f) wishes and longterm goals, and (g) need for permanence, stability, and continuity of relationships, including with siblings. Overview of Legal Process Courts responsible for child abuse or neglect and child protection proceedings often are referred to as juvenile dependency courts, although other terms (e.g., child or family court) are used in some jurisdictions. Legal procedures vary from state to state, but there are some general areas of agreement. The CPS system intervenes to provide protection and remediation and, if necessary, recommends that the court consider terminating parental rights. The case may take the following course, as illustrated in Figure 7.1 and described in the following. In almost all states, professionals who regularly interact with children are mandated to report suspected abuse and neglect, and in 18 states, all citizens are mandated reporters (Child Welfare Information Gateway, 2010b). When a report is made to the state child abuse hotline or directly to CPS, a preliminary investigation is conducted. This may result in no action in the absence of evidence that a child is in need of protection. Alternatively, referrals may be made for needed services, followed by case closure. When the alleged abuse or neglect appears to warrant more immediate and intensive services, the case may be opened for in-home ongoing services. In cases of severe or urgent need or risk, the child may be immediately taken into protective custody. Removal of a child from the parent, even temporarily, is an extreme measure, and the law provides certain protections to ensure that it does not occur capriciously. CPS must file a petition for removal for temporary custody that triggers an initial hearing or emergency hearing. This hearing may be held by the juvenile dependency court to determine the need for emergency protection. This hearing must occur soon after the filing of the petition or the removal of the child into protective custody. State laws vary in the time provided, but ideally it should occur on the first day following the petition, upon removal of the child, or as soon as possible thereafter. The main purpose is to determine whether the child should be removed from or remain with the parent pending further proceedings. The critical issue is whether in-home placement will put the child at an unacceptable level of risk for maltreatment (Child Welfare Information Gateway, 2006). When the alleged abuse or neglect is severe, the case may be simultaneously referred for criminal investigation. Hearings and a trial may follow the criminal

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Investigation of report of abuse or neglect to Child Protective Services (CPS) Report Unfounded/Undetermined: Case is closed

Report Substantiated/Indicated

CPS sends child home without services

CPS sends child home with supervision and/or support services

Services successful: Case closed

Services unsuccessful: CPS files petition

Initial Hearing: Court determines whether child should be placed in substitute care or remain with or be returned to the parent pending further proceedings

Court orders temporary custody of child

Court sends child home with supervision and/or support services

Adjudicatory Hearing: Court determines if abuse or neglect occurred

Dispositional Hearing: Court determines if child can safely go home without further supervision by the court

Child returned home under court-ordered supervision

Court sends child home: Case closed

No: Petition dismissed

Yes: Case closed

Child becomes ward of court: State is appointed guardian

Ongoing Hearings: Court reviews status and progress on placement, visitation, and services

Child returned home/reunified with family: Case closed

Figure 7.1

Child placed with legal guardian: Case closed

Child ages out or is emancipated: Case closed

Termination of parental rights (TPR) and adoption: Case closed

Child protection flowchart

investigation and can occur simultaneous to CPS intervention. In some communities, multidisciplinary agencies coordinate the investigation, intervention, and/or treatment of maltreating parents and their children (National Children’s Advocacy Center, 2005). Particularly in cases of suspected child sexual abuse, a multidisciplinary

agency such as a child advocacy center may combine the investigative efforts of CPS, law enforcement, medical providers, and trained forensic interviewers (Child Welfare Information Gateway, 2006). Adjudicatory hearings, sometimes called fact-finding hearings or jurisdictional hearings, occur following the

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initial proceedings. Adjudication must determine the nature of the abuse and neglect and establish facts that resulted in state intervention and upon which disposition, casework, court review, and possible termination are based. Adjudicatory hearings are followed (either on the same day or within a few weeks) by dispositional hearings, at which the court decides whether the child needs services, and, if so, orders them; establishes visitation schedules or determines that the child should return home; and, if in-home services are being provided, may order CPS to continue in-home follow-up (Child Welfare Information Gateway, 2006). Periodic review hearings, status hearings, or progress hearings are held to determine if substitute placement remains a necessity and whether CPS is addressing the child’s needs. Following successful intervention, a final hearing is generally held to formalize return of the child to the parents and cessation of the state’s involvement following successful intervention. When intervention has been unsuccessful, a hearing is held to terminate parental rights and/or determine a permanency placement (e.g., guardianship, adoption, emancipation from CPS as an adult). Permanent placement without termination is an option in some states. The court may, at earlier stages in the case, act on “reason to believe” or “preponderance of the evidence” as a basis for ordering protective intervention. For termination of parental rights, however, there must be “clear and convincing” evidence that the statutory criteria were met (Child Welfare Information Gateway, 2006; Santosky v. Kramer, 1982).

EMPIRICAL FOUNDATION AND LIMITS This section provides a selective overview of behavioral and social science research as a backdrop to forensic mental health assessment in child protection matters. It also reviews the limited research literature on assessment and forensic practice in a child protection context. Parents and Children Involved in Child Protection Proceedings Although little research exists on the subset of families referred for mental health evaluations in child protection cases, general descriptions are available on the incidence of child maltreatment and characteristics of parents and children known or suspected of having been involved in maltreatment. A major caveat, however, is that estimates of child maltreatment vary widely depending on the

definitions and methods used (Feerick et al., 2006; MillerPerrin & Perrin, 2007). In 2009, an estimated 3.3 million referrals were made to child abuse hotlines identifying approximately 6.0 million children suspected of maltreatment. Only 62% of the allegations were investigated; the remainder was screened out, mainly for insufficient information. Twenty-five percent of the cases investigated found at least one child to be a victim of abuse or neglect, amounting to approximately 9.3 victims per 1,000 children annually. U.S. child abuse statistics show that neglect is the most common form of maltreatment, that young children are most at risk of maltreatment, and that parents, particularly mothers, are the most frequent perpetrators of child maltreatment (excluding sexual abuse) (U.S. Department of Health and Human Services, 2010). Patterns of maltreatment by racial and ethnic groups are complicated and disparate across databases (Sedlak et al., 2010). Rates of maltreatment for African American children are almost twice as high as those for Hispanic and White children. Other groups (e.g., American Indian or Alaskan Native, Mixed Race, and Pacific Islander) have rates that are lower than African Americans but higher than Hispanic and White groups, and rates of abuse among Asian Americans are much lower than all other racial and ethnic groups (U.S. Department of Health and Human Services, 2010). Racial and ethnic disparities also have been documented in the number and types of child welfare services provided to families following substantiated abuse or neglect, time spent in care, and outcomes, with less favorable findings for children of color (Courtney et al., 1996). Because ethnic minority group members comprise a relatively large proportion of parents referred for evaluation in child protection cases, contrasted with the majorityethnic background of most mental health professionals, training in ethnic diversity issues, cultural sensitivity, and awareness of the impact of one’s own cultural identity is integral to developing competency as an evaluator (American Psychological Association [APA], 2011; Azar & Goff, 2007). Evaluators must also consider contextual factors that are shown to contribute to more minorities entering and remaining in foster care (e.g., poverty, lack of access to services, and biases in service provision) when conducting child protection evaluations. The U.S. child abuse data provide a thumbnail sketch of the victims and perpetrators of maltreatment but reveal little about the patterns and characteristics associated with its occurrence. Early etiological studies based on clinical descriptions of known abusers pointed to psychological characteristics of adults, such as personality problems and low intelligence, as predictors (Kempe et al., 1962;

Assessment in a Child Protection Context

Steele & Pollock, 1968). Descriptive reports of cases in child protection proceedings based on selected court samples (e.g., Bishop et al., 2003; Llewellyn, McConnell, & Ferronato, 2003; Taylor et al., 1991) have confirmed an overrepresentation of parents with psychiatric, intellectual, or substance-abuse problems compared to the general population. However, research suggests that only a small proportion of perpetrators have severe personality disorders or cognitive impairment. Rather, research indicates that there are many more potential antecedents that cover multiple parental characteristics as well as child, family, and environmental factors. Commonly cited parent factors include individual characteristics (e.g., anger-control difficulties, low self-esteem, mental health problems, alcohol or drug abuse, physical health problems, cognitive impairments, a history of having been abused as a child) and parenting patterns (e.g., unrealistic expectations, harshness, rigidity). Child factors include young age, behavioral difficulties, and mental and physical disabilities. Family and environmental factors include single-parent status, low socioeconomic status (SES), unemployment, partner conflict, social isolation, community violence, and sparse resources (cf. Kruga et al., 2002; Miller-Perrin & Perrin, 2007; Myers et al., 2002). Importantly, etiological studies have demonstrated that none of these characteristics alone, or in combination, means the child will be maltreated; rather, as the number of risk factors increases, the likelihood of abuse or neglect increases (Brown et al., 1998). Impact of Maltreatment on Children Child maltreatment—whether physical abuse, emotional abuse, sexual abuse, or neglect—can have a profound impact on a child’s immediate and future well-being. However, the developmental course of a maltreated child is highly variable (Crooks & Wolfe, 2007) and is influenced by the nature, severity, and chronicity of the maltreatment; child-specific factors (e.g., age, temperament); parent and familial factors (e.g., relationship of the child to the maltreating individual, quality of overall caregiving, individual characteristics of caregivers, response of caregivers to the maltreatment); and larger environmental and cultural factors (e.g., social support, intervention by CPS, available services). Chronic stress or trauma can alter brain functioning, thereby affecting the child’s capacity for self-regulation and adaptive functioning in other domains (cf. Kuehnle, Coulter, & Firestone, 2000). In their review of the literature on developmental consequences of child abuse and neglect, Crooks and

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Wolfe (2007) noted that “maltreated children, as a group, do not reveal characteristic adjustment patterns or longterm developmental problems that clearly distinguish them from nonabused children” (p. 642). Nonetheless, this population presents with a range and depth of problems that clearly implicates maltreatment as a contributing factor. Potential consequences of childhood maltreatment include difficulties in multiple domains of functioning (e.g., biological, developmental, emotional, social) and increased risk for academic difficulties, behavioral disturbance, mental illness and personality disturbance, criminal behavior, substance abuse, marital conflict, and childrearing difficulties in adulthood. Notably, research consistently shows that “neglected infants fare worse than their older counterparts or children who suffer other forms of maltreatment on almost every measure of child wellbeing” (Wotherspoon et al., 2010, p. 506). Child Welfare Services and Limitations A major responsibility of the child protection system, in addition to investigating reports of maltreatment, is to provide services to maximize children’s safety, promote permanent living arrangements, and facilitate children’s development (Haskins et al., 2007). It is widely acknowledged that the states often fall short in meeting the complex needs of children in foster care (Annie E. Casey Foundation, 2009). Problems include inadequate training and frequent turnover of child welfare staff, a shortage of high-quality foster homes, a dearth of effective intervention services, systemic resistance to implementing promising practices, resource limitations, and ineffective systems of accountability (Kauffman Best Practices Project, 2004). In an effort to inform policy and practice, Congress commissioned the National Survey of Child and Adolescent Well-Being (NSCAW) as part of the 1996 federal welfare reform legislation (Haskins et al., 2007). The survey’s purpose was to follow a representative national sample of children reported to child protective services to describe their functioning, the types of services they and their parents received, and their developmental outcomes. Data were collected on over 5,000 children and their parents using multiple sources and measures over a 3-year period beginning in 2000. The survey results revealed that children and parents who have contact with the child protection system have high rates of problems, complicated service needs, and frustratingly low levels of successful outcomes. Among the most disconcerting findings was that less than one third of the children in out-of-home placement returned home after 18 months in foster care,

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and only slightly more returned home after 36 months. Sadly, one quarter of these reunifications were unsuccessful, requiring the children to reenter the child protection system. These findings illustrate the challenges courts and child welfare agencies face in achieving the goals of child protection, and they provide a context for understanding why mental health evaluations of children and parents may be helpful during child protection proceedings. Researchers have analyzed program outcomes directly relevant to the child welfare system (e.g., rates of child abuse and neglect, out-of-home placement, and permanency) and the cost-effectiveness of these programs (Lee, Aos, & Miller, 2008). Characteristics associated with effective programs include (a) targeted populations, (b) intensive services, (c) a focus on behavior, (d) inclusion of both parents and children, and (e) program fidelity. Although the gulf between evidence-based practices and everyday child welfare practice is large at present, policymakers have been recommending evidence-based practices as both clinically and economically wise investments (APA, 2009; Cohen, Mannarino, Murray, & Igelman, 2006; Kauffman Best Practices Project, 2004; Lee et al., 2008). Evaluators need to be aware of the potential for effective interventions so they can recommend service components likely to meet families’ needs. However, they also should be mindful that access to high-quality services may be limited, as such services are scarce and funding to access services may be limited. Conceptual Frameworks of Parenting and Child Maltreatment Scholars (cf. Bornstein, 2002; National Research Council and Institute of Medicine, 2000) have developed numerous frameworks to conceptualize parenting and parent–child relationships, and several of these models have been applied to child maltreatment (e.g., Rogosch, Cicchetti, Shields, & Toth, 2002; Wolfe, 1999). Contemporary research suggests that no one theory holds preeminence in understanding parenting and child maltreatment, but rather that multiple explanations are open to study and potential integration. Three theoretical models of parenting and parent–child relationships that have figured prominently in research are attachment theory, a dimensional theory of parenting style, and ecological systems theory. Attachment Theory Bowlby (1969/1982) proposed that infants are predisposed to a set of built-in behaviors that keep the caregiver nearby

to protect the child and promote survival. Attachment behavior (e.g., crying, seeking proximity with a caregiver) in response to fearsome stimuli is seen as a biologically adaptive response. Bowlby theorized that attachment develops during the first year of life when the parent provides an infant with predictable, sensitive responses to his or her cues and needs. This “secure base” provides reassurance and allows the child to confidently explore the environment. As children develop, attachment promotes the establishment of strong affectionate ties with specific people who have responded to one’s needs and with whom one experiences pleasure and comfort (Berk, 2008). Ainsworth and colleagues (Ainsworth et al., 1978) developed a method of assessing infants’ responses to brief maternal separation in a laboratory setting in order to classify the quality of attachment as “secure” or “insecure.” A child who, at reunion with the mother, approaches her, greets her positively, and then settles down and resumes play is classified as secure, whereas a child who remains detached or is angry and yet clingy at reunion is classified as insecure. Research on middle-class American families has indicated that about 60% of infants show secure attachment, while others show various forms of insecurity. Numerous factors, such as the quality of caregiving, infant characteristics, family stressors, and the parent’s own history of attachment experiences, influence parent–child attachment relationships. Children with insecure attachments have less positive adjustment than those with secure attachment, and insecure attachment is considered a risk factor for later psychological problems (Berk, 2008; National Research Council and Institute of Medicine, 2000). Attachment theory posits that physically abusive and neglectful parents will display less positive and responsive behavior toward their children compared to nonmaltreating parents, and research supports this presumption (Cassidy & Mohr, 2001). Some physically abused children do not fit typical organized patterns of insecurity, but rather display chaotic, disorganized responses (e.g., freezing, disorientation) to their caregivers (Crittenden & Ainsworth, 1989). This disorganized pattern is of major concern for treatment due to emerging evidence of a strong link between disorganized attachment and risk for psychopathology (Cassidy & Mohr, 2001; Cicchetti, Rogosch, & Toth, 2006). Recent evidence-based practices with children and parents or foster parents have shown positive changes in attachment following intervention, suggesting that the negative effects of maladaptive early parenting experiences are open to change (Cicchetti et al., 2006; Dozier et al., 2006).

Assessment in a Child Protection Context

Dimensions of Parenting Style Baumrind (1971) and other developmental researchers (e.g., Maccoby & Martin, 1983) studied the concept of parenting style by measuring two central traits of parenting: demandingness (control, strictness, and supervision) and responsiveness (warmth, sensitivity, autonomygranting). According to this conceptualization, parents are classified into one of four quadrants: authoritative (high in both demandingness and responsiveness), authoritarian (high in demandingness and low in responsiveness), indulgent (low in demandingness but responsive), or uninvolved (low in both demandingness and responsiveness). In longitudinal research, an authoritative parenting style (a balance of emotional affection and adaptive firmness) has been associated with more competent, academically successful, and problem-free children than the other styles (Baumrind, 1991). Research suggests that these results are most characteristic of European American samples, and that parental authoritativeness is less predictive of outcomes for ethnic minority youth (Chao, 1994; Darling & Steinberg, 1993). Baumrind’s conceptualization of parenting style is relevant in considering the interactions implicated in child maltreatment. Physical child abuse is thought to arise out of interactions in which parents respond to perceived child misbehavior with inconsistent, ineffective, and coercive behavior, which escalates into abuse. Neglect is presumed to relate to chronically detached, uninterested, and unreliable parenting. Theoretically, parent–child interactions involving physically abusive or neglectful parenting fit within the extremes of Baumrind’s authoritarian and uninvolved styles, respectively. The static dimensions of parenting style are influenced dynamically by contributions from the child and the environment, and thus parenting style is most useful as a framework for characterizing general parent–child relationships (Wilson Rack, Shi, & Norris, 2008). Evidence-based practices designed to strengthen behaviors consistent with authoritative parenting are effective when used with parents of maltreated children. Programs employing these practices focus on training parents in positive interactions and consistent, nonviolent discipline techniques. Evidence-based parent-training programs have demonstrated success at preventing child maltreatment (Prinz et al., 2009) and reducing recurrence of maltreatment for physically abusive parents (Chaffin et al., 2011). Ecological Systems Theory In Bronfenbrenner’s (1979) ecological systems theory, the child is viewed as developing within a multilevel

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system of relationships, behavior settings, and community contexts. This integrative model conceptualizes human development as a product of interactions among the individual, the environment, and the linkages occurring at different levels. Belsky (1993), among others, has applied Bronfenbrenner’s ecological model to an analysis of the etiology of child maltreatment, emphasizing the contribution of several independent factors: characteristics of the child or the parent; interaction between the parent and child in the immediate context of caregiving; and the broader context in which parenting and child development are embedded, including community, cultural, and historical, evolutionary factors. Of these factors, the evolutionary context is the most controversial one (Baumrind, 1995) and the one least amenable to empirical study. Belsky’s model posits that child maltreatment is determined by the balance of stressors and supports, or risks and protective factors, at any point in time. Although research supports numerous parent, child, and environmental factors as potential etiological variables, most research compares groups of parents on only one variable or factor at a time. For example, parents with major mental illness are likely to encounter challenges that could limit adequate caregiving (Nicholson, Sweeney, & Geller, 1998a, 1998b), yet many parents with mental illness are able to care for their children on their own or with support (Ostler, 2008). To understand how and when mental illness compromises parenting requires an assessment of the interaction of this factor with others in increasing the likelihood of maltreatment. An ecological model suggests that there are many pathways to child abuse and neglect, but also that there are many potential approaches to intervention. Further, because of the multi-determined nature of child maltreatment, an ecological model presumes that treatments directed at any single factor are likely to be insufficient (Belsky, 1993). As a result, some evidencebased programs target multiple risk factors. For example, treatment for children exposed to trauma may include interventions directed at the children and their parents, and actions to enhance the safety of the family environment (Cohen et al., 2006). Cultural Factors Affecting Parenting All cultures have rules concerning appropriate and inappropriate conduct with children, but beliefs may vary widely regarding what is condoned (Korbin, 1981, 1997). Contextual factors such as racial or ethnic background, regional norms, religiosity, SES, and a parent’s own experiences of childrearing influence parenting beliefs and

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practices (Darling & Steinberg, 1993; Harkness & Super, 1996; Kotchick & Forehand, 2002). Further, the impact of parenting behaviors on children’s adjustment differs depending on the contexts in which these behaviors are situated. To the extent that parents’ punitive discipline practices are culturally normative, they may be seen by children as less rejecting and have a less negative impact on children (Lansford et al., 2005). Much of the research on parenting and child development has been conducted in the United States and has involved primarily middle-class, European American families. Therefore, a basic question arises as to whether the principles and findings drawn from this research hold true across cultures, and, particularly for the current discussion, whether they apply to many of the families involved in the child protection system, who are disproportionately poor and ethnic minorities. It is crucial that professionals conducting evaluations take into account the cultural background and context of the individual family in a child protection evaluation. It is also important for evaluators to gain competence about culturally diverse parenting practices and to seek consultation when evaluating families from cultures outside their own experience. In considering cultural differences in parenting while conducting child protection evaluations, it is necessary to understand what constitutes maltreatment, both within the subculture and in the larger culture. Researchers, lawyers, and child welfare professionals have struggled with where to draw the line between physical discipline and physical abuse, particularly when it is seen in a cultural context (Lansford et al., 2005; Whipple & Richey, 1997). Some behaviors may be viewed as culturally accepted in one context but become problematic when parents engage in them outside of their normative setting (Hansen, 1997). When families immigrate to the United States, they may engage in practices that were culturally accepted in the family’s homeland but that meet American definitions of child abuse or neglect (Gray & Cosgrove, 1985; Levesque, 2000). The definition of what constitutes adequate parenting may also change over time, and practices that were once normative may be viewed as neglectful or abusive. For example, allowing children to ride in cars without seatbelts or smoking cigarettes in the presence of children were once normative but are now viewed negatively. Evaluators in child protection evaluations are in a position to shed light on the nature of and possible explanations for culturally controversial practices, regardless of whether the actions have been determined by the court to be abusive. They can do this by seeking information regarding (a) the intensity, severity, and context of the

parent’s behavior; (b) the child’s perceptions of his or her treatment and evidence of emotional harm; and (c) the parent’s intentions and beliefs about the actions in relation to socialization goals of the family’s culture (Korbin, 1981, 1997; Whipple & Richey, 1997). Research on Assessment Measures Used in Forensic Evaluation Practice Traditional psychological assessment measures, parentingspecific measures, and observational methods have, for the most part, not been designed for or tested with families in the child protection system. Despite this, a small literature is now available to provide direction in planning and conducting evaluations. Traditional Psychological Measures Evolving evidentiary standards have increasingly emphasized the importance of scientific reliability and legal relevance of the testing used in forensic assessment (Heilbrun, Grisso, & Goldstein, 2009). Further, a test’s general acceptance within the profession is an important marker when determining whether to use any specific measure. Standardized intellectual and achievement tests are commonly used when questions arise as to an individual’s general cognitive functioning. In surveys of forensic evaluators, use of the Wechsler Intelligence Scales has been endorsed across a wide range of forensic tasks (Archer, Buffington-Vollum, Stredny, & Handel, 2006; Lally, 2003). Less frequently used but generally accepted are the Stanford-Binet–Revised (Lally, 2003) and the Wide Range Achievement Test (Archer et al., 2006). The performance-based nature of cognitive tests and their objective scoring criteria have been cited as positive features in forensic assessment reviews (e.g., Medoff, 2003). In contrast to the general acceptance of standardized cognitive tests in forensic assessment, critiques of personality measures have varied in their conclusions. Of the adult personality measures, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) (Butcher et al., 2001) and Personality Assessment Inventory (PAI) (Morey, 1991) were described as more scientifically sound and acceptable than the Millon Clinical Multiaxial InventoryIII (MCMI-III) (Millon, Davis, & Millon, 1997; see also Archer et al., 2006; Lally, 2003; Medoff, 2003). One of the more controversial measures of personality is the Rorschach Inkblot Method. There is considerable and heated debate in the literature about the validity of the Rorschach scoring system and the normative sample upon

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which it is based (Garb, Wood, Lilienfeld, & Nezworski, 2005; Medoff, 2003), leading to controversy about the appropriateness of using the Rorschach Inkblot Method in forensic settings. The demands of court-ordered testing situations are likely to contribute to parents’ motivation to present themselves positively (Carr, Moretti, & Cue, 2005; Stredny, Archer, & Mason, 2006). Of significant concern is that the validity of psychological test results may be reduced by response distortions because parents may underreport symptoms or overreport positive qualities in order to appear well adjusted. However, rather than viewing positive presentation bias as a basis for invalidating test results (cf. Carr et al., 2005), Ben-Porath (2009) proposed that evaluators consider the pattern as typical under the circumstances. In that light, the evaluator should comment in the report that highly defensive response sets or efforts at positive impression management are frequently observed and understandable in the context of courtmandated assessment when there is a great deal at stake, and that these response styles may not characterize the individual’s responses in general. Parenting-Specific Measures Tests of parenting-related constructs are designed to tap functional characteristics (i.e., knowledge, attitudes, beliefs, and behaviors related to childrearing). Despite the plethora of clinical and research measures designed to assess parenting attitudes and behaviors, only two, the Child Abuse Potential Inventory (CAPI; Milner, 1986) and the Parenting Stress Index (PSI; Abidin, 1995), have been recommended in forensic reviews as appropriate for forensic evaluations in child protection cases (Archer et al., 2006; Otto & Edens, 2003; Yanez & Fremouw, 2004). Notably, the CAPI was constructed and validated with a population of known physically abusive parents. Use of the test with the general population, or with a population whose base rate of physical abuse is lower than 50%, is not advised, as there is risk for high false-positive rates (Milner, 1986). The normative sample for the PSI included only mothers from a limited cultural background and a nonforensic population, which is likely inadequate to justify application of test results to father–child relationships and potentially to cultural groups underrepresented in the sample (Abidin, 1995; Zervopoulos, 2008). Also necessary to consider when administering the PSI is the interpretation of scores when the parent is not living with or actively parenting the child. In these situations, elevated scores may reflect stress related to separation rather than caregiving, and scores in

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the normative range may relate to the fact that the parent is not responsible for full-time caregiving. A few other parenting-specific instruments relevant to a child maltreatment population have been subjected to empirical evaluation, and the evidence at present is not sufficient to recommend their widespread use in child protection evaluations. For example, the Adult–Adolescent Parenting Inventory (AAPI; Bavolek, 1984), the more recent AAPI 2 (Bavolek & Keene, 1999), and the Parent Opinion Questionnaire (POQ; Azar et al., 1984) could provide useful information as part of a multi-method assessment process. However, given psychometric and validity concerns regarding the AAPI (Lutenbacher, 2001), AAPI 2 (Conners et al., 2006), and POQ (Haskett et al., 2006), forensic evaluators should use extreme caution in interpreting parents’ scores if they use these instruments in parenting capacity evaluations. Of particular concern are parenting-related measures without strong validity scales or measures of impression management, since any forensic examinee is likely to be defensive in responding, given the high stakes involved (Otto & Edens, 2003). Direct Observation The most direct source of information about parent and child behavior comes from observation of naturalistic interactions. Given that self-reports can be influenced by social desirability bias, observational methods provide an independent source of data about functioning in samples undergoing court evaluation. Direct observation provides first-hand information on the child’s functioning, strengths, needs, and responsiveness in others’ presence. Direct observation also offers a sample of functional parenting skills and deficits under conditions when parents are presumably attempting to demonstrate their best caregiving skills (Budd, 2001). Data on both functional parenting abilities and child needs are essential to assessing the nexus between parenting capabilities and childrearing demands. Numerous methods for assessing parents and children exist; however, no current observational measures fulfill all the criteria to qualify as formal forensic assessment measures (Otto & Edens, 2003). To do so would require that the measures be designed or adapted for forensic purposes, that standardized administration and scoring procedures exist, and that their reliability and validity has been established in a child protection context. The diversity of settings; numbers, ages, and characteristics of children; and conditions under which parent–child observation occurs in child protection assessments makes standardization of observational procedures particularly challenging.

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Instead, some (e.g., Budd, 2001; Pezzot-Pearce & Pearce, 2004; Schmidt et al., 2007) have provided guidelines for observation of parents and children during child protection evaluations. Wilson et al. (2008) examined the nature and extent of differences in parent communication styles during parent–child observation with maltreatment samples. Employing a meta-analysis, the investigators reviewed 33 observational studies comparing physically abusive, neglectful, and non-maltreating parents during interactions with their children. Eligible for inclusion were studies that compared a sample of parents with a documented history of child maltreatment to a demographically matched sample of non-maltreating parents. Three clusters of parent behavior were analyzed: aversiveness (e.g., anger, disapproval); involvement (e.g., questions, responsiveness); and positivity (e.g., laughter, praise). Across studies, differences between maltreating and non-maltreating parents were medium in effect size (d = 0.46 to 0.52). Physically abusive parents were distinguished from nonmaltreating parents in terms of higher rates of aversive behavior, whereas neglectful parents were distinguished from non-maltreating parents in terms of lower rates of involvement. Both abusive and neglectful samples displayed significantly lower rates of positivity compared to non-maltreating samples. Wilson and colleagues (2008) found that several variables moderated the magnitude, though not the direction, of observed differences. Specifically, studies obtained larger effects when families were observed for longer periods of time (e.g., over an hour), with younger children (under 5 years), and in the home rather than in a laboratory setting. The authors classified the task structure of interactions into four categories, from highly structured (e.g., researcher tells the parents what tasks to do, what objects to use, and how to use these objects) to unstructured (e.g., no rules, such as free play). Task structure was a moderator for parent involvement, such that studies employing unstructured tasks found larger differences between maltreating and non-maltreating parents than did those using only highly structured tasks. These findings provide directions for structuring observations that are more likely to yield useful data for child protection evaluations. Bonding or Attachment Assessments In some jurisdictions, bonding or attachment assessments may be requested by the court, particularly when children have been in foster care for extended periods of time and have difficulty relating to their biological parents. Mental health evaluators are asked about the child’s relationship

with the biological or foster parent and are requested to assess the psychological risk to the child if returned to the biological parents. Bonding or attachment assessments raise two significant issues in a child protection context: one related to a shift in the focus of the assessment to a comparison of two or more childrearing contexts (as occurs in child custody evaluations) rather than on the parent’s ability to provide minimally adequate care, and the second related to the availability of validated assessment tools. Requests for a bonding or attachment assessment are more likely under some circumstances than others. In termination-of-parental-rights cases, some parents cannot meet the casework expectations because of their failure to maintain involvement when the child is in foster care, behaving in a neglectful or psychologically harmful way during supervised visitation, or explicitly renouncing a desire to parent the child. In those cases, the determination to move toward termination of parental rights may be made with relatively little input from a mental health professional. More challenging, however, are situations in which the parents have fully cooperated with the court and met casework expectations. When the time comes to consider returning the child, there may be concern that removing the child from the foster parents would cause psychological harm. In jurisdictions where statutes allow termination of parental rights if it is demonstrated that the child will be endangered or harmed by a return to the parent, in spite of the fact that the parent has been rehabilitated, psychologists may be called upon to conduct an attachment or bonding assessment to address how the removal from the familiar foster parent may affect the child. The logic for a bonding or attachment assessment in such situations is understandable. The challenge, however, arises in finding validated tools for assessing attachment for children in foster care; at present such tools do not exist. Ainsworth and colleagues’ (Ainsworth et al., 1978) assessment paradigm was developed for infants and toddlers in a research context and involved a structured observation with the parent figure and child, the introduction of a stressor, and a careful assessment of whether the child appears to rely on the adult for protection. Unfortunately, the circumstances of a parent–child dyad who have not been living together fall outside the parameters of this methodology, as does assessment of a child in the temporary care of a foster parent. Furthermore, assessment of children beyond the toddler or preschool age falls outside this methodology. Although clinical versions of attachment assessment have been developed for a child

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protection setting (Schmidt et al., 2007), they have not been validated. Given the absence of empirical support for bonding or attachment assessments in a child protection context, it may be helpful to reframe the question to focus on the legally relevant issues that can be assessed. These questions could include how the child’s removal from the foster parents may affect the child, the caregiving strengths and limitations of the child’s parents, and positive and negative factors associated with return to the child’s parents (not only in terms of warmth experienced in each environment but also the child’s sense of belonging, need to know the biological parent cares for and loves the child, need to be part of the biological extended family network, and cultural factors important to the child now or potentially as the child matures). Ultimately, the determination must be made by the court, and there are many factors that are beyond the expertise of the mental health evaluator in reaching that final decision. Those include, for example, moral and values questions regarding parental rights, empirical data regarding stability of foster home placements, viability of long-term foster placement as contrasted to adoption, and the inherent unfairness of comparing the foster family with the biological parent in terms of the opportunities they might be able to provide the child. Research on Forensic Assessment Practice Little information has been gathered systematically on typical forensic evaluation practice or on how judges and child protection agencies use evaluators’ reports. One exception is a series of studies carried out in the child protection division of a large, urban juvenile court system serving metropolitan Chicago. Many evaluators did not follow recommended practices (APA, 1999; updated in APA, 2011), supporting the need for more training (Scally et al., 2001–2002). Evaluations of children typically were general in nature rather than focused on specific referral concerns, limited to a single office session, cited few background sources (i.e., written records or interviews with caregivers, therapists, or collaterals), and often included recommendations regarding case disposition despite commentators’ advice to avoid doing so in favor of providing data that would inform judges or others charged with making these decisions (Budd et al., 2002). Identified shortcomings in evaluating parents included vague or general referral questions, single interviews with parents, lack of collateral information or records, emphasis on parenting weaknesses over parenting strengths in report

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conclusions, lack of parent–child observations, and lack of consideration of the parent’s caregiving qualities or the child’s relationship with the parent (Budd et al., 2001). Budd and her colleagues also found that evaluators relied heavily on traditional psychological instruments not directly related to parenting (e.g., cognitive tests, objective and projective personality measures), and often failed to report whether parents were informed of the evaluation’s purpose and limits of confidentiality. Moretti et al. (2003) reported some of these same shortcomings in their unpublished study of parenting capacity evaluations in Canada. Although limited in generalizability, the findings underscore the need to educate psychologists and courts about how these assessments should be conducted. Another study (Conley, 2003–2004) of parenting capacity evaluations in Australia identified three areas of concern. A substantial emphasis was placed on traditional psychological measures to determine the presence or absence of mental health problems in parents; most assessors appeared to lack knowledge about parent–child attachment relationships and used insufficient methods to gather data about attachment; and assessors lacked a framework in which to analyze their findings and data. These qualitative findings, although different in some details from Budd et al.’s (2001), suggest the need for further research and training to improve the quality of evaluations provided the courts in child protection cases. After Chicago’s comprehensive investigation confirmed extensive problems in the content and quality of forensic practice, researchers collaborated with court professionals to design and implement a multidisciplinary reform (Budd et al., 2006; Kavanaugh et al., 2006; Scally et al., 2001–2002). The reform model addressed three key areas for change: (1) problems in the process of acquiring clinical information (e.g., vague referral questions, repeated and unnecessary evaluations, lack of timeliness), (2) poor content and quality of the clinical information obtained, and (3) system-wide constraints (e.g., varying practices among courtrooms, general lack of knowledge among attorneys of what constitutes a competent evaluation, poor communication). Core features of the reform model included establishing liaisons between the court and clinicians; creating a structured system for focusing, screening, and responding to requests for evaluations; training for clinicians in “best practice” methods of forensic assessment; and educating court personnel about the characteristics of families in the child protection system and what to expect in forensic assessments (Scally et al., 2001–2002). Budd and her colleagues (2006) studied the effectiveness of the model and found

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numerous positive changes, including a high proportion of recommended features in evaluations and more prompt and consistent reports. At the completion of the study, the county adopted the pilot model court-wide through the creation of the Cook County Juvenile Court Clinic (Kavanaugh et al., 2006). The promising results of Cook County’s reform model suggest that concerted change efforts can bring about meaningful improvements in the quality of child protection evaluations.

FORENSIC MENTAL HEALTH CONCEPTS AND FRAMEWORKS Forensic mental health assessment (FMHA) refers to the objective evaluation of psychological phenomena conducted for the court or likely to be used in legal proceedings (Heilbrun et al., 2009). Whether a child protection evaluation is ordered by the court or is requested by a social service agency, it is highly likely that it will be used in court proceedings. An evaluation takes on a life of its own once the report is written (Budd, 2001), and the evaluator cannot correct or update the report after the fact for use in court. Purpose and Scope of Evaluations The purpose and scope of forensic assessment should be conceived differently from clinical or therapeutic assessment. As described in detail by Heilbrun et al. (2009) and by Melton, Petrila, Poythress, and Slobogin (2007), the FMHA is conducted to assist the legal decision maker by identifying the examinee’s functional capacity or impairment directly relevant to the legal issue (Grisso, 2003), rather than to diagnose and treat symptoms. In a child protection context, the functional capacities of interest typically relate to the parent’s ability to protect and care for a child. Forensic assessments are generally compelled and should not be viewed as voluntary, even when the parent has readily agreed to the assessment. Unlike therapeutic assessments, the client of a forensic assessment is the court or the agency ordering or requesting it, and the parent’s and child’s views or concerns are secondary to the goal of objective assessment in order to provide relevant information for the court. An overarching consideration in cases of child maltreatment is the child’s best interests. Thus, in addition to examining the functional capacity of the parent as a caregiver, a parallel question is whether care by the parent is in the child’s best interests. As noted earlier, Illinois statutory

elements are reflective of many state statutory definitions of what is in a child’s best interests, including the child’s (a) age and developmental needs, (b) physical safety and welfare, (c) emotional, physical, and mental status or condition, (d) background and ties, including family, culture, and religion, (e) sense of attachments, (f) wishes and long-term goals, and (g) need for permanence, stability, and continuity of relationships, including with siblings (Illinois Juvenile Court Act) (705 ILCS 405/1-2). The court may sometimes seek information about what is in the child’s best interests independent from questions about the parent’s functioning. For example, for a child recently placed in foster care, information may be sought regarding the impact of separation and loss on the child, or about services needed to mitigate the negative impact of family disruption on the child. At a later stage of permanency planning, the questions may relate, as noted earlier, to the relative risks and benefits for the child of transfer from a stable foster home placement back to the care of the biological parent or the impact of termination of parental rights on the child. Questions relating to the child’s safety and well-being may initially arise in the context of service planning; however, because of the likelihood that the evaluation will be used in court, it is considered within the purview of forensic assessment. Professional Guidelines for FMHA Several general resources guide the practitioner in performing FMHAs in child protection matters, including the American Psychological Association (APA) Ethical Principles of Psychologists and Code of Conduct (APA, 2002); the Standards for Educational and Psychological Testing (American Educational Research Association, APA, and National Council on Measurement in Education, 1999); the Specialty Guidelines for Forensic Psychologists (hereafter referred to as the “Specialty Guidelines”; Committee on Ethical Guidelines for Forensic Psychologists, 2011); and the APA’s Record Keeping Guidelines (APA, 2007). Of these, the Specialty Guidelines are particularly useful in clarifying how the legal context influences obligations of the evaluator in forensic assessments. Most relevant for psychologists performing evaluations in child protection matters are the Guidelines for Psychological Evaluations in Child Protection Matters (APA, 2011). Some key recommendations in the guidelines, many of which are also contained in the general guidelines cited above, are as follows: • Determine the scope of the evaluation based on the nature of the referral questions.

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• Inform participants about the evaluation’s purpose and the limits of confidentiality. • Use multiple methods of data gathering (e.g., records, questionnaires, interviews, observations, collateral sources). • Make efforts to observe child together with parent, preferably in natural settings. • Neither overinterpret nor inappropriately interpret assessment data. • Provide an opinion only after conducting an evaluation adequate to support conclusions. • Recognize the need for timeliness. • Gain specialized competencies and knowledge. Frameworks for Formulating and Answering Questions in FMHAs The first task for the FMHA is to identify the relevant forensic issues. The evaluator clarifies the specific referral questions and ensures that there are tools available to address the questions. What are the forensic questions, and how can they be operationalized so that their component parts become clear—and a determination can be made whether science lends itself to the questions (Otto & Edens, 2003)? The referral concerns may require clarification; they may be vague (e.g., “to do a psychological evaluation”), overly broad (e.g., “to assess the parent’s and child’s needs and functioning”), or patently inappropriate, for example by asking about the occurrence of a past event that is beyond the capacity of the evaluator (i.e., “to determine whether the parent abused the child”). There is an important distinction between the clinician being asked to determine whether a child has been abused and the clinician being asked to determine whether the child has been harmed by known or acknowledged abuse (Melton et al., 2007). The former question is for the court to decide and is addressed at the adjudication phase. Evaluators should avoid reconsidering the evidence regarding whether abuse occurred unless specifically court-ordered to do so. By contrast, the latter question, regarding whether a child was harmed by abuse, is an appropriate topic for the FMHA. Through initial discussions with the referral source, the questions can be clarified and focused so that reasonable expectations and goals are established (Budd, 2001). Certain limits are generally accepted in formulating opinions for the court. Statutes and case law explicate how trial judges determine, upon challenge, whether to allow expert testimony on an issue. Generally, expert testimony, scientific or otherwise, must be both relevant and reliable to be admissible (Daubert v. Merrell Dow

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Pharmaceuticals, 1993; Frye v. United States, 1923; Kumho Tire v. Carmichael , 1999; and state equivalents; also see Erickson & Ewing, this volume). The evaluator guards against offering personal opinions on the legal matter and stays within the bounds of professional expertise. Opinions should flow from the data gathered and assimilated and should be firmly anchored in that data (APA, 2002; Committee on Ethical Guidelines for Forensic Psychologists, 2011; Heilbrun, 2001; Heilbrun et al., 2009). The ultimate legal question that is before the court often involves not only issues that may be within the expertise of testifying experts but issues that are best left to the juror or fact finder—the value-laden or moral questions with which the law must grapple (Grisso, 2003; Heilbrun, 2001; Heilbrun et al., 2009). Expert testimony must be reliable and relevant (Erickson & Ewing, this volume; Sales & Shuman, 1998) and therefore the evaluator should offer opinion only in those areas that fall within the evaluator’s professional expertise. Several models have been proposed for applying knowledge from behavioral and social science research to legal questions in a child protection context (e.g., Azar, Lauretti, & Loding, 1998; Barnum, 1997; Budd, 2001, 2005; Condie, 2003; Dyer, 1999; Grisso, 1986, 2003; Kuehnle, Coulter, & Firestone, 2000; Pezzot-Pearce & Pearce, 2004; Reder & Lucey, 1995). Two approaches with broad relevance across forensic issues in child protection cases are described ahead. Because the referral questions in child protection evaluations often relate to the parent’s caregiving capacity, both models focus on assessment of the parent and the parent–child relationship. Both also incorporate attention to the child in order to assess harm, service needs, and the fit between the child’s needs and the parent’s caregiving abilities. Barnum’s 4-H Model Barnum (1997) outlined a comprehensive assessment method for cases of alleged child neglect and abuse and organized it around four assessment activities: determining whether maltreatment occurred (although, as noted earlier, this is beyond the scope of expertise of mental health evaluators); describing any harm to the child as a result of alleged or proven abuse or neglect; describing the parent’s caretaking capacities; and offering a prognosis with recommendations for treatment and intervention. Barnum (1997) referred to these as the Four H ’s for organizing the inquiry and the data: 1. What happened ? The facts surrounding the allegations sometimes are in question, but, to the extent that

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facts are known, the evaluator may pay some heed to the facts as background to an opinion regarding parenting capacity and/or child best interest. 2. What harm did it cause? Although it may be clear that the child was abused or neglected, the range of possible effects is substantial. Furthermore, alternative explanations for any apparent harm or symptoms of harm should be addressed. The physical harm a child may have suffered as a consequence of physical abuse or neglect is generally a medical matter. Developmental or emotional harm, on the other hand, may be a matter to be addressed by a psychologist. It is often difficult to establish a clear nexus between the child’s current functioning and any specific abuse or neglect. The assessment of the child’s current functioning, of all known potential stressors or contributors, and carefully considered hypotheses about what aspects of the child’s current difficulties stem from the maltreatment are of most use to the fact finder. 3. What help can the parent provide? The focus of the assessment in Barnum’s model is on formulating an opinion regarding the parent’s ability to provide adequate care to the child. Although the ultimate determination of adequacy is made by the fact finder, the evaluator can address functional parenting capacity, a concept that may embrace a variety of different functions. Barnum recommended summarizing the salient findings and offering opinions on the nature and extent of particular strengths and weaknesses. Additionally, Barnum suggested that an opinion may be offered regarding whether the specific constellation of strengths and weaknesses would put this parent’s child at risk of further abuse or neglect. This may be accompanied by a characterization of the level of risk and the specific precipitating factors that would tend to activate the risk. 4. What hope is there for the future? Barnum’s model includes the formulation of a prognosis and clinical recommendations to guide service planning and legal determinations. To the extent that any functional parenting deficits are linked to specific disorders for which treatment may be available, it is essential to note these and to offer a frank but appropriately cautious prognosis regarding realistic probabilities of improvement. Barnum suggested the evaluator attend to (a) what is known empirically about the likely success of treatment interventions; (b) the parent’s history of treatment, including successes and failures; (c) the parent’s current recognition of the disorder and motivations for treatment; and (d) the parent’s realistic access to adequate treatment, including availability, funding, transportation, and language and cultural matching. If the parent is not expected to be able to

make good use of treatment, this should be noted and explained. Budd’s Clinical Practice Model Budd (2001, 2005) proposed a model for evaluation of parents in child protection matters based on Grisso’s (1986, 2003) general competence assessment model. Baerger and Budd (2003) extended the application of Grisso’s model to the assessment of competence to consent to various decisions regarding who will care for and parent the child in cases of voluntary relinquishment of a child to adoption or guardianship. Budd’s model of parenting capacity assessment contains three core features: a focus on parenting, functional parenting abilities, and a minimal parenting standard. First, evaluation should include a focus on parental capabilities and deficits and on the parent–child relationship. Adult qualities and characteristics need to be linked to specific aspects of parental fitness or unfitness, by showing how they pose a protective factor or risk to the child or how they enable or prevent the parent from profiting from rehabilitative services. The emphasis on parenting means that the methods and measures relevant to the evaluation often will be different from those used in traditional psychological evaluations of adult functioning, as described further in the section on methods of data collection. Second, a functional approach should be employed, emphasizing behaviors and skills in everyday caregiving. Parenting skills should be assessed by examining the fit of parents’ skills and deficits in relation to individual children’s needs. Rather than concentrating on diagnostic and trait-based qualities, functional assessment focuses on direct measurement of parenting behaviors, capabilities, and practices, and embodies a constructive focus on identifying parenting strengths and areas of adequate performance, in contrast to merely identifying deficits (Budd, 2001). Third, the threshold used to assess adequacy of caregiving is a minimal parenting standard. As Budd (2001, p. 3) argued, “Rather than comparing parents to adaptive or nurturing parents or comparing the relative abilities among caregivers (as in divorce custody cases), a lower standard is appropriate. Minimal parenting competency is the ‘floor’ of acceptable parenting that is sufficient to protect the safety and well-being of the child.” In the absence of an empirical or legal basis for imposing a more stringent criterion, the law protects parents’ constitutional rights to raise their children as they choose. This is consistent with the opinion put forth in Santosky

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v. Kramer (1982) that a parent’s retention of caretaking rights need not be contingent on a display of “model” parenting. Research has found pervasive differences in parenting beliefs and practices associated with factors such as socioeconomic status, race, ethnicity, religion, and other human differences. As Budd (2001) stated: These factors do not exert direct effects on families resulting in “better” or “worse” parenting, but rather, research suggests that people of different groups have different experiences that make them different people, both in their beliefs and values and in their behaviors. . . . Adherence to a minimal parenting threshold fits with psychologists’ ethical responsibilities to respect individual differences with regard to culture, access to resources, and community practices of childrearing. (p. 3)

The intersection between a parent’s rights and a child’s best interests essentially comes down to a judgment about whether a parent’s care is “good enough” in the eyes of the law. However, no clear operational definition for minimal parenting adequacy exists either in the law or in the child development research literature. Retaining a behaviorally descriptive approach that is sensitive to individual and contextual differences leaves room for the legal decision maker to determine the societal standard to which parents should be held (Budd & Holdsworth, 1996). Table 7.2 identifies areas to consider in evaluating a parent’s ability to provide for a child’s basic physical, cognitive/developmental, and emotional needs. The table is drawn from Budd’s (2001) clinical practice model and training materials used in the Cook County Juvenile Court Clinic (CCJCC) (2008).

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TABLE 7.2 Potential Areas for Assessing Parenting in the Context of Child’s Needs The child’s physical, cognitive, and emotional needs require minimally adequate parenting in the following areas: Physical needs (e.g., need for parenting that provides for physical safety, adequate supervision and protection from harm, a stable and safe home environment, medical and dental care, and clothing) Cognitive/developmental needs (e.g., need for parenting that is sensitive to the child’s developmental level, has appropriate expectations for what the child can and cannot do, communicates in a developmentally appropriate and clear manner, imparts knowledge and fosters development and learning in areas of language, self-care, school functioning, and social skills) Emotional needs (e.g., need for parenting that reads the child’s cues or moods without distortion, shows emotional affection and sensitivity, uses appropriate discipline to promote positive behavior and growth, is empathic and supportive) Factors affecting the fit between a child’s needs and a parent’s caregiving capabilities include: The specific child’s developmental stage and whether the child has any special needs or delays. The parent’s ability to not only meet the specific child’s needs (parent–child fit), but also the parent’s ability to meet his or her own needs. The role of factors such as culture, socioeconomic status, frequency of contact with the child, and interpersonal stressors on functional parenting skills.

These factors provide a starting point for evaluators when assessing a child and parent in the context of their current environment. (A detailed list of risk and protective factors suggested by the research literature is provided in Budd et al., 2011.)

Assessing Risk and Protective Factors

Comparison of Child Protection and Child Custody Evaluation Contexts

Both of the assessment models described earlier include identification of strengths and weaknesses regarding parent and child functioning, as well as possible explanations for the strengths and weaknesses. In order to organize information about factors that influence strengths and weaknesses, it is helpful to think in terms of risk and protective factors. Risk factors are aspects of the child, parent, or community environment that are predictive of negative outcomes: that is, factors that are likely to lead to the needs of the child not being met. Protective factors protect or buffer a child against negative developmental outcomes; that is, they are likely to lead to the needs of the child being met, or characteristics that decrease the impact of abuse or neglect. As reviewed earlier, certain child, parent, and community-level factors are associated with increased or decreased risk for child abuse or neglect.

Questions of parental fitness arise not only in child protection cases but in divorce proceedings as well. The increased use of mental health evaluators in divorce cases beginning in the 1970s coincided with greater attention to the best interest standard as a means for deciding custody based on characteristics of each child and parent (Otto & Edens, 2003). Coincidentally, the use of mental health evaluations in child protection cases focused initially on assessing parental fitness or unfitness in termination-ofparental-rights cases and gradually expanded to dispositional decisions at earlier legal stages (e.g., regarding permanency goals, service needs, or visitation arrangements: Melton et al., 2007). Increasing reports of child maltreatment in the 1990s, particularly in large urban centers, precipitated requests for mental health evaluations of parents as dependency courts and child welfare agencies

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attempted to deal with the backlog of cases (Budd et al. 2001; Dyer, 1999). The differing goals and circumstances of child custody and child protection courts limit the relevance of custody-related models and legal guidelines in child protection assessments at issue in this chapter. There are important distinctions between the issues in child protection and child custody cases, as shown in Table 7.3. A fundamental difference is that, in child custody evaluations, the assessment is designed to inform judgments about custodial arrangements that are in the child’s best interests, generally considering as candidates for parenting the child’s family and attempting to maximize the positive contributions each of those people can make to the child’s best interests. By contrast, child protection evaluations are designed to inform judgments about the parent’s ability to provide minimally adequate care. Whereas child custody evaluations inherently involve comparisons between the parents and their relationships with the child, child protection evaluations typically do not (and should not) involve comparing the parent or the parent–child relationship to that of a temporary caregiver (e.g., a foster parent). The differing goals and circumstances of child custody and child protection courts limit the relevance of custody-related models and legal guidelines in child protection assessments at issue in this chapter. Specific Referral Questions at Various Stages of the Case The APA Guidelines for Psychological Evaluations in Child Protection Matters (APA, 2011) state that the purposes of child protection evaluations will be determined by the nature of the child protection matter. In practice, the clarity of referral questions and amount of background TABLE 7.3 Comparison of Child Custody and Child Protection Evaluations Child Custody

Child Protection

Presumption of minimally adequate parenting

No presumption of minimally adequate parenting

Stakes involve mainly parenting time and responsibility, but may also involve conditions of access (e.g., visitation)

Stakes involve conditions of access (e.g., visitation) and eventual reunification versus termination of rights

Focus on child’s best interest

Focus on child’s best interest and parent’s rights

Animosity between parents likely

Animosity between parents and state likely

Varied SES

Typically low SES

Broad focus of evaluation

Narrow focus of evaluation

information provided vary substantially across sources. When information is inadequate, the evaluation process is not likely to proceed well. Budd and colleagues found that most referrals for child evaluations (Budd et al., 2002) and parent evaluations (Budd et al., 2001) in the urban child protection court system they studied failed to delineate specific reasons for referral, a factor that appeared to contribute to the limited usefulness of the resulting reports. Dyer (1999) noted that issues related to the history of the case, agency expectations, or timelines for reunification may not be conveyed to psychologists until after the report is received—too late to address or incorporate the information into the evaluation. As Beyer (1993) stated, an assessment is only as useful at the questions presented to the evaluator. She recommended that the evaluator clarify (a) what, specifically, the referral source wants to know about the child and/or parent’s functioning, (b) what problems or events gave rise to the concerns, and (c) what specific outcomes or options will be affected by the findings. Translating generic questions into specific referral questions often requires a dialogue about the reasons for clinical concern, the circumstances that make the questions relevant at the present time, and how the answers will be used (Budd, 2001). Referral questions differ across various stages of CPS involvement. Budd and Springman’s (2011) analysis of referral questions in Chicago’s juvenile court found that the most common referral issues concerned service planning, parenting ability, or the parent’s cognitive or emotional functioning, whereas issues related to the child’s behavior or needs were less frequently addressed. Referrals from social service agencies often involved no pending legal decision; rather, the clinical information was requested primarily for service planning purposes. The most commonly cited pending legal decisions were selection or change of a permanency goal and visitation arrangements. Whether these patterns are typical of other court systems is unknown, but they demonstrate the variety of referral concerns present across cases. Despite the diversity of potential forensic issues, some questions are more likely than others to arise during the lifetime of a child protection case. After CPS has established a basis for involvement with a family, the referral for FMHA may be driven by a need to refine casework goals and plans. At this early stage of intervention, evaluation questions may address the child’s emotional adjustment and service needs, the parent’s receptivity to intervention, or the parent’s capacity to understand the child’s developmental level and limitations. Questions at this stage may be, for example, “What harm has the child

Assessment in a Child Protection Context

suffered from the chronic emotional neglect by his parents, and what are the risk and protective factors associated with parental visitation?” or “What strengths and deficits does this parent have in providing adequate care for three toddlers?” or “What are this parent’s service needs, given the parent’s history of chronic depression?” After working with a family for a period of time, the CPS caseworker may identify previously unknown issues that form the basis for assessment or may want assistance in understanding a parent’s failure to adhere to intervention recommendations. Sample questions may include, “How does the pattern of partner violence in the parents’ relationship affect their capacity to parent and ability to cooperate with the service plan?” or “What is the prognosis for positive change with regard to the parent’s chemical dependency?” Should interventions fail, the question may be, “What has interfered with the parent’s cooperation with the recommended psychiatric treatment regimen, and can these obstacles be resolved in a reasonable timeframe?” or “Given the child’s expressed wish to no longer have contact with his father, what factors should the court consider in determining if unsupervised visits should begin?” There also may be concerns about the safety of the visitation arrangements or the impact of extended out-of-home care on the child. Later stages of the case may give rise to referral concerns relating to planning for reunification or, in the absence of progress, termination of parental rights, permanent guardianship, or adoption. When considering termination of parental rights, the referral questions are likely to focus on whether the parent’s functioning meets the statutory definitions of unfitness. Questions also may relate to whether the parent’s current condition impacts the ability to discharge parental responsibilities, and, if so, whether this condition will extend beyond a reasonable time period. Additionally, questions may address the impact of termination of rights, guardianship, or adoption on the child. At voluntary relinquishment of parental rights, the evaluation questions may focus on the parent’s understanding of the implications of the relinquishment and capacity to make an independent and informed decision.

METHODS OF DATA COLLECTION There are several common data collection methods in forensic mental health assessment in a child protection context, whether assessing issues related to the child’s functioning and needs, the parent’s caregiving capacity,

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or the parent–child relationship. These methods include review of records, interviews with the child and/or parent, interviews with collateral or third party informants, observation of the parent and child, and psychological testing. Review of records and, in evaluations of parents, interviews with the parent, are essential to the FMHA, in that they provide basic factual and descriptive material. Interviews with the child may be in order, depending on the child’s age and developmental functioning. Collateral interviews and parent–child observation are highly recommended for gauging the validity of information and broadening the sources and types of data. Testing is often but not always helpful, and the nature and extent of the testing depends on the referral concerns and available data sources. As in all types of forensic assessment, a common challenge is finding a balance between collecting sufficient data to inform an opinion and limiting the collection of data to what is relevant for forming that opinion in an efficient manner. Gathering data from multiple sources and using multiple methods allows the evaluator to compare and contrast information and draw informed conclusions. However, time and resource constraints often limit what is practical in the FMHA. Further, Heilbrun (2001) cautioned that evaluators must be selective in choosing what sources to use, noting that information of a measure with low accuracy will not increase the overall accuracy of the evaluation, and may, if given much weight, decrease the credibility of the conclusions. Evaluators should use the following three questions to guide data collection: 1. What? What specific information will the source provide? What is the rationale for collecting the data, and is this the best source of the data? 2. How? What steps should be taken to gather the data? Are there any case-specific considerations that may alter the process? 3. Why not? Are there any reasons not to seek information from this source, or any pitfalls to be considered? Review of Records Records are a critical source of information in child protection evaluations. Records can illuminate how the current situation evolved, what interventions have been offered, and whether or how they have been effective, and what secondary or contextual issues may be at play. Records can also assist the evaluator in understanding behavioral patterns over time. In child protection

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evaluations, important documents to gather and review include court records; selected child welfare agency records; mental health service records for the parent; mental health, medical, and school records for the child; and police and legal history records. Prior to collecting records, it is critical to identify all potentially relevant sources of information. There are multiple obstacles to gathering records, which include agency closure, unreachable or uncooperative sources, and incomplete or illegible records. In these situations, there may be little to do beyond noting in the report the obstacle to obtaining records, all attempts made to obtain the records, and any limitations of conclusions as a result of missing sources. Interviews With Children and Parents Child interviews, although not a standard part of evaluations focused on the parent’s caregiving capacity, may be necessary when the referral question pertains to the child’s functioning and service needs. Child interviews also may illuminate relevant issues regarding the child’s best interests in evaluations of the parent. Evaluators may want to consider interviewing a child if there is reason to believe that other available information about the child is biased or inaccurate. Prior to conducting child interviews, however, evaluators should consider whether direct information from the child is pertinent to the referral issue, or whether information can be obtained from other sources, such as records or collateral interviews. Additional considerations in deciding whether to interview the child include the age and developmental level of the child; whether the child is likely able to provide relevant and independent information during an interview; the emotional functioning of the child; and whether the interview will cause the child distress. In the absence of an assessment of the child, the evaluator should be cautious about offering an opinion on what the child needs. The focus remains on the evaluation of the parent. An evaluation of the child may also occur separately. Interviews with the parent are a vital part of child protection evaluations when the referral issue pertains to the parent’s capacity as a caregiver. Given the high stakes of child protection proceedings and the adversarial relationship between some parents and the child protection system, it is reasonable to expect that parents may attempt to portray themselves in the most favorable light possible, often denying their faults, minimizing responsibility for or severity of past mistakes, and presenting misinformation. Therefore, relying on parent self-report as the only or primary source of information may lead the evaluator to draw

inaccurate conclusions. Nonetheless, this is not a reason to avoid interviews with parents. Instead, steps should be taken to anticipate and address the demand characteristics of child protection interviews. Several issues to be considered in preparing to interview parents or children are described next. Setting When choosing a setting for interviews, evaluators should always consider the parent’s or child’s comfort and right to privacy. Evaluators interviewing parents or children outside of a controlled office or agency setting should ensure that the location is private, quiet, and free of distractions. If unable to interview in a private, quiet, and distraction-free setting, the evaluator should make note of this in the report. Review of Limits of Confidentiality Critical issues that the evaluator should address with a parent and child at the start of the interviewing process include the identity and role of the evaluator; the referral source and purpose of the evaluation; the limits of confidentiality, including mandated reporting issues; and the steps in the evaluation process. Reviewing these points verbally as well as in writing is recommended. Language used should be tailored to the age and developmental level of the parent or child to ensure understanding. When the examination is compelled by court order, this discussion may more accurately be described as Notification of Purpose (Heilbrun, 2001) although the information is the type that is ordinarily covered in an informed consent discussion. Informed consent is generally understood to include knowing, competent, and voluntary consent. Given the court order, participation cannot be viewed as voluntary. Both in the pre-evaluation discussion and in accompanying written documents explaining the nature of the evaluation, the contours of confidentiality, and the potential purposes to which the results may be used, the evaluator should describe the ways the examinee can make known an unwillingness to proceed. If the parent is unable or unwilling to consent to the assessment, the evaluator should take steps to have the parent consult with his or her attorney regarding issues of participation (Committee on Ethical Guidelines for Forensic Psychologists, 1991). When assessing a parent’s understanding of the purpose of the evaluation and limits of confidentiality, it is important to have the parent state in his or her own words an understanding of the critical points. If a parent has difficulty understanding these issues, evaluators should spend

Assessment in a Child Protection Context

time explaining them and should ask open-ended questions to assess the parent’s understanding, documenting in the report the steps taken to ensure that the parent understood. In subsequent interviews, these issues are reviewed to assure the parent’s retention of understanding or to clarify the evaluator’s role when the parent shows a misunderstanding of the purpose of the evaluation by commenting on its helpfulness, for example. When describing the evaluation to the child, it is particularly important to use developmentally appropriate language that the child can reasonably understand (APA, 2002). Because of their status, children cannot consent to such evaluations, but most evaluators explain the evaluation process to them and seek assent to participate (Condie & Koocher, 2008). Condie and Koocher (2008) recommended strategies to set children at ease by anticipating where they are on a developmental trajectory and what their concerns might be in light of information from parents, collaterals, and records. Condie and Koocher noted the importance of being supportive and respectful of the child while fulfilling the need for evaluator objectivity and neutrality. Behavioral Observations As part of the interview process with a parent or child, the evaluator should conduct a general mental status examination and make note of any relevant behavioral observations. Critical to assess during interviews is the parent’s and/or child’s reliability as an informant and any factors that may limit the evaluator’s ability to rely on or generalize from the information collected (e.g., comprehension of questions, cognitive limitations, or distorted thinking; time limitations; and illness during sessions). These behavioral observations may augment or further elucidate formal measures of response style adduced during testing. Areas of Inquiry Areas covered when interviewing a child will depend on the child’s age, developmental level, and emotional functioning, but broadly should include the child’s functioning and experience in the current placement; experience in school and with peers; perceptions of biological parent(s) and any contact that occurs; perceptions of current caregiver(s); views and wishes about the future, including feelings about changes in placement; and interests, hobbies, and skills. Crooks and Wolfe (2007) also recommended addressing the child’s safety skills during the interview in order to assess the child’s understanding of personal safety and knowledge of appropriate actions.

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Through the course of interviews with the parent, the evaluator should gather relevant historical and current information about functioning in the following areas (for a complete list, refer to Budd et al., 2011): • Parent’s family of origin (e.g., presence or absence of significant attachment figures; childrearing and disciplinary experiences growing up; history of family violence, substance abuse, and criminal activity) • Personal background (e.g., educational, employment, residential and relationship history) • Current supports and coping skills • Mental health history and current functioning • Substance abuse history and current functioning • CPS and juvenile/family court history (e.g., parent’s view of events that brought the case into the system, insight into how the events have impacted the child, services recommended and received to address concerns) • Parenting history and abilities (e.g., understanding of individual children’s developmental and mental health functioning and needs, perception of strengths and weaknesses as a parent, approach to and beliefs about discipline) • Desires for and view of the future (e.g., what parent would like to see happen, willingness to engage in necessary services) Number of Interviews Ideally, the FMHA includes more than one interview with a parent and/or child, although there are situations in which this is not possible. Multiple interviews allow for a more thorough view of a parent or child’s functioning and a better sense of the consistency and validity of the observed behavior. Given the stressful nature of these evaluations, due to the weight of the issue at hand, being on unfamiliar ground, and meeting with a stranger, more than one interview may be helpful. This allows the parent and child to gain some degree of comfort with the interviewer and the interview process. Multiple interviews also allow the evaluator to follow up on information gleaned from records, testing, collateral contacts, and parent–child observations, and to address that information with the examinee. In the event that conducting a single interview is the only option, evaluators should make sure the interview is thorough and sufficiently focused to gather essential information so the referral questions can be addressed. Rapport When developing rapport with the parent or child, evaluators should be aware of the difference between the

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role of a therapist and that of a forensic evaluator. Therapeutic rapport is characterized by a sense of trust and an alliance between therapist and client. Communication by a therapist is empathic, nonjudgmental, and affirming. Forensic evaluators, while needing to establish a cooperative working relationship so a comprehensive evaluation can be conducted, must nevertheless be careful to maintain appropriate professional reserve. Evaluators must recognize that their role is not one of therapist or advocate, but rather of impartial gatherer of information to assist the legal decision maker (Melton et al., 2007). This is not to say that evaluators should not be attentive and courteous; rather, when displaying such characteristics, it is important not to cross a line toward being therapeutic and mislead the examinee to think of the evaluator as a helping advocate. Evaluators should take into consideration cultural issues (e.g., race, ethnicity, gender, sexuality) that could play a role in establishing a cooperative working relationship and effective communication with a parent or child. Having sensitivity to such issues as well as insight into one’s own potential for bias and reactivity to cultural issues is critical to conducting an evaluation that leads to information helpful to the court. Use of Translators When the evaluator does not speak the primary language of the parent or child, the use of translators presents serious challenges in conducting a thorough evaluation. For instance, this may lead to misinterpretation of statements by the evaluator, translator, parent, or child and may influence the relationship development and data quality overall (Azar & Benjet, 1994). If a translator must be used, the evaluator should seek out a certified translator, thereby assuring fluency and professionalism. Using a friend, child, or other family member raises the potential for bias in the interpretation due to the individual’s relationship with the examinee. When using a translator, the evaluator should also acknowledge potential limitations of the data in the report.

Collateral/Third-Party Interviews Information from collateral sources can provide another perspective on the parent, child, and case, thus increasing the likelihood that credible and sound conclusions will be drawn in the FMHA. Information from these sources can also assist in assessing the accuracy of information provided by the parent or child, by confirming or refuting reports made. Common collateral sources include caseworkers or agency representatives, service providers,

foster parents, sources of data or support named by the parent, attorneys or referral sources, and family members. The nature of the information gathered from collateral sources will depend on the information needed to complete a thorough assessment, what information the source is capable of providing, and how objective or dependable the source is assessed to be.

Parent–Child Observations Parent–child observations are a valuable component of child protection evaluations and should be conducted whenever feasible, unless contraindicated by the circumstances of the case. Evaluators should exercise extreme caution when conducting parent–child observations in cases where there are concerns about the safety or wellbeing of the child. Observations should be avoided, for example, in cases of physical abuse when contact with the parent perpetrator may be traumatizing or otherwise harmful to the child, or even prohibited by the court. Observing a parent in interactions with the child provides concrete information about the parent’s caregiving strengths and weaknesses, ability to meet the child’s individual needs, and the nature of the parent–child relationship. Observations can also provide important information about the general functioning (e.g., emotional, behavioral, social) of the parent and child. It is recommended that evaluators observe parent–child interactions with all children in the parent’s care who are relevant to the reason for referral. Some areas evaluators should attend to when observing parents and children interact include: • Parent’s general mental state and behaviors in relation to the child(ren) • Parent’s ability to provide structure and safety • Parent’s ability to foster growth and development • Parent’s ability to provide nurturance, acceptance, and empathy • Child(ren)’s general mental state and behavior • Child(ren)’s behaviors in relation to the parent The forensic assessment literature has not outlined clear guidelines for the number of observations that should be included in child protections evaluations. However, the literature has suggested conclusions based on more than one observation, for longer periods of time, and from observations conducted in different settings are most valid (Azar et al., 1998; Schmidt et al., 2007; Wilson et al., 2008).

Assessment in a Child Protection Context

Ideally, parent–child observations should take place in a natural setting (APA, 1999)—that is, a setting in which the parent and child are used to interacting and in which they will feel most at ease and comfortable. When the purpose of the evaluation is to evaluate parenting capacity, observation of the child in the foster home typically is not called for and may introduce complications that can confound the objectivity of the evaluation. The principal risk is that the evaluator may lose sight of the primary purpose of the evaluation, which is to assess the examinee’s parenting strengths and weaknesses and the parent–child relationship. Observing the child in the foster home may lead to a subtle shift toward comparison of the parent with the foster parent and the foster parent’s relationship with the child. When the purpose of the evaluation is to assess the child’s behavior and functioning in different contexts and the probable impact of a move from foster care, observing the child in the foster home provides “a means of comparing the child with different caregivers and to understand if the child’s response and interaction with his/her parent is unique or a general pattern of behavior” (Schmidt et al., 2007, p. 255). In such circumstances, one must recognize clearly that the purpose is not to assess the parenting skills of the foster parent, but rather, to gather information about the child’s functioning in that caregiving context. In conducting parent–child observations, it is useful to have both unstructured and structured interactions between the parent and child (Azar et al., 1998; Schmidt et al., 2007; Wilson et al., 2008). When initiating structured time, it is important to provide activities that will yield information relevant to the developmental age of the child and the parent’s ability to interact with the child in a developmentally appropriate manner (e.g., changing a diaper for and feeding an infant child, reading a story to or having a toddler or preschooler clean up toys, or helping a school-age child with schoolwork). In general, whether observing the child with the parent or with other caregivers, the evaluator must be cautious about drawing conclusions based on that observation. The child’s behavior may be attributable to any one of a host of factors beyond those related to parenting (e.g., distress about having just been separated from another caregiver, recently awakening from a nap, and illness). When sampling the child’s behaviors, it is tempting to attribute causation in a way that confirms one’s working hypotheses (of either a positive or negative sort), when the focus should be, instead, on how the parent manages the child’s behavior or what level of insight the parent displays about the child’s needs and capacities. A parent

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may interact with a child in an atypically positive manner in an effort to put forth the best behavior during the unnatural circumstance of being observed and assessed. Although awareness of and anxiety about the significance of the examination may lead a parent to perform well during an observation, such factors may also lead a parent to display atypically negative behaviors. It may be useful to ask parents how the observation was similar or different from their usual time with their child. Testing Use of psychological tests in child protection evaluations is not always necessary; evaluators should beware of reflexively administering tests. When determining the need to use psychological tests, evaluators should consider the following four factors: 1. Will the test provide relevant information that cannot be obtained through other means (e.g., review of records, clinical, or collateral interviews)? 2. Will the test provide valuable concurrent data on relevant constructs? 3. Is there evidence that the test is valid and reliable for its intended use? 4. Is there evidence regarding use of the instrument with the examinee’s demographic, cultural, or ethnic group? Affirmative answers to these questions would strengthen the rationale for test administration. Evaluators should also consider that testing can be costly, time consuming, and taxing for the parent or child. Even though conducting testing may be easier for and more familiar to evaluators than other methods of data collection, tests should be administered only when merited by the referral questions and likely to add credible information. See Table 7.4 for a selective list of traditional psychological tests for potential use in child protection evaluations.

COMMUNICATION OF ASSESSMENT FINDINGS Once data have been collected, evaluators are faced with the challenge of integrating and assigning meaning to the information and translating clinical knowledge into a legally useful form. Virtually all court-ordered evaluations and most initiated by attorneys or caseworkers result in written reports, whereas only a subset requires provision of testimony. Sworn testimony may be less common in child protection cases than in many other legal

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TABLE 7.4 Traditional Psychological Tests for Potential Use in Child Protection Evaluations Measures of Behavioral and Mental Health Symptoms Beck Depression Inventory–Second edition (BDI-II) (Beck, Steer, & Brown, 1996) Behavior Assessment System for Children–Second edition (BASC-2) (Kamphaus & Reynolds, 2007)

to those questions. Not all data collected will serve to inform conclusions, nor will all the data be presented in the report. The focus on relevance is consistent with the principle put forth by the Specialty Guidelines (Committee on Ethical Guidelines for Forensic Psychologists, American Psychology-Law Society and Division 41 of the APA, 2011) that:

Brief Symptom Inventory (BSI) (Derogatis, 1993) Child Behavior Checklist (Achenbach, 1991) Child Depression Inventory (Kovacs, 1992) Conner’s Ratings Scales–Revised (CRS-R) (Conners et al., 1997, 1998a, 1998b) Symptom Checklist-90–Revised (SCL-90-R) (Derogatis, 1994) Trauma Symptom Checklist for Children (Briere, 1996) Measures of Intelligence and Achievement Levels Stanford-Binet Intelligence Scale–Fourth edition (Thorndike, Hagen, & Sattler, 1986) Wechsler Abbreviated Scale of Intelligence (WASI) (Wechsler, 1999) Wechsler Adult Intelligence Scale–Fourth edition (WAIS-IV) (Wechsler, 2008) Wechsler Individual Achievement Test (WIAT-II) (Wechsler, 1992) Wechsler Intelligence Scale for Children–Fourth edition (WISC-IV) (Wechsler, 2004) Wide Range Achievement Test–Fourth edition (WRAT-IV) (Wilkinson & Robertson, 2006) Measures of Personality Functioning Millon Adolescent Clinical Inventory (MACI) (Millon, 1993) Millon Clinical Multiaxial Inventory–III (MCMI-III) (Millon, Davis, & Millon, 1997) Minnesota Multiphasic Personality Inventory–2 (MMPI-2) (Butcher, et al., 2001) and MMPI-2-RF (Restructured Form) (Ben-Porath & Tellegen, 2008) Minnesota Multiphasic Personality Inventory–A (MMPI-A) (Butcher et al., 1992) Personality Assessment Inventory (PAI) (Morey, 1991) Personality Inventory for Youth (PIY) (Lachar & Gruber, 1995)

contexts, due to practical issues (e.g., publicly funded legal representation, high caseloads, and time pressures). This section discusses issues in interpreting findings and communicating results of FMHAs via written reports and oral testimony.

Interpreting Findings Given the volume of information typically collected in child protection cases, sifting through it to identify meaningful facts and observations can be a daunting task. In order to effectively and efficiently go about this task, a necessary first step is to review the data in light of the referral questions and determine which data are relevant

Forensic practitioners are encouraged to limit discussion of background information that does not bear directly upon the legal purpose of the examination or consultation. Forensic practitioners avoid offering information that is irrelevant and that does not provide a substantial basis of support for their opinions, except when required by law. (p. 15)

Once the clinician has framed the evaluation within the scope of the referral issues, the next step is to develop working hypotheses about the case. These hypotheses should be clearly linked to the referral questions. While working hypotheses are being developed, evaluators should utilize data collected from multiple sources to make interpretations, and when supported, clinical inferences. As evaluators review collected data, it is critical to do so objectively and to attend to data that both support and refute working hypotheses. Evaluators should not adopt a stance (e.g., for or against a parent’s caregiving ability) and attempt to confirm or support it with the data, but rather they should strive to let the data inform their opinions. According to the Specialty Guidelines (2011), “Forensic practitioners recognize the adversarial nature of the legal system and strive to treat all participants and weigh all data, opinions, and rival hypotheses impartially. . . . When conducting forensic examinations, forensic practitioners strive to be unbiased and impartial, and avoid partisan presentation of unrepresentative, incomplete, or inaccurate evidence that might mislead finders of fact” (p. 3). Evaluators must actively work to avoid premature conclusions, being mindful of the potential for biases to distort judgments about the meaning of data. Tippins and Wittmann (2005) cited literature that highlights clinicians’ susceptibility to distortions in observation as well as the potential for inaccuracy in recording data in forensic evaluations. To the extent that evaluators are aware of their own inherent biases (e.g., regarding physical appearance, language facility, ethnicity, socioeconomic status, or other variables), they can make efforts to reduce the potential for these automatic reactions to affect their interpretation of data. Clinicians should consider the strength and convergence of collected data across sources and measures in order to draw sound and credible conclusions. Data

Assessment in a Child Protection Context TABLE 7.5 Factors That May Limit Validity and Reliability of Data Source Records

Reason for Limitation Data from secondary sources Incomplete or illegible records Potential for inaccurate or biased information Source going beyond scope of expertise

Interviews

Single interview Positive impression management Mental status concerns Anxiety related to being evaluated Language, developmental, and/or cultural barriers

Collateral interviews

Reluctance to participate Lack of objectivity Lack of specific expertise Suggestibility Memory loss Opinions based on limited or incomplete data

Parent–child observations

Positive impression management by parent Coaching of child Methodological concerns (short in duration, conducted in unnatural setting, etc.)

Testing

Positive impression management by parent Lack of objective measures of test-taker attitude Necessity for inferential leap from test results to legal issues Lack of generalizability from reference group for test to examinee

based on measures with low reliability will not increase and in fact may decrease the overall accuracy of the resultant opinions (Heilbrun, 2001). Factors to consider when assessing the credibility of data are highlighted in Table 7.5. It is not uncommon for evaluators to identify inconsistencies in the data collected; all of the information rarely fits together neatly. Some inconsistencies can be cleared up by further inquiry, but others will remain unresolved. For example, in a case involving allegations of domestic violence, the evaluator may find information that supports and refutes the allegations. As a result, the evaluator is unable to make a clear statement about risk of violence in the family, and thus about the risk of inadequate care for the child. When faced with this type of inconsistent data, the evaluator must attempt to understand which information is plausible rather than to conclusively resolve the inconsistencies (Melton et al., 2007). In this way, the clinician can provide the court with some guidance in filtering information relevant to considerations regarding the alleged atmosphere of family violence. The evaluator should present the contradictory data and explain why a

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firm conclusion cannot be drawn. The evaluator should also outline conclusions if more information is obtained; for example, by offering a conditional opinion that identifies the level of risk if in fact the domestic violence did occur and the level of risk if it did not. It is also not uncommon to encounter gaps in the data collected. For example, in cases involving physical harm to a child (e.g., broken bones), it may have been determined at adjudication that abuse occurred, but not who perpetrated the abuse. When evaluators are asked to assess parenting capacity in such cases, they will not have full information about what actually occurred and who harmed the child. The absence of such important details can make determining risk and protective issues extremely difficult and sometimes impossible. In such cases, it is critical that the mental health professional draw conclusions cautiously and articulate clearly the rationale for exercising caution for each conclusion reached. Evaluators must consider factors at the level of the child, parent, and environment within which the family lives when assessing conditions impacting parenting. Approaching the interpretation of findings from a systems framework is consistent with Bronfenbrenner’s (1979) ecological systems theory, as described above. The final step is to draw conclusions and make recommendations that will be useful to the referral source without going beyond the scope of the evaluation. Conclusions should be grounded in the theoretical constructs from the research literature and should incorporate the evaluator’s clinical knowledge and judgment about parenting strengths and weaknesses, children’s development and needs, and risk and protective factors. There are differing views in the field about whether mental health evaluators should offer an opinion on the ultimate legal issue (i.e., the legal question to be answered by the judge or jury). Some authors have opined that forensic evaluators should not do so (Grisso, 2003; Heilbrun, 2001; Melton et al., 2007; Otto & Edens, 2003), arguing that “the ultimate legal question, which includes moral, political, and community values, should not be the focus of the evaluation’s conclusion” (Heilbrun et al., 2007, p. 55). However, as summarized by Budd and Springman (2011), other authors have questioned the practicality of refraining from offering ultimate-issue opinions for several reasons. Notably, they observed that members of the judiciary prefer to hear specific recommendations from mental health professionals. Furthermore, judges bear the responsibility to weigh ultimate-issue opinions against all available evidence. The authors also observed that mental health professionals have relevant expertise on

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family dynamics, and their opinions may be of assistance to the court. Additionally, when mental health professionals make explicit recommendations, these may facilitate out-of-court settlements, for example, in child custody disputes. However, notably, they can influence how attorneys advise their clients regarding settlement, and when the evaluator’s recommendations derive from shaky foundations they may lead to potentially unjust outcomes even in negotiated settlements. Heilbrun (2001) noted that in some forensic contexts avoiding conclusions about the ultimate legal issue could lead to exclusion of the entire evaluation or reduction in the weight of the evidence. For these reasons, it is best that evaluators clarify the questions they are willing to answer at the time of referral. In summary, integrating and interpreting data for child protection evaluations is replete with challenges inherent to child protection matters. Clinicians can take steps to address these challenges and present the referral source with relevant, reliable, and useful information. Such steps include maintaining their focus on the reason for referral and sifting through the data to identify pertinent information; attending to all of the data collected, not just data that support any one hypothesis; clearly supporting all opinions and conclusions with data; identifying limitations in the data or methodology of the evaluation; and interpreting data within the broader context of the family. Finally, evaluators should err on the side of conservatively interpreting findings. That is, they should avoid offering conclusions that are not clearly grounded in case-specific facts. Finally, any inferences made should be based on the evaluator’s specialized knowledge base. Report Writing Although the skills of clear communication are necessary to all types of reports, forensic reports differ in several important ways from clinical or therapeutic reports (Heilbrun, 2001; Heilbrun et al., 2009; Melton et al., 2007). The first difference is that the main consumers of therapeutic evaluations are mental health professionals and their patients, who are interested in issues of diagnosis and treatment. In contrast, the primary consumers of forensic evaluations are attorneys, judges, caseworkers, and laypersons interested in psycholegal issues. Clinical terms that may be useful for communicating information to therapeutic consumers are likely to be confusing to recipients of forensic reports. Evaluators are likely to be more helpful to the court by describing findings in behavioral terms rather than by invoking professional jargon. Likewise, use of diagnostic labels such as

obsessive-compulsive or borderline, without explanation, may connote unexpected and even incorrect information to the court. Legal consumers may assign the generally accepted meaning of diagnostic phrases (e.g., the belief that schizophrenia means “split personality”) rather than the professional meaning (Melton et al., 2007, p. 586). When referencing a technical term that cannot be avoided (e.g., a mental health diagnosis, psychological test, or psychotropic medication), offering a definition for the term via a footnote creates a more user-friendly document. A second difference between forensic and therapeutic reports relates to the compulsory nature of the FMHA. Unlike therapeutic assessments, forensic assessments of parents in child protection are generally compelled. In the report, the psychologist should explicitly document the methods used to provide the notification of purpose (or, in voluntary evaluations, informed consent) and the limits of confidentiality. Similarly, the report should include a description of the notice provided to collateral informants. A third difference between forensic and therapeutic assessment reports is the context in which evaluations are performed. Therapeutic evaluations typically occur in a collaborative professional environment, with no expectation of any challenge to either the process or the conclusion. In contrast, forensic evaluations are performed within an adversarial legal environment that anticipates challenges of data, procedures, and conclusions through use of the rules of evidence. In order to prepare a report that will withstand close scrutiny during adversarial proceedings, the evaluator must provide detailed information on the process of the evaluation, the data collected, the conclusions derived, and the nexus between that data and the evaluator’s conclusions. Considering the high volume of assessment reports prepared for the courts and their importance in legal decisions, it is surprising that no specific standards exist with respect to what constitutes an acceptable forensic report. In the absence of accepted standards, scholars have provided general guidelines. Heilbrun (2001) recommended that, when communicating FMHA results in reports, evaluators: (a) attribute information to specific sources; (b) use plain language and avoid technical jargon; (c) write the report in sections using a model, and (d) employ procedures to cross-check facts and clarify the relationship between data, reasoning, and conclusions. For example, one clearly labeled section of the report could contain a summary of what was determined through records review. A separate section might contain the background as reported by the examinee. Another section might address information garnered from third-party sources.

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The evaluator might then synthesize all of these data and, combined with the evaluator’s own observations, summarize what is known, what is controverted, and what can be concluded from the data. In this way the reader can understand the sources for each assumption, and there is limited danger of misattributing data. Melton et al. (2007, pp. 583–586) offered four general recommendations for writing reports consistent with Heilbrun’s (2001) principles. In addition to suggestions regarding organization and careful data documentation, Melton and colleagues recommended that evaluators (a) separate facts from inferences (i.e., present facts and descriptive material separate from theoretical and clinical inferences, and link the clinical data to the legal referral questions); (b) stay within the scope of the referral question (i.e., by confining the report to topics raised by the referral source and avoiding inclusion of irrelevant issues, even if the topics would be relevant in a therapeutic evaluation context); (c) avoid information overand under-kill (i.e., strike a balance between comprehensiveness and efficiency by reporting findings essential to the clinical formulation); and (d) minimize clinical jargon (as described previously). When distilling the essential material into the report, evaluators must make some decisions about what information to include and what information to exclude based on relevance to the readers. These are essentially independent judgments of the evaluator, although they may be influenced by consultation with legal or clinical colleagues or by prevailing practices of the forensic setting. The organization of the forensic report should proceed from data to inferences to conclusions (Melton et al., 2007). Ordinarily a forensic report includes the following topics: identifying data regarding the subject(s) of the report; referral information and the legal basis for the evaluation; techniques utilized for assessment; description of the notification of purpose (or informed consent) and limitation of confidentiality discussion with the examinee(s); description of the data collected; and analysis of the data, conclusions, and recommendations, with the findings or opinions clearly linking the data to the purpose for which the evaluation was undertaken and the opinions that resulted. Because judges and attorneys are accustomed to scanning cases and briefs to look for legal issues most pertinent to their arguments, a style that facilitates this approach is the use of topical headings to identify different types of information. The length of forensic reports varies considerably across cases, evaluators, and forensic settings. As the length of reports increases, the importance of section titles and

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evaluation summaries increases to facilitate consumer use of the report. Sworn Testimony Effective testimony is based on both substantive and stylistic aspects (Heilbrun, 2001). The substantive part of expert testimony is addressed by quality of the forensic evaluation and written report, whereas the stylistic aspect concerns how the expert presents, speaks, and otherwise behaves to make testimony more understandable and credible. For maximum effectiveness, both the substance and style of the testimony should be strong. Although both aspects are important, testimony that is substantively weak but stylistically impressive should be identified and accorded little weight by the decision maker. Conversely, testimony that is substantively strong but stylistically weak may have little influence or may be misunderstood. Evaluators need to have both substantive and stylistic skill sets to testify effectively (Heilbrun, Grisso, & Goldstein, 2009). Several forensic resources provide useful commentaries on issues and strategies for effective oral communication (Brodsky, 1991, 1999, 2004, 2009; Heilbrun, 2001). Oral communication regarding child protection evaluation results may be informal (e.g., feedback to caseworkers and attorneys) or formal (testimony in a deposition, hearing, or trial). Although written reports should embody all of the evaluator’s opinions resulting from the data available at the time of the assessments and provide the parties a good idea of what the expert would say during testimony, it is not possible to cross-examine a report. The attorneys for the parent, for example, may seek further information, either through consultation, deposition, or testimony. Informal communication through consultation with attorneys should be approached with caution, particularly if it occurs ex parte or with only one party. Evaluators may choose to avoid such communications or insist that both the parents’ attorney and the attorney for the state be present for informal consultation to avoid the appearance of collusion or bias. It is particularly important to be sure that the party least favored by the findings has equal access to the evaluator. In privately retained second opinion evaluations, the process of discovery of data underlying the evaluator’s opinions might be somewhat different. Court testimony is required in some cases, but it may occur more or less frequently depending on the jurisdiction. Compared to child custody, criminal, and general civil cases, child protection cases often allow for little pretrial preparation, and the evaluator may have little

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foreknowledge about what questions will be asked, what points are likely to be pursued on cross-examination, or how knowledgeably the attorneys might approach expert psychological testimony. Pretrial preparation could provide the evaluator with specific information about questions that will be posed and allow for the opportunity to assist the attorney in wording questions in such a manner that will elicit the most useful and relevant information, but again, if this is offered to one party, it should also be available to the other; the evaluator is nonpartisan and interested only in making sure that the evaluation results are clear and accessible. It is useful to anticipate and prepare for challenges to the admissibility of the testimony and to assume those present for the testimony have little or no understanding of psychological assessment techniques. Although some lawyers and judges may be experienced in dealing with mental health expertise in child protection matters, others, and of course the parents, will benefit from clear explanations free of professional jargon. Challenges to the admissibility of expert testimony ordinarily address the reliability and relevance of the methods used to arrive at the opinions being offered. Preparation for challenges to the admissibility of testimony includes having a working understanding of and ability to describe the psychometric qualities of tests utilized; being able to describe the ways in which the methods used for the assessment comport with or differ from the standard methods used in the field; and being familiar with standards and guidelines that inform good practice. Another challenge to admissibility may focus on the evaluator’s competence to provide data based on the application of reliable principles and methods and relevant to issues before the court—the evaluator may be asked to describe the training and experience that form the basis for expertise. Useful information includes, in addition to education and experience, the number of such evaluations completed, the number of times the evaluator has provided testimony, the number of times testimony was sought by each side (state or parent), relevant continuing professional education, and involvement in professional associations and activities. In the direct examination, the evaluator often is asked to describe evaluation techniques, the data those techniques have produced, inferences drawn from the data, and the conclusions. It is crucial that the evaluator know the case well enough to answer questions conversationally rather than rifle through files searching for information. Details the evaluator should have readily available include the nature and date of the initial contact with the referral source and steps taken to gather data (e.g., dates of

the interview/testing sessions with subjects and collaterals, length of time spent with each party, documents reviewed, tests administered, and any observations conducted). The attorney may interject questions to ask about the results of each test, what was gleaned from each collateral contact, or other details. The forensic report serves as an outline so the attorney knows what information the testimony can encompass. The attorney will often ask specific questions drawn from the information in the report to elicit testimony about particularly salient aspects of the case. The cross examination may proceed along any of several lines, depending on the attorney’s style and the points upon which the evaluation results can be challenged. A well-prepared attorney will have consulted a psychologist to help develop good cross-examination strategies, but this may not always occur in the underfunded child protection system. Whatever line is taken, the evaluator must remember that the attorney is zealously advocating for the interests of the client and the line of questioning is not a personal assault. The evaluator should strive to answer cross-examination questions with the same demeanor and attitude employed on direct examination. This may be difficult when an attorney’s approach is particularly challenging or accusatory, but the evaluator who becomes defensive or angry loses credibility. Sometimes it is difficult or impossible to answer a yes/no question without further elaboration. For example, if asked if the findings of the evaluation supported a conclusion that the parent was unable to understand the child’s developmental capacities, the evaluator might find that neither a straightforward yes or no answer accurately describes the findings. Rather, the findings might suggest some impairment in the parent’s understanding of the child’s developmental capacities but a clear capacity and motivation to learn. In another instance, an evaluator might be asked if the parent was cooperative with the evaluation process. The parent may have shown some evidence of cooperation by keeping appointments and completing pencil-and-paper testing, but may have given highly defensive or minimal responses during interviews, asserting that the information sought had nothing to do with the issues at hand. When it is not possible to give a yes or no answer, the evaluator may explain that a yes or no answer would be misleading or cannot be given and offer an explanation. Any obfuscation of the data that occurs during cross-examination may be cleared up on re-direct examination; it is helpful to the process and ensures that testimony is accurate if the evaluator indicates the need to explain. The attorney conducting cross-examination may not provide that opportunity, but

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the other attorney will likely make a note of it and provide the evaluator with the opportunity on redirect. Regardless of which party calls the evaluator to testify, the evaluator’s obligation is to provide objective, sound data on which the fact finder can rely. In most situations, data can be found to support both the evaluator’s opinions and countervailing opinions. The evaluator has a professional and legal obligation to testify truthfully and to take an affirmative role in being sure that testimony fairly represents the data. Yet, testimony is elicited in a question/answer format, such that volunteering information may not be looked upon favorably. The evaluator may address this problem by providing a preface to answers throughout testimony but particularly at the point of offering final opinions or recommendations. For example, the evaluator could make a comment such as, “There were both positive and negative factors . . . ” or “Ms. X’s evaluation results included both strengths and areas of concern. . . .” This cues Ms. X’s attorney to draw out the strengths and the opposing attorney to elicit the areas of concern. SUMMARY Competently executed mental health evaluations of parents and children in a child protection context have the potential to inform and assist attorneys, judges, and caseworkers in weighty decision making to protect children’s safety and well-being, provide remedial services, and establish permanent care arrangements following child abuse or neglect. At the outset, assessment may focus on psychological factors that may have contributed to faulty parenting and that may inform intervention efforts; later, assessment may focus on factors the courts must consider in determining whether termination of parental rights is in the child’s best interests. The methods of FMHA include translating the legal meaning of best interest and functional parenting capacity into measurable constructs, using and interpreting results of tests appropriate for the referral issues and the demographics of the families being assessed, supporting conclusions with data from multiple sources, and reporting results in a way that is useful for the courts. Assessment contexts involve a broad range of clinical and forensic issues, which challenge the evaluator to engage in continuous professional development in order to maintain competency. Cultural differences, various medical and mental health diagnoses, and ambiguities in the construct of minimal parenting adequacy complicate the evaluation process. Further, the topic of child abuse or neglect invokes emotional reactions, and the evaluator

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may be pulled toward an advocacy stance on behalf of the child or parent in interpreting the often incomplete information available. However, a posture of neutrality on contested issues is essential for the fair administration of justice; professional independence and autonomy are necessary ingredients. REFERENCES Abidin, R. (1995). Parenting Stress Index manual (3rd ed.). Odessa, FL: Psychological Assessment Resources. Achenbach, T. M. (1991). Manual for child behavior checklist/4-18 and 1991 profile. Burlington, VT: University of Vermont, Department of Psychiatry. Adoption and Safe Families Act of 1997, P. L. 105-89, 42 U.S.C. Adoption Assistance and Child Welfare Act of 1980, P. L. 96-272, 42 U.S.C. Ainsworth, M. D., Blehar, M., Waters, E., & Wall, S. (1978). Patterns of attachment. Hillsdale, NJ: Erlbaum. American Educational Research Association, American Psychological Association, & National Council on Measurement in Education. (1999). Standards for educational and psychological testing. Washington, DC: American Educational Research Association (AERA). American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. American Psychological Association. (2007). Record keeping guidelines. American Psychologist, 62, 993–1004. American Psychological Association. (2009). Effective strategies to support positive parenting to community health centers: Report of the Working Group on Child Maltreatment Prevention in Community Health Centers. Washington, DC: Author. American Psychological Association Committee on Professional Practice and Standards. (1999). Guidelines for psychological evaluations in child protection matters. American Psychologist, 54, 586–593. American Psychological Association Committee on Professional Practice and Standards. (2011). Guidelines for psychological evaluations in child protection matters. Retrieved from www.apa.org/practice/guidelines/index.aspx Annie E. Casey Foundation. (2009, January). Issue brief: Rebuild the nation’s child welfare system. Retrieved from www.aecf.org/∼/ media/PublicationFiles/Child_Welfare_issuebrief2.pdf Archer, R. P., Buffington-Vollum, J. K., Stredny, R. V., & Handel, R. W. (2006). A survey of psychological test use patterns among forensic psychologists. Journal of Personality Assessment, 87, 84–94. Azar, S. T., & Benjet, C. L. (1994). A cognitive perspective on ethnicity, race, and termination of parental rights. Law and Human Behavior, 18, 249–268. Azar, S. T., & Goff, P. A. (2007). Can science help Solomon? Child maltreatment cases and the potential for racial and ethnic bias in decision making. Saint John’s Law Review, 81, 533–573. Azar, S. T., Lauretti, A. F., & Loding, B. V. (1998). The evaluation of parental fitness in termination of parental rights cases: A functional-contextual perspective. Clinical Child and Family Psychology Review, 1, 77–100. Azar, S. T., Robinson, D. R., Hekimian, E., & Twentyman, C. T. (1984). Unrealistic expectations and problem-solving ability in maltreating and comparison mothers. Journal of Consulting and Clinical Psychology, 52, 687–691. Baerger, D. R., & Budd, K. S. (2003). Parental competency to consent in child protection proceedings. Family Law Psychology Briefs, 4 . Retrieved from www.jmcraig.com/subscribers/ archives.htm

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CHAPTER 8

Psychological Evaluation of Emotional Damages in Tort Cases WILLIAM E. FOOTE AND CRAIG R. LAREAU

INTRODUCTION 172 EVALUATION OF EMOTIONAL DISTRESS IN TORT CASES: LEGAL FRAMEWORK 173 CATEGORIES OF TORTS 175 THE EMOTIONAL DISTRESS TORTS 178 EVOLUTION OF STANDARDS IN NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIMS 179

THE PSYCHOLOGICAL EVALUATION 183 THE EVALUATION MODEL: THE MATRIX AND THE FIVE STAGES 183 EVALUATION PROCESS 187 CONCLUSION 196 REFERENCES 196

INTRODUCTION

The second half of the chapter focuses on psychological evaluation, beginning with how the assessment of emotional damages in tort cases can be conceptualized along both content and temporal dimensions. This structure, composed of the Matrix and the Five Stage Model, is used throughout the balance of the chapter as a mechanism for data gathering and responding to the challenges of assimilating and combining relevant data. The chapter traces the evaluation process, beginning with the initial communication with referring counsel, and proceeds through the court testimony. Throughout this process, the Five Stage Model guides the information sought through records, plaintiff interviews, collateral interviews, and psychological testing. The model also lays out a system for putting data together to answer the legal questions posed by the referral source. Throughout the chapter we use the word tort to describe the event or events that give rise to the lawsuit. More accurately, the phrase alleged tort should be used, because the tort does not exist until particular elements are proven in court. However, for simplicity’s sake, the word tort will be used. The goal of this chapter is to provide the reader with a thorough introduction to the topic of psychological evaluation in tort cases. More complete discussions of these and similar topics may be found in volumes by Kane and Dvoskin (2011) and Koch, Douglas, Nicholls, and O’Neill (2006), and Goodman-Delahunty & Foote (2011).

The American legal system provides a forum for resolving civil disputes. Among the many disputes resolved in state and federal courts, resolution of civil wrongs, or torts, is governed by statute, case law, and court rules that allow for testimony by mental health professionals in order to assist judges and juries decide the legal issues. This chapter is an introduction to this legal system and how psychologists may conduct evaluations and provide consultations and expert testimony on psychological injuries. The first half of the chapter consists of a discussion of the legal structure that governs tort cases. This section first defines how tort law fits into the legal system and the general goals and function of the tort civil system. This section next reviews how the common law system develops case law, and how torts are defined. How legal damages fit into the system is the next topic, followed by a discussion of legal classifications of tort actions. The basic elements of a tort are the next topic. The chapter then turns to who may be held responsible for tort actions, and defines negligence torts. American law regarding negligent infliction of emotional distress is the next topic, and then the chapter focuses on how the law defines legal damages. The legal section concludes with a discussion of the relevant Rules of Civil Procedure, which govern evaluation and evidence. 172

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EVALUATION OF EMOTIONAL DISTRESS IN TORT CASES: LEGAL FRAMEWORK In contemporary American society, the law and public policy usually permit a person who has been harmed by the intentional or negligent acts of another to be compensated. The purpose for this is twofold. First, society has deemed it important for the victims of the bad or negligent acts of others to be compensated for their injuries. Second, requiring those who harm others to compensate their victims is thought to discourage such behavior. Unless the injured person and the perpetrator of the harm are in some legally relevant relationship (e.g., employee and employer), the usual process through which an injured party seeks compensation is through filing a lawsuit seeking damages. The person filing the lawsuit is called the plaintiff, and alleges that he or she was harmed by the defendant. The action by the defendant may be criminal, and a criminal prosecution may also be pursued by the government. However, criminal prosecutions do not compensate victims for their losses; rather, they punish those who have violated the criminal laws. In civil lawsuits, the types of relief sought generally fall into three categories: (1) monetary compensation (damages) for harm suffered; (2) an injunction (to prevent the defendant from doing something he or she has done or plans to do); or (3) specific performance (getting the defendant to do something he or she was supposed to do). When dealing with emotional damage claims, the primary form of relief is monetary compensation. The ostensible goal of emotional damage claims is to put the victims back into the place they were in before the injuries or harm occurred (i.e., to make the victims “whole” again). Of course, when someone has been injured by another, he or she cannot truly be returned to the way he or she was before the injury as if it had never happened. The injury cannot be undone, and in the absence of alternative compensation, the plaintiff usually seeks money damages as the means to be made whole. The money will potentially compensate the plaintiff both for out-of-pocket expenses and losses suffered as a result of the injury, and for the pain and suffering that has occurred as a result of having been injured. Many claims by plaintiffs that they suffered cognitive injuries or emotional harm as a result of the defendant’s actions are disputed by the defendant. As part of the process of discovery forensic psychologists can be retained by a party’s attorney to evaluate: (a) whether the plaintiff was harmed by the act(s) of the defendant; and (b) if the plaintiff was harmed, the type and degree of

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harm the plaintiff suffered. By performing this evaluation, the forensic psychologist can provide useful information about a disputed issue in the lawsuit. The results of the evaluation provide information for settlement negotiations between the two parties so they can reach a fair settlement for the dispute, thereby avoiding trial. Alternatively, the results of the evaluation can form the basis for the psychologist’s testimony at trial, so that the trier-of-fact can reach an informed decision. Common Law and Stare Decisis Much of American law and legal foundations come from the common law of England, which dates back nearly 1,000 years. Trial and appellate court judges “make” common law by applying their conception of what is appropriate public policy when there is not a statute or other law that binds their decisions. Other courts then follow the decisions of the earlier courts under the doctrine of stare decisis (“to stand by things decided”). Stare decisis is the doctrine of precedent, whereby it is necessary for a court to follow an earlier decision when the same issues are in dispute in the litigation. Much of the law regarding emotional distress claims originated in common law. Historical Resistance to Recognizing Emotional Damage Claims In 1896, the highest court in New York held in Mitchell v. Rochester Railway Co. that “[i]f the right of recovery [for mental distress in negligence cases, without any physical impact or injury] should be once established, it would naturally result in a flood of litigation in cases where the injury complained of may be easily feigned without detection, and where the damages must rest upon mere conjecture or speculation” (p. 354). Historically, not only have American courts been unreceptive to claims of emotional damages in the absence of physical impact or injury, but many have been openly hostile based on concerns about malingered claims for emotional damages. At the start of the previous century, courts hearing personal injury claims required obvious injuries, such as broken bones or loss of a limb, to determine that an actual injury had occurred. Mental and emotional damages were not compensable due to the problems determining the cause, extent, and duration of the damages (Shuman, 2003). Over time, courts began to allow for compensation for emotional injuries when the plaintiff was the victim of intentional torts, such as assault, battery, or false imprisonment, as they did not fear a floodgate of litigation from

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such cases. Still later, courts began to allow recovery for nonphysical harm in negligence actions when the emotional harm was related to a physical injury, as “ordinary commonsense reasoning” suggested that physical injuries may have emotional consequences (Perlin, 1991). It was not until the second half of the 20th century that courts began to allow for recovery for emotional damages in the absence of any physical injury. However, in a number of jurisdictions, when a plaintiff makes a claim for emotional distress in the absence of a physical injury, he or she must prove some physical manifestation of the emotional injury, such as headaches, nausea, or “shock to the nervous system.” Legal Concepts in Tort Cases The essential legal framework in personal injury cases and most emotional distress claims is the civil law of “torts.” There are different types of torts, which include intentional harms as well as negligent acts that affect the person and property. When emotional damage is claimed by a plaintiff, in most cases the claim will require as a foundation the commission of a tort by the defendant. A tort is a “civil wrong” for which the law provides a remedy, usually in the form of money damages. A tort generally is a wrongful act or omission (excluding breach of contract) for which damages can be obtained in civil court by the person who was wronged. The person principally liable is the one who committed the tort (known as the tortfeasor). Many torts are also crimes (e.g., battery, false imprisonment, reckless driving causing injury). When the person who was harmed brings a civil action, the person is bringing a tort action. Tort law requires “a breach of a duty that the law imposes on persons who stand in a particular relation to one another” (Garner, 2004, p. 1526). As such, tort law is a fault-based system in which the plaintiff must prove that the defendant committed a tortious act, and by so doing breached a duty. Torts can relate to most any conduct that causes harm that stems from negligent, reckless, or intentional acts or omissions. The harm caused can be either to a person or to property. Distinction Between Liability and Damages In tort cases, a plaintiff will file a lawsuit alleging the defendant did or did not do something that injured him or her. The plaintiff must allege sufficient facts to make out a cause of action, which are the required elements for one of the various torts that are necessary for the legal

theory of the lawsuit. Initially, the plaintiff must plead adequate facts so that, if they were true, they make out a prima facie case. If the plaintiff is successful at trial, he or she is entitled to a judgment of liability, which refers to the state of being legally accountable or responsible to another. If a plaintiff succeeds in the lawsuit, there will be a finding of liability against the defendant, which is based on the plaintiff having proved all of the essential elements of the tort in question. In most tort cases, liability is the threshold issue; if the plaintiff cannot prove the defendant is liable, the plaintiff cannot recover for any injuries. To answer the question of liability, it is important to understand both the burden of production and the burden of persuasion (which are collectively called the burden of proof ). The burden of production refers to which party to the lawsuit has the responsibility to prove what is being alleged. In most tort actions, the plaintiff has the burden of production. The defendant does not have to prove anything until the plaintiff has met the burden of production of proving sufficient facts to win the case. Just how much evidence the plaintiff must produce to meet the burden of production is called the burden of persuasion, and it differs among different types of legal cases. The three different burdens of persuasion are (1) preponderance of the evidence, (2) clear and convincing evidence, and (3) beyond a reasonable doubt. Preponderance of the evidence is the standard used in most civil cases, and is the one that operates in personal injury cases. Clear and convincing evidence is an intermediate standard used in some employment, mental health, and family law cases, and beyond a reasonable doubt is the burden used in criminal cases. Preponderance of the evidence means the greater weight of the evidence, however slight, and is frequently described as “greater than 50%.” Thus, in a tort case where the burden of persuasion is preponderance of the evidence and the plaintiff has the burden of production, the plaintiff must prove every element of the tort, so that the judge or jury believes it is more likely than not, for the plaintiff to win on the question of liability. Only if there has been a finding of liability against the defendant will the issue of damages become relevant. Although discussed in more depth later, damages refers to the amount of harm suffered by the plaintiff as a result of the defendant’s actions, and can include out-ofpocket costs, lost wages, future earnings, future costs, pain and suffering, loss of companionship, and so forth. A plaintiff may have suffered significant emotional harm as a result of an injury or accident, or may have experienced very little emotional disruption. Evaluating the degree of that harm and the consequences of that harm on

Psychological Evaluation of Emotional Damages in Tort Cases

the person’s past, present, and future functioning composes the determination of damages. Damages can be quite specific to a particular plaintiff. Some plaintiffs may have experienced little or no harm as a result of the defendant’s conduct, while others may have been severely harmed. Once liability has been found, the defendant is responsible for compensating the injured plaintiff for all damages suffered. Generally speaking, a defendant “takes his victim as he finds him” (Canterbury v. Spence, 1972, p. 795), meaning that a defendant is responsible for all harm caused by his or her conduct, including when the extent of the harm was unforeseeable or disproportionate to the conduct. While some plaintiffs may be strong and hearty, others may be exceptionally fragile and experience injury that is disproportionate to the harm-producing conduct. This is what is called the “eggshell-skull” plaintiff. It is quite important in the assessment of emotional injury that the forensic psychologist determine whether there is an eggshell-skull plaintiff who suffered real but disproportionate damages as a result of the defendant’s conduct, or whether there was a plaintiff who already was significantly damaged prior to the defendant’s conduct, and whose existing injuries or limitations were only mildly exacerbated. In both cases the plaintiff will be significantly injured, but the defendant is not responsible for harm he or she did not cause.

CATEGORIES OF TORTS There are several different categories of torts that can serve as the basis for a claim of emotional damages by a plaintiff. In this section, we review the different categories of torts, which are related to the nature of the defendant’s conduct and the intent of the defendant. Intentional Torts Intentional torts require general or specific intent by the tortfeasor that a particular harm will occur. Generally to establish the elements for an intentional tort, the plaintiff must prove: (a) the defendant engaged in a volitional act; (b) intent—either specific intent (the goal was to bring about the specific consequences) or general intent (acting with “substantial certainty” of the consequences); and (c) causation—the conduct must be a substantial factor in bringing about the injury. There are a number of intentional torts that can harm a plaintiff: battery, assault, false imprisonment, and intentional infliction of emotional

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distress. A key aspect of intentional torts that distinguishes them from other torts is that the plaintiff must prove that the defendant had the required intent. If the plaintiff can prove the required level of intent, there exists the possibility of punitive damages (discussed later).

Defamation Allegations of defamation involve claims of harm to potentially both economic and dignitary interests that can impact the plaintiff’s emotional functioning. Libel is written defamation and, because of the enduring nature of the written word, when there is libel, damages are presumed. Slander refers to spoken defamation. In most cases of slander, the plaintiff must show actual harm as a result of the slanderous statement. The elements of common law defamation are: (a) a false, factual, defamatory utterance; (b) about the plaintiff; (c) transmitted in some form to a third person; (d) resulting in damage to the plaintiff’s reputation. There are special rules that apply when the alleged defamation is a matter of public concern, and there are certain defenses that can apply.

The “Privacy Torts” There are four privacy torts for which a plaintiff can bring a cause of action that could include allegations of emotional harm. The first is appropriation of the plaintiff’s picture or name, which requires the plaintiff to prove that the defendant made unauthorized use of the plaintiff’s picture or name for commercial advantage. This is commonly seen with celebrity plaintiffs regarding fictitious endorsements. The second privacy tort is intrusion, which refers to a highly offensive intrusion into a plaintiff’s seclusion or private life. The third is false light, which is the misattribution to plaintiff of views he or she does not hold or actions he or she did not take that would be objectionable to a reasonable person under the circumstances. The fourth privacy tort is public disclosure of private facts, which means a public revelation of a person’s private life when there is no legitimate public purpose, and where the revelation would be objectionable to a reasonable person.

Strict Liability Strict liability refers to liability without any type of fault on the part of the defendant. The reason for this type of liability is that there are some activities that are so inherently dangerous that, when a defendant engages in them,

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it is foreseeable that innocent people can be harmed. Thus, society has deemed that those who engage in such activities do so at their own peril and are responsible for any damages that result. Examples include injuries from the keeping of dangerous, wild animals, or possession and personal use of explosives and poisons. In such cases, the plaintiff does not need to prove the defendant acted unreasonably for liability to attach; rather, once it is established that the defendant was engaged in the inherently dangerous conduct, the plaintiff must simply show injury resulting from that conduct, even if the defendant was extremely careful in its execution. Negligence Negligence cases are particularly important, as they are the primary vehicle through which personal injury claims, professional malpractice claims, and other emotional damages claims are brought. In a negligence claim, unlike an intentional tort, there is not an allegation that the defendant intended to harm the plaintiff. Rather, the plaintiff alleges that the defendant failed to act in the way a reasonable person would have acted under the circumstances and that, as a result, he or she suffered an injury that would not have otherwise occurred. There are four elements to a prima facie case for negligence: 1. Duty: The defendant had a duty to conform to a specific standard of conduct for the protection of the plaintiff (and others) against an unreasonable risk of injury. 2. Breach: The defendant breached the duty to act reasonably by action or failure to act. 3. Cause: The breach of the duty by the defendant was both the actual cause and the proximate cause of the plaintiff’s injury. 4. Damage: The plaintiff suffered injury or damage to person or property. Duty A duty is created by relationship or status, either to a specific person or to others in society who can foreseeably be harmed by one’s conduct. Foreseeability is an important concept in tort law. Something is foreseeable if a reasonable person could anticipate the results of the action. A duty of care is owed to all foreseeable plaintiffs, and the extent of the duty is dictated by the applicable standard of care. When examining a negligence question, one must first ask whether the plaintiff could foreseeably be harmed

by the conduct. If a plaintiff is not foreseeable, then no duty is owed to that plaintiff. Whereas the more common view is that a plaintiff can recover only if she can establish that a reasonable person would have foreseen a risk of injury to her under the circumstances present (i.e., she was located in the foreseeable zone of danger), a minority view is that if a duty is owed to anybody, all others are foreseeable by reason of that duty. Once a plaintiff is considered foreseeable, the relevant standard of care must be established. There is a basic standard of care, and special standards that pertain to certain relationships between the parties. The basic standard of care is that of the reasonable person. The reasonable person standard is an objective standard: It is what an ordinary, reasonable, prudent person would do in the same circumstance. Intellectual and psychological limitations on the part of the defendant do not matter, as the defendant is held to the standard of a reasonable, non-limited person. But the reasonable person is considered to have the same physical characteristics as the defendant, yet assumed to have knowledge of his or her physical limitations. More specifically, the reasonable person is a hypothetical person “who exercises the degree of attention, knowledge, intelligence, and judgment that society requires of its members for the protection of their own and others’ interests. The reasonable person acts sensibly, does things without serious delay, and takes proper but not excessive precautions” (Garner, 2004, p. 1294). There also are special, particularized standards of care that are employed when the plaintiff and defendant are in a special relationship or in extreme circumstances. Most relevant to psychologists is the professional standard of care. Under this standard, someone who is a professional or has special occupational skills must possess the knowledge and skill of a member of the profession or occupation in good standing in the same or similar communities. As such, specialists will be held to a higher degree of care than nonspecialists. This is the standard seen in medical and psychological malpractice cases, and with cases involving other licensed and unlicensed professionals. The child standard of care requires that the child to be held to the standard of a reasonable child of like age, education, intelligence, and experience. However, children engaged in “adult activities” may be required to conform to an adult standard of care. Another standard is that of common carriers (e.g., airlines, trains) and innkeepers,

Psychological Evaluation of Emotional Damages in Tort Cases

in which they are held to a higher standard of care be cause their passengers and guests rely on them for their safety. Thus, even slight deviations from the standard of care will result in liability. The emergency standard of care applies in emergency and crisis situations and is a forgiving standard that is designed to encouraged persons to render assistance to those in peril. Under this standard, a defendant must act as a reasonable person would under the same conditions, provided the emergency is not of the defendant’s own making. Breach Once there is a foreseeable plaintiff and the defendant has an applicable standard of care, the element of breach simply means the defendant’s conduct falls short of what is required. Whether the duty has been breached is a question of fact for the judge or jury. That said, there are some available methods to determine a breach. The first is violation of a law or statute. Under this method, a breach can be shown as a matter of law by proof that the defendant violated an applicable law or statute (sometimes called negligence per se). The reason for this is that an ordinary, reasonable, prudent person does not break the law, so any lawbreaking behavior is a per se breach of the standard of care. For example, if a defendant is speeding and causes an automobile accident, the defendant has, by having sped, breached the standard of care. Another available method to determine a breach in certain cases is res ipsa loquitur (i.e., “the thing speaks for itself”). This means that certain events, by their very nature, demonstrate a breach of a duty of care. It requires the plaintiff to show that (a) the accident that caused the injury would not normally occur unless someone was negligent; and (b) what occurred was under the defendant’s sole control. An example would be if a paint can fell from the top of a building and hit a pedestrian on the street. Paint cans fall from buildings only if someone breached the standard of care. Thus, the plaintiff need show only that the paint can was under the defendant’s control to demonstrate a breach of the duty of care. Cause Once negligent conduct is demonstrated (i.e., a breach of a duty owed to a foreseeable plaintiff), the plaintiff also must prove that the conduct was the cause of her injury. For liability to attach the plaintiff must show both “actual cause,” and “proximate cause.” Actual cause is relatively

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straightforward: It simply means that the conduct was a cause-in-fact of the injury. This can be demonstrated in different ways, but the most straightforward is the “butfor” test, which directs that, if the defendant had not acted as he did, the plaintiff would not have been injured. This is a broad test, as it encompasses all behaviors that in any way contributed to the accident, whether recent or long removed. Because actual cause can include many different behaviors of the defendant, both recent and distant, there needs to be a method to determine whether it is fair that the particular behavior in question should result in liability. This is accomplished through the requirement of proximate cause, which is a limitation of liability. Proximate cause generally is governed by the concept of the foreseeability of risk of harm caused by the defendant’s behaviors. The general rule is that a defendant is liable for the harmful results that are the normal incidents of, and within the increased risk caused by, his acts. If the harm caused by the negligent act is not foreseeable to a reasonable person, the defendant’s action will not be the proximate cause of the plaintiff’s injury, even if it was an actual cause of the injury. However, if harm was foreseeable, it does not matter that the extent of the harm was unforeseeable (see the earlier discussion of “eggshell-skull” plaintiffs). The issue of proximate cause is quite relevant to the evaluation of a plaintiff’s alleged injuries. Damage The final element of a negligence tort is damage, and in most cases must be proven by the plaintiff. A distinction must be drawn between the terms damage and damages. Damage refers to an injury or harm and is a threshold showing for a negligence claim, because if the plaintiff has not suffered damage (harm), there is no reason to litigate. Thus, the plaintiff must plead and prove damage for the defendant to be found liable in negligence. The term damages refers to the money claimed by, or ordered to be paid to, a person as compensation for his or her loss or injury. Thus, plaintiffs who suffer damage are entitled to receive damages from the defendant who is found to be liable. Usually, the type and extent of damage suffered by the plaintiff are the most relevant issues in negligence cases to the forensic psychologist, as the professional’s expertise can help explain the extent of mental and emotional damage caused by the defendant’s conduct.

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Vicarious Liability/Respondeat Superior Vicarious liability is imposed upon a third party for the tortious act committed by another. Closely related to this is the doctrine of respondeat superior, which holds that employers and supervisors are vicariously liable for the negligent acts of their employees and supervisees if their negligent acts occur within the scope of the employment/ supervisory relationship. This is the source of the liability when a plaintiff sues a company employer for the wrongdoing of its employee. Often the employee had limited funds to pay a judgment if the plaintiff is successful but, if the doctrine of respondeat superior applies, the company will be liable for damage resulting from the employee’s negligence, and the plaintiff will have access to the “deep pockets” of the employer. There are two primary limitations to the doctrine of respondeat superior that an employer may attempt to use to sever the potential for vicarious liability. Generally speaking, when an employee makes minor deviations from his employer’s business duties for his own purposes, he or she is still is considered to be acting within the scope of employment. But, if the deviation in time or area is substantial, the employer will not be liable, as the employee has engaged in “frolic and detour” and his or her conduct was not in furtherance of the employment relationship. A second limitation of liability for the employer occurs when the employee has committed an intentional tort (as opposed to negligence). Usually, intentional torts committed by an employee will not be attributable to the employer, because committing intentional torts is not within the scope of employment. There are some exceptions, however, such as when force is part of the employee’s job duties (e.g., a bouncer at a nightclub), or when animosity is part of the job (e.g., a bill collector). THE EMOTIONAL DISTRESS TORTS There are two torts that are especially deserving of further discussion: intentional infliction of emotional distress, and negligent infliction of emotional distress. These certainly are not the only torts for which claims of emotional damage are possible. What is more typically seen is that when physical injury has been caused by commission of another tort, including negligence, plaintiffs can recover damages for emotional distress as a “parasitic” element of the physical injury damages, without the need

to consider the elements of the emotional distress torts independently. Intentional Infliction of Emotional Distress The tort of intentional infliction of emotional distress is unique regarding claims of emotional harm in that it is the only tort that does not require some form of physical injury (even negligent infliction of emotional distress usually requires a physical manifestation of injury). The four elements of the tort are: (1) an act by the defendant amounting to extreme and outrageous conduct; (2) intent or recklessness; (3) causation; and (4) damage—severe emotional distress. Extreme or outrageous conduct is defined as an act that violates all boundaries of a community’s sense of decency. This is a high burden, and is reserved for acts that “shock the conscience.” The reason for this high burden is that when someone suffers from such conduct and consequently experiences severe emotional distress, he or she does not need to prove physical damages; the conduct alone is so severe that it obviates the need to prove any physical damage. The reason there is little concern that this would open the floodgates for allegations of malingered emotional harm is that the conduct itself logically leads to severe distress. The second element is that the conduct be either intentional or reckless. One should note that recklessness usually is not adequate for intentional torts, which require intent to cause the resulting harm. When recklessness as to the consequences is alleged, the question turns on what the defendant knew or should have known or foreseen with the conduct. (Forensic psychologists may be asked to offer an opinion about whether the defendant had the capacity to foresee the harm, given the defendant’s cognitive capacity and/or emotional state.) The element of causation usually is not a difficult burden for the plaintiff to meet, given the fourth element—severe emotional distress. For the damage element of severe emotional distress to be met, the plaintiff must prove that the experienced distress would have substantially damaged a normally constituted person. However, as noted earlier, the plaintiff does not need to plead or prove any resulting physical injury. Negligent Infliction of Emotional Distress Differing notably from intentional infliction of emotional distress, the plaintiff claiming negligent infliction of emotional distress (NIED) alleges only negligence on the part

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of the defendant, not intent or recklessness. Without this higher burden, it would be much easier for plaintiffs to allege false claims of emotional distress. For this reason, there are limitations factored into the negligence element of duty. The elements of NIED are generally the same elements as any other negligence action: duty, breach, cause, and damage. Regarding the duty in NIED cases, it is the duty to avoid causing emotional harm to foreseeable plaintiffs. That duty is breached when the defendant creates a foreseeable risk of physical injury to the plaintiff through physical impact or a threat of physical impact. Generally speaking, the plaintiff must be in the zone of danger created by the defendant’s negligent conduct to be a foreseeable plaintiff—if the plaintiff cannot be harmed by the conduct, that plaintiff is not foreseeable to the defendant. As with other negligence cases, the breach of the duty must be the actual and proximate cause of the plaintiff’s injury. The final element is damage, usually in the form of a resulting emotional injury. However, unlike intentional infliction of emotional distress claims, NIED claims usually require some physical manifestation of injury (but that requirement can be met with allegations of headaches, dizziness, or “shock to the nervous system”).

recover for injuries caused by severe fright in the absence of any physical injury. The court ruled that the severity of the consequent injuries was irrelevant in the analysis, because no personal injury action could be upheld for negligence if the only harm was emotional. The court noted significant concerns about malingered claims if it were to uphold a claim for damages in the absence of a physical injury. Christie Brothers Circus v. Turnage (1928): The plaintiff in this case was a front-row audience member at the defendant’s circus. During the performance, one of the circus performers was riding a horse in a routine in front of the plaintiff. The performer caused the horse to back up until the tail-end of the horse was directly over the plaintiff. Unfortunately, the horse then “evacuated his bowels into her lap” and everyone in the audience laughed. The plaintiff, described as “an unmarried white lady,” was mortified, and experienced significant emotional “pain and suffering.” The court held that any unwanted touching of the plaintiff’s body, even when no actual physical harm results, violates a personal right and constitutes a “physical injury” to that person. As such, the plaintiff was allowed to recover against the circus for the emotional damage that resulted from this “physical injury.”

EVOLUTION OF STANDARDS IN NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS CLAIMS

Zone of Danger

In NIED cases the plaintiff claims emotional injury in the absence of a pronounced physical injury. As noted earlier, courts initially were quite hostile to such claims, but over time courts have become more accepting of such claims. This section highlights the development of NIED common law through review of representative cases. Physical Impact Required Mitchell v. Rochester Railway Co. (1896): In Mitchell, the plaintiff was about to board a train when a horse-drawn car that also belonged to the defendant made an unexpected turn toward her. When the team of horses finally stopped, the plaintiff was standing between the horses’ heads. The plaintiff was so frightened out of fear that she would be run over that she passed out and had a miscarriage. Medical testimony suggested those consequences could come from her level of emotional distress. The Court of Appeals of New York addressed the plaintiff’s claim of emotional distress and held that the plaintiff could not

Palsgraf v. Long Island Railroad Company (1928): The issue of foreseeability of harm to a plaintiff was the predominant issue in Palsgraf, considered to be one of the major tort cases in American common law. Mrs. Palsgraf was standing on a train platform as two men were running to catch a train. The second man was carrying a small package containing fireworks. A guard on the train platform helped the second man get onto the train, but the man dropped the package, causing an explosion that resulted in the scales on the other end of the train platform falling and injuring Mrs. Palsgraf. She sued the railroad for negligence. In holding for the defendant, the court ruled that the extent of duty in negligence is determined by the risk that can be reasonably foreseen under the circumstances. A defendant owes a duty of care only to those who are in the reasonably foreseeable “zone of danger” caused by the defendant’s conduct. The court noted that the railroad employee did not know the package had fireworks that could injure someone as far away as Mrs. Palsgraf, and because she was outside the foreseeable zone of danger, the defendant did not owe her a duty of care through his actions.

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Waube v. Warrington (1935): This case was a wrongful death action in which a husband sought damages for the death of his wife. The wife was in the family home and was looking out the window when she saw her daughter killed by a negligent driver as she was crossing the street. She allegedly died from “nervous shock” from having seen her daughter killed. The Wisconsin Supreme Court held that liability for the driver’s negligence did not extend to the mother, who was not within the zone of physical danger caused by the negligent driving. She could not have been physically harmed by the driver’s conduct, so her emotional injuries were not foreseeable to the driver, and thus her husband could not recover for her death. This case solidified the zone-of-danger rule for bystanders who suffer emotional distress by witnessing harm to another person. Bystander Recovery Dillon v. Legg (1968): The facts of Dillon were similar to those of Waube. The plaintiff brought suit claiming emotional damages for having watched her young daughter killed by the defendant’s negligent operation of a motor vehicle. The mother was not in the zone of immediate physical danger, having seen the incident from a few feet away. The lower court held that the mother could not sue for her emotional distress from witnessing the accident, because she was not in the zone of danger and did not fear for her own safety. On appeal, the California Supreme Court ruled for the plaintiff. Using a foreseeability analysis, the court ruled that the child’s mother was a foreseeable victim of the defendant’s negligent driving. It is a public policy question as to how far to extend foreseeability of harm when the person witnesses injury to another. The court noted there was genuine injury in this case, and the fear of fraudulent litigation does not warrant a complete rejection of possibly valid claims. The court came up with three factors to limit recovery to a select class of bystanders: (1) the plaintiff was near the scene of the accident; (2) the plaintiff actually witnessed the accident; and (3) the plaintiff and victim were closely related. Weighing these factors will determine whether the harm was reasonably foreseeable. Thing v. La Chusa (1989): In this case, a mother also was nearby as her son was struck by a negligent driver. However, the mother did not see or hear the accident; rather she learned of it when her daughter (who witnessed the accident) told her mother what happened to her brother. The mother rushed to the scene where she saw her

badly injured son lying unconscious in the street, covered in blood. She believed he was dead, and as a result she suffered significant emotional distress. The lower court held for the mother, stating that contemporaneously viewing the accident was not a prerequisite under Dillon v. Legg. On appeal, the California Supreme Court reversed and held against the mother. Arguing society benefits from certainty in the law, the court noted that in the years after Dillon lower courts had expanded bystander recovery in NIED actions. The court saw a need to limit bystander recovery by setting out clear rules, and formalized the guidelines from Dillon to create a clear rule for bystander recovery cases in NIED claims. Direct Victim With No Physical Injury or Impact Molien v. Kaiser Foundation Hospitals (1980): This was a medical malpractice case in which the plaintiff’s wife was misdiagnosed by her physician as having syphilis and he then instructed her to inform her husband so he could be tested. Neither partner actually had a sexually transmitted disease. Understandably, there was tremendous marital discord and lack of trust between the partners, and they eventually divorced. Upon learning of the misdiagnosis, the husband sued, alleging that the negligent misdiagnosis resulted in the dissolution of their marriage, and he sought damages for emotional distress and loss of his wife’s affection. Mr. Molien stated he was a “direct victim” of the allegedly negligent act. The California Supreme Court held that Mr. Molien was a foreseeable victim of the physician’s negligence, and ruled that he had a right to recover for NIED. In a later clarification, the court noted that this liability was limited because in Molien, the physician affirmatively informed the wife to tell her husband about the (nonexistent) syphilis so that he could also be tested, and a misdiagnosis could forseeably disrupt their marital relationship. In ordinary cases, there would not be liability for NIED if a family member suffers emotional distress simply from the negligent misdiagnosis of a loved one. Damages Recall from the earlier discussion that injury, or damage, is an element to most torts, including negligence. The plaintiff must plead and prove some injury or damage to win on the issue of liability. If successful on liability, the plaintiff may be able to recover a judgment from the defendant. Usually the measure of the judgment is

Psychological Evaluation of Emotional Damages in Tort Cases

money compensation, which is called damages. There are a number of different types and categories of damages, which are related to the severity and type of physical and emotional injuries caused by the defendant’s conduct. The damages described in the following include nominal damages, compensatory damages, special damages, general damages, future damages, loss of consortium, and punitive damages. Nominal damages are awarded when a plaintiff has succeeded on the issue of liability, but has not suffered any significant harm. Thus, there is a trifling sum that is awarded when a legal injury has occurred with no substantial injury or loss. It is not uncommon where there are only nominal damages for one dollar to be awarded. Compensatory damages are the most common type of damages in personal injury cases. These represent an amount to repay or indemnify the plaintiff for actual losses suffered as a result of the injury. They replace the amount the plaintiff has lost, and nothing more. However, they compensate the plaintiff for all types of loss, including economic loss (out-of-pocket expenses) such as medical expenses, mental health treatment, and lost earnings. Also included as compensatory damages are amounts to compensate for physical and mental/emotional pain and suffering. When considering emotional pain and suffering, an evaluator must consider issues such as fright and shock at the time of the injury, humiliation the plaintiff may have suffered as a result of disfigurement or disability, depression and unhappiness about being unable to lead the life the plaintiff previously had led, and anxiety about the future. Compensatory damages are made up of both special damages and general damages. Special damages are compensatory damages that have occurred because of an injury or accident, and are predicated on measurable dollar amounts of actual loss, such as out-of-pocket costs for medical expenses and mental health services, lost earnings, and damage to repair or replace a vehicle. These amounts differ between plaintiffs depending on a number of factors, and as such they need to be specifically alleged and proved. General damages are those that the law presumes will occur following the injury alleged by the plaintiff. These damages are for the intangible losses suffered for the type of tort committed, and as such they do not need to be specifically alleged or proved. They can be informed through data about the degree of special damages suffered and other facts of the case. Many compensatory damages for personal injury fall under the category of general

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damages, including amounts for pain and suffering, mental distress, and loss of consortium. Future damages can be considered another form of compensatory damages, as the purpose is to compensate the plaintiff for losses, but they are for losses that have not yet occurred. Future damages are monies awarded to an injured plaintiff for the residual and projected effects of the injury. Examples include future pain and suffering, estimated future medical and mental health expenses, and loss of future earnings capacity and income. These can be difficult to estimate in emotional distress cases. Loss of consortium is a specific type of damage related to close relationships, usually between spouses (spousal consortium). It is the loss of the benefits of the relationship that one person is entitled to receive from the other person, and includes companionship, cooperation, aid, affection, and (between spouses) sexual relations. When a spouse is injured or dies, the remaining spouse is left without these benefits of the relationship, and can sue the tortfeasor in his or her own right for these current and future damages. There are similar claims that apply for loss of consortium of a child (filial consortium) or of a parent (parental consortium). Punitive damages are a special category of damages that do not compensate the plaintiff for losses suffered, but rather are intended to punish the defendant for blameworthy conduct or to make an example of the defendant to others (called exemplary damages). They are awarded when the defendant committed the act with intent, malice, deceit, or recklessness, and is thereby deserving of punishment. Punitive damages are awarded to the plaintiff in addition to compensatory damages. The amount generally is based on the degree of reprehensibility of the defendant’s conduct, and the relationship between the harm suffered and the award. When awarded, they appear to be a windfall to the plaintiff, who already is being compensated for actual losses and harm. However, in balancing fairness it generally is seen as preferable public policy to allow the plaintiff who was harmed by the intentional or reckless conduct of the defendant to receive the windfall, rather than to allow the defendant to escape financial punishment for having engaged in reprehensible behavior. Importance of the Rules of Civil Procedure Personal injury cases and claims for emotional distress take place exclusively in civil court. In both federal and state civil courts there are specific rules and processes that

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must be followed to bring a case to court. Those procedures are found in the relevant “rules of civil procedure,” which govern all aspects of civil litigation, including the initial filing of a claim and the defendant’s answer, the discovery process and pretrial orders, the conduct of trials and the process of judgment, and available remedies. Most states have modeled their rules of civil procedure on the Federal Rules of Civil Procedure (FRCP), with California being the notable exception. Relevant aspects of the rules of civil procedure are discussed ahead. The Complaint and Answer The process of a civil case begins with the plaintiff’s filing of a complaint, which clearly sets out the basic issues of the relevant causes of action, the factual bases for the claims, and the type of relief expected. Once filed and served, the defendant has a certain amount of time to file an answer, which addresses each of the legal complaints and the underlying facts alleged in the complaint. Discovery and Pretrial Orders Once the case has commenced, there usually is a conference before the assigned judge where a schedule is set for the discovery phase. Discovery refers to the process of compulsory full disclosure of all information related to the litigation, and relevant rules are found primarily in FRCP 26 and state analogues. The goal of pretrial discovery is to reveal relevant facts and develop evidence so that all information is available to both parties. For this reason, discovery generally leads to increased fairness of discussions and settlement negotiations, avoiding the need for many trials. The four primary methods of discovery are interrogatories, requests for admissions, requests for production, and depositions. For cases in which emotional injuries have been alleged, the plaintiff usually will have been evaluated by a psychologist or psychiatrist of the attorney’s choosing. The evaluator will draft a report (if his or her opinions are helpful to the attorney) describing the extent of emotional injuries from the plaintiff’s perspective. That final report (and accompanying data) will be available for discovery to the attorney representing the defendant. In many cases, the defense attorney will dispute the findings made by the plaintiff-retained evaluator and will retain an evaluator of his or her own choosing to perform another evaluation of the plaintiff. The process through which this is done is governed by FRCP 35 or state counterparts. Rule 35 evaluations are ordered by a court to compel examination of the plaintiff by a defense-retained examiner. Because the plaintiff will have placed his or her

mental state at issue in the litigation, the psychotherapist– patient privilege will have been waived by the plaintiff and will not apply to the prior evaluations of the plaintiff, and all medical and mental health records, including those from before the accident or injury, will usually be accessible to the defense and the evaluator. In many circumstances, the court will ask the defense to show “good cause” why such an evaluation of plaintiff will be useful to the litigation. With the assistance of the examiner, the defense attorney will execute and file a good cause declaration, which sets out the evaluator’s qualifications, the basic facts of the matter, and the proposed process of examination. This includes the plans for testing, interviews, collateral contacts, and the general nature of the examination. This document should specify the needed number of testing and interview sessions and the approximate number of hours needed to complete the evaluation. The declaration should make clear that the examiner will investigate the past, present, and future emotional functioning of the plaintiff, the nature of the alleged event, and the likely causes of any emotional distress the plaintiff alleges. Similarly, the document should describe the intention to interview relevant collaterals about related matters, including their relationship to the case and plaintiff. Finally, the document should describe how this information may be used in the litigation. The process of the evaluation and report is described at length later in the chapter. The plaintiff is entitled to a copy of the report completed by the defense-retained examiner. Similarly, the defense is entitled to all prior evaluations of the plaintiff for this and other related matters. Once the information has been exchanged, the next phase of the pretrial procedures that involves the evaluator is the deposition. A deposition is a proceeding in which the opposing party has the opportunity to take sworn testimony from a witness, either for later use at a trial or for purposes of discovery. When a forensic examiner is deposed, the purpose of the deposition is to find any weaknesses in the evaluation performed and conclusions reached, and determine the soundness of the evaluation and witness when determining the strength of a case for settlement purposes. FRCP 30 generally governs the procedures of depositions. The Trial As an expert witness, the forensic evaluator may play a major or minor role at trial. The expert must testify truthfully, and answer questions that are asked. The expert generally is not free to speak about those things he or she wants to discuss, but rather must answer questions from

Psychological Evaluation of Emotional Damages in Tort Cases

the attorneys; if the attorneys do not ask the right questions, potentially useful information may not be revealed. This may be a strategic decision by the attorney, or a blunder due to being unprepared or uninformed. In any case, the expert is to remain objective when providing testimony. During direct examination the expert usually will be asked to explain what was done and why the expert came to the conclusion that he or she did. Usually this will include describing all aspects of the forensic evaluation (see ahead), including the content of interviews and record reviews, the results of psychological testing, and the conclusions drawn from them. The expert may be asked to provide details about psychological test results. In such cases, “demonstrative evidence” in the form of overheads, PowerPoints, chalkboards, or posterboards can be used to provide a visual analogue to verbal testimony, which often can be dry and difficult to follow. Usually this will have been discussed beforehand with the retaining attorney so demonstrative evidence can be prepared prior to trial, and shared with the opposing attorney as a potential exhibit before the proceedings begin. After direct examination of the expert, the opposing side has the opportunity to cross-examine the expert. The purpose of cross-examination is to challenge the expert so that the trier-of-fact will be able to determine whether the expert should be believed. A well-performed evaluation that has come to well-reasoned conclusions should appear so even after a challenging cross-examination.

THE PSYCHOLOGICAL EVALUATION As noted earlier in this chapter, in order to prevail in a tort action, the plaintiff must prove four elements: existence of a duty, breach of that duty by the tortfeasor, a causal linkage between that breach and damages, and the presence of compensable damages. Of these four elements, psychologists most often offer evidence or consultation on two of them: causation and damages. In a practical sense, of proving causation or damages, the easier task is to determine damages. In many cases, this is essentially the job of any psychological assessment—to determine functional impairment for the examinee (Foote, 2008). In an assessment in a tort case, this determination is multidimensional. As noted by Goodman-Delahunty and Foote (2011), the assessment encompasses a wide range of life functions. The emphasis in assessing damages is on function rather than diagnosis. This emphasis is for several reasons. First, the presence of a DSM-IV diagnosis is not

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itself probative of the presence of compensable damages (Simon & Gold, 2010). As a hypothetical case, a plaintiff may have suffered a very frightening auto accident, sustained minor injuries, and been treated for posttraumatic stress disorder. However, even after treatment, sufficient symptoms of PTSD persisted for the DSM-IV diagnosis to be evident at the time of evaluation one year later. However, in this case, the symptoms were brought largely under control. Although the accident victim had persisting nightmares, they rarely awoke the evaluee, or disturbed sleep. The person reported some degree of social isolation, but had maintained essential connections with family and friends. Some activities had been abandoned, but high-value connections in sports activities remained. The person avoided driving through the neighborhood where the accident occurred, and was thus able to manage emotional triggers. Overall, although sufficient symptoms persisted for a continuing PTSD diagnosis, the condition did not notably impair functioning for the plaintiff. In contrast, some research (e.g., Breslau, Lucia, & Davis, 2004) indicates that many people with subsyndromal PTSD (those who suffer from significant trauma symptoms, but do not have sufficient to warrant the diagnosis) still suffer significant impairment in significant life activities. Second, impairments of function, not diagnosis, may translate directly into monetary harm. If a plaintiff is no longer able to work at the job that he or she did at the time of the tort, considerable financial damages may be generated by lost future wages. A plaintiff who requires assistance in daily activities may demand significant future expenses to pay for an aide. Attaching a dollar amount to changes in the quality of life may at first appear empirically difficult (Bagenstos & Schlanger, 2007). However, the loss of ability to engage in activities with a spouse or child, the loss of sexual function, or the lost ability to go hunting may all be compensable as hedonic damages.

THE EVALUATION MODEL: THE MATRIX AND THE FIVE STAGES A model for damages evaluation in civil and employment discrimination cases was developed by GoodmanDelahunty and Foote (2011). This model looks at the plaintiff’s functioning from the perspective of a matrix. The Assessment Matrix The assessment of the plaintiff for emotional damages in relation to specific events that occurred as part of a tort

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TABLE 8.1

Damages Matrix

Symptoms

Life Context ADLs

Relationships

Workplace

Hedonics

Cognitive Affective Physiological Interpersonal

or a civil right action is one in which the individual’s symptoms are examined in light of context. That is, we begin by determining the presence of symptoms in four critical areas: cognitive, affective, physiological, and interpersonal. These are viewed in the context of four different realms of function: activities of daily living (ADLs), work functioning, relationships, and quality of life, or hedonics. The task of a damages evaluation is to fill each of these cells. Each of the resulting 16 cells may be a focus of evaluation over the temporal course described by the Five Stage Model. Table 8.1 shows this matrix. Symptoms Cognitive: Many psychological disorders adversely affect thinking processes. In tort actions, since affective and anxiety disorders are common sequelae of accidents and other events that give rise to lawsuits (Blanchard & Hickling, 2004b), the search begins with cognitive functions most often impaired by those disorders. Affective: In addition, affective symptoms interfere with functioning in many spheres. For example, depression interferes with many life functions, and reduces the person’s capacity for enjoying life activities and participating in relationships (Kessler et al., 2008; Wang et al., 2004). Researchers have observed that both depressive and manic symptoms impair work performance at about the same rate (Kessler, Akiskal, Ames et al., 2006; Kessler & Frank, 1997), but because depressive disorders are much more prevalent than manic illnesses, depression has a bigger impact upon work functioning. In particular, researchers have noted that workers with depression tend to spend more time in the workday in nonwork tasks, and tend to slow as depression-related fatigue sets in later in the workday (Wang et al., 2004). Individuals with

depression suffer more lost workdays and leave work early more often than those without the disorder (Kessler & Frank, 1997). Physiological: Physiological symptoms of affective and depressive disorders can interfere with essential life activities. For example, sleep disorders, in the form of difficulty in getting to sleep, maintaining sleep, early awakening, and nonrestorative sleep patterns significantly interfere with work functioning (Roth et al., 2006). Physical manifestations of anxiety disorders in the form of sweating, tremors, and muscle tension can interfere with work behavior as well. Interpersonal : Problems in relating to friends, family, coworkers, and supervisors also can impact work performance. For example, a severe interpersonal disorder— social phobia—has been shown to be much more prevalent than most would expect, with a lifetime prevalence of 12.1% and a 12-month prevalence of 7.1% (Ruscio et al., 2008). This disorder produces significant occupational impairment by causing the socially avoidant worker to have difficulty in or to avoid situations in which he or she must talk with a supervisor, interact in an interview, or work while being watched. Among the sample in this study, half the individuals with social anxiety disorder reported such impairments. Life Contexts The four classes of symptoms previously listed can be assessed in four contexts: activities of daily living (ADLs), relationships and the quality of life, work functioning, or hedonics. ADLs Activities of daily living are those activities that the individual must perform in order to be independent in day-today functioning. Vore (2005) provided one listing of ADLs that has been adapted for this chapter: personal hygiene; household chores; reading activities; use of electronic equipment; social activities; family responsibilities; community/religious activities; exercise regimen; sleep/wake cycle; eating habits, with any weight gain or loss; driving activities; financial management; doctor’s visits; and academic pursuits. These are fundamental actions that predicate other activities, such as work or activities pursued strictly for their hedonic value. Thus, an individual

Psychological Evaluation of Emotional Damages in Tort Cases

with impaired ADLs will almost always have impairments in the other three domains. For example, a worker whose self-care skills are impaired may have difficulty in the workplace because his co-workers may not want to work around him. Relationships The ability to develop and maintain interpersonal relationships is critical for many aspects of daily life. In the workplace, the ability to relate appropriately to supervisors and co-workers may vary as a function of the particular workplace, but is critical for most. In nonwork contexts, relationships with friends and family provide value to daily life and facilitate social support during stressful life events.

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The use of the matrix causes a focus on function rather than diagnosis, although clusters of symptoms may predominate in particular diagnoses. For example, one would expect affective symptoms to be the primary emphasis in the context of a depressive or bipolar diagnosis. However, the use of the matrix forces the examiner to take into account the impact on life areas of the cognitive symptoms of these disorders. If the forensic examiner considers the matrix while preparing for and conducting the evaluation, he or she will compile a more complete and useful body of data. This matrix fits neatly into the five-stage process (Goodman-Delahunty & Foote, 2009, 2011). The assessment of all 16 of these cells may seem daunting. However, the most important phase, as will become evident, is Stage 1, when the baseline for the evaluation is established.

Work The ability to function in work settings is usually related to the complexity of the particular workplace. For example, in sheltered-work settings that are characterized by a low level of complexity, a worker may function with more severe impairments. In contrast, those working in professional contexts may be impaired by modest emotional disorders (Ruscio et al., 2008). Impaired work function often translates into monetary damages by way of an economist’s calculations of lost income, and even small work-related impairments may result in large costs over the life of the plaintiff (Simon & Gold, 2010).

The Five Stage Model Psychologists evaluating emotional damages in tort cases can benefit from using a model to guide the gathering and interpretation of data in the evaluation process. To that end, Goodman-Delahunty and Foote (2009, 2011) developed a temporally based model that examines the plaintiff’s functioning at five distinct intervals: the time before the tort occurred, the interval during which the tort occurred, the period since the tort happened, the interval of the evaluation, and projecting forward into the plaintiff’s future.

Hedonics The quality of life or, in legal terms, hedonics, refers to the joy of living. In order to assess this area, the examiner inquires about how the plaintiff engages in recreational activities, hobbies, social activities with family and friends, or other aspects that may be particularly important to the plaintiff. The Matrix in Evaluation In the use of the Five Stage Model, the assessment professional should make an effort to gain information about each cell in the matrix. This effort will be rewarded by focus on information that may not ordinarily be the stuff of forensic evaluation, such as affect in the context of ADLs, or physiological reactions in the context of relationships. In the latter case, do forensic evaluators often ask a plaintiff how an ongoing sleep disorder may affect the individual’s relationships?

Stage 1 This interval spans from the birth of the plaintiff to the “day before” the tort occurred, so it is also called the day-before analysis. In this interval, a number of elements are of interest to the examiner in tort cases. First, the psychologist is interested in the plaintiff’s history to determine the presence of prior trauma. This may be evident in childhood physical or sexual abuse or neglect, or adult trauma in the form of assault, accident, or natural disaster. Second, a history of emotional disorder, whether diagnosed or not, is critical to determine whether any current symptoms are part of a preexisting pattern or occur de novo as a result of the tort. Third, the examiner should gain a comprehensive picture of the plaintiff’s daily life and how well the person was able to engage in the activities of daily living. Although this may seem basic, gaining a clear picture of this baseline is essential as a basis for later determining the impact of the tort on functioning.

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Fourth, the examiner should explore the plaintiff’s history of relationships, most importantly close relationships with friends and family members. In this exploration, care should be taken to cover relationships in the workplace and in other settings, such as religious or fraternal organizations. Fifth, the examiner should ask questions about the plaintiff’s drug and alcohol use in the interval before the tort occurred. Sixth, the examiner should ask questions about the plaintiff’s work life in some detail, as changes in work-related functions may seriously impact monetary damages. Seventh, the examiner may develop a picture of the examinee’s hobbies and other recreational activities, or any activities that brought joy to the person’s life in the years before the tort. The reason the person’s baseline functioning prior to the tort is critical relates back to the legal rationale for compensation. The plaintiff is entitled to be “put back” into the position he or she was in prior to the defendant’s conduct. To the extent possible, the examiner must determine the functioning of the plaintiff prior to the tort as a foundation to determine the extent of harm the plaintiff experienced due to the defendant’s alleged conduct. Stage 2 The examiner next focuses on the interval during the tort. Some torts, such as auto accidents or assaults, occur over a very short timeframe, in seconds or minutes. In cases of a very brief interval, the emphasis should be on the plaintiff’s recollections of what occurred during that time, both objectively and subjectively. An objective account should include the plaintiff’s best recollection of the sequence of events. First emphasis is on what the plaintiff recalls as a matter of his or her own memory. Secondary concern is what the person has reconstructed from other’s accounts or those embodied in records. The subjective account emphasizes the examinee’s recollection of feelings that occurred at the time of the tort. This is important because some recent research (Boals, & Schuettler, 2009; Bovin & Marx, 2011; Bryant, Brooks, Silove, Creamer, O’Donnell, & McFarlane, 2011; Hodgson & Webster, 2011) indicates that the person’s subjective reactions during traumatic events predicts with some accuracy the nature and severity of subsequent emotional reactions. For torts that take place over time, the examiner should focus on how emotional reactions develop over time. These reactions may be exacerbations of preexisting

disorders already identified through the Stage 1 inquiries. Or, these may be emotional reactions that occur as a result of the tort. Care should be taken to look at these reactions as dynamic, changing with time to become either more severe or less impairing. For example, posttraumatic reactions tend to change over time, both in symptom composition and in severity (e.g., Solomon & Mikulincer, 2006, 2007). Comorbid disorders occur in a majority of posttraumatic reactions (Brunello, Davidson, Deahl, Kessler, Mendlewicz, Racagni, Zohar, 2001). In most cases, comorbid affective, anxiety, or substance abuse disorders take time to develop (Nelson, Heath, & Kessler, 1998) and are often attempts on the part of the trauma survivor to cope with PTSD symptoms. Changes in relationships with family, friends, supervisors, and co-workers may occur during the ongoing tort. In some cases, intimate relationships suffer significantly, as these often serve as a sensitive leading indicator of other life problems, and may in their own right lead to secondary life problems such as separation or divorce (Blanchard & Hickling, 2004a). During the tort, the plaintiff’s life goes on. The examinee may experience changes in the workplace, including promotion, demotion, firing, or changes in job duties or schedule. These events may serve as alternative sources of causation for emotional reactions and have nothing to do with the tort. In a similar way, the plaintiff may experience changes in family life unrelated to the tort such as changes in health of other family members, or children’s problems or changes. Other accidents or injuries may occur, such as the development of physical illnesses that ostensibly are unrelated to the tort, for example, diabetes or heart problems. Stage 3 This point in the temporal sequence begins when the tort itself is finished and lasts until the time of the evaluation. In this interval, many of the issues addressed in Stage 2 are still of interest. Mental disorders and symptoms may improve, or become worse. In this phase, the person may have sought treatment, which may improve, worsen, or leave unchanged emotional reactions generated in Stages 1 and 2 (Blanchard, Hickling, Kuhn, & Broderick, 2004). If the plaintiff became disabled as a result of the tort, because of unemployment the plaintiff may experience financial problems that generate emotional reactions as well as family problems produced by changed family

Psychological Evaluation of Emotional Damages in Tort Cases

dynamics (Eliason & Storrie, 2010; Isenor, 2011; Song, Foo, Uy, & Sun, 2011; Trachsel, Gurtner, von K¨anel, & Grosse, 2010). In this stage, the plaintiff usually hires a lawyer and initiates the litigation process. This sets into motion a series of events that most plaintiffs may not fully anticipate. The process of questioning by plaintiff’s counsel, answering interrogatories, and being subjected to depositions is rarely in the plaintiffs’ minds when they initiate litigation, but may well generate emotional reactions in conjunction with the experiences that prompted the lawsuit (Lees-Haley, 1988; Weissman, 1991). Some writers have observed that the discovery process, with the repeated necessity for the plaintiff to repeat the narrative of their experiences, sometimes to an obviously disbelieving audience, itself generates emotional reactions (Blanchard et al., 1998). In cases involving trauma, these discovery efforts may generate posttraumatic reactions (Bryant & Harvey, 2003). Stage 4 This stage occurs when the plaintiff comes into the psychologist’s office for evaluation. This is a moment in time when the examinee’s psychological processes are observed in the bright light of the evaluation procedures. Of course, the dynamic psychological processes that were set forth before, during, and after the tort are still in action, so the psychologist must recognize that this is a stop-motion image of the person’s functioning. This is where the data from the other stages come together to be analyzed to determine both the existence of emotional disorders that might constitute damages and the presence of evidence that some or all of those reactions were caused by the tort. We will discuss how this stage plays out in the later discussion of analysis of evaluation results. Stage 5 This final stage projects the evaluation results into the future to determine what if anything needs to be done for the plaintiff as a result of the tort. In some cases, the evaluator may suggest a treatment program. In addition, in serious cases in which ADLs are seriously impaired, the plaintiff may require home assistance or case management. Although some of this prognostication is based on outcome research, the examiner must keep in mind that the monetary damages resulting from a lawsuit may be the plaintiff’s only opportunity to fund future treatment and other supportive or reparative interventions.

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The Five Stage Model is imbedded into the evaluation process. In the next section, we will discuss how the information gathered in the document review, interviews, and testing may fill in the elements necessary in order to complete the Five Stage Model. EVALUATION PROCESS Assessment of damages in personal injury cases involves both procedural and conceptual sequences, which are overlaid. The procedural sequence refers to a series of events that occur as part of the civil legal process. As described earlier, the plaintiff’s lawyer must file the civil complaint, which must be answered by the defendant(s). The filing triggers a sequence of events, such as discovery, which occur within time limits that vary according to the jurisdiction in which the case is filed and tried. The work of the forensic psychologist fits into this sequence, and is bound by many of the time pressures and constraints that affect the other players in this legal drama. However, the forensic psychologist has essential assessment functions that must be performed in order to provide valid and reliable evidence for the court. These functions involve not only interviews and psychological testing, but a number of other tasks that will produce sufficient data to assist the finder of fact to arrive at a fair and just result. The psychologist’s sequence is, then, dictated by both the legal process and assessment process. This section briefly lays out the case sequence. It begins with consideration of the initial referral and arrangements between the retaining party and the forensic psychologist. Then, the focus shifts to how the psychologist gathers information through the evaluation process. Next considered is how that information may be processed in order to produce a usable product. Initial Referral Most civil forensic assessments begin with a telephone call from the retaining individual to the psychologist. The retaining individual is usually a lawyer, although in some practice contexts, calls from judges or administrative law officers may occur. In any case, the first task of the psychologist is to learn about the case. This is a critical first step because the psychologist must determine whether the referral is within his or her scope of expertise, which is required by APA Ethical Standard 2.01 (American

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Psychological Association, 2002, p. 1063). It is in this initial conversation that the referring lawyer has the best opportunity to influence the psychologist’s opinions. The lawyer has an ethical responsibility to provide zealous representation for his or her client. At the same time, the psychologist has an ethical responsibility to provide balanced and fair opinions. These two duties are sometimes in conflict. For example, the plaintiff’s counsel may describe the plaintiff as one who was irreparably harmed by the defendant’s actions, in contrast to the defendant’s counsel, who may describe the same person as a litigious malingerer. Determining who is involved in the case is critical at the time of referral. If the plaintiff’s counsel, defense counsel, defendant(s), or plaintiff or family members of any of those people have had prior professional or personal contact with the examiner, then an assessment of conflict or bias should be made. The reader is directed to the American Psychological Association Ethical Standards (hereafter EPPCC Standards) 3.05 and 3.06 (American Psychological Association, 2002). In most cases, prior professional contact as a forensic psychologist with the lawyers is not an issue, as a forensic psychologist with a thriving practice may have repeat customers. However, if the prior relationship was one in which the person was a therapy patient, closely connected with a therapy patient, or the examinee in a forensic evaluation, then a problematic conflict may exist and may require turning down the referral. If the psychologist has conducted a prior evaluation with the plaintiff in a similar or different context, such as a criminal case, the issue becomes more complicated (see Bush, Connell, & Denney, 2006b). This first conversation is the appropriate moment to advise the retaining party of the potential costs of the evaluation and the psychologist’s customary billing practices (see APA Ethical Standard 6.04, American Psychological Association, 2002; Guideline 5.02, Committee on the Specialty Guidelines for Forensic Psychology, 2011). If, for example, the psychologist routinely requires a deposit or retainer, then that fee should be discussed. Depending on the context, it may make sense for the psychologist to detail fees for missed appointments, depositions, trial, and travel. If both the retaining party and the psychologist decide that the retention is appropriate, then the psychologist must take note of the nature of this professional relationship. This is a context in which the psychologist is serving as an agent of the lawyer and is bound to

provide competent and ethical services to the retaining party (Rogers, 1987). In every jurisdiction, this agency relationship may differ somewhat, but in most cases working for the lawyer provides the additional protection of attorney work-product privilege to the psychologist’s work. However, the examiner must remember that his or her ultimate professional duty remains to provide the court with accurate and balanced information (Bush, Connell, & Denney, 2006b). Psychologists retained in tort cases generally assume one of two expert roles: consultant or testifying expert. In the consulting role, the psychologist assists the lawyer as part of the plaintiff’s or defendant’s team. Provision of questions for the plaintiff or opposing experts in depositions or trial, assistance in preparing trial strategy, and attendance at depositions and in the courtroom during a trial are all reasonable duties for the psychologist consultant. It is our perspective that this role, because the expert is clearly part of one side’s team and often has access to information that the hiring party holds as attorney work-product, is one that precludes expert testimony on the part of the psychologist. In contrast, the role of the testifying expert is one in which the psychologist’s primary duty is to the court, and recognizes the need to retain a level of objectivity and freedom from both the appearance and reality of bias. Because lawyers often do not recognize or observe this consultant/expert distinction, it is critical for the psychologist to establish this role structure from the beginning of the professional relationship. In the initial referral conversation, the psychologist should request documents that are related to the case. Among these documents are copies of the civil complaint and the defendant’s answer. This will provide a clear idea of the basic legal case as laid out by both sides. Remember, in this early phase of the case, many of the statements made by either side may not be proven, so the psychologist should take these assertions as both preliminary and as representing each party’s biased perspective. The psychologist should request available health-care records, preferably all that have been generated over the course of the plaintiff’s life. Any mental health records are critical, as are any reports of mental health experts or other experts in the case. Depositions of the parties that pertain to the issue of damages are often critical as a basis for comparison to the information gathered by the psychologist in the course of the evaluation. Military records may be valuable, especially if postings overseas

Psychological Evaluation of Emotional Damages in Tort Cases

involve combat. School records may provide valuable “day-before” data. Financial records can generate a picture of how the plaintiff has used personal resources and whether that pattern has changed as a result of the tort. Data Gathering and Pre-Evaluation Steps A thorough review of the documents provided is the first step in the process. Some documents are more helpful than others. Remember that most of the medical and even the mental health records provided to the psychologist were not generated with an eye to use as evidence in litigation. This means that they may not take into account competing hypotheses for symptoms or may not be of sufficient detail to be helpful. However, in many cases, documentation can be invaluable in understanding the litigant’s status both before and after the alleged tort. On the basis of information gathered so far, the psychologist must determine what to do in the assessment. In some cases, an evaluation of the plaintiff’s cognitive status may be critical to determine the presence of impairments related to work or academic performance. In other cases, assessment of emotional status may be more critical. Heilbrun (1992) delineated seven principles for choosing forensic assessment instruments: The test should be commercially available and documented both in its own manuals and in independent publications; the test should be reliable, with a reliability coefficient greater than .80; the test should be relevant to the legal issue or underlying psychological construct; the psychologist should employ standard administration for the instrument; the test should be applied only to populations and for purposes for which it was designed, which should guide both the selection and interpretation of the instrument; in general, objective tests and actuarial data are preferable if appropriate research data exist; and response style should be assessed in the context of the evaluation to determine the extent of malingering or defensiveness. These standards may pose some special problems in evaluation of emotional reactions in tort cases. Because most events that give rise to psychological injuries are traumatic, assessment of reactions to trauma is especially important. The most commonly used “objective” assessment instrument, the Minnesota Multiphasic Personality Inventory–2 (MMPI-2) (Greene, 2011), is not especially effective as a measure of posttraumatic reactions, as the main scale designed to assess PTSD (Keane PK scale) is a more effective measure of general distress and does not particularly select for posttraumatic

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reactions (Miller, Streiner, & Goldberg, 1995); Moody & Kish, 1989; Wetzel, et al., 2003). Recent research with veterans suggests that the MMPI2-RF (Restructured Form) (Arbisi, Sellbom, & BenPorath, 2008) may be a better measure, since the general emotional distress component is seen as a separate variable and does not contribute to elevations on other scales (Wolf et al., 2008). This study showed reliable PTSD patterns among veterans, with differing scale elevations according to gender. Other specific PTSD measures such as the Trauma Symptom Inventory (Briere, 1995) and the Detailed Assessment of Posttraumatic States (Briere, 2001), may be used, although neither has been well studied in civil forensic settings. Instruments should be chosen with the goal of providing overlap and redundancy of test data. For example, one may want to use two well-accepted measures of emotional functioning such as the Personality Assessment Inventory (PAI) (Morey, 2007) and the MMPI-2. We agree with Borum, Otto, and Golding (1993) that if measures are highly correlated, the accuracy of the evaluation may actually decrease. However, we contend that using measures that overlap on some critical aspects, but also provide unique information about symptoms or patterns of problems, provides for a better basis for forensic decision making. Measures of response style are also critical for forensic assessment of damages in civil cases (Heilbrun, Marczyk, DeMatteo, & Goldstein, 2008; Resnick, West, & Payne, 2008). Plaintiffs in tort actions have obvious monetary incentives to feign or exaggerate emotional disorders (Rogers & Bender, 2003). Specific concern has been raised about the feigning or exaggeration of PTSD (Arbisi, Ben-Porath, & McNulty, 2006, 2007; Arbisi, Murdoch, Fortier, & McNulty, 2004; Bury & Bagby, 2002; Eakin, Weathers, Benson, Anderson, & Funderburk, 2006; Efendov, 2007; Elhai, 2000; Elhai, Gold, Sellers, & Dorfman, 2001; Frank, 1992; Frueh, & Kinder, 1994; Frueh, Leverett, & Kinder, 1995; Gaston, Brunet, Koszycki, & Bradwejn, 1996, 1998; Lees-Haley, 1992, 1997; Moyer, Burkhardt, & Gordon, 2002; Moyer, Gordon, Ward, & Burkhardt, 2006; Mylle & Maes, 2008; Penk, Rierdan, Losardo, & Robinowitz, 2006). With these concerns in mind, the examiner should attend to measures of response style built into the MMPI-2 and PAI. In our experience, other feigning measures, such as the Miller Forensic Assessment of Symptoms Test (M-FAST) (Guriel-Tennant & Fremouw, 2006; Messer & Fremouw, 2007) and the

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Structured Interview of Reported Symptoms (SIRS-2) (Rogers, Sewell, & Gillard, 2010), have not proved very useful for identifying individuals who are feigning PTSD in civil contexts. The next step is to schedule the evaluation with the plaintiff. In some cases, two days of work may be necessary for all the interviews and the tests that may be part of the tort damages evaluation. In addition, if, for example, the plaintiff complains of chronic pain problems or quick fatigue, then the psychologist may want to schedule the evaluation over several days or weeks so that more accurate data are generated. It has been our experience that even in the context of an evaluation by a psychologist retained by the plaintiff’s counsel the examinee may be quite anxious about the assessment and may not have slept well the night before the scheduled evaluation. The first part of the assessment should be scheduled with that in mind. Paper-and-pencil measures such as the MMPI-2 and PAI may be scheduled before the interview so that the psychologist might follow-up on any critical items endorsed by the examinee. It may be appropriate to provide a personal history questionnaire to the plaintiff by mail or through counsel a week before the scheduled evaluation so that it may be completed before the interview. In preparation for the interview, the psychologist may want to develop a list of interview questions. These will be generated by the referral questions provided by retaining counsel and issues raised through a review of documents, along with questions designed to elucidate the plaintiff’s experience in the context of the Five Stage Model (see Goodman-Delahunty & Foote, 2011). At the same time, the examiner can assemble the consent forms and other paperwork that must be completed by the examinee (see Foote & Shuman, 2006). In some cases, especially when the examiner is retained by the defendant’s attorney, the psychologist may want to provide copies of all the consents and other paperwork to the plaintiff’s counsel (by way of the defense lawyers) some days before the scheduled evaluation. This will give the party’s lawyer time to review those forms and pose any objections to them prior to the evaluation. Objections of this sort should be resolved before the date of the evaluation. On the Day of the Evaluation The first task to be accomplished on the day of the evaluation is to conduct an informed consent procedure.

This is mandated not only by the APA Ethical Standard 9.03 (American Psychological Association, 2002) but by Section 8 of the “Specialty Guidelines for Forensic Psychologists” (Committee on the Specialty Guidelines for Forensic Psychology, 2011). This is an opportunity for the examiner and examinee to discuss the logistics of the evaluation, the parameters of confidentiality for the resulting data, and any other aspect of the evaluation that the examinee may wish to question or explore. This is best accomplished and documented with a written form (Bush, Connell, & Denney, 2006b; Foote & Shuman, 2006) that captures all the particulars and provides documentation of the informed consent. Once the preliminaries are done, the evaluation proceeds. All testing should be done using standard testing procedures (American Educational Research Association, American Psychological Association, and National Council on Measurement in Education, 1999). Even though the examiner might be tempted to slightly alter the procedures to fit time constraints or other factors particular to the evaluation context, failure to adhere to the instructions and time parameters outlined in the test manual may result in later attacks on the data from those tests based on a lack of connection with the norms that were generated by examiners using standard procedures. The Clinical Interview This method of gathering information is both critical and flawed. It is critical because examinees are often the best, or sometimes the only, source of information concerning their own lives. It is flawed because human memory is often inaccurate (Penrod & Cutler, 1995; Sbordone, 2010) so that even the honest examinee may not recount critical events accurately. Although many believe traumatic events to be better recalled because of the hypermnesia (increased detailed memory) experienced by some trauma survivors, research (Halligan, Michael, Clark, & Ehlers, 2003) indicates that these memories are subject to error as well. Also, the plaintiff, as with any other human, is subject to hindsight bias (Borum, Otto, & Golding, 1993; Fessel & Roese, 2011) and may well view past experiences in light of major events that occurred later. In addition, plaintiffs may be subject to distorted appraisals of their symptoms and problems both before and after the tort occurs (Williams, Lees-Haley, & Djanogly, 1999). And of course, people lie. The best interviews are those that allow the plaintiff to provide a narrative of his or her experiences, with the

Psychological Evaluation of Emotional Damages in Tort Cases TABLE 8.2 Interview Topics Family of Origin Non-Romantic Relationship History Romantic Relationship History Children Residential History Educational History Trauma History Spiritual, Philosophical, Ethical, or Religious Training Recreational, Hobbies, and Leisure Activities Employment History Charitable Contributions Military Service Current and Past Legal History Financial History Alcohol Use History Drug and Substance Use History Weight Loss and Gain Physical Health History Mental Health History Psychological Education Experiences Other Joyful or Pleasant Experiences and Memories Other Painful or Unpleasant Experiences or Memories Anything Else You Would Like to Mention or Emphasize

evaluator interjecting questions as appropriate to gain more detail or to cover material not spontaneously developed by the examinee. The prudent examiner will develop particular questions for each case, or will rely on an interview format (Greenberg & Foote, 2003) that covers all the essential areas. An example is shown in Table 8.2. The interview focuses first on the history of the plaintiff. In accordance with Stage 1, the first part of the interview should cover the person’s history up to the time of the onset of the tort. The goal is to establish a clear, multifactorial picture of the plaintiff’s functioning on the day before the tort began. It is at this time that the examiner gathers essential information about the examinee’s childhood, schooling, relationships with peers, and so on. This history will provide a basis for determining if the person has vulnerabilities based on events that occurred in childhood or earlier. For example, considerable research indicates that a history of child physical or sexual abuse may predispose an individual to experiencing more severe reactions to a given stressor than the reactions of those without such a history (Horowitz et al., 2001; Kessler, Davis, & Kindler, 1997; Spataro et al., 2004). In addition, the examiner must probe for evidence of preexisting mental disorders. In addition to direct questioning, the examiner may use health-care records as a

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basis for questions concerning, for example, the reason that a person was taking medication normally prescribed for a sleep disorder. If the plaintiff has a protracted period of unemployment, questions may focus on not only the emotional reactions to the unemployment, but the possibility that the unemployment may have been a consequence of severe depression or an anxiety disorder (Kessler & Frank, 1997). During the interview the examiner should gather sufficient information to be able to delineate the plaintiff’s functional status on the day before the tort began. In the context of the matrix described earlier, the examiner should gather information concerning the plaintiff’s functioning in work, relationships, ADLs, and recreational activities. To the extent possible, the level of functioning should be quantified. For example, for hedonic damages issues, specific questions may focus on what the plaintiff did for recreation or fun. How often did the examinee do those things? What proportion of the person’s income was spent on sports equipment, vacations, dining, or paying for golf fees? As part of an interview organized chronologically, examination of the events that occurred during the tort, the Stage 2 issues, are the next topic. First, the examiner wants to have the plaintiff explain what happened from his or her own perspective. These accounts will be compared with documentary sources and information gathered from collateral interviews to add completeness and to determine if the plaintiff’s account, which may be self-serving, has external corroboration. Second, as discussed earlier, the examiner asks questions that focus on the plaintiff’s reactions during the tort. Third, the focus shifts to the reactions of others at the time of the tort. This may be especially important given the important role of social support in softening the impact of traumatic events (Blanchard & Hickling, 2004a). Fourth, an attempt should be made to determine the dynamic aspect of the person’s problems over the course of the tort. As noted earlier, posttraumatic emotional reactions are dynamic in quality and documenting the changes in symptoms over the course of the tort is critical for determining not only causation, but also the presence of potentially compensable pain and suffering damages, even in cases in which the plaintiff largely recovers from the emotional disorder caused by the tort. The chronological sequence leads the examiner to explore the events following the tort. This Stage 3 focus allows for exploration of all the events that the plaintiff believes were caused by the defendant’s tortious actions.

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In addition to those things emphasized by the plaintiff, the examiner also must probe into events that occurred outside of the tort and its obvious consequences. Nontort-related events in the workplace or home life should be explored. Changes in financial status unrelated to disability or the actions of the defendant are important fodder for questioning. Any symptoms developed in the first two stages are a focus of questioning, as well as an attempt to establish the trajectory of the person’s symptom pattern. A discussion of the litigation, with care to avoid questions concerning privileged attorney–client discussions, is part of this phase of questioning. If the plaintiff sought treatment during this interval, the examiner seeks information concerning the content and progress of the psychotherapy or psychopharmacologic regime. The final part of the interview should be on the plaintiff’s current status, or Stage 4. This will include information gathered from a mental status examination. In addition, the examiner must actively assess the plaintiff’s functional status, focusing on the four life contexts delineated in the matrix. If a mental disorder or problem pattern was identified in any of the other stages, this is the time to assess the current status of those issues. For example, if the plaintiff indicated that she developed a serious major depressive disorder in response to the defendant’s actions, particular questions concerning her current status relative to the criteria for that disorder should be asked. More importantly, for each symptom, the examiner should ask her questions concerning impairments of function related to the disorder. If sleep problems are present, then questions should focus on the nature of the sleep disorder and how those sleep problems affected the plaintiff’s ability to engage in the four life contexts. This part of the interview provides an opportunity to review plaintiff for problems as they may constitute a personality disorder. By this time in the assessment, if the plaintiff appears to have a consistent pattern of dysfunction in one or more of these life areas— cognition, affectivity, interpersonal functioning, or impulse control—which has lasted at least 5 years (American Psychiatric Association, 2000), the examiner should take note and assess how this pattern affects the symptoms observed in the evaluation. A personality disorder usually begins early in the person’s life and would likely be evident prior to the tort. As with any preexisting mental disorder, it may affect the analysis in several ways. First, the personality disorder may continue to be

present through all five phases of the analysis and produce dysfunction unrelated to the tort. Second, the personality disorder may predispose the plaintiff to experience a more severe reaction to the tort than is otherwise observed. For example, research indicates that preexisting or comorbid personality disorders correlate highly with disability in people diagnosed with PTSD (Clarke, Rizvi, & Resick, 2008; Humphreys et al., 2011; Pietrzak, Goldstein, Southwick, & Grant, 2011; Sule & Kelly, 2006). As is the case with preexisting anxiety or affective disorders (see Kessler et al., 1995), the preexisting disorder may constitute a psychological version of the “eggshell skull,” as discussed earlier in this chapter. Third, the preexisting disorder may have no impact on the damages in the case, but must be considered as a source of causation of observed symptoms. The interview may include separate histories related to specific aspects of the plaintiff’s history, as listed in the interview outline. Among these may be a residential history, if the examinee has moved many times. A vocational history, including the name of the employer, the job duties, salary, and reasons for leaving the position is also critical. A relationship history can help clarify marriages and other long-term interpersonal connections. An alcohol and drug use history can chart changes in substance use and abuse patterns over time. A medical history can assist in understanding the role of somatic problems and medical interventions in the plaintiff’s life, which may be especially important in cases in which the plaintiff suffered physical injuries in the course of the tort. A mental health history can focus on any psychotherapy or psychopharmacologic interventions experienced by the examinee. Collateral Interviews Current standards of practice require that the examiner attempt to conduct interviews with individuals who have known the plaintiff through the course of the interval related to the tort (Goodman-Delahunty & Foote, 2011; Heilbrun, 2001; Heilbrun, DeMatteo, Marczyk, & Goldstein, 2008; Heilbrun, Rogers, & Otto, 2002; Heilbrun, Warren, & Picarello, 2004; Kane & Dvoskin, 2011; Koch, Douglas, Nichols, & O’Neill, 2006). In some cases, such interviews may not be possible. For example, if the psychologist is employed by the defendant, it may not be possible to get a listing of individuals with relevant information.

Psychological Evaluation of Emotional Damages in Tort Cases

Current standards and guidelines (e.g., Guideline 6.04, Committee on the Specialty Guidelines for Forensic Psychology, 2011; EPPCC Standard 3.10, American Psychological Association, 2002) indicate that permission to conduct the interview should be gained from the collateral source. Specifically, the collateral should be provided with informed consent about “information that might reasonably be expected to inform their decisions about participating that may include, but may not be limited to, who has retained the forensic practitioner; the nature, purpose, and intended use of the examination or other procedure; the nature of and any limits on privacy, confidentiality, and privilege; and whether their participation is voluntary” (Guideline 6.04, Committee on the Specialty Guidelines for Forensic Psychology, 2011; see also APA Ethical Standard 3.10). These interviews serve a number of important functions, as noted by Heilbrun, Warren, and Picarello (2004). First, information from other sources (including records) allows for reconstructing events more accurately and completely than would be possible based on the interview alone. Second, since, as noted above, plaintiffs sometimes exaggerate or minimize their problems, third-party data may provide information from less biased sources. Third, the information from other sources may help develop new hypotheses or explanations for events relevant to the case. Fourth, utilization of collateral input buttresses the psychologist’s opinion in the eyes of lawyers, judges, and jurors. If the collateral interviews are done after the interview with the plaintiff, the examiner may plan to conduct a follow-up interview with the plaintiff afterward in order to resolve inconsistencies or gain more detail on aspects of the plaintiff’s history newly revealed from the third-party information. Some authors suggest using a questionnaire format for gaining information from collaterals (Kane & Dvoskin, 2011; Koch, Douglass, Nicholls, & O’Neill, 2006). In the Kane and Dvoskin version, specific questions that focus on behavior by the plaintiff before the tort and after the tort may help in the Stage 4 analysis to determine changes in functional activities following the tort. Unfortunately, as noted by Heilbrun (2001), just as with information gathered from other sources in the evaluation, data gathered from collaterals may be inaccurate. The collateral may be motivated to produce information that characterizes the plaintiff’s pre-tort status as better than it was and the post-tort status as worse than it is. Also, collaterals may lack sufficient expertise to

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properly appraise the plaintiff’s functioning. In addition, if the examiner is not careful in how questions are framed, leading questions (e.g., “Isn’t it true that your brother is not able to do much now?”) may color the collateral’s report. Furthermore, like any witness, collaterals are subject to impairments of memory, and may simply forget important observations. Psychological Testing An essential part of any forensic evaluation of a plaintiff in a civil action is the use of psychological testing. As noted earlier, selection of the tests is a deliberate and sometimes very particular process that may result in a slightly different battery for each plaintiff. First, the use of testing as part of the assessment provides information that is otherwise absent. As noted by Heilbrun, DeMatteo, Marczyk, and Goldstein (2008), test instruments offer standardized measures of the variables essential to the forensic assessment, in this case emotional disorders. Second, the testing allows for the examiner to compare data from instruments that measure the same or similar aspect of the plaintiff’s functioning. Third, in this comparison, the psychologist is better able to determine if the plaintiff is exaggerating or minimizing emotional problems or disorders. Fourth, testing provides connection with research and with professional practices that anchor the evaluation within a positive framework relative to Daubert (1993) legal standards (Goodman-Delahunty & Foote, 1996). That is, the test data relates to research that is refutable, published in peer-reviewed journals, and is generally accepted in the field. Test data are usually insufficient to serve as a sole basis for a substantive conclusion about the plaintiff. For example, if a PAI score is the only indication of PTSD for a plaintiff, and no documentary, interview, or collateral data support the diagnosis, then the test scores alone should not be used as a basis for that diagnosis. Rather, test data are excellent for generating hypotheses about the examinee that may be examined through the other sources of data. For example, if the MMPI-2 produces an elevation on scales reflecting somatization, the examiner may be prompted to follow up with questions concerning physical symptoms, pain problems, headaches, and the like. In addition, most personality measures include “critical items,” which are items rarely endorsed in normal populations that often reveal significant clinical information, such as suicidal intent, hallucinations, or depressive

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symptoms. Questioning the plaintiff about responses to these items can provide information that may not have been otherwise explored in the evaluation. Putting It All Together The Stage 4 analysis brings together the information from all the sources to determine the nature of the emotional symptoms or problems manifested by the plaintiff and the causation of those symptoms or problems. The first step is to determine whether the data indicate the presence, at any time before, during, or after the tort, of symptoms or problems. Since a major focus of the Five Stage Model has been to assiduously probe for symptoms and problems and to place these in the context of major life areas, by the time the Stage 4 analysis is conducted, significant information should be available to the examiner. Also, throughout the other three stages, the examiner has been attending to both the presence of legally compensable damages and sources of causation for those problems or symptoms. The next step is to determine whether the data indicating symptoms or problems are valid. The presence of exaggeration or minimization on the part of the plaintiff may distort information coming from a number of sources. By corroborating information gathered from the plaintiff with information from third-party sources such as documents and collateral interviews, the examiner should gain a picture of what findings have the best objective support. If the evaluator determines that so much distortion is present in the interview, records, or testing that the examiner lacks sufficient basis for arriving at defensible conclusions, then the evaluation process ends. If the referral source is plaintiff’s counsel and that person controls whether a report is written, the evaluator should make a telephone call or have a meeting with counsel advising him or her of the lack of useful information for the evaluation. If the evaluation was a Rule 35 examination, as noted earlier in this chapter, a report must be prepared that outlines not only the conclusion, but the data upon which the conclusion relies. Be aware that the use of terms like malingering conveys surplus meaning in the legal system (Rogers & Bender, this volume) and implies that the plaintiff is seeking a particular goal by exaggerating or feigning symptoms. Even with a thorough evaluation, the evaluator may lack sufficient information to infer what that goal might be in order to definitively label the person as malingering. A more conservative approach in such a situation would be to describe the invalid

or exaggerated results without attributing a reason for those results. If the examiner judges the data to be of sufficient accuracy to serve as a basis for decision making, then the next step is to determine the cause or causes of the observed symptoms. Since each step of the Five Stage Model has examined alternative sources of causation for each observed symptom or problem, the analysis of causation at this point should be based on sufficient data. The causation for a particular symptom, complex of symptoms, or problem area may be multiply determined. As noted earlier in this chapter, the tort need not be the only cause of a symptom or problem in order to supply the legal element of causation. In most jurisdictions, the relationship between the observed result and the legal cause is a “but-for” connection: Were it not for that cause, the result would not have happened. However, other causes may contribute to the final result. How this may be determined is illustrated in this example. A plaintiff develops depression following an auto accident. In addition, during the next year, the plaintiff’s father dies suddenly. Both events are expected to produce similar symptoms, and the examiner’s job is to determine the relative contribution from both of these sources. Temporal relationships should assist in this process. For this example, the presence of particular depression symptoms of a particular severity in the interval between the auto accident and the father’s demise signals the contribution of the accident to the mix. In addition, qualitative differences and tracing the origin of symptoms assist in this enterprise. For this example, some depressive symptoms may be related to PTSD symptoms of social isolation, numbing, and sleep disturbance, while dysphoria secondary to loss of a loved one may have content related to grief particularly related to that person. In Stage 4, alternative sources of causation should be identified and discussed. If those sources are eliminated as substantial bases for the findings in the evaluation, then the examiner should provide specific reasons for that elimination. This process not only clarifies the examiner’s thinking about the data, but also provides the consumer of the evaluation report with evidence that the examiner approached the evaluation from a balanced perspective. The next step in Stage 4 is a comparison between the plaintiff’s status at the time of the evaluation with the plaintiff’s status at the time of the end of the Stage 1

Psychological Evaluation of Emotional Damages in Tort Cases

day-before analysis. The plaintiff’s situation is defined at both times as the functional status of the examinee in the life areas of cognitive, affective, physiological, and interpersonal symptoms or problems in the context of ADLs, work functioning, relationships, and hedonics. Recall that an exacerbation of a preexisting disorder is compensable if it results in pain and suffering or functional impairment. The examiner should not lose sight that symptoms present at the time of Stage 4 are not the only ones that should be documented. In many cases, by the time the evaluation takes place, emotional disorders may have spontaneously improved or responded to treatment. As such, these earlier reactions may still constitute “pain and suffering” in the law and are viable sources of damages for the plaintiff (see Goodman-Delahunty & Foote, 2011). Framing Recommendations The Stage 5 analysis focuses on the examiner’s best understanding about the future course of the problems or symptoms caused by the tort and recommendations for treatment and other interventions. These prognostications and recommendations spring directly from the Stage 4 analysis of functional impairments determined to be caused by the actions of the defendant. If the plaintiff is so severely disabled after the tort to require assistance in ADLs or accommodations in the workplace (Foote, Chapter 12 of this volume), then recommendations for those interventions, with some estimates for the cost, are appropriate at this stage. If, for example, the examiner determined that the plaintiff has developed PTSD as a result of the tort, and that the PTSD is ongoing at the time of the evaluation, then a first determination should be offered concerning the expected course of the disorder. Treatment recommendations may color that expected course, with a description of the appropriate treatment modalities and the expected impact of those modalities upon the plaintiff’s tort-caused symptoms or problems. Significant research has examined treatment for individuals who have experienced civilian trauma that is often the subject of tort litigation (Blanchard & Hickling, 2004; Fecteau & Nicki, 1999; Foa, Keane, & Friedman, 2000; Hickling & Blanchard, 1999; Hickling, Blanchard, & Kuhn, 2005; Koch, Douglas, Nichols, & O’Neill, 2006; Koch & Taylor, 1995; Shipherd, Beck, Hamblen, Lackner, & Freeman, 2003). This research generally indicates

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that PTSD responds well to cognitive behavior therapy (CBT), although the presence of comorbid affective, anxiety, or substance abuse disorders, which occur in over half of some groups of tort litigants, can significantly complicate the treatment regime (Kessler, Sonnega, Bromet, Hughes, et al., 1995). Chronic pain problems also complicate the treatment picture (Sharp & Harvey, 2001). In this example, if CBT is identified as the most efficacious treatment, then the examiner may delineate the ways in which the plaintiff is or is not an appropriate target for such interventions. The extent to which medication may serve as a primary or secondary intervention is also a topic of this phase of the evaluation. The examiner may want to frame the evaluation findings in language that may be used by other experts, particularly vocational experts and forensic economists, to use as a basis for their opinions (Foote & GoodmanDelahunty, 2005). For example, if the examiner is able to state the changes in the plaintiff’s work functioning in terms of specific tasks that are impaired, the vocational expert may be able to translate those into lost job opportunities and the forensic economist can translate that opinion into lost future wages. Communicating the Results Once the evaluation is complete, the examiner then must convey the results to those who can use the information. The first form is usually a written report, generally provided to the retaining party. The examiner may then be required to provide sworn testimony in the form of a deposition. Because most tort cases do not go to trial, this may be the most important occasion for communicating and defending the expert’s findings. The last occasion for telling others about what was done is court testimony. In this section, we briefly discuss all these ways of conveying information to those interested in the expert’s work. Report The evaluator usually communicates with the referral source directly once the results of the evaluation have been determined. If a report is to be prepared, the examiner should prepare a report including a clear recitation of the nature of the retention, procedures employed, and documents reviewed. (See Goodman-Delahunty & Foote, 2011; Kane & Dvoskin, 2011; and Otto, 2009, for more detailed explication of the content and style of report preparation.)

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A major portion of the report includes the examinee’s history as revealed through all the data sources across the first three stages of the analysis: day before, during the tort, and in the period following the tort. The symptom picture at the time of the evaluation should be discussed. A review and interpretation of the test data is next in the explication of the data. The examiner may wish to include a separate section for data from collateral sources if this information is of sufficient importance and complexity. The Stage 4 analysis of symptoms and problems, malingering, causation, and functional impairment is the next section of the report, and should include the elements delineated earlier in the chapter. A recommendations section flows naturally from the Stage 5 analysis, and should include specific projected costs for each of the recommended interventions. Depositions As discussed earlier in this chapter, the discovery process in tort cases allows counsel for the opposing party to require the examiner to sit for a discovery deposition (Melton, Petrila, Poythress, & Slobogin, 2007). The purpose of a discovery deposition is for the opposing counsel to learn as much as possible about what the evaluator did, and how the evaluator came to his or her conclusions, both to determine the strength of the evaluator’s report and potential testimony and to find weaknesses in the evaluator’s work. The psychologist does not control the questions asked; this means that the examiner is usually unable to state results in light of the Five Stage Model, but the model should produce sufficient detailed information to hold the examiner in good stead while under questioning. The emphasis of the model upon consideration of alternative sources of causation provides a basis for dealing with questions concerning defense or plaintiff theories regarding causation in the case. From whatever perspective, the examiner should be prepared to discuss the data that underlie each conclusion regarding the nature and origin of symptoms and problems exhibited by the plaintiff. Trial Testimony Although only a small proportion of tort cases go to trial (Hadfield, 2004) the examiner should do all professional work in the case with the expectation that a trial will be the final arena for the expert’s opinion. It is not within the scope of this chapter to discuss the complexities of preparing and delivering trial testimony, and a number

of excellent resources can prepare the reader for the rigors of direct examination and cross-examination (e.g., Brodsky, 2004; Melton et al., 2007). In the context of this chapter, it should be noted that the direct testimony may be prepared and sequenced in light of the Five Stage Model. This is an intuitively appealing sequence that the jury should understand and follow. This is also a model that lends itself well to demonstrative evidence in the form of charts that allow for a comparison of the plaintiff’s status on the day before the tort and the status at the time of evaluation. The use of the model will prepare the expert to deal with some of the challenges of cross-examination because alternative theories for causation have already been part of the evaluator’s analysis.

CONCLUSION In this chapter we have attempted to provide an introduction to the legal, procedural, theoretical, and practical aspects of forensic evaluation of plaintiffs in tort cases. We have developed the Five Stage Model for evaluation and have integrated that into the case sequence. It is our view that this model is particularly useful for gathering and interpreting the mass of data gathered in the course of a competent evaluation of a tort plaintiff. With this model, the examiner should have a basis for asking the right questions, requesting the appropriate documents, and conducting the useful additional interviews to be able to develop a comprehensive and defensible result. REFERENCES American Educational Research Association, American Psychological Association, and National Council on Measurement in Education. (1999). Standards for educational and psychological testing. Washington, DC: American Educational Research Association. American Psychiatric Association. (2000). Diagnostic and statistical manual of mental disorders (4th ed., Text rev.). Washington, DC: Author. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060–1073. Arbisi, P. A., Ben-Porath, Y. S., & McNulty, J. (2006). The ability of the MMPI-2 to detect feigned PTSD within the context of compensation seeking. Psychological Services, 3 (4), 249–261. Arbisi, P. A., Ben-Porath, Y. S., & McNulty, J. (2007). MMPI-2 detects PTSD malingering among veterans seeking benefits. Clinician’s Research Digest, 25 (7). Arbisi, P. A., Murdoch, M., Fortier, L., & McNulty, J. (2004). MMPI-2 validity and award of service connection for PTSD during the VA

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CHAPTER 9

Disability and Worker’s Compensation LISA DRAGO PIECHOWSKI

DISABILITY BENEFITS 201 LEGAL CONTEXT 203 PSYCHOLEGAL CONSTRUCTIONS OF DISABILITY 205 ASSESSMENT METHODS 209

DATA INTERPRETATION 216 COMMUNICATING RESULTS 220 CONCLUSION 222 REFERENCES 222

Disability and worker’s compensation benefits are intended to assist individuals whose ability to work has been compromised as a consequence of illness or injury. Disability has a variety of meanings, both clinical and legal. Being designated as disabled has important implications for an individual in terms of entitlement to benefits, conferring of legally protected rights, securing educational opportunities, or, conversely, limiting the individual’s access to certain activities or pursuits. The term disability, as used in this chapter, has a legal rather than psychological or medical definition, and that definition is determined by the specific policy, contract, or program under which the claimant has applied for benefits, such as private disability insurance, public and private sector employee benefits, federal entitlement programs, or worker’s compensation programming. Each source of benefits is controlled by a different set of laws, statutes, and regulations. To be eligible for benefits the claimant must meet the specific definition of disability as determined by the policy or program under which benefits are sought. When there is a question about an individual’s eligibility for disability benefits, an independent medical examination (IME) may be sought in an attempt to gain objective information about the claimant’s reported condition and how this reported condition affects his or her work capacity. If the claimant alleges that his or her impaired work capacity results from emotional, behavioral, or cognitive impairments, a forensic psychologist or other mental health professional may be retained to perform such an examination.

Disability evaluations differ from evaluations conducted by treatment providers in some important ways, including the relative emphasis on functional capacity versus diagnosis, the role of context, and the attribution of causality. Disability is not a characteristic of a person, but is defined functionally, that is, as an inability to perform a specific set of behaviors. Thus, evaluation of a person claiming a disability requires an assessment of the functional capacity of the individual relative to a particular context. The context is determined by the applicable legal definition of disability and can refer to an occupation, a specific job or position, or gainful employment in general. A finding of disability also requires that any deficits in functional capacity be causally related to an illness or injury as opposed to extraneous or circumstantial factors. Although financial problems, personal lifestyle choice, legal issues, and family demands may affect work functioning, they are not considered disabilities.

DISABILITY BENEFITS When an individual’s ability to work is compromised by an illness or injury benefits may be sought from a number of different sources depending on the circumstances of the individual. Sources include private disability insurance, employer-paid disability, worker’s compensation, and Social Security Disability Insurance (SSDI). As indicated above, each source of benefits is controlled by a different set of laws, regulations, statutes, and rules (see Table 9.1). 201

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TABLE 9.1

Sources of Disability Benefits

Benefit source

Relevant to

Controlled by

Private (Independent) Disability Group Disability

Individuals who have purchased private insurance policies

State law

Employees when disability insurance is included as part of employer-provided health benefits Employed individuals who become ill or injured on the job Individuals under age 65 with sufficient Social Security earnings prior to disability

Federal law: ERISA

Worker’s Compensation Social Security Disability (SSDI)

State law Federal law: SSA

Private Disability Insurance Private or “individual” disability insurance refers to an insurance policy purchased by an individual (often selfemployed) to provide monetary benefits if an illness or injury prevents the policyholder from being able to work or to work at full capacity. This policy is a contract between the policyholder and the insurance company. In exchange for premiums paid by the policyholder, the insurance company agrees to provide a monetary benefit if the insured party becomes disabled as defined under the terms of the policy. Although policies differ, most require that in order to be eligible for benefits, the insured party must be unable to perform the substantial and material duties of his or her own occupation due to sickness or injury that occurs while the policy is in effect. Thus, a valid disability claim requires both the substantiation of the presence of a condition as well as proof that this condition creates impairment in the functional abilities of the claimant to perform his or her occupation. The cause of the disability, however, need not have resulted from the claimant’s employment (Piechowski, 2011). Federal legislation (the McCarran-Ferguson Act of 1945) gives states the power to regulate the insurance industry without interference from the federal government. Thus, private disability insurance is regulated by state law. When a policyholder files a claim for disability benefits the insurance company must initiate an evaluation of the claim in order to determine if the policyholder is entitled to benefits. The claimant is obligated to provide “proof of loss,” that is, the claimant must provide documentation that supports his or her claim for benefits. If liability for the claim is accepted by the company, the claim investigation continues on an ongoing basis to determine if, over time, the claimant continues to meet the definition of disability. Thus, the insurance company may

initially approve or deny a claim, continue to pay benefits until the claimant returns to work or, over the course of the claim, terminate benefits if it determines that the claimant is no longer disabled under the terms of the policy. If the insurance company denies the claim, the claimant can appeal this decision, provide additional supporting documentation, and request reconsideration. If the appeal is denied, the claimant can initiate legal proceedings in the form of a civil action against the company. Cases involving individual disability insurance are governed by state law and may be heard in state court or, when the policyholder and the insurance company are from different states and the amount in dispute exceeds $75,000, the matter may be removed to federal court. In this circumstance, the federal court will consider applicable state law to resolve the dispute, but the Federal Rules of Evidence also apply (as in other federal litigation).

Employer-Paid Disability Insurance Disability insurance may also be provided by an employer as part of an employee’s health benefits. Unlike private disability policies, employer-paid or “group” disability policies are governed by the federal Employee Retirement Income Security Act of 1974 (ERISA). ERISA, which preempts state laws that otherwise apply to private disability insurance policies, establishes a set of administrative procedures that must be followed in the event of a dispute between the claimant and the company. These procedures include specific timelines and an internal appeals process. Only when this process has been exhausted does the claimant have the right to proceed to litigation. Thus, in the event of a dispute with the insurer, claimants may not pursue litigation against the benefit plan on the basis of state law, nor do state consumer protection laws apply. Litigation in these matters is always heard in federal court. Despite these differences, there are many commonalities between group and individual disability insurance policies. Like individual policies, the definition of disability for employer-paid disability is determined by the policy language. The claimant is required to provide proof of loss and the insurance company must then evaluate the claim. Claim denials can be appealed, but must follow the guidelines and timeframes set by ERISA. Worker’s Compensation The purpose of worker’s compensation is to provide for workers who become ill or are injured on the job. Thus,

Disability and Worker’s Compensation

worker’s compensation differs from other kinds of disability benefits in that the causation of the illness or injury is a critical factor. The injured worker must demonstrate that the illness or injury was the direct outcome of his or her employment. Because worker’s compensation is a no-fault system intended to reduce the need for litigation, the employee need not demonstrate negligence by the employer in order to be eligible for benefits and the employer is immune from tort action by the employee. Benefits are fixed and limited by statute, and include medical treatment and compensation for lost wages. Worker’s compensation benefits are handled differently in each state and are governed by statutes, case law, and administrative practices. Disputed claims are decided by special administrative agencies utilizing administrative law judges (Piechowski, 2011). As noted earlier, the definition of disability under worker’s compensation specifies that the illness or injury must be due to work activities. Although worker’s compensation was developed with the intention of compensating for physical injuries, most states recognize compensation for some types of mental injuries as well. Claims involving emotional stress are categorized as: (a) physical-mental, referring to psychological problems arising from a physical illness or injury; (b) mentalphysical, which describes a physical condition caused by psychological stress arising in the course of employment; or (c) mental-mental, referring to mental injuries arising from employment in the absence of a physical injury. Claims for worker’s compensation benefits may be contested by the employer and denial of benefits may be appealed by the employee. In most states, worker’s compensation disputes are heard by special administrative agencies utilizing administrative law judges. Although these administrative decisions may be appealed to the state courts, the scope for possible litigation of worker’s compensation disputes is limited (Piechowski, 2011). Social Security Disability Social Security Disability (SSDI) is regulated by a vast body of law consisting of statutory law, regulatory law, rulings, and court decisions. The individual’s eligibility for benefits is contingent on his or her work history and monetary contributions to the Social Security system. SSDI benefits may include monthly cash payments, vocational rehabilitation, and medical insurance. To meet the definition of disability under SSDI, individuals must have a severe disability (or combination of disabilities) that has lasted, or is expected to last, at least 12 months or result

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in death, and which prevents working at a “substantial gainful activity” level. Disability determinations under SSDI are made by state agencies operating under federal law. These determinations follow a prescribed evaluation process set forth in the Social Security Act (42 U.S.C. § 423) and the Code of Federal Regulations (20 C.F.R. §§ 404.1500-404.1599). The first step in this process is to determine if the claimant is continuing to work in a substantial gainful activity. The second step concerns the severity of the claimant’s impairments. Third, it must be determined if the claimant’s impairments are listed in the regulations. Fourth, it must be decided whether the claimant is capable of engaging in the type of work he or she did in the past. Fifth, it must be determined if the claimant has the capacity to perform other work available in the national economy. The burden of proof of disability rests on the claimant. However, once the claimant has been determined to be disabled, the burden of proof for termination of benefits rests with the state agency. Appeals of terminations are decided by federal administrative law judges and the federal courts. Unlike many other types of disability benefits (such as those described above), persons are not eligible for compensation under SSDI if their primary diagnosis is one of substance abuse or dependence. Thus, a person with a substance abuse or dependence diagnosis is eligible for benefits only if there is evidence of behavioral or physical changes associated with the regular use of substances that affect the central nervous system and result in other medical or psychiatric problems that prevent work functioning, such as liver disease or cognitive dysfunction.

LEGAL CONTEXT Because of the range and diversity of state and federal laws that underlie the various sources of disability benefits, it is not possible to succinctly summarize relevant case law. Likewise, legal remedies available to address disability disputes differ as a function of the source of benefits. Litigation options are statutorily limited in worker’s compensation, SSDI, and employer-paid benefit cases to the initiation of benefits, the reinstatement of terminated benefits, and/or the retroactive payment of past-due benefits. Broader alternatives are available in individual disability insurance cases, including suing the insurer for punitive damages. There are two primary causes of action under which litigation involving private disability insurance can proceed: breach of contract and bad faith. As

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indicated previously, an insurance policy is a contract between the insurance company and the policyholder. When one party to a contract fails to perform in accordance with the provisions of the contract, the other party may initiate litigation asking the court to enforce the terms of the contract. Thus, in the case of a disability insurance policy, if the insurance company denies benefits to a claimant, the claimant may ask the court to determine if the company has breached the terms of the policy and if so, order the company to pay the disputed benefits. In breach-of-contract litigation, the court can enforce only the terms of the original contract (Piechowski, 2011). In addition to breach of contract, if the claimant perceives the insurer as failing to evaluate the claim adequately or fairly, or engaging in conduct such as intimidating or providing misleading information to the claimant, litigation based on bad faith may be pursued. When the claimant prevails in a bad-faith action, compensation is not limited to the reinstatement of benefits, but may also include compensation for pain and suffering or punitive damages as a way of punishing the insurer for its wrongdoings. Thus, damages in bad faith litigation may far exceed the actual benefits due under the policy. Case law in disability litigation has focused on several key issues, including determining if the claimant’s absence from work is due to illness or injury or to some other factors, determining the claimant’s occupation at the time of disability, and determining if the claimant’s recovery will be risked if he or she returns to work. A core legal issue in many disability disputes is whether the claimant meets the pertinent definition of disability. In order to qualify for benefits the claimant must demonstrate that a factual disability (i.e., the effects of an illness or injury) prevents him or her from working, as distinguished from a social disability or a legal disability, in which the inability to work is the result of circumstantial factors such as incarceration, the loss of a professional license, or adverse publicity. Gates v. The Prudential Insurance Company of America (1934) was one of the earliest cases addressing this issue. Gates, a dairy farmer, was prohibited from producing or selling milk products by the New York State Commissioner of Health after being identified as an asymptomatic typhoid carrier. Despite Gates’ attempt to find other work he was shunned by the community and could not do so, filed for disability benefits, and was denied. The court found for Prudential, noting that Gates was not ill or physically disabled, and that his inability to work was due to the limitations imposed by society (Piechowski, 2011). More recently, cases involving the loss of a professional license

have been litigated. For example, in Goomar v. Centennial Life Insurance Company (1994), the plaintiff lost his license to practice medicine based on allegations that he sexually assaulted four patients. Dr. Goomar’s claim for disability benefits on the basis of mental illness, claiming that “visions of astral beings” caused him to molest his patients, was denied by his insurer, and he filed suit. In finding for the insurance company, the court noted that Dr. Goomar practiced medicine for three years after the last molestation occurred without further incidents, and only stopped practicing when his license was revoked. The Court concluded that Dr. Goomar’s inability to practice was due to his license revocation, not an underlying mental disorder. It is important to note that the presence of legal or social impediments does not negate the possibility of a factual disability. For example, in Damascus v. Provident Life and Accident Insurance Company (1996), a dentist had his license to practice revoked based on mental illness, inappropriate care of patients, negligence, and unprofessional conduct. His insurance company denied the claim, asserting that Dr. Damascus was legally disabled due to the actions of the state board of dentistry. When Dr. Damascus filed suit the trial court granted the insurance company’s motion for summary judgment, but on appeal, the Ninth Circuit Court reversed and remanded, noting that there was a dispute of fact as to whether Dr. Damascus was “mentally competent” to practice after the loss of his license. If the loss of his license had been primarily due to factors such as misconduct or negligence rather than to mental illness, the insurer’s contention that the disability was “legal” rather than “factual” would be supported (Piechowski, 2011). Litigation sometimes centers on determining the claimant’s job duties or occupation. Since disability relates to the capacity to perform the duties of one’s occupation, identifying the specific occupation and the associated duties is critical in determining eligibility for benefits. Most policies define own occupation as the occupation the claimant was performing at the onset of the disability claim. Disputes may arise when the claimant’s most recent work activities vary from the duties performed at the time the policy was purchased, when the claimant’s occupational duties are atypical for the occupation, when the claimant is engaged in more than one occupation, or when the claimant has a particular specialty within an occupation. Many courts have reasoned that it is the claimant’s occupation at the time of disability, not at the time the policy went into effect, that controls (Emerson v. Fireman’s Fund , 1981).

Disability and Worker’s Compensation

For example, in Brosnan v. Provident Life & Accident Insurance Company (1998), Dr. Brosnan, an anesthesiologist, was terminated by his practice after alcohol was detected on his breath. Dr. Brosnan subsequently participated in inpatient and outpatient treatment for substance abuse and mood disorders, but claimed he could not return to work in the operating room as an anesthesiologist and filed for disability benefits. The insurance company argued, among other things, that Dr. Brosnan’s occupation was that of a medical doctor, as opposed to an anesthesiologist, and therefore Dr. Brosnan was not totally disabled because he was working as a general practitioner. The court sided with Dr. Brosnan, calling the insurance company’s argument “disingenuous at best,” noting, “Occupation, as defined by the policies, is the occupation regularly engaged in at the time the claimant becomes disabled” (p. 7). Disputes may also arise when a claimant has recovered or is in remission, but who remains out of work due to “risk of relapse” or “risk of disability” (Piechowski, 2011). This is often seen in disability cases related to cardiac conditions and in cases related to substance abuse. The courts have not dealt with this issue in a consistent manner. Many decisions have hinged on an assessment of the degree and nature of the risk should the claimant return to work. A number of “risk of relapse” cases have concerned anesthesiologists who became addicted to opioid medications utilized in the operating room. In most of these cases, the claimant has successfully completed a course of treatment and has maintained abstinence for an extended period, and then sought to extend disability benefits due to fears that a relapse would occur upon a return to the work setting where the substances in question are available. For example, in Laucks v. Provident Companies (1997), an anesthesiologist who remained drug free for 5 years was denied disability benefits when he returned to work in a different medical specialty. In finding for the insurance company, the court noted that Dr. Laucks demonstrated no continuing cognitive or motor impairments, and there was no evidence that he was unable to control his addiction given his 5-year abstinence. A different conclusion was reached in Holzer v. MBL Life Assurance Corporation (1999). Dr. Holzer, an anesthesiologist, had a sustained recovery from opioid addiction but had been advised by his treatment providers not to return to work in his specialty due to the increased risk of relapse. His claim for disability benefits was denied and he filed suit. The trial court denied summary judgment on the grounds that factual issues existed regarding the problems and risks to patients in the operating room,

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as well as the potential harm to the claimant if he returned to work and relapsed.

PSYCHOLEGAL CONSTRUCTIONS OF DISABILITY Disability exists in relation to a specific context. It is not a characteristic of an individual, but a dynamic state defined by the interaction of “person” variables and “situation” variables. Specifically, these variables include the individual’s clinical condition, his or her functional capacity in light of the condition, and job demands (see Figure 9.1). As noted previously, the term disability has a specific meaning within the context of a disability IME. Disability is not synonymous with work capacity. Disability refers to the legal determination of the claimant’s eligibility for disability benefits (the “ultimate issue”). On the other hand, work capacity refers to the claimant’s ability to function in his or her occupation. In assessing disability, the psychologist must begin by establishing the existence of a condition and identifying the associated symptoms and manifestations that are present in the claimant. The claimant’s individual job duties must be determined and translated into measurable functional capacities, so that the evaluator can examine the relationship between the claimant’s psychological condition and symptoms, and his or her capacity to perform the relevant occupational duties. These links between condition, symptoms, functional capacity, and occupational duties must be clearly established and logically connected.

Condition The claimant’s clinical condition relative to an illness or injury is important in a disability determination, but the fact that the claimant meets the diagnostic criteria

Condition

Occupational Demands

Figure 9.1

Functional Capacity

Conceptualization of disability

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of a mental disorder included within the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV; American Psychiatric Association, 2000) does not necessarily mean he or she meets the legal definition of disability. As noted by Gold and Shuman (2009), the presence of a disorder does not necessarily imply significant or specific functional impairment; furthermore, functional impairment (when present) does not necessarily result in disability. Regardless of the claimant’s condition, greater attention should be paid to describing functioning rather than to assigning diagnostic labels. Most private and group disability policies are purchased by or for individuals who are actively engaged in the competitive workforce at the time the policy is obtained. Diagnoses that commonly form the basis for private and group disability claims include mood disorders, anxiety disorders, substance-related disorders, and cognitive disorders (see Table 9.2). Mental retardation, pervasive developmental disorders, and schizophrenia are more frequently observed among persons filing SSDI claims than in private or employer-paid disability claims (Piechowski, 2011). Axis II disorders can also be the basis for a disability claim, as personality disorders have the potential to significantly compromise an individual’s functioning in the workplace and other important aspects of life. Depression is the leading cause of disability in the United States for persons between ages 15 and 44 (NIMH, 2001). Depression can have a significant impact on work functioning. Surveys have estimated that between 1.8 and 3.6% of workers in the United States suffer from major depression, and 37 to 48% of these individuals experience TABLE 9.2 Possible Occupationally Relevant Functional Impairments Condition

Examples of Possible Impairments

Depression

Mental interpersonal tasks, time management, output, physical tasks, executive functions, verbal fluency, inhibition, working memory, set maintenance, set shifting Work output, interpersonal conflicts, decision making, absence from work, verbal memory, executive functions, control of working memory, attention Avoidance, executive functions, information processing, visuospatial memory, verbal fluency, verbal memory, concentration, motivation, time management Absence from work, inappropriate workplace behaviors, frontal lobe functions Memory, executive functions

Bipolar disorder

Anxiety disorders

Substance abuse Mild traumatic brain injury

short-term disability (Goldberg & Steury, 2001). However, it has been estimated that as many as 80% of people with depression can be treated effectively, generally without missing much time from work or needing costly hospitalization (U.S. Department of Health & Human Services, 1999). Specific impairments in occupational functioning related to depression have been identified. These include the performance of mental-interpersonal tasks, time management, output tasks, and physical tasks. These functional deficits can persist even after an improvement in clinical symptoms, such that clinical improvement may not result in full recovery of job performance (Adler et al., 2006). Mildly impaired executive functions were found in another study, including impaired verbal fluency, inhibition, working memory, set maintenance, and set shifting (Stordal et al., 2004). Unfortunately, the use of antidepressant medications (specifically SSRIs) was associated with impaired episodic memory and poorer recognition memory (Wadsworth et al., 2005). Bipolar disorder is less common than depression and affects about 1.2% of American adults each year (NIMH, 2001). According to one study, in addition to episodes of mania, 79.5% of those diagnosed with bipolar disorder also experienced at least one clinically significant episode of depression (Morgan et al., 2005). The most frequent symptoms reported for manic episodes included elevated or irritable mood, excessive activity, racing thoughts, and reduced need for sleep. The symptoms most frequently appearing in depressive episodes were dysphoria with anhedonia, suicidal ideation, loss of energy, poor concentration, initial insomnia, and diminished libido. Over 85.7% reported at least one episode of delusional thinking, with the majority of these episodes lasting less than a week. Bipolar disorder can compromise work functioning in a number of ways. In addition to variations in work output due to mood cycling, increased interpersonal conflicts with co-workers, rash decision making, loss of work time, and concerns about stigma, bipolar disorder has been related to persistent problems with cognitive functioning. Deficits associated with bipolar disorder include problems with verbal memory and executive functioning (M´artinez-Ar´an et al., 2004) and frontal lobe dysfunction (Borkowska & Rybakowski, 2001). Some deficits appear to persist even during periods of symptom remission. These include decreased verbal memory and executive functioning (M´artinez-Ar´an et al., 2007), impaired executive control of working memory (Thompson et al., 2007), and diminished attention and memory functioning (Malhi

Disability and Worker’s Compensation

et al., 2007). MacQueen et al. (2007) found that bipolar patients who had undergone treatment with electroconvulsive therapy (ECT) had greater deficits in aspects of learning and memory than did bipolar patients who had no history of ECT. Anxiety disorders such as panic disorder, obsessivecompulsive disorder (OCD), posttraumatic stress disorder (PTSD), generalized anxiety disorder, and agoraphobia affect about 13.3% of American adults between the ages of 18 and 54 each year (NIMH, 2001). Panic disorder with agoraphobia has been associated with severely impaired work efficacy, primarily related to avoidant behavior (Latas et al., 2004). OCD has been associated with deficits in executive functioning and information processing, visuospatial memory, and verbal fluency (Cohen et al., 2003; Greisberg & McKay, 2003; Roh et al., 2005). PTSD has been related to impaired verbal memory, decreased concentration, reduced motivation, reduced time-management ability, and over-concern or anxiety with physical injuries (Brewin et al., 2007; Matthews, 2005; Taylor et al., 2006). Substance abuse can significantly interfere with work functioning. Individuals who abuse alcohol tend to have lower earnings than other workers. Part of the explanation for this may be the fact that those with alcohol use disorders tend to miss more work time (Mullahy & Sindelar, 1993). Employee substance abuse and dependence is associated with an increased likelihood of job-related accidents, absenteeism, tardiness, negative work behaviors, and criminal activities such as vandalism and theft (Lehman & Bennett, 2002), as well as significant cognitive impairments. Harper (2007), for example, found that even alcoholics who had no specific neurological or hepatic problems showed signs of structural changes in the brain and cognitive dysfunction. Duka et al. (2003) found that repeated withdrawal from alcohol was associated with cognitive impairments related to frontal lobe function. Impaired performance on cognitive tasks sensitive to frontal lobe damage was found in those with relatively mild alcoholism compared to social drinkers (Duka et al., 2003). Moderate to severe traumatic brain injury usually results in significant impairment in occupational functioning. McCrimmon and Oddy (2006), for example, noted that a wide range of return-to-work rates has been reported for individuals with moderate to severe brain injury. One estimate suggested that as many as 66% of patients with moderate to severe head injuries are unable to return to their former jobs. The effects of mild traumatic brain injury on work functioning are more variable. Drake et al. (2000) reported that impaired memory and executive

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functioning presented the greatest obstacles to returning to work for active duty military personnel who had experienced a mild traumatic brain injury. Likewise, O’Connell (2000) found that intelligence and memory variables were related to a return to work and Fraser et al. (2006) reported that those able to return to and maintain complex functioning at work tended to be female, had fewer alcohol problems, had sustained less severe injuries, and had significantly better neuropsychological functioning.

Occupational Duties and Functional Abilities Occupations are defined by the duties that must be performed in the course of the job. Every job has a distinctive set of core and peripheral occupational duties. Core duties are typically listed in an employee’s job description. These duties are so vital to the performance of the job that, if they are not performed, the very nature of the job would significantly change. Peripheral duties, in contrast, are duties that may be performed in the course of the job, but are not essential. In other words, peripheral duties could be changed or eliminated without altering the meaning of the job itself. It is the core job duties that are the focus of a disability evaluation since most contractual definitions of disability refer to the claimant’s inability to perform the substantial and material (i.e., core) duties of his or her job. This determines the standard that must be met for the claimant to be eligible to receive benefits. Functional abilities or “capacity” underlie job duties. Grisso (2003) defined functional capacity as that which an individual can do or accomplish, as well as the knowledge, understanding, or beliefs that may be necessary for that accomplishment. Functional capacity is observable and measurable. It is distinct from psychiatric diagnosis and is shaped by the specific context (situational demands). Identifying and assessing the relevant functional abilities is a central component of a disability evaluation. By examining the job description and related information, the examiner can determine the functional abilities required to perform the core job duties in question. For the purpose of a psychological IME, functional abilities can be divided into three broad domains (see Table 9.3). Cognitive functions include areas such as concentration, memory, comprehension, expression, processing, and problem solving. Interpersonal functions involve the ability to engage in appropriate interactions with co-workers, supervisors, and the public. Emotional functions focus on areas such as stress tolerance, emotional control, mood stability, and judgment.

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TABLE 9.3 Examples of Functional Capacities Relevant to Psychological IMEs Cognitive

Interpersonal

Emotional

Concentration

Role boundaries

Stress tolerance

Memory

Communication

Emotional control

Comprehension

Response to feedback

Mood stability

Information processing

Follow-through on obligations

Judgment

Expression

Reliability

Persistence

Problem solving

Flexibility

Objectivity

cognitive disorder resulting from severe traumatic brain injury) rarely form the basis for disability claims for which an IME has been requested. Second, because there is considerable variability with respect to symptom presentation, premorbid capacity, and situational demands, two individuals with the same diagnosis might function quite differently. It is essential that the evaluator performing an IME directly observe and assess the claimant’s functional abilities and not make assumptions simply based on diagnosis or symptoms. Causality

Disability as a Legal Competency Disability can be conceptualized as a “legal competency.” Grisso’s (2003) model, which includes five components common to almost all legal competencies is adapted here to provide a framework for understanding the assessment of disability and how it relates to the various concepts previously discussed. Although Grisso postulated five components, the model described here collapses this into four components: functional, causal, interactive, and judgment. Function The purpose of a disability evaluation is to assess the claimant’s functioning. Function needs to be understood within a specific context in order to have meaning. As discussed earlier, function is distinct from diagnosis and refers to what an individual can do or accomplish. The relevant functional abilities depend on the legal question. In the case of a disability evaluation, the competence at issue is defined by the legal definition of disability. Many functional abilities are “generic” and are necessary for the performance of almost any job (e.g., the ability to follow instructions, the ability to complete work within an acceptable timeframe). However, many jobs also require specific functional abilities beyond these generic requirements (e.g., the performance of complex mathematical calculations, or highly developed eye–hand coordination). In addition, the particular setting of the job may demand certain functional abilities not required to perform the same job in another setting. Thus, determining the relevant functional abilities, both specific and generic, requires an analysis of the unique occupational duties of the claimant being evaluated. The claimant’s diagnosis is not dispositive of his functioning since functional capacity cannot be inferred from the diagnosis itself. First, there are very few mental disorders that preclude all types of functioning, and those few disorders (e.g., severe or profound mental retardation;

An understanding of the claimant’s functional impairments in isolation is insufficient to inform an assessment of disability. Deficits in functioning must be causally related to the presence of a mental disorder. This process involves three elements. First, the presence of a valid condition must be established. Second, competing explanations for the observed impairments must be ruled out. Third, hypotheses concerning the cause of the functional impairments must be formulated and tested. The establishment of a condition requires collecting and analyzing relevant information, and using these data to develop a picture of the claimant’s clinical status. These data should incorporate, but not be based solely on, the claimant’s self-report, since research suggests that examinees’ descriptions about their premorbid functioning can be inaccurate (e.g., Greiffenstein et al., 2002; Williams et al., 1999). Therefore, the evaluator should seek information about the claimant’s reported symptoms from a variety of sources, including direct observation of the claimant, records, third-party interviews, and use of specific techniques to assess the claimant’s response style. After confirming the existence of a valid condition the causal link between this condition and the claimant’s functional deficits (if any) must be established. Other factors, exogenous and endogenous, can explain a decline in work functioning. It is important to make accurate causal attributions. Exogenous factors are often referred to as situational factors or circumstantial factors that may affect an individual’s work capacity and productivity. These factors include influences such as economic opportunity, job availability, legal restrictions, family or personal demands, a long commute, transportation issues, working for a demanding boss, and working with uncooperative colleagues. What these factors have in common is that they are external to the claimant and are independent of the claimant’s clinical condition. Even if the claimant was not experiencing any symptoms, these factors would continue to affect his or her work functioning (Piechowski, 2011).

Disability and Worker’s Compensation

Endogenous factors are often more difficult to separate from condition-related functional deficits. They are internal to the claimant, but are not the result of a mental disorder (Piechowski, 2011). Conscientiousness, achievement drive, innate aptitude and fit, job satisfaction, personal preferences, and lifestyle issues (e.g., a desire to have more leisure time) are all endogenous factors whose presence can have a significant effect on work functioning. Finally, the evaluator must formulate and test hypotheses about the cause[s] of the claimant’s functional deficits. By generating hypotheses about the relationship between any observed functional deficits and any clinical condition, the evaluator can determine the likelihood that an observed functional deficit is the result of an existing clinical condition, and not due to unrelated exogenous or endogenous factors. The disability evaluation is designed to test these hypotheses through the selection of pertinent methods and procedures (Piechowski, 2011). Interaction Disability can be viewed as an interaction between the functional abilities of the claimant and the demands of his or her occupation. When the demands of the job exceed the claimant’s functional abilities, the claimant’s work capacity is inadequate. On the other hand, the claimant’s work capacity is adequate if her functional abilities meet or exceed the demands of the job. Gold and Shuman (2009) proposed this as a function of “supply and demand,” with supply referring to the claimant’s functional ability and demand to the requirements of the job. The interactive component considers whether the claimant’s functional capacity is adequate to meet the relevant occupational demands. Functional capacity alone is not sufficient to determine work capacity since work capacity must be defined in relation to a specified context. This context is delineated by the legal definition of disability, which sets the occupational standard to which the claimant’s functional abilities are compared. After the appropriate standard is determined, the claimant’s functional capacity is compared to this standard to determine if a discrepancy exists between his ability and the demands on it (Piechowski, 2011). Judgment The judgment component addresses the ultimate-issue question: Is the claimant disabled according to the pertinent legal definition of disability? This determination is based on an interaction of all four components discussed in this section: (1) the claimant’s functional capacity, (2) the degree to which her functional incapacity is linked

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to a clinical condition, (3) the demands of the claimant’s occupation, and (4) the legal definition of disability. The evaluator’s role is to provide data relevant to addressing these issues, but the evaluator should not attempt to answer the ultimate-issue question directly. The ultimate disability decision is based on an assessment of the claimant’s work capacity in the context of the applicable legal framework. Although the evaluator may be able to assess the clinical aspects of the claimant’s condition and functional capacity, disability determinations require an analysis of the relevant contract language, statutes, and/or regulations.

ASSESSMENT METHODS The purpose of an IME is to generate objective data about the validity of the claimant’s condition, the functional impairments resulting from this condition, and the extent to which these impairments compromise the claimant’s ability to function in a work setting. The assessment process can be conceptualized in stages, beginning with the potential evaluator’s first contact with the referral source and proceeding through the collection of data. Table 9.4 provides an overview of this process.

Planning the Evaluation Disability evaluations are complex and require significant preparation before the claimant is examined. Such preparation helps the evaluator avoid referrals that may be inappropriate, ensures that relevant and sufficient data are efficiently collected during the evaluation, and facilitates compliance with ethical and legal obligations. Evaluation referrals generally come from one of three sources. The evaluator may be contacted directly by the TABLE 9.4

Disability Assessment Process

1. Prior to meeting with the claimant: a. Review records. b. Formulate evaluation strategies. c. Check to be sure all relevant material has been provided. 2. Meet with the claimant: a. Obtain informed consent. b. Interview the claimant. 3. Administer psychological and/or neuropsychological tests and response-style measures. 4. Concluding discussion with the claimant: a. Clarify any issues raised by testing. b. Obtain permission to contact collateral sources.

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insurance company or agency responsible for providing the disability benefits, by an attorney representing the claimant or the insurance company, or by an independent vendor. A vendor serves as a “middleman” between the insurance company and the potential evaluator. The insurance company engages the vendor to locate and vet examiners to conduct the evaluation. Prior to accepting the referral, the forensic psychologist should consider a number of factors, both practical and ethical. As with any forensic evaluation, an IME requires objectivity and expertise. Both the claimant and the insurance company are entitled to an impartial, timely, and comprehensive evaluation. If the evaluator is unable to fulfill these requirements, the referral should be declined. The first consideration should be determining if a conflict of interest exists that impairs or might appear to impair the evaluator’s objectivity. As delineated in the American Psychological Association (APA) Ethical Principles of Psychologists and Code of Conduct (EPPCC) (2002), Section 3.06: Psychologists refrain from taking on a professional role when personal, scientific, professional, legal, financial, or other interests or relationships could reasonably be expected to (1) impair their objectivity, competence, or effectiveness in performing their functions as psychologists, or (2) expose the person or organization with whom the professional relationship exists to harm or exploitation.

Specifically, a conflict of interest might exist if the psychologist has had a personal, professional, or business relationship with the referral source, the claimant, or with any of the claimant’s family members, treatment providers, legal representatives, or business associates. Any such relationships should be immediately disclosed to the referral source prior to accepting the referral. Similarly, the evaluator should not have a current or prior treatment relationship with the claimant. Much has been written about the potential threats to objectivity created when a psychologist attempts to function as a therapist and an independent evaluator for the same person. As noted by Kane (2008), the roles of therapist and forensic evaluator are significantly different and nearly always conflict with each other. Greenberg and Shuman (1997) enumerated 10 key differences between therapeutic and forensic roles that illustrate how combining these roles compromises both the efficacy of therapy and the objectivity of the forensic evaluation. Likewise, Strasberger, Gutheil, and Brodsky (1997) offered that attempting to treat and evaluate the same person creates an irreconcilable role conflict that manifests itself in different conceptions

of truth and causation, different forms of alliance, different types of assessment, and different ethical guidelines. Another important factor to consider prior to accepting a referral is whether one can devote the time necessary to perform a comprehensive evaluation and deliver a report within a reasonable timeframe. Disability evaluations are complex and time consuming, and typically consist of a lengthy clinical interview, administration of a battery of psychological and/or neuropsychological tests, review of written records (which are often quite substantial), interviews with collateral sources, and a detailed and comprehensive written report. This must be accomplished within a reasonable time period without compromising the quality of the evaluation. Insurance companies typically expect to receive the evaluator’s report within 2 weeks of the completion of the evaluation. Another factor the psychologist must consider before accepting a referral for evaluation is the nature of expertise required to perform the evaluation being requested. Section 2.01 of the EPPCC explicitly addresses the importance of practicing within the limits of one’s competence: “Psychologists provide services . . . with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience.” In making this assessment, the evaluator should consider if he or she has sufficient experience with the condition that forms the basis for the disability claim as well as any other factors that may be relevant, such as ethnic or cultural factors, language fluency, or age. The evaluator should also consider whether he or she is capable of administering and interpreting any assessment methods and tools that might be required given the nature of the referral question (Piechowski, 2011). Once the evaluator has accepted the referral, the focus shifts to identifying the psycholegal questions to be addressed and the formulation of a detailed assessment that will gather relevant data to answer these questions. The referral source typically provides a list of specific issues to be addressed. Prior to beginning the evaluation, the examiner needs to ascertain if these issues can be addressed via the evaluation, and if sufficient data will be available to formulate opinions about such. Referral sources will often ask the evaluator to (a) describe the symptoms of the claimant’s alleged condition, (b) determine if these symptoms support a particular diagnosis or diagnoses, (c) comment on the credibility of the claimant’s presentation, (d) describe how the symptoms affect the claimant’s work capacity, (e) identify any factors beyond the clinical condition that may impact the examinee’s motivation or

Disability and Worker’s Compensation

ability to work, (f) comment on the efficacy of any past or current treatment, and (g) offer a prognosis and estimated time for functional recovery. In some cases the examiner is asked to offer an opinion on the ultimate issue, that is, whether the claimant is entitled to receive disability benefits. As discussed above, this is a legal or contractual determination and is not a question that can be meaningfully answered by an IME. Eligibility for benefits is controlled by many factors, including the specific provisions of the policy, information regarding the claimant’s occupational activities, and other factors that affect the claimant’s eligibility to receive benefits that go beyond the data obtained in the IME. Consequently, the evaluator should not provide an opinion on the ultimate issue, but rather focus on obtaining data regarding the claimant’s condition and functional capacity, and forming related opinions that can go toward informing the decision maker. Next, the evaluator should define the scope and nature of the evaluation. As indicated above, disability evaluations typically involve consideration of multiple sources of data (e.g., testing, self-report, collateral interviews, records). The evaluator should review the referral questions and the documentation provided by the referral source in order to determine if sufficient data have been provided, what additional data will be needed, which psychological tests will be used, and which collateral sources might be available to provide relevant information. If the material provided is incomplete, the evaluator should immediately notify the referral source. It is important to remember that, because the referral source is the examiner’s “client,” it should be consulted when additional information or records are needed, or before doing anything that would change the nature, structure, content, or scope of the evaluation. Decisions regarding whether (and by whom) the evaluation may be recorded or, if a third party is permitted to observe the evaluation, for example, should be made in consultation with the referral source and after consideration of relevant issues (see, for example, Axelrod et al., 2000; Constantinou et al., 2002; Hamsher et al., 2001). In addition, the evaluator typically does not have the authority to release any information about the findings, content, or outcome of the evaluation to any party other than the referral source without prior authorization. This includes providing feedback, either verbally or in written form, to the claimant or the claimant’s attorney or treatment provider(s). The claimant must consent to the evaluation before any aspect of the evaluation begins, and the evaluator cannot compel the claimant to participate in the evaluation. The

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evaluator should provide a detailed explanation of the evaluation and its purpose, including who has retained the evaluator, the nature and limits of confidentiality, who will have access to results of the evaluation, and that the evaluator cannot release information regarding the findings of the evaluation to the claimant. It should be made clear that the examiner is not treating the claimant, both verbally and in writing. Prior to signing the consent form, the claimant should be asked to paraphrase her or his understanding of the information and should be provided ample opportunity to ask questions about the evaluation. If the claimant refuses to consent, the evaluator should cease the evaluation and communicate this information to the referral source. If the claimant voices concerns or does not appear to understand significant aspects of the evaluation process, the referral source should be consulted and a plan should be developed to respond to the claimant’s concerns. A claimant who is represented by counsel may wish to contact his or her attorney before proceeding. In addition to gaining consent to the evaluation, authorization from the claimant must be obtained before the evaluator can contact collateral sources. Written authorizations, consistent with federal and local standards, should be utilized. When contacting a collateral source by telephone, the evaluator should clearly state the reason for the consultation, the evaluator’s role, and the intended use of the data, including the fact that the information obtained will be attributed to the source. It is not necessary to obtain a signed authorization or consent from the actual source. Collecting Data Sources of data considered in disability evaluations include records and documents, self-report data from the claimant, psychological and neuropsychological test data, and reports from collateral sources. It is important that the evaluator collect sufficient and valid data in the course of the evaluation in order to develop the foundation for his or her opinions. By utilizing a variety of sources, the evaluator will be able to compare information obtained from each source to obtain a more complete and objective understanding of the claimant’s condition and functional capacity. Records The first step in data collection is usually review of documents and records provided by the referral source. This should be undertaken before the claimant is examined so the evaluator can gain an overview of the issues in question, determine if additional records will be needed, and

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become familiar with the claimant’s history and circumstances. The quality and volume of written documentation varies greatly across cases. If the documentation is insufficient or illegible, the evaluator should immediately contact the referral source. Records that are incomplete or unreadable will not provide the necessary information to complete the evaluation and can create a misleading picture of the claimant if pertinent information is omitted or misinterpreted. Table 9.5 provides a list of records and documents that may be provided for review. Contemporaneous records can be helpful in establishing an understanding of the claimant’s condition and functioning over time. Not all documentation is equally useful, however, and the evaluator needs to consider the database and methodology that were used to create the documents reviewed. It is important to use primary rather than secondary sources. For example, the evaluator should not rely on a reviewer’s summary of medical records, but should examine the actual records themselves in order to avoid the possibility of missing important information that may not be included in the summary (Piechowski, 2011). Ideally, the evaluator will be provided with documentation describing the onset, basis for, and history of the disability claim. This usually consists of “claim forms” completed by the claimant—which is essentially the claimant’s “application” for benefits. There may also be periodic “progress reports” completed by the claimant and treatment providers, which describe the claimant’s condition, treatment, and activities over time. The claimant’s treatment records—including psychotherapeutic, psychiatric, substance abuse, hospital, and medical records—can provide valuable information about the onset of difficulties, the progression of symptoms, efforts to seek treatment, and the response to treatment. Important information includes the nature and frequency of the claimant’s treatment and whether it appears to be consistent with the reported condition. Particular attention should be paid to changes in treatment such as TABLE 9.5

Records and Documents for Review

Essential records

Very useful records

Additional records

Current treatment records related to cause of disability. Claim forms describing cause of disability and date of onset. Job description Past treatment records related to cause of disability. Employment records Investigative reports Prior evaluation reports Primary care records Financial records. Past primary care records Other general medical records. In-house consultant reports

Source: Piechowski (2011).

increases or decreases in treatment frequency, medications prescribed, referrals for adjunct treatment, or gaps in treatment. When records from multiple providers are provided, it can be useful to compare each provider’s impressions of the claimant. It is essential to review a detailed description of the claimant’s work responsibilities since this allows the evaluator to determine the specific functional abilities necessary for the claimant to perform his or her job. Additional employment and financial records may also be useful in understanding the claimant’s occupational functioning prior to the onset of the claimed disability by addressing questions regarding the claimant’s earnings, the claimant’s work performance, and the consistency of the claimant’s work history. The evaluator should note disciplinary actions, performance evaluations, and significant changes in earnings that may signal a change in work responsibilities, activities, or performance. Financial and employment data may also help verify the claimant’s report regarding his job duties and work schedule. Occasionally the evaluator will be provided with investigative reports to review. Investigators are sometimes used by the insurance industry to document a claimant’s activities. This material typically includes a written report, still photographs, and video of the claimant. Although surveillance is often of limited use in clarifying psychiatric functioning, it may highlight inconsistencies between the claimant’s reported condition and activities and what was documented by the investigator. The evaluator may also compare the claimant’s appearance on the video in terms of dress, grooming, and affect with his or her appearance during the examination. That said, it is important not to overvalue the data obtained through surveillance since they represent a small sampling of the claimant’s behavior and may not depict the claimant’s typical functioning. It is also important to note that the existence or nature of surveillance data should not be disclosed to the examinee without first obtaining permission from the referral source. In addition to these materials, the evaluator may be provided with other medical records for the claimant, previous evaluations, reports by in-house insurance company medical consultants, and insurance company memos and documents. The evaluator should review this material and consider its relevance to his or her understanding of the claimant. Self-Report Examinations usually begin with an interview of the claimant. Sufficient time should be allowed for a thorough

Disability and Worker’s Compensation

clinical interview, which, in a disability evaluation, generally takes a minimum of 2 or 3 hours due to the breadth of information that must be gathered. It is important for the evaluator to maintain control over the structure of the interview, which should include a discussion of the claimant’s history, information about the onset of the claimant’s difficulties, and a discussion of the claimant’s current situation. The interview should focus on obtaining detailed descriptive information about the claimant’s functioning rather than asking the claimant to provide definitive statements about his or her disability status. The interview serves several purposes. First, it allows the evaluator to obtain additional information about the claimant’s history and perspective about his or her condition and impairments. Topics that should be covered in the interview include the claimant’s developmental, social, educational, legal, medical, psychiatric, and substance abuse histories; the claimant’s occupational history and job duties; the onset and course of the condition related to the disability claim; and the claimant’s current activities and functional impairments (see Table 9.6). Second, the interview provides the opportunity for the evaluator to observe the claimant’s appearance, speech, affect, and behavior, and to informally assess attention, concentration, and memory. In what is typically referred to as a “mental status examination” the evaluator should record

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observations about the claimant’s appearance (including dress, posture, grooming, and hygiene), reported mood, affect, attitude, speech, thought processes, thought content (including orientation, concentration and attention, memory, abstraction, fund of knowledge, and intelligence), judgment, insight, and receptive language. Finally, the interview allows the evaluator to compare the claimant’s reported complaints to his or her observations of the claimant. The evaluator should note, for example, whether the claimant’s reported difficulties with memory and concentration were apparent during the interview. It is not uncommon for claimants to approach the examination with some degree of trepidation, lack of cooperation, or hostility. This is understandable given the fact that the claimant may believe that his or her truthfulness is being questioned by the insurance company, or that an important source of financial support is in jeopardy. Despite these attitudes, the evaluator is obligated to conduct a thorough and fair evaluation. Rogers and Payne (2006) recommended beginning the examination with an unhurried discussion of its structure, purpose, and objectives, and providing the claimant an ample opportunity to express or vent his or her feelings about the situation. The evaluator should directly address the claimant’s concerns and assure the claimant that he or she will be listened to and taken seriously.

TABLE 9.6 Topics for the Interview Social history Educational history

Occupational history Legal history Medical history Mental health history

Substance abuse history Job duties Current daily activities

Disability onset

Functional impairments

Childhood, adolescence, adulthood, family structure, marital/relationship history, children Academic and behavioral performance, attitudes toward school, perceptions of successes and failures, history of participation in special-education programs, identification of specific learning problems, class standing in high school and college, SAT or other standardized test scores, disciplinary actions, referrals to the school psychologist or other professionals How the claimant chose his or her career, any career changes, satisfaction and dissatisfaction with work, history of job losses or promotions, how often the claimant changed jobs and for what reasons Involvement with the criminal justice system, history of civil litigation (as plaintiff or as defendant), involvement in family court, restraining orders, or administrative actions (such as license revocation or suspension) Current or past health problems, surgeries, hospitalizations, current and past medications, history of accidents or injuries, nature of current medical care Inpatient and outpatient treatment for any psychiatric or behavioral problems (including marital, relationship, or family therapy), current and past psychotropic medications, nature and frequency of current and past psychotherapeutic treatment, reported diagnoses, attitude toward treatment Use of alcohol, illegal drugs, abuse of prescription medications, history of substance abuse treatment, involvement in 12-Step or related programs, relapse history, current status regarding use of drugs and alcohol Detailed description of duties, working conditions, schedule, and pace of work done just prior to the onset of the claimed disability How the claimant currently spends the day, involvement in activities of daily living, managing a household, care of children or other dependents, leisure activities, vacations taken, social activities, involvement in any “work-like” activities (e.g., reading professional journals, attending continuing education classes) Detailed description of the onset of the difficulties leading to filing for disability benefits, including a description of the last day of work, decision to leave work, decision to seek treatment, and whether decision to leave work was voluntary or mandated Detailed description of how functioning has been affected by the reported condition, and any specific activities (work, social, home, leisure) that have been affected

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The evaluator should probe for descriptive, rather than conclusive information. In other words, the evaluator should not ask the claimant definitive questions such as, “Are you able to return to work?” Rather, the evaluator should ask the claimant to describe in detail his or her functioning in various situations (e.g., “Tell me what happens when you try to balance your checkbook”). General statements made by the claimant should be probed for specific examples. Psychological Testing Although it is frequently expected that psychological and/or neuropsychological testing will be administered during an IME, there is no generally agreed-upon “battery” for the assessment of disability. Rather, testing is usually directed toward assessing the presence and validity of the claimant’s condition, the manifestations of that condition, the effect on the claimant’s functional capacity, and/or the extent to which functional impairments affect the claimant’s ability to perform his or her occupation. In order to select tests that will inform decisions about these matters, the evaluator must have some understanding of the claimant’s reported condition, symptoms, and impairments and the types of impairments that are likely to affect the claimant’s specific occupational duties, and select the tests accordingly. In addition to the previous considerations, when contemplating the use of any particular test, the evaluator should take into account a number of other factors, including whether the test is commercially published and peer reviewed; if it is reliable and valid for the purpose for which it will be used; if he or she has the training, experience, and qualifications to administer and interpret the test; if the test is commonly used in forensic evaluations, and in particular, in disability evaluations; and if opinions based on the test will meet admissibility standards for the jurisdiction in question. In general, evaluators should avoid tests that are uncommon or outdated. Tests should never be used for other than their intended purposes, and standard administration procedures should be followed. Tests typically used in disability evaluations can be grouped into three general categories: tests of emotional and behavioral functioning, cognitive functioning, and response style. If the claimant is reporting disability as a result of a mental health condition, testing should focus on providing information about the nature and severity of the claimant’s condition and the symptoms he or she is experiencing. It is important to recognize the differences between instruments designed primarily for therapeutic purposes (i.e., to aid in diagnosis and treatment planning in a clinical setting), and those instruments appropriate for

forensic assessment. Multiscale personality inventories, such as the Minnesota Multiphasic Personality Inventory2 (MMPI-2; Butcher et al., 2001) and the Personality Assessment Inventory (PAI; Morey, 1991), are particularly useful because they not only facilitate an assessment of a broad range of psychopathology, but include sophisticated validity scales for the detection of distorted response sets. There is a considerable research base supporting the use of these inventories in forensic settings (Piechowski, 2011). At times, the use of additional instruments might be appropriate, such as when the evaluator wants to obtain further information about a specific condition. Instruments such as the Trauma Symptom Inventory (TSI; Briere, 1995) might be utilized for claims of disability related to posttraumatic stress disorder, or the Millon Clinical Multiaxial Inventory-III (MCMI-III; Millon et al., 2006) might be helpful when a personality disorder is suspected. These and similar instruments should be used with caution, as they were designed for use in therapeutic assessment and lack the sophisticated validity scales of tests such as the MMPI-2 and the PAI. As such, these instruments should not be a primary basis for decision making in an IME, but should be regarded as supplemental sources of data. Symptom checklists, such as the Beck Depression Inventory-II (Beck, 1996), Beck Anxiety Inventory (Beck & Steer, 1990), and Symptom Checklist-90 (Derogatis, 1977) present additional concerns. These self-report inventories, designed for use in clinical settings, have high face-validity and lack response-style scales. Likewise, the validity of the reported symptoms is not taken into account in interpretation. Because of this, they are not appropriate for drawing definitive conclusions regarding the presence of valid symptoms. The claimant’s cognitive functioning may be at issue in a variety of circumstances. The claimant may report cognitive impairments attributed to a variety of causes, including psychiatric conditions such as depression, anxiety, or posttraumatic stress disorder; long-term substance abuse; traumatic brain injury; organic brain disorders; or medical conditions. In some cases a brief screening to rule out impairments in memory or concentration is appropriate. In these circumstances, the evaluator may choose to do an assessment of the claimant’s intellectual functioning and memory or may elect to use a cognitive screening instrument such as the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS; Randolph, 1998). In any case, the evaluator must be clear that a cognitive screening is not equivalent to a comprehensive neuropsychological battery in terms of scope and detail. In other cases a complete neuropsychological assessment battery is indicated. A comprehensive battery

Disability and Worker’s Compensation

includes an assessment of intelligence, academic achievement, executive functions, attention and concentration, processing speed, language, visual-spatial skills, motor functioning, sensory functioning, learning, and memory. Of course, neuropsychological assessment batteries should be undertaken only by psychologists who have had formal education, training, and experience in conducting these assessments. In any assessment of cognitive functioning, the selection of appropriate instruments is critical. It is generally unacceptable to utilize abbreviated versions of instruments, to substitute screening instruments for a battery of tests when a comprehensive assessment is requested, to use outdated versions of instruments, and to use instruments that have not been validated for the purpose or population in question. Every disability IME should include structured assessment of the claimant’s response style, and a number of measures are available. Selection should be based on consideration of the nature of the claimant’s reported symptoms, the appropriateness of the instrument for the claimant, and the psychometric properties of the instrument (also see Rogers & Bender, this volume, for an extended discussion of response style and its assessment). Evaluating for possible malingered psychopathology calls for a different approach than when feigned cognitive symptoms are suspected. Rogers and Payne (2006) noted, “In the case of feigned mental disorders, the malingerer must create a believable set of symptoms, a likely onset and course of the disorder, and plausible effects on their day-to-day functioning.” On the other hand, feigning a cognitive disorder requires “effortful failure”—that is, “While appearing invested in succeeding, [the claimant reports] incorrect responses on test items that measure cognitive abilities” (p. 650). Methods for determining the validity of psychiatric symptoms typically compare the claimant’s portrayal of the nature and severity of his or her symptoms to what is known about the course of valid psychiatric conditions. When the symptoms reported by the claimant are bizarre, extremely severe, incongruous, and/or inconsistent, questions regarding the validity of these symptoms are raised. The MMPI-2 and the PAI include scales to assess the validity of the examinee’s responses. On the MMPI-2, these include the so-called F-family scales (F, Fb, Fp ), the Fake Bad Scale (FBS; Lees-Haley et al., 1991), and the Response Bias Scale (RBS; Gervais et al., 2007); and on the PAI, the Negative Impression Management Scale (NIM) and the Malingering Index (MAL). Structured interviews are another approach to assessing symptom validity. These include the Structured Inventory of

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Reported Symptoms, 2nd edition (Rogers et al., 2010), and the Miller Forensic Assessment of Symptoms Test (Miller, 2001). Both of these instruments are designed to assess feigned psychiatric symptoms. The Structured Inventory of Malingered Symptoms (Widows & Smith, 2005) and the Malingering Probability Scale (MPS; Silverton & Gruber, 1998) are paper-and-pencil tests designed to assess the validity of psychiatric symptoms. Cognitive feigning typically involves the claimant’s performing at a submaximal level by deliberately giving incorrect answers, by failing to give full attention to tasks, by making careless or random responses, or by intentionally working at a slower pace. Therefore, the approaches to detecting feigned cognitive deficits differ from the methods used to evaluate the validity of psychiatric symptoms. Numerous instruments are available to assess the validity of cognitive symptoms. The Test of Memory Malingering (Tombaugh, 1996), the Word Memory Test (Green, 2003), and the Computerized Assessment of Response Bias (Allen et al., 1997) are presented as memory tests and use a forced-choice format. The Validity Indicator Profile (VIP; Frederick, 1997) also uses a forced-choice format, but is presented as a test of cognitive ability with verbal and nonverbal subtests. Based on his or her performance on the VIP, the claimant’s response style is classified as compliant, inconsistent, irrelevant, or suppressed. Data Obtained From Third Parties Data obtained from third parties, such as treatment providers, family members, and professional associates, can provide valuable information about the claimant’s condition and functional capacity. During the interview and while reviewing written records, the evaluator should begin to think about which sources are likely to be useful and could help clarify critical issues (see Table 9.7). TABLE 9.7

Possible Third-Party Sources

Treatment providers

Current psychotherapist/psychiatrist Medical specialist Primary care physician Former psychotherapist/psychiatrist

Personal associates

Spouse/partner Other immediate family members Extended family members Neighbors Friends

Professional associates

Supervisor Professional colleague Business partner Associate Customer/client

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As previously indicated, the evaluator then must obtain authorization from the claimant before contacting any source. Once permission has been obtained, the evaluator should plan how to obtain the needed information. Third parties can be interviewed in person or over the telephone. Prior to initiating contact, the evaluator should outline the topics to be covered in the interview. As discussed earlier, although the evaluator does not need to obtain written authorization from the collateral, the evaluator should clearly inform the collateral about the purpose and context of the interview, the intended use of the material, that the collateral’s participation is voluntary, the limits of confidentiality, and the fact that the information given will be attributed to the source. The purpose of the interview is not to obtain an opinion about the claimant’s disability status, but to gather relevant observational data from the source’s perspective. This information is best solicited with open-ended questions about the source’s observations of the claimant and then probing for specific examples to support the general statements.

DATA INTERPRETATION To serve as a basis for accurate inferences about the claimant’s functioning and adjustment, the data must be valid and relevant. Disability evaluations yield a complex array of data. Although some of these data will fall neatly into place, other data will present an inconsistent or contradictory picture. It is necessary to coalesce, weigh, and interpret each piece of information to determine its validity and relevance to the referral questions. The possibility of dissimulation or distortion should also be methodically investigated. Once this process is completed, the evaluator can begin the process of formulating opinions. Data Analysis It is important to organize the evaluation data to facilitate analysis. It is helpful to think of organizing data in terms of three dimensions: time, source of information, and functional abilities. Because disability refers to a change in functional capacity, an understanding of the claimant’s functioning both before and after the onset of the claimed disability is necessary. The claimant’s functioning prior to the onset of the claimed disability is referred to as baseline functioning. Ultimately, comparisons must be drawn between his baseline and current functioning in order to ascertain if there has been a notable decrement in his functional capacity coinciding with the disability claim.

To the extent possible, knowledge of baseline functioning should be developed from objective (i.e., observed and documented by others) rather than subjective (especially self-report) data. This can best be accomplished by comparing contemporaneous documentation from different time periods (Piechowski, 2011). Evaluation data can be further organized by information source as this may help facilitate analysis of conflicting data. Finally, evaluation data can be organized in terms of functional abilities. As noted previously, functional abilities are the building blocks that underlie the performance of much more complex endeavors. The evaluator must identify the specific functional abilities necessary for the performance of the substantial and material duties of the claimant’s occupation to determine if the claimant’s work capacity is compromised. To prevent the evaluation and data analysis from becoming too unwieldy, the evaluator should focus on the most important duties of the claimant’s occupation and the most important functional abilities that relate to those duties. The three dimensions of data organization just described (i.e. time, source, functional ability) can be combined into a matrix that facilitates data analysis by allowing cross-source comparison of information regarding particular functional abilities. This helps the evaluator identify areas where there is convergence or divergence between data sources, and facilitates comparisons between the claimant’s baseline functioning and his current functioning. Finally, it ensures that key pieces of data, especially conflicting data, will not be overlooked (Piechowski, 2011). Analyzing Self-Report Data According to Heilbrun (2001) one of the more important distinctions between forensic assessment and therapeutic assessment is the presumed response style of the individual being evaluated. Psychologists have long recognized that self-reported information is subject to both intentional and unintentional distortion. Although usually thought of as the process of shaping responses in the direction of social desirability, self-report bias can influence the way information is recalled and reported so that it more closely fits the claimant’s perception of his or her condition and circumstances. In a forensic evaluation the accuracy of self-reported data may be influenced by situational factors such as involvement in litigation or compensation-seeking (Lees-Haley & Dunn, 1994; Williams et al., 1999). Specifically, in compensation situations, examinees are more likely to report superior premorbid functioning and poorer current functioning, and are more likely to exaggerate

Disability and Worker’s Compensation

the number and severity of their symptoms (Greiffenstein et al., 2002; Williams et al., 1999). A claimant’s self-report may be inaccurate for reasons other than intentional distortion. The claimant might communicate incorrect information unknowingly or unintentionally due to having been misinformed about, not accurately understanding, or not recalling important information about the nature of his or her situation. Claimants may also be influenced by family members or treatment providers who believe the claimant is more limited than is actually the case. At times, the nature of the claimant’s condition or preexisting personality factors can affect the quality of self-reported data or lead the claimant to take an unnecessarily pessimistic view of his or her abilities or prognoses. These factors need to be taken into consideration when evaluating the accuracy of the claimant’s self-report. In light of this, when analyzing self-report data in a disability evaluation, it is critical to cross-reference the information provided by the claimant with information obtained from other sources. By comparing the claimant’s self-report with psychological or neuropsychological test results, information contained in medical and other records, and information provided by collateral sources, the evaluator is more likely to obtain a more accurate picture of the claimant’s situation. Analyzing Psychological Test Data Data from psychological and neuropsychological testing can provide very useful information in a disability evaluation, but care must be taken not to overvalue test data. Data obtained from psychological and neurological testing are especially vulnerable to methodological limitations, including those related to the psychometric properties of the test itself. Such considerations include the test’s validity and reliability, sensitivity and specificity, and rate of false positives and false negatives. In addition, in order to be useful, the tests must be appropriate to the referral questions, administered in accordance with standard procedures, and valid for the purposes for which they are being used. Test data can also be compromised by administration, scoring, or interpretation errors, or the examiner’s lack of experience or skill with a particular test. Test-interpretation strategies, including the decision to use computer-generated interpretations, affect the value of the data generated. Interpretive statements found in computer-generated reports (as well as those generated by the examiner) are hypotheses to be verified and are not firm conclusions. Since it is virtually impossible for a

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disability evaluator to directly test all the functional abilities necessary for the performance of the claimant’s job, a certain degree of extrapolation is required. Care must be taken not to wander too far from the constructs of the test. The more closely the test constructs relate to key functional abilities, the more useful the test data will be. Analyzing Collateral Data Third-party data, in the form of written records or direct interviews, allow the evaluator to cross-validate information obtained from the claimant and from psychometric assessment, thus increasing the degree of confidence in the evaluator’s conclusions. Third-party data, however, are just as vulnerable to distortion and misinterpretation as any other form of evaluation data. Heilbrun et al. (2003) identified four factors that can threaten the validity of third-party data: bias, expertise, suggestibility, and memory loss. Bias may be present when the third-party source has a vested interest in the outcome of the evaluation, such as family members who depend on the claimant’s disability benefits for financial support, treatment providers who want to support their patients, and employers who might see a disability claim as an opportunity to be rid of a difficult employee. The expertise of a third-party source can affect the validity of the information provided. For example, individuals who lack training and experience in psychopathology may misinterpret the claimant’s behavior, either failing to recognize subtle indicators of clinical disturbance, or misjudging normal variations of mood or behavior as signs of psychiatric difficulties. Information from investigators, insurance company personnel, and family members may contain inaccurate conclusions like these due to lack of expertise. Suggestibility occurs when third-party sources are influenced by the manner in which questions are being asked. Heilbrun et al. (2003) suggested beginning a thirdparty interview with very general questions before proceeding to more specific areas, to avoid contaminating the source’s information with leading questions. Possible memory loss must be taken into consideration with thirdparty sources. This is especially relevant when the source is being questioned about events or circumstances that occurred months or years in the past. The risk of inaccurate recollection is even greater when the data in question were not recorded in some fashion contemporaneously. Dissimulation in Disability Evaluations Although estimates of the base rate of dissimulation in disability evaluations vary widely, it appears to be well

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established that a certain percentage of disability claimants exaggerate, embellish, or feign their degree of impairment, perhaps motivated by factors such as financial incentives, socioeconomic problems, antisocial acts or behavior, career dissatisfaction, or work conflict. Mittenberg et al. (2002) examined the rate of probable malingering and symptom exaggeration through a survey of neuropsychologists certified by the American Board of Clinical Neuropsychology. Based on a review of 3,688 disability cases, the survey participants estimated that malingering or symptom exaggeration was present in 30% of these cases. In a review of the literature, Samuel and Mittenberg (2005) reported that estimates of the base rate for malingering ranged from 7.5 to 33% of disability claimants. Sumanti et al. (2006) investigated the presence of noncredible psychiatric and cognitive symptoms in 233 “stress claim” worker’s compensation litigants and reported that between 9 and 29% of the sample endorsed noncredible psychiatric symptoms and between 8 and 15% of the sample displayed noncredible cognitive symptomatology. Rogers and Payne (2006) noted that dissimulation in compensation cases extends beyond malingering per se to other fraudulent efforts, such as the false imputation of symptoms and impairment to compensable causes, or false claims that genuine symptoms result in diminished capacities. They stressed the importance of minimizing false-positive judgments since, once an examinee is identified as malingering, this label may override all other considerations and play a decisive role in the legal outcome. Likewise, Gold and colleagues (2008) noted that an implication of malingering can have serious consequences for the claimant, and therefore, the determination should be based on convincing evidence. In the research conducted by Sumanti et al. (2006), the occurrence of malingered psychiatric symptoms was independent of feigned cognitive symptoms. This lends support to the use of multiple detection strategies. Farkas et al. (2006) investigated the assumption that combining results from separate measures to detect malingering can reduce classification errors by providing convergent evidence of symptom exaggeration. They examined data from 66 disability and civil litigation evaluations to assess the degree of overlap and consistency of classification among several commonly used malingering instruments. They concluded that certain measures may more accurately detect certain types of distorted performance in a given set of circumstances or with certain types of claimants. Likewise, data obtained by Larrabee (2008) indicate that failure on two symptom-validity tests provided strong evidence for a diagnosis of probable malingering, and failure on three

symptom-validity tests provided very strong evidence for probable, if not definite, malingering. There appears to be a consensus in the literature that the best way to assess response style is by comparing information from a variety of sources, including interviews with claimants, treatment providers, family members, and co-workers; clinical records; psychological test reports; investigations; and work reports (see, for example, Gold et al., 2008; Heilbrun, et al., 2002; Rogers & Payne, 2006; Samuel & Mittenberg, 2005; Sreenivasan et al., 2003; see also Rogers & Bender, this volume). Because psychological testing cannot determine the motivation behind the claimant’s performance, the results of psychological testing in the absence of other supporting data are not sufficient for making a determination of malingering. Several comprehensive approaches for systematically investigating dissimulation have been suggested. Sreenivasan and colleagues proposed a combination of neuropsychological (or psychological) testing, congruence of testing and behavior, congruence of symptoms or signs with clinical data, and nonclinical factors. Samuel and Mittenberg advised consideration of symptoms and features in four domains: (1) motivation/circumstances (e.g., financial incentives, work-related problems, legal problems), (2) symptoms (e.g., atypical symptoms, exaggerated symptoms, incongruent symptoms), (3) claimant interview presentation (e.g., discrepancies, lack of cooperation, admission of malingering), and (4) activity or behavior outside the interview (e.g., noncompliance with treatment, impairments affect only work, capacity for recreation). In addition, they identified factors that, when present, argue against the presence of malingering. These included: participation in aggressive treatment; well-documented, objective evidence of symptoms and problems prior to the claim of disability; obvious losses of a significant nature; and presence of behavior or symptoms that are self-defeating rather than self-aggrandizing.

Formulating Opinions Given the vast amount of data from multiple (and often conflicting) sources, it is important to approach data analysis systematically. Developing and testing hypotheses forms the basis and structure for data interpretation. It is important to remember that the question of disability status per se is not the central issue to address. Rather, the focus should be on the claimant’s condition and functional capacities, and the nexus between these and the demands

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of the claimant’s job. Therefore, the relevant questions to consider are: 1. Does the claimant manifest valid evidence of a condition? 2. Does the claimant experience functional impairments resulting from this condition? 3. Do these functional impairments affect the claimant’s ability to perform the duties of his or her job? These questions should be approached in a logical sequence and addressed in order (see Figure 9.2). The

relevance of each subsequent question is dependent on the answer to the preceding question. In other words, if it cannot be established that the claimant has a valid condition, the existence of functional impairments is irrelevant. Does the Claimant Manifest Valid Evidence of a Condition? In order to address this question, the evaluator should consider evidence of signs and symptoms related to the claimant’s reported condition. The pattern of symptoms should be evaluated to determine if this pattern is consistent with known illnesses or injuries. The course of the

Does the claimant have a valid condition?

The claimant has a valid condition.

The claimant does not have a valid condition.

Does the claimant's condition result in functional impairment?

Yes, there are functional impairments resulting from the condition.

There are no functional impairments resulting from the condition.

Do these functional impariments affect the claimant's ability to work?

The functional impairments limit the claimant's work capacity.

Figure 9.2

Decision tree for data analysis

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The functional impairments do not limit the claimant's work capacity.

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claimant’s condition and response to treatment can be compared with the expected progression of the reported condition. If the evaluator is asked to determine the claimant’s diagnosis, the claimant’s symptoms and related features can be compared to standard diagnostic criteria. With the exception of Social Security Disability claims, the precise diagnosis is less important than documenting that valid symptoms exist. Of course, the fact that the claimant’s symptoms do not correspond completely with established diagnostic entities does not mean that a genuine clinical condition is not present. Does the Claimant Experience Functional Impairments Resulting From This Condition? The existence of a condition is not by itself sufficient for a finding of disability. Disability involves a change in functional capacity that must be the product of an illness or injury. If the claimant manifests inadequate functioning due to other circumstances, the functional impairments would not be viewed as arising from an illness or injury, and would generally not constitute grounds for an occupational disability claim. The evaluator needs to ascertain the nature of the claimant’s condition-related functional impairments and the evidence in support of them. These functional impairments should be plausible given the type and severity of the claimant’s condition. Genuine functional impairments are usually evident across the various aspects of the claimant’s life and are not limited solely to vocational activities. Do These Functional Impairments Limit the Claimant’s Work Capacity? Relating functional impairments to the claimant’s work demands is at the core of disability evaluation. The presence of functional impairments does not constitute the basis for a valid disability claim unless these impairments also compromise the claimant’s ability to work. To address this question, the evaluator must know the specific functional abilities necessary for the performance of the claimant’s job and determine the extent to which these functions are impaired. Given the degree of impairment present, the evaluator must then judge whether the claimant can still perform the substantial and material duties of his or her occupation. The evaluator must also consider that the claimant’s compromised work functioning may not be due to condition-related functional impairments, but is the result of other unrelated circumstances such as legal issues (e.g., loss of professional license, incarceration); financial issues (e.g., decrease in work opportunities, rising costs

of doing business); age (e.g., desire to retire); career issues (e.g., career dissatisfaction, unsuitability for chosen profession); personal issues (e.g., divorce and remarriage leading to a need to relocate, serious illness of a family member); negative publicity (e.g., arrest for drunk driving, malpractice case); or poor job performance (e.g., lack of skill or aptitude). If such factors are present, the evaluator should determine whether the claimant would be able to work if obstacles related to these factors were removed. If the claimant would still be unable to perform his or her job duties, it would suggest that the inability to work is related to the claimant’s condition and not these extraneous circumstances.

COMMUNICATING RESULTS At the conclusion of the evaluation a report is typically written describing the evaluation and summarizing the evaluator’s findings. In doing so, it is important to remember that the purpose of an IME is not to have the evaluator render a decision as to whether the claimant is entitled to receive disability benefits, but to provide information about the claimant’s condition and the associated functional limitations when the claims adjudicator lacks sufficient data about these issues to determine if the claimant qualifies for disability benefits. In deciding how to structure the report, the evaluator should consider the type of information that is likely to be helpful to the claims adjudicator, the specific referral questions, and how to effectively communicate this information. The report should be organized by sections in a manner that provides a clear separation of data and opinion. Heilbrun (2001) stressed the importance of effectively organizing the forensic report, noting that, in most cases, it is the final “product” of the forensic evaluation, and it must make clear what was done, for what purpose, and leading to what conclusions. The use of sections assists the reader in making sense of the information in the report and creates a logical path from the presentation of the data collected to the formulation of the evaluator’s opinion. In addition to having a clear and logical structure, it is also important to use language that is free of jargon and undefined technical terms, keeping in mind that the consumer of the report is unlikely to be another psychologist. The report should begin with an introductory section that summarizes key information indentifying the claimant and the context of the evaluation. It is essential to include a statement documenting that the claimant was provided with detailed information regarding the nature and purpose

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of the evaluation, and that the claimant understood and agreed to the conditions of the evaluation and consented to proceed. The context of the evaluation should be described, including identification of the referral source, the circumstances leading to the referral, and the claimant’s current status with regard to the disability process. The introduction should be followed by a list of the procedures utilized in the evaluation and a listing of the records that were reviewed. A full list of all psychological and neuropsychological tests should be included. Identify all instruments by full name and edition, not just by acronyms. It is important to include a section summarizing content of the records that were reviewed. The record review should be sufficiently comprehensive so that any record relied on in the formulation of the evaluator’s opinion is described in enough detail so that its source and content are clear to the reader. This can usually be accomplished by providing a cogent summary of the evaluator’s understanding of the material reviewed, focusing this summary on issues most relevant to the referral questions. A section should be devoted to the evaluator’s interview of the claimant, including the evaluator’s observations of the claimant. As indicated above, these observations are usually described as the “mental status examination” and should include a basic physical description of the claimant, in terms of grooming, dress, and overall appearance; and observations of the claimant’s attitude, affect, mood, eye contact, activity level, behavior, thought processes, attention span, speech, and language. It is also important to document if there were any variations in these areas observed over the course of the evaluation. A detailed account of the faceto-face interview with the claimant, consisting of a systematic presentation of the information as reported by the claimant, is essential. Psychological test data should be presented in a separate section. It is important to communicate test data in a manner that will be easily understood and not misconstrued by the reader. The language commonly used by psychologists to describe these data is often foreign to the lay reader. Care must be taken to explain the findings using comprehensible language and to describe test data in a manner that leads to accurate assumptions and interpretations. It can be useful to group test data into logical categories. For example, the evaluator may have subsections for intellectual functioning, emotional and behavioral functioning, and response-style measures. Each subsection should begin with a brief description of the type of information that will be presented.

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Information obtained through interviews with third parties should be presented in a separate section. Sources should be identified by name and by relationship to the claimant. The evaluator should be sure to document that informed assent was obtained from the person interviewed. The information obtained should be summarized in sufficient detail. If unsuccessful attempts were made to obtain information from third parties, this should also be noted. After describing the data obtained from various sources during the evaluation, the evaluator’s opinion should be presented. The formulation should describe the evaluator’s opinion as it was developed over the course of the evaluation. Using the data of the evaluation, the evaluator should clearly state his or her opinion and then describe the data and reasoning that support this opinion. It is important not to present new information in the formulation; everything needed to understand the evaluator’s opinion should be in the body of the report. The formulation should distill the evaluation data into a concise and comprehensible summation that follows logically from the data. All of the information presented in the formulation should be relevant to the purpose of the evaluation as defined by the referral questions. It is important not to offer opinions that go beyond the scope of the evaluation or the scope of the evaluator’s expertise. If requested, the evaluator should include a diagnosis in the formulation. This diagnosis should be consistent with and follow from the data that were collected during the evaluation and should be followed by a logical explanation of how diagnostic impressions were reached and a discussion of the data supporting these conclusions. Finally, the referral questions should be clearly listed and answered in a separate section. As with the formulation, the factual basis for each answer and opinion should be contained within the body of the report. The response to each question should refer to the report data supporting the answer. Ideally, the evaluator should not be asked the ultimate-issue question—in other words to determine disability. Rather, the evaluator should be asked to describe the claimant’s condition, functional capacity, and impairments. As noted previously, the question of eligibility for disability benefits is a legal or contractual determination and not one that the evaluator is in a position to answer. Sometimes, however, the evaluator will be asked this question. In such circumstances, it is helpful to remember that “inability to work” is not the same as “disability.” The evaluator may have and express an opinion regarding the claimant’s ability to return to work. Questions about work ability ask the evaluator to consider the nature of the

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claimant’s condition and impairments relative to the demands and requirements of the claimant’s job. Stating that the claimant is not able to return to work is not the same as stating that the claimant is disabled. Keeping this distinction in mind can allow the evaluator to respond to questions related to work capacity without making ultimate-issue statements. Even if asked directly, “Is the claimant disabled?” the evaluator’s response can be couched in terms of the claimant’s “ability to work.”

CONCLUSION Disability is a term used in many different contexts. However, when the context is a disability IME, this term has a very specific, legally defined meaning. The laws defining disability are varied. Each source of disability benefits has a set of legally informed procedures for determining eligibility for benefits. Thus a claimant may meet the criteria for disability under one set of rules while simultaneously being ineligible for disability from another entity. In view of this, it is important for the forensic psychologist to conduct an evaluation that is focused on the issues pertinent to making a disability determination within a specific legal framework. Regardless of the legal circumstances, all disability evaluations have some things in common. Disability is not a personal characteristic, but a dynamic state created by the interaction of person and situation variables— specifically the claimant’s condition, the claimant’s functional capacity, and the demands of the claimant’s occupation. The purpose of an IME is to generate objective data about the validity of the claimant’s condition, the functional impairments resulting from this condition, and how these impairments compromise the claimant’s ability to function in a work setting at a given point in time. In essence, a disability evaluation is always about the functional capacity of the claimant. Diagnosis plays a much different role in disability examinations than it does in therapeutic assessments. Although functional deficits, if present, must arise from an illness or injury, the mere presence of a diagnosable mental condition is insufficient to reach conclusions about disability status in any context, since no diagnosis is inevitably correlated with a particular type or degree of functional impairment. Two individuals with the same diagnosis can manifest a very different set of symptoms. Given the context in which each individual is required to function, the degree of disturbance resulting from those symptoms is likely to be quite different as well.

The forensic psychologist must remain cognizant of these factors in order to conduct a useful and comprehensive disability evaluation. Much is at stake in these evaluations. Although the final determination of disability does not rest with the forensic evaluator, the information obtained during the course of the IME usually plays a significant role in the decision to initiate, continue, or terminate disability benefits. As noted by Hadjistavropoulos and Bieling (2001), mistaken opinions may result either in perpetuation of an exploitative abuse of the disability system or, conversely, in the legitimately disabled person being unfairly or inadequately treated. Consequently, it is important that psychologists approach these examinations with a full understanding of the context and unique nature of disability evaluation.

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Mittenberg, W., Patton, C., Canyock, E. M., & Condit, D. C. (2002). Base rates of malingering and symptom exaggeration. Journal of Clinical and Experimental Neuropsychology, 24 (8) 1094–1102. Morey, L. C. (1991). Professional manual for the Personality Assessment Inventory. Odessa, FL: Psychological Assessment Resources. Morgan, V., Mitchell, P. B., & Jablensky, J. B. (2005). The epidemiology of bipolar disorder: Sociodemographic, disability and service utilization data from the Australian national study of low prevalence (psychotic) disorders. Bipolar Disorders, 7, 326–337. Mullahy, J., & Sindelar, J. (1993). Alcoholism, work, and income. Journal of Labor Economics, 11 (3), 493–520. National Institute of Mental Health. (2001). The numbers count: Mental disorders in America. (NIMH Publication No. 01–4584). Washington, DC. O’Connell, M. J. (2000). Prediction of return to work following traumatic brain injury: Intellectual, memory, and demographic variables. Rehabilitation Psychology, 45 (2), 212–217. Piechowski, L. D. (2011). Evaluation of workplace disability. New York, NY: Oxford University Press. Randolph, C. (1998). The repeatable battery for the assessment of neuropsychological status: Manual . San Antonio, TX: The Psychological Corporation. Rogers, R., & Payne, J. (2006). Damages and rewards: Assessment of malingered disorders in compensation cases. Behavioral Sciences and the Law, 24, 645–658. Rogers, R., Sewell, K., & Gillard, N. (2010). Structured Interview of Reported Symptoms professional manual (2nd ed.) (SIRS-2). Odessa, FL: Psychological Assessment Resources. Roh, K. S., Shin, M. S., Kim, M. S., Ha, T. H., Shin, Y. W., Lee, K. J., & Kwon, J. S. (2005). Persistent cognitive dysfunction in patients with obsessive-compulsive disorder: A naturalistic study. Psychiatry & Clinical Neuroscience, 59 (5), 539–545. Samuel, R., & Mittenberg, W. (2005). Determination of malingering in disability evaluations. Primary Psychiatry, 12 (12), 60–68. Silverton, L., & Gruber, C. (1998). Malingering Probability Scale (MPS) manual . Los Angeles, CA: Western Psychological Services. Social Security Act (42 U.S.C. § 423).

Sreenivasan, S., Eth, S., Kirkish, P., & Garrick, T. (2003). A practical method for the evaluation of symptom exaggeration in minor head trauma among civil litigants. Journal of the American Academy of Psychiatry and the Law, 31 (2), 220–231. Stordal, K. I., Lundervold, A. J., Egeland, J., Mykletun, A., Asbjørnsen, A., Landrø, N. I., . . . Lund, A. (2004). Impairment across executive functions in recurrent major depression. Nordic Journal of Psychiatry, 58 (1), 41–47. Strasburger, L. H., Gutheil, T. G., & Brodsky, A. (1997). On wearing two hats: Role conflict in serving as both psychotherapist and expert witness. American Journal of Psychiatry, 154, 448–456. Sumanti, M., Boone, K., Savodnik, I., & Gorsuch, R. (2006). Noncredible psychiatric and cognitive symptoms in a workers’ compensation “stress” claim sample. Clinical Neuropsychologist, 20 (4), 754–765. Taylor, S., Wald, J., & Asmundsom, G. (2006). Factors associated with occupational impairment in people seeking treatment for posttraumatic stress disorder. Canadian Journal of Community Mental Health, 25 (2), 289–301. Thompson, J. M., Gray, J. M., Hughes, J. H., Watson, S., Young, A. H., & Ferrier, I. N. (2007). Impaired working memory monitoring in euthymic bipolar patients. Bipolar Disorders, 9 (4), 478–489. Tombaugh, T. N. (1996). Test of Memory Malingering. Toronto, Ontario: MultiHealth Systems. U.S. Department of Health and Human Services. (1999). Mental health: A report of the surgeon general . Rockville, MD: USDHHS, Substance Abuse and Mental Health Services Administration, Center for Mental Health Services, National Institutes of Health, National Institute of Mental Health. Wadsworth, E. J. K., Moss, S. C., Simpson, S. A., & Smith, A. P. (2005). SSRIs and cognitive performance in a working sample. Human Psychopharmacology: Clinical & Experimental, 20, 561–572. Widows, M. R., & Smith, G. P. (2005). Structured Inventory of Malingered Symptomatology professional manual . Odessa, FL: Psychological Assessment Resources. Williams, C. W., Lees-Haley, P. R., & Djanogly, S. E. (1999). Clinical scrutiny of litigants’ self-reports. Professional Psychology: Research and Practice, 30 (4), 361–367.

CHAPTER 10

Assessing Employment Discrimination and Harassment NANCY L. BAKER, MELBA J. T. VASQUEZ, AND SANDRA L. SHULLMAN

OVERVIEW AND SCOPE OF THE DISCUSSION 225 THE LEGAL LANDSCAPE: CIVIL RIGHTS ACT OF 1964 226 RELEVANT PSYCHOLOGICAL ISSUES 234

COMBINING LEGAL ISSUES AND SOCIAL SCIENCE: PSYCHOLOGISTS’ ROLES IN COURT 236 CONCLUSION 242 REFERENCES 242

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process of establishing what is required for equal employment opportunity has unfolded. This chapter briefly traces the legal developments and the key issues in that process, highlighting some of psychology’s contributions. The next section identifies relevant issues for psychologists assisting the courts in applying and further refining the relatively settled legal understandings. This is followed by suggestions for psychologists performing evaluations relative to emotional damages associated with discrimination and harassment. Finally, there are some suggestions for further research that might be of value in the adjudication of issues related to employment discrimination and harassment. Employment discrimination and harassment occur in the workplace for a variety of reasons. The Civil Rights Act of 1964 identified race, sex, religion, and national origin as categories where legal protection from discrimination was needed. Additional laws, notably the Age Discrimination in Employment Act (ADEA) and the Americans with Disabilities Act (ADA), have added protection against discrimination based on age and disability status (also see Chapter 12 in this volume). More recently, discrimination due to genetic factors has been added to the list of prohibited actions. While this chapter specifically addresses only those issues covered under the Civil Rights Act, many of the psychological concerns for any type of employment discrimination are parallel. Additionally, as the Equal Employment Opportunity Commission (EEOC) notes, age discrimination and harassment claims parallel

In the not-quite-half-century since the passage of the Civil Rights Act of 1964, the area of employment discrimination has gone from nonexistent to relatively settled law. Interpretation of the Act has been the subject of legions of court decisions at all levels, including five decisions by the U.S. Supreme Court that will be discussed here. Twice Congress has amended or added to the Civil Rights Act at least in part because of Supreme Court decisions. The first congressional action was the Civil Rights Act of 1991, which, among other things, clarified eligibility for damages and the proof required to establish harm. More recently, the Lilly Ledbetter Fair Pay Act of 2009 reinstated the practice of considering each act of pay inequity due to discrimination to be grounds for legal action. This Act was in response to the Supreme Court’s decision in Ledbetter v. Goodyear Tire and Rubber (2007), which overturned the practice of considering each new incident of pay inequity as part of a continuing violation. The Lilly Ledbetter Fair Pay Act relaxed the statute of limitations under various civil rights laws and allows workers more time to file complaints for pay discrimination, among other civil rights employment violations. Because the injuries that result from harassment and discrimination in the workplace are frequently behavioral and emotional, psychology and psychologists have been involved in the policy conversation among administrative bodies, the judicial system, and lawmakers as the

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Civil Rights claims because “the substantive prohibitions of the Age Discrimination in Employment Act (ADEA) were copied verbatim from Title VII” (EEOC, 2006, Compliance Manual, Section 615.11, 6/87). Claims under The Americans with Disabilities Act are addressed separately in Chapter 12 of this volume. Just as discrimination and harassment can occur for a variety of reasons, it is also true that the consequences of discrimination and harassment in the workplace can give rise to a variety of legal claims or actions. These include claims or actions under worker’s compensation, unemployment, and state or local civil rights statutes and ordinances in addition to federal civil rights claims. Additionally, severe or pervasive harassment may also give rise to various common law tort claims for injuries, including negligent or intentional infliction of emotional distress, assault and battery, false imprisonment, or invasion of privacy (Lindermann & Kadue, 1999). This chapter focuses on federal litigation of civil rights statutes. Although state laws and standards frequently follow federal laws and standards, state law claims are not addressed specifically, given the variability of state statutes. Worker’s compensation claims for the psychological consequences of harassment are not covered here because the legal issues and legal standards are different from those that apply to civil rights claims. Additionally, as with state civil rights claims, there is a wide variability in the legal standards for what is compensable and what constitutes evidence among state jurisdictions. For example, the issue of whether harassing conduct that does not include physical assault and results in a purely psychological injury is compensable as a workplace injury varies from state to state. Psychologists familiar with worker’s compensation should be careful to distinguish between the psycholegal issues involved in those cases and the psycholegal issues in civil rights cases. For example, worker’s compensation cases often involve questions of apportionment of causation and harm that are not relevant to injuries in civil rights cases. Sorting out the complexities of the law is generally the task of attorneys, not psychologists. Thus, psychologists participating in types of legal proceedings or jurisdictions in which they have not previously participated should ask the attorneys with whom they are working to clarify the nature of the psycholegal issues and standards of evidence. Those clarifications will ensure that the psychologist is addressing the appropriate psycholegal issues and standards.

THE LEGAL LANDSCAPE: CIVIL RIGHTS ACT OF 1964 Title VII of the Civil Rights Act of 1964 made it unlawful to discriminate in employment matters based on race, color, religion, sex, and national origin (Pub. L. 88-352). It can be difficult for individuals who have grown up in the years since the passage of that Act to imagine employment practices in the United States prior to the Civil Rights Act. Women worked in a very limited range of occupations, mostly service roles. Non-White workers, both male and female, also had very limited employment options, mostly the dirtiest, most dangerous, least stable, and/or lowest paid. Employment advertisements routinely listed opportunities as available to only men or only women and often further segregated the offerings based on race. The thought of opening the newspaper or, in our current time, the online job listings to “Help Wanted” ads titled “White Men,” “Black Men,” “White Women,” and “Black Women” seems utterly bizarre to younger individuals. The notion that women or non-White men were deemed categorically unqualified for many jobs simply because they were not White or male is incomprehensible. Yet, that was the norm less than 50 years ago.

Discriminatory Barriers The ubiquitous and ingrained nature of the assumption that work opportunities should be gendered is underscored by the fact that sex was included as one of the prohibited categories in the Civil Rights Act through an amendment offered by congressmen hoping that this addition would result in the bill’s defeat. Many jobs, such as policeman and fireman, were explicitly gendered. Other occupations were gendered by custom and a variety of discriminatory practices. For example, a variety of laws ostensibly designed to protect women by limiting the weight women could be required to lift or the hours they could be required to work were used by employers, sometimes with the cooperation of labor unions, to label women unqualified to hold a number of jobs (Freeman, 1984). Even with the passage of the Civil Rights Act, job segregation by gender and race did not disappear. Data collected in both 1969 and 1979 found the majority of women of all races still worked in fewer than 30 of the several hundred occupations tracked by the Bureau of Labor Statistics (Rytina, 1981). In 1975, a full decade after the Civil Rights Act, significant numbers of black

Assessing Employment Discrimination and Harassment

men were employed in less than 40% of the full-time occupations in which white men were employed (Rytina, 1981). Not surprisingly, much of the early work in clarifying and applying Title VII involved challenges to the system of overt gender and racial segregation in job opportunities. The Civil Rights Act permitted people in the protected groups to be categorically excluded from employment opportunities when there was a legitimate business necessity for that exclusion. Popular beliefs about the “natural” inferiority of various groups and the physical or mental demands of some positions were the foundation for justifications of inequality. For example, in the late 1960s, the idea of women working as patrol officers for law enforcement agencies was viewed by some Los Angeles Police Department (LAPD) executives as equivalent to expecting an NFL team to hire women to play on the offensive line (Felkenes, Peretz, & Schroedel, 1993). As a result, it took a lawsuit and consent decree to get women hired as LAPD officers. Social science researchers, including psychologists, invested considerable effort in debunking what had previously been the received wisdom that women were intellectually inferior to men, and emotionally unsuited for many occupations, and that participation in various activities and professions might damage women’s reproductive capacities (Baker, 2006; Bohan, 2002; Hyde 2005). In addition to challenging the notion that women were categorically inferior, psychologists and other social scientists pointed out that group differences, such as between men and women in height or upper body strength, do not prevent individual members of the less tall or less strong group from being taller or stronger than many in the other group. Thus, specific job requirements rather than categorical exclusions are generally the legal requirement (EEOC Compliance Manual, 2006). Simply eliminating the formal barriers blocking access to employment equality was not sufficient to actually create equal employment opportunities (Bergmann, 1986). A variety of challenges remained, including questions about the legal status of circumstances where the same standard or practice was applied to all persons but resulted in a different outcome—referred to as disparate impact. Additionally, there are issues concerning the effects of prejudice or stereotyping on subjective evaluations as well as questions about what constitutes a modification of the work environment. Psychological research examining stereotyping and prejudice, social stigma, group dynamics, gender, and information processing provided the courts

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with important information relevant to these issues and will likely continue to do so in the future. For a full review of the various areas of psychological research relevant to these issues, see The Handbook of Social Psychology (Fiske, Gilbert, & Lindzey, 2010). Disparate Impact or Disparate Treatment Once employment opportunities had to be open to all qualified applicants, the issue of what standards or requirements were acceptable as qualifications became central. Disparate impact cases involve claims that a particular group is unfairly affected by a standard or practice. For example, a requirement that only individuals over 6 feet tall can hold a job would negatively impact women generally, as well as both women and men from some racial/ethnic groups. The U.S. Supreme Court in 1971 (Griggs v. Duke Power Co.) first upheld the position that Title VII prohibited standards that were discriminatory in their effect unless the standard could be shown by the employer to be a business necessity. In disparate impact cases the complaining party need not claim or demonstrate that the disparate impact was due to any desire or intent to discriminate, only that the standard or practice results in discriminatory outcomes. In 1989, the U.S. Supreme Court ruled that in such cases, the complaining party must establish not only that there is a statistical difference between two classes of persons but that a specific employment practice or standard is involved in creating that difference (Wards Cove Packing Co. v. Atonio, 1989). Other aspects of that decision that made it more difficult for plaintiffs to prove discrimination were superseded by provision of the Civil Rights Act of 1991. Once the complaining party has proven a claim of disparate impact, the burden is on the employer to demonstrate that the practice or standard is the result of business necessity. Furthermore, the Civil Rights Act requires that even when a test can be shown to accomplish some legitimate business need, it can still constitute discrimination if the employer failed to use an available but less discriminatory method. Obviously, social science methods and social science expertise can be useful in disparate impact cases, particularly when evaluating tests used for employee selection (EEOC, 2010). Because discriminatory intent is generally not an element of disparate impact cases, there are limits on the types of damage awards. For example, punitive damages can be awarded only for intentional discrimination.

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Discriminatory Decisions: Stereotyping and Prejudice One of the serious impediments to equal opportunities in employment is the problem created by the subjective nature of evaluative processes. The subjective nature of evaluative decisions creates fertile ground for bias (Kawakami & Dovidio, 2001). One of the more persistent and consistent findings is that women and people of color are evaluated less favorably than male or white actors on the basis of the same behaviors or even the exact same record (Deaux, 1998; Dovidio, Glick, & Rudman, 2005; Eagly & Diekman, 2005; Fiske, 1998; Nelson, 2005; Vescio & Biernat, 2002). In a meta-analysis covering 30 years of research, Davison and Burke (2000) found that individuals are also evaluated less positively despite equal qualifications when they apply for “opposite-sex” jobs. Women, particularly when tasks involve leadership, are often vulnerable to evaluations based on gender stereotypes and sex-role assumptions (Eagly & Diekman, 2005; Eagly & Karau, 2002). Blacks are often assumed to be less competent or less intelligent (Fiske, 2010; Steele, 1997; Steele & Aronson, 1995). These evaluation differences occur despite the beliefs of individual evaluators that their decisions are not based on prejudice (Ashburn-Nardo, Voils, & Monteith, 2001; Dovidio & Gartner, 2000; Fiske, 2001). Human information processing and memory contribute to both the biased nature of decisions and our belief in the unbiased nature of those decisions (Deaux, 1998; Fiske, 1998). We find what we expect to find (Chen & Bargh, 1997; Klein & Snyder, 2003; Kunda & Sinclair, 1999). The schemas available distort the attributions and evaluations that humans make (Seta, Seta, & McElroy, 2003; Sherman, Stroessner, Conrey, & Azam, 2005; Wigboldus, Dijksterhuis, & van Knippenberg, 2003). Additionally, those without power, the protected categories in employment discrimination cases, are more likely to be stereotyped because the powerful have less need to obtain accurate information about the less powerful (Fiske, 1993). The effects of stereotyping and prejudice, which Fiske (2010) suggests include evaluations along dimensions of competence and warmth, can result in discriminatory decisions about hiring, training, promotion, and retention. Interestingly, stereotyping, prejudice, and the subjective nature of evaluations can be remedied either at the group level through efforts to require employers to engage in targeted practices in hiring, training, and promotion or at the individual level by evaluating whether failure

to hire, train, or promote was based on prejudice and stereotyping. The first strategy, often called affirmative action, was instituted by Presidents Lyndon Johnson and Richard Nixon. However, that strategy has been rejected in some cases by the Supreme Court, first in a decision concerning university admissions (Regents of University of California v. Bakke, 1978) and more recently in a decision regarding job promotion (Ricci v. DeStefano, 2009) and has also been viewed unfavorably by the public (Chronicle of Higher Education, 2009). When deciding cases based on the situations of individuals, there are examples of the courts adopting the understanding of stereotyping and prejudice provided by social science evidence. For example, in Price Waterhouse v. Hopkins (1989), the U.S. Supreme Court cited the testimony of social psychologist Susan Fiske. Fiske’s presentation included an analysis of the gender bias in many of the negative comments about Hopkins used to justify her employer’s failure to promote her to a position as a partner in the firm (Price Waterhouse v. Hopkins, 1989). Expert testimony on the nature of prejudice, stereotyping, gender bias, and information processing relative to the specific issues of the particular case is one role that psychologists can expect to play in cases involving employment discrimination. Discrimination on the Job: Harassment In addition to the employment barriers created by prejudice and stereotyping, individuals in these now-protected categories—women, immigrants, people of color, and individuals whose religious affiliations are viewed with suspicion or hostility—continue to find that discriminatory, offensive, or derogatory treatment interferes with their genuine access to jobs. The EEOC, which has responsibility under the Civil Rights Act for policy development and enforcement of equal employment opportunity, asserted that such harassment constitutes unlawful discrimination when it interferes with equal employment (EEOC Policy Manual, 1999). By the early 1970s, the EEOC’s administrative decisions (EEOC Decision, 1973) and the federal courts (Anderson v. Methodist Evangelical Hospital, 1972) had defined harassment as discriminatory, based on cases alleging that racial harassment is discrimination. One important aspect of the legal standards in these cases was the finding that harassment is based in animus or hostility, making it unnecessary for complaining parties to demonstrate specific discriminatory intent on the part of the actor or the employer.

Assessing Employment Discrimination and Harassment

Sexual Harassment: A Special Case The initial explanation or definition of harassment emphasized the offensive or derogatory nature of the harassing conduct. The argument that racial epithets, frequent assertions that a particular racial group is inferior, or the display of a hangman’s noose creates a hostile environment is fairly straightforward. However, by the middle of the 1970s, feminist legal scholars began to argue that unwanted sexual attention, even if ostensibly or superficially expressed in a positive manner, could also constitute discrimination (MacKinnon, 1979). The argument for this special form of sexual harassment was that women were subjected to unwanted sexual attention because they were women (MacKinnon, 1979). That is, sexual attention is not, generally, gender neutral. People receive sexual attention because of physical factors specifically linked to their sex. A boss using the power of the employer role usually does not randomly or equally direct requests for sexual favors to men and women alike. Additionally, the argument continued, most bosses were heterosexual men socialized to view the sexual objectification of women and the sexual availability of female subordinates as part of their basic rights. The male boss, thus, directs sexual attention and requests for sexual favors at the female subordinate because of their sex-linked physical attributes and because of his gender socialization. The legitimacy of the argument about the perspectives of male bosses in the 1970s was demonstrated by Coles (1986). In a review of 88 sexual harassment cases involving small businesses filed between 1979 and 1983, Coles found the most common response from the male supervisors and business owners was surprise that demanding sexual favors as a condition of employment was against the law. The first cases brought under the sexual harassment as discrimination theory dealt with the experiences of women who quit their jobs because of being pressured for sexual favors (Garber v. Saxon Business Products, Inc., 1977; Williams v. Saxbe, 1976). In one case, the plaintiff reported being regularly chased around the desk by her boss in his efforts to grab her and engage in unwanted sexual behavior. In each case, the women were the direct subordinates of male harassers, required to report, when summoned, to their harassing boss as part of their job duties. In both cases, the men used these encounters, which were created by their supervisory authority, as an opportunity to seek sexual favors. In both cases, the women articulated their desires for the behavior to cease, but it did not.

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Initially, the lower courts were not supportive of the argument that this type of conduct represented employment discrimination based on sex (Williams v. Saxbe, 1976). The courts held that the conduct was the private and personal action of the pursuer (in these cases, male supervisors), directed at the pursued (female subordinates). Within several years, as some of these cases made their way through appellate courts, the role of the employment relationship in the harassment was acknowledged and sexual harassment was held to be an unlawful form of sex discrimination. The legal argument is that sexual harassment is unlawful not because it is sexual but because the recipient of the harassment is being targeted for the conduct because of her (or his) sex. EEOC Guidelines In 1981, the Equal Employment Opportunity Commission (EEOC) provided a definition of sexual harassment: Harassment on the basis of sex is a violation of Sec. 703 of Title VII (of the US Civil Rights Act of 1964). Unwelcome advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: 1. submission to such conduct is made either explicitly or implicitly a term or condition of the individual’s employment; 2. submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or 3. such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive work environment. (EEOC Guidelines on Sexual Harassment, 45 Fed. Reg. 74676, 1980)

The EEOC definition clarified and formalized the rationale that had been developed in the early appellate decisions defining sexual harassment as a form of sexual discrimination. One important difference between sexual harassment and other forms of harassment, including harassment based on sex that is not sexual in nature, is that sexual harassment must be unwelcome. A distinction between unwelcome sexual behavior and mutually desired sexual interactions is necessary since, unlike such things as racial epithets and slurs, which are presumed to be based in animus or hostility, flirtations or sexual encounters can be mutually desired. The 1980 EEOC definition is still in use although it has been refined and developed by court decisions over the years.

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The EEOC’s definition of sexual harassment was first upheld by the U.S. Supreme Court in the Court’s decision in Meritor Savings Bank v. Vinson (1986). In Meritor the plaintiff had engaged in a multiyear sexual relationship with her supervisor. In the decision, the Court noted that “unwelcome” is not the same as involuntary, and that neither physical force nor explicit threat of adverse employment action is necessary for sexual advances to be unwelcome. This has been interpreted to mean, for example, that in a situation where dating the boss is seen as the best or only way to get a raise, an employee could complain of sexual harassment even if that employee accepted the request for a date. The standard for what constitutes unwelcomeness, like the standard for what constitutes a hostile work environment, is not encompassed in a list of specific actions or statements that are considered unwelcome. Instead, the situation must be evaluated in context. In general, such factors as verbal and nonverbal indications of disapproval, discomfort, disinterest, or disdain are part of the evidence. Some courts will allow evidence about the complaining party’s behavior, including style of dress, as evidence of the welcomeness of the behavior. Considerable social science data about what constitutes harassment and how women respond to behaviors that they find offensive have been collected (Baker, 1995; Bergman et al., 2002; Fitzgerald et al., 1997a, 1988; Fitzgerald, Swan, & Fisher, 1995; Fitzgerald, Swan, & Magley, 1997b; Frazier, Cochran, & Olson, 1995; Hurt, Maver, & Hofmann, 1999; Wiener et al., 2002). The evaluation of whether conduct was welcome in any particular case is one of the areas where social science research and the expertise of psychologists may be of use to the trier-of-fact. An additional issue addressed in the Meritor case is the fact that there need not be an adverse job action for Title VII liability to exist. A hostile work environment can, itself, be the basis for a legal claim. This is an important issue concerning the use of psychological expertise in Title VII cases because often, especially for employees in low-paying jobs, the main damages that an individual will claim in such cases is for the psychological consequences of the hostile environment. Altering the Conditions of Employment In addition to supporting the EEOC’s definition of sexual harassment, the Supreme Court’s decision in Meritor, in which a female employee alleged discrimination based on the demands for sexual favors by her male supervisor over a number of years, affirmed the discriminatory nature of

workplace harassment. In that case the Court affirmed that employers have a duty to provide employees with a workplace free from hostility, intimidation, or insult based on race, sex, color, religion, or national origin (Meritor Savings Bank v. Vinson, 1986). In the discussion of liability for harassment, the Court affirmed that employers have a duty to prevent foreseeable harassment. Additionally, employers have a duty to end harassment that is occurring if the employer knows or should have known about it. Critics have argued that imposing on employers this duty to prevent or end harassment represents a governmentcreated code of civility or “manners police.” In response to such concerns, the majority opinion of the U.S. Supreme Court (Meritor, 1986) and the EEOC (EEOC, 1990) clarified that the harassment must be sufficiently severe to alter the conditions of employment. This issue of what level of harassment, ridicule, hostility, and/or insult is sufficient to alter the conditions of employment has been the focus of considerable attention in the courts. Extensive legal debate around what was required to prove that the conditions of employment had been altered occurred in various courts for over a decade. In some appellate court jurisdictions, the standard was that the conduct had to be so severe that the individual suffered a diagnosable psychological injury that was included in the Diagnostic and Statistical Manual of Mental Disorders that was in effect at that time (DSM-III ; APA, 1980). The U.S. Supreme Court addressed this issue in Harris v. Forklift Systems, Inc. (1993). The Sixth Circuit Court of Appeals had developed a standard requiring that the harassing conduct must be so severe that it interfered with a person’s work performance and seriously affected the individual’s psychological wellbeing. Using that standard, the appellate court had rejected the claim of the plaintiff in Harris v. Forklift Systems, Inc. (1993). In this case, Harris, the only female in her job classification, complained about her boss, a man described by the court as crude and offensive. He made derogatory and demeaning remarks about women generally and Harris specifically. He required Harris to retrieve objects from his pants pockets and pick up items that he intentionally dropped on the floor. Furthermore, although he sometimes made remarks with sexual references, for example, asking if Harris had gotten a contract by promising to sleep with the client, there was no evidence or suggestion that the boss was attempting to solicit sex from Harris. His conduct was, however, upsetting and humiliating to Harris, resulting in her decision to resign and file a complaint. The Sixth Circuit denied Harris’s claim on the grounds that there was no evidence that she suffered a significant

Assessing Employment Discrimination and Harassment

injury even though they agreed that her boss’s conduct was both pervasive and offensive. The U.S. Supreme Court rejected the Sixth Circuit standard of psychological injury (Harris v. Forklift Systems, Inc., 1993), noting, a “discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers” (p. 22). The Court went on to state that, even when there is no tangible effect, there is a violation of Title VII when the “discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their race, gender, religion, or national origin” (p. 22). Some had hoped that the Supreme Court would use the Harris ruling to specify what actions create an abusive environment, or what effects are characteristic of abusive environments (Zigarelli, 1995). However, in the Harris decision the Court held that in addition to considering welcomeness, severity, and pervasiveness, the conduct must be evaluated in context. Although the Court noted that a single incident of severe harassment could be enough, the determinations must be made on the record as a whole and “by looking at all of the circumstances” (Harris v. Forklift Systems, 1993, p. 2), including the nature of the conduct and the context in which it occurred. With the Harris decision the Court further clarified that the standard for what is offensive has both an objective or common understanding requirement and a subjective requirement. In 1994, the EEOC issued policy guidance on the two criteria developed in the Harris decision for a hostile environment. The EEOC guidance noted that the criteria are: (a) that the conduct must be sufficiently severe to be objectively offensive to a reasonable person similarly situated; and, (b) that the complaining party must have been subjectively offended (EEOC, 1994). The Harris decision clarified that it is not necessary for plaintiffs to be suffering from a diagnosable psychological injury in order to have a claim of hostile environment harassment. However, the task of assisting the trier-of-fact in determining whether a hostile environment has been created remains one where psychological evidence and expertise can be of assistance. Considerable psychological research has accumulated about what people consider offensive and what they label as harassment. In reviewing that research, Fitzgerald and Collinsworth (2008) conclude that it is remarkably consistent, even on issues that generate substantial debate and theorizing in the legal arena. That research suggests that the Court “got

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it right” when it refused to set a specific list of criteria for what constitutes “enough” in defining a hostile work environment, stressing the importance of evaluating the specific situation in each case. Thus, psychologists and the courts they are attempting to assist need to determine whether the plaintiff experienced emotional distress as a result of the conduct in question, regardless of whether his or her distress meets criteria for a mental disorder included within the current version of the DSM. There are three general questions important for the objective and subjective evaluative component: How pervasive was the conduct, how severe was the conduct, and what was the context of the conduct? That last issue, context, includes a variety of factors such as organizational climate, the relative power of the perpetrator, and the degree to which the target feels powerless. These factors interact with one another in determining how the conduct will be viewed and what the outcome of the experience for the target will be (Barreto, Ellemers, & Fiske, 2010; Langhout et al., 2005). In terms of the requirement that the complained-about conduct must be objectively offensive, there is evidence that men in the United States are less likely than women to label behavior as sexual harassment when dealing with less severe conduct (Isbell, Swedish, & Gazan, 2005; Pryor, Giedd, and Williams, 1995; Rotundo, Nguyen, & Sackett, 2001). This finding is supportive of the notion that the objective standard’s reference should include gender. However, this difference between U.S. men and women is reduced when dealing with physical assault, sexual bribery, and other less ambiguous issues (Frazier, Cochran, & Olson, 1995). It is also less marked in other countries (McCabe & Hardman, 2005) and is reduced by training concerning sexual harassment (Antecol & CobbClark, 2003). The finding that training changes labeling of what behaviors constitute sexual harassment is a strong reminder that sexual harassment is, at some level, a legal term or construct. How questions are asked may be important. The questions, “What do you think is legally considered sexual harassment?”; “What do you think should be legally considered sexual harassment?”; and “What do you find offensive?,” are not synonymous. For example, in the 1980s, women who reported being so distressed by gender harassment and sexist hostility that they resigned or considered resigning from their jobs did not routinely label those experiences as sexual harassment although something that causes a person to quit a job would appear to have altered the work environment (Baker, 1995; Fitzgerald et al., 1988; Fitzgerald & Shullman, 1993).

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Same-Sex Harassment: Gender and Sexual Orientation Hostility Federal civil rights law and most state fair-employment statutes do not include sexual orientation as a protected category. In most jurisdictions, there is no explicit legal protection from discrimination or harassment based on the target’s sexual orientation. In some instances, the argument that the offensive conduct is due not to sex or gender issues but rather to hostility toward the target’s sexual orientation has been raised as a defense. Nonetheless, courts have, in many cases, found same-sex sexual harassment to be a violation of Title VII of the Civil Rights Act of 1964. This issue resulted in a variety of decisions and theories among the various jurisdictions of the U.S. Federal Courts of Appeals. Some Courts held that such claims required that the harasser be a homosexual (McWilliams v. Fairfax County Bd. of Supervisors, 1996), arguing that only homosexuals would be targeting another individual of the same sex due to that person’s sex. Others held that the issue focused on whether members of one sex were faced with different conditions of employment than members of the other sex (Quick v. Donaldson Co., 1996). The Seventh Circuit Court of Appeals held that anyone experiencing offensive conduct of a sexual nature could state a claim for sexual harassment, regardless of the gender or sexual orientation of the harasser or the target of the harassment (Doe v. City of Belleville, 1997). The Fifth Circuit Court of Appeals took a position to the contrary, ruling that no claim for sexual harassment could exist for male-on-male harassment (Garcia v. Elf Atochem N. Am., 1994; Oncale v. Sundowner Offshore Oil , 1996). In 1998, the U.S. Supreme Court reversed the Fifth Circuit’s ruling in Oncale, noting that nothing in Title VII of the Civil Rights Act of 1964 bars a claim because the plaintiff and the harasser are of the same sex (Oncale v. Sundowner Offshore Oil, 1996). However, the Supreme Court also limited the more sweeping definition of the Seventh Circuit in the Doe case, noting that the harassment must be discriminatory based on the plaintiff’s gender. This decision has given rise to the “equal opportunity harasser” line of defense in harassment cases, where it is argued that both men and women are faced with the same objectionable conduct. Various psychological theories and bodies of social science evidence may be of use in the further sorting of these claims. For example, research by Pryor and his colleagues (Pryor et al., 1995) suggests that the same behavior is not interpreted, labeled, or experienced in the same way

by men and women. Other research (Waldo, Berdahl, & Fitzgerald, 1998) indicates that men and women differ in their psychological reaction to harassment experiences. Some of the most relevant research comes from those suggesting that much of same-sex harassment is, like other forms of gender-based hostility, designed to police the boundaries of appropriate gender behavior and racial hierarchies (Berdhal & Moore, 2006). Stockdale and her colleagues (Stockdale, Gandolfo, Schneider, & Cao, 2004; Stockdale, Visio, & Batra, 1999) have tested predictions about male-to-male harassment based on this theory of harassment as enforcement of gender behavior and found some empirical support. The two functions of creating or enforcing power hierarchies by establishing “who is the man” and punishing deviations from male gender roles may well explain much of the harassment of men by other men. Liability for the Conduct of Supervisors The last two significant Supreme Court cases concerning sexual harassment relate to the issue of employer liability for supervisor’s conduct. This had also been one of the issues in the Meritor Savings Bank v. Vinson case. Specifically, the question is: Under what circumstances are employers liable for the harassing conduct of their supervisors? At one extreme, the argument was that an employer is always liable for the actions of supervisors because the supervisor is acting as the agent of the employer. At the other extreme, the argument was that, unless the act of sexually harassing employees was part of the supervisor’s job, the employer should be liable only if the employer was negligent. Negligence in this context has been defined as: The employer knew or should have known and failed to exercise reasonable care to prevent or promptly correct the harm (Burlington Industries, Inc, v. Ellerth, 1998). Although the Meritor case was a sexual harassment claim, the Court’s analysis applied to all Title VII harassment. In the first 12 years following the Meritor decision, the lower courts centered the issue of employer liability on the questions of quid pro quo versus hostile environment harassment. This meant that, if submitting to the harassment was a condition of employment, there was absolute liability for the supervisor’s conduct; if not, the negligence standard would apply. This led to a variety of arguments that sought to expand or limit the definition of what constituted a quid pro quo claim. In 1998, the U.S. Supreme Court issued two decisions, further clarifying the issue of employer liability for supervisor harassment

Assessing Employment Discrimination and Harassment

(Burlington Industries v. Ellerth, 1998; Faragher v. City of Boca Raton, 1998). In these cases, the Court stressed that the issue is best framed in terms of whether a formal adverse job action was taken. The Court stated: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defendant employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of evidence. . . . The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. . . . No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action such as discharge, demotion, or undesirable reassignment. (Burlington Industries v. Ellerth, 1998, p. 7)

Following these two decisions, the standard for employer liability can be summarized with relative clarity. The employer is deemed liable for co-worker harassment about which it knew or should have known. This is considered the negligence standard. The employer is liable for the actions of supervisors whether the employer knew about them or not; that is a vicarious liability standard. However, where there was no tangible adverse action, the employer’s liability is subject to the affirmative defense outlined in the decision. That same affirmative defense is often applied in co-worker harassment cases, especially in the determination of damages. The standard articulated in the Faragher and Ellerth decisions raises issues that, again, benefit from the evidence from social science research and psychological expertise. In addition to the issues related to liability for the actions of supervisors, the Court made several other important points in these two decisions. One was an acknowledgment that some of the Court’s analysis of an employer’s responsibility for sexual harassment was a reflection of the now-common awareness that sexual harassment in the workplace is a problem. It is unlikely that supervisors today would be surprised to learn that demanding sexual favors of a female employee as a condition of employment is unlawful. It is not reasonable for employers to claim that they are shocked to learn that women working in male-dominated occupations might be subjected to harassment or even that supervisors might use their authority to engage in harassing conduct.

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Another important point was a further statement of the Court’s desire to treat the various aspects of Title VII claims in a similar manner whenever possible. However, the Court did also note that the translations will not always be completely verbatim. Nonetheless, various aspects of the policy guidance from the EEOC relative to issues of harassment are now essentially the same across all the categories entitled to Title VII protection. The Supreme Court has not issued any rulings on employment harassment issues since these 1998 decisions. The major expansions have been clarifications by the EEOC, primarily in the Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (EEOC, 1999). One of those clarifications is that these decisions and the standards set there apply to all forms of harassment prohibited by Title VII. Another key clarification by the EEOC concerns the affirmative defense employers may raise. Part of that guidance deals with the issue of unreasonable failure to use a complaint procedure. In that guidance the EEOC defines important aspects of a good complaint procedure, including flexibility of procedures, and the importance of adequate protection from retaliation. Despite the EEOC clarifications, social science expertise and research may be useful in understanding the issue of whether the employee unreasonably failed to use an available complaint procedure. Perhaps in part because of its legal significance, when and why individuals do and do not complain has been the subject of considerable social science research. Importantly, the research has frequently moved beyond the simple focus on individual harassers or individual victims to examine the organizational contexts in which harassment takes place. This is consistent with the Court’s discussion in Faragher about the importance of benefiting employers who take positive actions to end discrimination. The tolerance of the organization for sexual harassment was included in a model of sexual harassment developed by Fitzgerald and her colleagues (Fitzgerald, Hulin, & Drasgow, 1994). They developed a measure of this organizational tolerance for sexual harassment (OTSH; Hulin, Fitzgerald, & Drasgow, 1996) and tested it on predictions of formal sexual harassment complaints by targets and found that the organizational tolerance for harassment, which includes the expectations about whether complaints will be taken seriously and whether targets will suffer negative consequences for complaining, explains a substantial amount of the variance in predictions of complaints (Fitzgerald et al., 1997a). In other words, when there is an expectation that complaining about harassment will lead

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to negative consequences for the complaining party but be relatively ineffective in bringing about change, people are unlikely to complain. Willness, Steel, and Lee (2007) conducted a large meta-analysis and found that OTSH was a significant factor in the level of harassment found, explaining twice as much of the variance as the gendered context of the job. These findings suggest that the more common harassment is in a workplace, the less likely it is for it to be reasonable to expect somebody to use a complaint procedure.

Summarizing the Law As noted earlier, the legal issues in the interpretation and application of Title VII to employment discrimination are relatively settled: • Harassment is a form of employment discrimination. • People need not have suffered from a tangible employment act in order to invoke Title VII. • Sexual harassment is a form of harassment on the basis of sex. • Same-sex harassment is actionable when due to a person’s sex or gender even though sexual orientation is not a protected category. • Employers are liable for co-worker harassment under a negligence standard, that is, knew-or-should-haveknown and failed to act promptly and effectively. • Employers are liable for supervisor harassment but may offer an affirmative defense if there has not been an overt job action. • Retaliation for complaining about discrimination or for speaking up about the discrimination against or harassment of another is also actionable. One additional issue currently receiving attention in social science and scholarly legal circles is the recognition that people are not one-dimensional. Humanity cannot be separated into mutually exclusive groups of people who can be distinguished on the basis of race, sex/gender, religion, or national origin. All of these categories apply to all people. Title VII does not explicitly require the procedural standard of legal actions that often require individuals to articulate which of the protected categories is the basis of any complained-about discrimination or harassment. This issue has received relatively little recognition in the courts, although the current EEOC Policy Guidance specifically references the issue of intersectionality, noting that individuals may be the targets of multiple forms of discrimination simultaneously (EEOC, 2006, p. 8).

Social science research is beginning to address this issue of the intersections of categories in greater detail (Berdahl & Moore, 2006; Buchanan & Fitzgerald, 2008; Cortina, Fitzgerald, & Drasgow, 2002). Not surprisingly, research indicates that individuals in multiple devalued categories are likely to experience higher levels of harassment. However, such individuals may have difficulty deciding “what kind of harassment” they are experiencing. If a Latina is referred to hostilely as, “You [insert racial epithet]-[insert derogatory term for females or female anatomy],” should she conclude that she was the target of racial harassment or sexual harassment? As one learned scholar remarked, the problem with intersections is that accidents happen there and people get run over in them. At some time in the future, this conflict between the legal preference for categorical clarity and the social reality of simultaneous multiple social locations may be addressed explicitly by the Courts.

RELEVANT PSYCHOLOGICAL ISSUES Many of the issues concerning employment discrimination and harassment about which psychological research is relevant were touched on in the summary of the development of the law. However, it may be of use to briefly summarize the major issues and identify some of the relevant social science research. This should be understood as merely a guide on the literature to review should one wish to be conversant at the expert level on any of these topics. A quick search of the Psych Info database reveals that between 1991 and 2011, there have been over 1,100 articles with sexual harassment in the title. Even more address the topic without listing it in the title. Since 2001, more than 1,000 articles mention sexual harassment in the article abstract. Even the less discussed issue of race-based discrimination and harassment, more often discussed in terms of the stress of racism, has been the subject of several hundred articles during that time period. A full review of the relevant literature in each of these areas could be the subject of a complete chapter in a volume on discrimination and harassment.

Abuse History Not Predictive of Harassment Complaints Psychologists who evaluate litigants alleging sexual harassment are undoubtedly familiar with the defendant’s assertion that the complaining party either misperceived

Assessing Employment Discrimination and Harassment

otherwise-innocent behavior because of some psychological problem—usually a personality disorder and/or abuse history—or is experiencing negative consequences only because of hypersensitivity due to that same underlying problem. A variant of this line of reasoning is that the complaining party is acting out some hypersexualized se-quel-ae of an abuse history in a manner that has enticed an otherwise-innocent supervisor into sexual interactions. Perhaps because of the surface appeal of this explanation and the frequency of its use in actual sexual harassment lawsuits, it has been the subject of several empirical investigations that do not support this contention (Fitzgerald, Buchanan, Collinsworth, Magley, & Ramos, 1999; Fitzgerald, & Collinsworth, 2008; Stockdale, O’Connor, Gutek, & Geer, 2002.) Put simply, there is no evidence in nonlitigation contexts that past experiences of abuse make individuals hypersensitive to issues of sexual harassment, and no empirical evidence that litigants who complain of harassment are more likely to be abuse survivors. Thus, evidence of preexisting disorders and/or trauma histories does not indicate that a claim is not legitimate. It is true that any number of preexisting disorders may result in symptoms not relevant to the workplace injury, and the forensic examiner must consider such. However, harassment may cause injury to someone who is vulnerable to harm. The presence of preexisting disorders may result in a more severe response to harassment, and the examiner must explain the increase in vulnerability and severity of response in such cases. Lower Power Predicts Harassment Although abuse history does not predict complaints, level of power does. Power can be a formal matter reflected in organizational authority and titles. It can be informal power, such as the authority over resource allocation or, in the case of peer group leaders, power over group acceptance. In some cases, social power may be the result of membership in superordinate social categories such as those based on gender or race. Those in lower power positions within an organization are more likely to experience harassment (Fitzgerald et al., 1997a; Glomb et al., 1997). Minority ethnicity is one of the power dimensions that increases the experience of both sexual harassment and racial harassment (Berdahl, & Moore, 2006; Hughes & Dodge, 1997). As noted previously, there is also evidence suggesting that harassment is sometimes used to enforce gender and race norms. This includes male-to-male sexual harassment being used to enforce racial boundaries (Berdahl & Moore, 2006).

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Although the use of sexual harassment of women for the purpose of enforcing racial boundaries has not been examined, there is evidence that sexual harassment is used to punish those who violate gender norms (Deaux, 1998). Research also suggests that, in studying the harassment of racial/ethnic minorities, there are aspects of the harassment experience that represent a confluence of racial and gender bias (Buchanan & Fitzgerald, 2008; Mecca, & Rubin, 1999; Yoder & Aniakudo, 1997). This raises the concern that arbitrarily dividing discriminatory or hostile acts into race-based or sex/gender-based discrimination constitutes an artificial distortion of the actual experience of the people targeted by those acts. Additionally, there is some evidence that the choices women make about how to interpret and respond to harassment may be influenced by culture and the experiences of racism. Women in Traditionally Male Occupations In the early days of sexual harassment research, some suggested that women in traditionally male occupations were simply hypersensitive to harassment experiences and thus overrepresented in the population of complaining parties. However, research has dispelled that notion (Baker, 1995; Berdahl, 2007a, 2007b; Fitzgerald et al., 1997b; Ragins & Scandura, 1995). Women in traditionally male occupations find themselves in primarily male workgroups and face the consequences of violating gender norms, both factors that contribute to greater harassment. Beyond the information about the prevalence of the harassment faced by the women introduced into formerly all-male work domains, social psychological research on stereotyping and prejudice provides important information about the particularly difficult situation that women face in traditionally male occupations (Fiske, 1998). The high levels and frequently extreme nature of the harassment faced by women in traditionally male jobs is predicted and explained by the psychological research on group threat (Smith, 1993). The addition of women can threaten the previously male/macho identity of the workgroup, creating significant hostility. In addition to the hostility that women in such jobs encounter, their participation in male-dominated occupations may also create the stereotype-based expectation that such women are so “tough” that they will not be affected by the harassment (Baker, 1995; Burgess & Borgida, 1997, as cited in Deaux, 1998). If women in such settings are viewed as competent, they are likely to be viewed as cold (Fiske, 2010).

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The Role of Organizations In contrast to the finding that abuse histories do not make individuals more likely to complain about harassment, there is evidence that the organizational climate contributes to both the likelihood of experiencing harassment and the likelihood of complaining about it. The more tolerant the workplace is of harassment and general incivility, the more likely people are to experience harassment (Willness et al., 2007) and the less likely they are to use internal channels to complain about it (O’Leary-Kelly, BowesSperry, Bates, & Lean, 2009). It is not surprising that some research suggests that the organizational climate is more predictive of whether a legal complaint will be filed than the type or severity of the harassment itself, since in organizations where the target believes speaking up will result in greater harm, it only makes sense to make a complaint when one has decided to resign regardless of the specifics of the harassment experience (Fitzgerald, Swan, & Fisher, 1995).

Harassment Causes Harm Although harassment can and does range from verbal and environmental offense to actual physical assault, the research on harassment demonstrates the inaccuracy of the old canard that “words can never hurt.” The experience of discrimination and harassment, due to either race/ethnicity or sex/gender, can result in reduced job satisfaction, increased intent to turn-over (quit), as well as negative physical and emotional symptoms and states (Brondolo, ver Halen, Libby, & Pencille, 2011; Langhout et al., 2005; Swim, Hyers, Cohen, Fitzgerald, & Bylsma, 2003). Furthermore, various tests of the model for sexual harassment developed by Louise Fitzgerald and her colleagues indicate that pervasiveness of the harassment—as opposed to the particular form of harassment—is more predictive of negative outcomes for the targets of harassment (Fitzgerald et al., 1997a; Schneider, Swan, & Fitzgerald, 1997). There is also evidence that when the harassment includes physical assault, the outcome can be devastating. For example, research on women in the military found that sexual assault by co-workers was more predictive of PTSD than combat exposure (Kang, Dalager, Mahan, & Ishii, 2005). While this does not prove that any particular individual making a claim for sexual harassment suffered harm due to his or her unique experience, it does indicate that experiencing harm is a common occurrence rather than evidence that there must be something unusual in the psychological makeup of the harassment target.

One of the important developments in the scientific literature over the past 10 years has been the increase in research examining issues associated with harassment and race/ethnicity. This increased attention has resulted in more documentation of the harms of experiencing racial discrimination or hostility, often focusing on the negative health outcomes (Brondolo et al., 2011; Contrada et al., 2001). Much of the work on issues of race/ethnicity has focused on the health effects of racism and racist experiences more broadly, but applies to workplace experiences. Additionally, as previously noted, there has been research examining the experiences of women from specific racial/ethnic groups with sexual and sexbased harassment (Berdahl & Moore, 2006; Buchannan & Fitzgerald, 2008; Wasti & Cortina, 2002; Waugh, 2010). Reporting Is Uncommon One of the issues harassment litigation relates to is the “unreasonable failure” of a complaining party to use the internal complaint procedure that is in place. The vast majority of harassment targets do not make formal complaints (U.S. Merit Systems Protection Board, 1994). Although this reflects that targets of harassment use a variety of internal and externally focused coping mechanisms (Cortina & Wasti, 2005), it also reflects the fact that in many situations the outcomes for those who report harassing conduct are worse than for those who do not complain (Bergman et al., 2002; Cortina & Magely, 2003; Fitzgerald et al., 1997a; Stockdale, 1998). As noted previously, this leads to the paradoxical situation that reporting is least likely in organizations that are unlikely to deal with complaints in a positive way. This finding is of concern given the legal deference provided to the affirmative defense of unreasonable failure to use a complaint procedure. Without the context provided by social science research, targets of harassment in organizations where harassment is most condoned might be least likely to obtain legal remedies.

COMBINING LEGAL ISSUES AND SOCIAL SCIENCE: PSYCHOLOGISTS’ ROLES IN COURT Psychologists can play a variety of roles in relationship to individuals who are complaining of discrimination and harassment due to race/ethnicity, sex/gender, national origin, or religion. Individuals who have been the targets of harassment may enter therapy with a psychologist to help them deal with the emotional consequences of their experiences. Evaluating individuals concerning the possible

Assessing Employment Discrimination and Harassment

existence of psychological injuries as a result of workplace experiences is a different role. The American Psychological Association Ethical Principles and Code of Conduct, 2010 Amendments Section 3.05 (a) Multiple Relationships (APA, 2010), cautions psychologists against being involved in multiple roles when those relationships can be reasonably anticipated to “impair the psychologist’s objectivity, competence, or effectiveness in performing his or her functions as a psychologist” (p. 6). Forensic psychologists recognize that the two roles of treating psychologist and evaluating psychologist require different and often incompatible tasks (Greenberg & Shuman, 1997). Given this analysis, it becomes difficult to argue that potential conflicts are not reasonably anticipated to create problems for objectivity. However, attorneys do not always recognize the potential ethical conflicts for psychologists in undertaking multiple roles in employment discrimination and harassment cases. Although a full review of the literature and issues involved in this issue is beyond the scope of this chapter, psychologists not convinced of the inappropriateness of undertaking the role of providing treatment and expert evaluation in these cases are urged to further review the literature on this issue (also see Chapter 3 in this volume). In contrast, psychologists who testify in employment discrimination and harassment cases may provide testimony about the research examining the nature and effects of discrimination and harassment in the workplace and/or how these actions impacted the litigant’s emotional and behavioral functioning. Any testimony offered by psychologists in these contexts should be based in part on the relevant psychological research, including information of stereotyping, prejudice, harassment, organizational tolerance of harassment, or other psychological issues discussed previously in this chapter. The psychological literature cannot answer the question of whether a particular individual has been the target of discrimination or harassment. Nor can the research literature tell us whether an individual litigant was harmed by the experience of discrimination or harassment. However, any psychological evaluation of litigants should be informed by the relevant research.

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the construction and proper use of psychological tests and assessment tools. In performing these evaluations, the psychologist’s task is more complex than simply identifying the existence or nonexistence of a diagnosable psychological problem. In general in harassment cases, the complaining party must prove that the events occurred, that those events caused harm, and that the events are events for which the employer should be held liable. To the extent possible, all issues being considered should be assessed using multiple methods and sources of information. This process conforms to the best standards of obtaining information and formulating conclusions. Although the potential for error of each method of assessment may be higher than one would like, the probability of error decreases greatly when the same conclusion is suggested by multiple independent measures and methods. Thus, for example, it may be useful to obtain information about the incidents of alleged harassment through paperand-pencil measures or structured interviews, unstructured or semistructured interviews, collateral documentation, and collateral interviews. Similarly, when possible, psychological functioning should be assessed using psychological tests, clinical observations, plaintiff self-report, and collateral sources of information such as medical records, school records, personnel records, life history information, depositions, and third-party collateral interviews. Did It Occur? Determining whether the complained-about conduct occurred is normally an issue for the trier-of-fact. However, in some cases the issue of what occurred is not in dispute. Instead, the issues involve other legal questions. Conversely, in some cases (usually sexual harassment cases) the defense may be based on the claim that the plaintiff (usually a female) is sufficiently psychologically disturbed by preexisting conditions that she is unable to accurately report what occurred. As was noted previously, the research data do not support this scenario as a common or probable occurrence. Nonetheless, psychologists evaluating plaintiffs in harassment lawsuits, especially sexual harassment complaints, should be aware of this potential issue. Why Did It Occur?

Psychological Evaluations in Employment Discrimination and Harassment Cases In addition to knowledge of the legal standards and the relevant psychological literature, psychologists performing forensic evaluations must also have a sound foundation in psychological assessment. This includes knowledge of

This question is usually relevant only in sexual harassment cases. For the most part it is accepted that racial harassment or racist actions, religious harassment or discrimination, and harassment or discrimination based on national origin is unwelcome. However, in sexual harassment cases and sometimes in cases of harassment on the

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basis of sex (where harassment is not of an overtly sexual nature but instead consists of gender bias or gender hostility), the issue of whether the plaintiff welcomed or encouraged the conduct will be important. Psychologists attempting to provide information relevant to this question are advised to explore the subjective experience of the complaining party. In other cases, the issues may center on whether the adverse actions were the result of poor employee performance or represented either harassment or retaliation. Given the previously cited research that demonstrates poor job performance can be a consequence of experiencing discrimination and harassment, reviewing timelines can be important. Performance that deteriorates after the plaintiff reports the harassment started may actually be evidence of the psychological effects of harassment. Conversely, some poor-performing employees may be targeted for quid pro quo harassment because of their poor performance. Additionally, some individuals may decide to file complaints, legitimate or not, if they anticipate being terminated for poor performance. However, it is important to remember that the Title VII promise of a nondiscriminatory work environment was not limited to model or even good employees. Of course, in some cases, individuals whose job performance is simply inadequate may interpret any criticism or corrective action as being based in discriminatory bias, especially if those individuals have experienced discrimination in other life situations. Evaluation in such circumstances requires a comparison of how other employees are treated as complaints of biased discipline are rarely purely fabricated, but usually represent more severe consequences than others experience for errors or infractions (Deaux, 1998). It is also important for psychologists to remember that the Courts have clearly stated that unwelcome is not synonymous with voluntary. No evidence of force, threat, or other direct coercion is necessary to demonstrate that an individual did not welcome the conduct. Irritation, psychological distress, fear, or other evidence that the conduct was not welcome can be an indicator of unwelcomeness (EEOC, 1990, Policy Guidance on Current Issues of Sexual Harassment). The requirement that conduct must be objectively offensive to a reasonable person similarly situated is another issue that psychologists may be asked to consider. The research literature briefly reviewed previously provides an important baseline concerning how others view various types of conduct and the coping responses that other offended people use. The literature on harm, including the evidence that pervasive and persistent exposure

to what otherwise might seem minor slights can cause a variety of physical, emotional, and job-related problems, is very relevant. Ultimately, the issues of whether the alleged harassing or discriminatory conduct occurred, whether it was unwelcome, and whether it was both subjectively and objectively offensive and sufficient to alter the working conditions are questions for the trier-of-fact. However, a forensic psychologist may have expert opinions that will be useful to the trier-of-fact in making those determinations. That expertise needs to be based on the psychological literature. It is even more useful when knowledge of the literature is combined with the understanding gained by evaluating the complaining party. In the earlier years, particularly in sexual harassment cases, mental health experts offered opinions based on their clinical judgment that are contrary to what research data now clearly demonstrate. For example, some experts asserted that if an individual experienced conduct as severe as the plaintiff alleged, that individual certainly would have reported it. While such assertions based on clinical training and expertise may have been justifiable when there were no empirical data, now that a sufficient base of research exists, experts are advised to consider that data when formulating opinions. Was There Harm? In employment discrimination and harassment cases, one of the major tasks for which forensic psychologists are frequently retained involves the issue of Was there harm and, if there was, how much harm? More bluntly, are there emotional injury damages? In this area the tasks of the forensic psychologist are not much different from the tasks in any personal injury case. The main difference is simply the need to have sufficient knowledge about the type of discrimination or harassment involved and the harms associated with it. To answer this question of harm, the evaluator must determine whether there is evidence that (a) the plaintiff is currently showing harmful effects caused by the behavior subject to the complaint, or (b) the plaintiff has previously shown effects caused by the behavior subject to the complaint that are no longer evident. Those straightforward-sounding issues are, unfortunately, not so straightforward. The first part is relatively simple: Is there evidence that the person being evaluated either now or in the relevant timeframe showed evidence of psychological distress or injury? The typical forms of distress associated with discrimination and harassment, which may vary in severity, duration, and consequences, include depression,

Assessing Employment Discrimination and Harassment

anxiety, panic, substance abuse or dependence, traumatic stress reactions, and/or posttraumatic stress. The second part is more complex since most people have multiple sources of stress in their lives. Even the first question, as to whether there is evidence of psychological stress or distress, is not completely straightforward since psychological stress or distress can take a variety of forms, including ones that are not obviously emotional. Physiological problems frequently associated with psychological stress and distress include digestive problems, dermatological problems, and impairments in the immune system. The behavioral problems associated with stress and distress can include increased consumption of high-calorie “comfort food,” smoking, and elevated consumption of alcohol and other mind- or mood-altering substances (Brondolo et al., 2011). Psychological evaluations in these matters are facilitated by access to a variety of collateral data, including medical records, job performance and attendance records, deposition transcripts, and any contemporaneous records kept by the complaining party. The evaluator will also want a detailed personal history, often gathered via use of a personal history questionnaire, supplemented by the information gathered in a detailed personal interview. However, because much of this material will become part of the case record, some balance between the needs of the evaluator and the intrusiveness of the history questions should be maintained. This is particularly true for history questions that require a plaintiff to reveal information about third parties not involved in the legal proceeding. The possibility that reduced cooperation or defensiveness will be created by such questions needs to be examined in considering the need for the information. The evaluator needs to have sufficient information about other potential sources of stress and how they affected the plaintiff’s functioning and adjustment. Of course, stress is neither totally separable nor merely additive. Some of the harm from an event may result precisely because it came at a time when there were other sources of stress in the individual’s life depleting that person’s coping resources. An event can be the proximate, or “but-for,” cause of harm even if the event caused the outcome only because other factors had created the vulnerability or opportunity for that harm. Thus, an evaluator needs to distinguish between cases in which other stressors caused the complained-about psychological harm and those where other stressors created an increased vulnerability that resulted in injury because of the workplace problem.

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One issue that is raised in evaluations of personal injury claims is the task of distinguishing between the stress of the complained-about injury and the stress of litigation. The first is compensable while the second is not. This issue is complicated in discrimination and harassment claims because what might be called the stress of the lawsuit actually has two components. One component is the stress of the lawsuit, the stress of having to show up in court and such things. The other component is the stress that relates to the employer’s defense of its conduct because the defense usually includes allegations that the alleged conduct did not occur, that it was the employee’s fault, or that the conduct was sufficiently insignificant that the employee should not be complaining about it. A useful heuristic in these cases is to try to distinguish between the stress the plaintiff would be experiencing if the court proceedings were only about damages and the component that relates to the employer’s response to the complaint. In assessing current psychological functioning, psychological testing and structured interviews may be of use. However, great caution must be used when interpreting those results for a variety of reasons. There is the previously mentioned distinction between establishing that psychological distress currently exists and establishing the cause of that distress. There are also concerns about the suitability of many psychological tests for litigation settings. Elevations in a variety of measures related to defensiveness and overreporting may reflect the situational consequences or stimulus pull of taking these tests in a litigation context. Thus, norms based on litigants may be of value. Additionally, as in all evaluations, there may be concerns about the suitability of the test for use with individuals from the plaintiff’s racial/ethnic or cultural group, or about the language and reading skills of the plaintiff. Although it is important to be cautious in interpreting scales designed to measure defensiveness or overreporting, it is also important to identify ways to assess efforts to exaggerate injury, to malinger. Given the potential monetary benefits for the plaintiffs who prove psychological injury as a result of discrimination or harassment, the incentives to exaggerate or invent psychological problems are greater than in many nonforensic settings. Of course, it is also important to remember that even when people are exaggerating impairment, real problems can also exist. Thus, the task for the evaluator goes beyond establishing whether there is some level of symptom exaggeration to the more complex task of identifying what level of injury may actually exist.

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Conducting the Evaluation: What Are the Legal Issues? Following are some guidelines and considerations for evaluating litigants involved in employment discrimination and harassment litigation. Obviously, there are casespecific issues and problems in every legal action. However, there are some general frameworks for questions to consider and procedures to use. Some of these general frameworks and guidelines flow from the specific issues associated with the legal framework of employment discrimination and harassment. Others are familiar to most psychologists accustomed to conducting forensic evaluations associated with personal injury torts. Prior to beginning any evaluation, psychologists should be clear about what questions they are being retained to answer. It is extremely rare for psychologists to be retained by the court for purposes of evaluating plaintiffs in discrimination and harassment cases. Rather, examiners are typically retained by either the attorney representing plaintiff or the defense. In some cases, the retaining attorney will attempt to influence the psychologist’s opinion. Yet, the ethical responsibility of the psychologist is to resist such manipulation. The attorney may ask hypothetical questions that parallel some of the issues in the case. Attorneys may attempt to encourage the psychologists to think of themselves as part of the “team.” It is important for psychologists to be aware that these efforts may occur; yet, it is important that the psychologist take steps to retain his or her objectivity. The ethical duty of the forensic psychologist is to apply his or her psychological knowledge to the available information in order to provide opinions that will assist the trier-of-fact. It is appropriate for psychologists to shape their evaluation process in order to be able to answer the questions the retaining attorney wants answered. Those questions define what the psychologist is being asked to do and should be listed in the report as part of the statement of the referral request. What is not appropriate is for psychologists to shape their evaluation process or ignore relevant information in order to arrive at the answers the retaining attorney wants (APA, 2010, Ethics Code, Section 5.01, p. 8). As with any forensic involvement, it is important for a psychologist to have a written agreement, signed by the retaining attorney, specifying what the evaluating expert is being asked to do, fees, and scheduling issues. While it is not improper to agree to a payment process that does not require all fees be paid in advance or immediately, psychologists do not perform expert evaluations

or provide testimony in legal proceedings on a contingent basis. The ethical problems with potential conflict of interest or improper influence are obvious. Prior to having face-to-face contact with the plaintiff, the forensic psychologist will generally be provided with and review a number of documents that may include the legal pleadings and their responses as well as depositions of the plaintiff and other relevant witnesses. This can be particularly useful because it allows the evaluator to have some understanding of what facts are agreed on and what facts are disputed. If the psychologist is being asked to evaluate the nature of any psychological injury, the documents reviewed should include records of medical and mental health treatment. It is also common to review employment records including evaluations and disciplinary memos. Although most evaluators prefer to review this material prior to meeting with the plaintiff, for practical logistical reasons this is not always possible. Evaluators need to determine what limitations on their opinions, if any, are created by problems with access to records or the timing of that access. As required by Standards 3.10 and 9.03 of the APA Ethics Code (APA, 2010), the face-to-face evaluation must begin with obtaining informed consent. This requires that the evaluating psychologist provide the plaintiff with sufficient information to understand the process and what will happen with both the records and the results of the evaluation. Although it is not appropriate, for obvious reasons, to explain the specifics of assessment processes designed to identify lack of effort or symptom exaggeration, the evaluator should communicate that such efforts will be part of the evaluation process if they will be. Because employment discrimination and harassment cases are civil matters and plaintiffs could if they wished simply drop their lawsuit rather than submitting to an evaluation, the exemptions for conducting evaluations without informed consent that may apply in certain forensic settings do not apply here. It is not the task of the forensic evaluator to force an unwilling plaintiff to participate in an evaluation. The evaluator should refer a noncooperative plaintiff to his or her attorney to clarify the consequences of noncompliance. The forensic evaluator should document informed consent in writing, using a form signed by the plaintiff, a copy of which should be given to the plaintiff. When possible, refusal to participate should be similarly documented. Although some plaintiffs’ attorneys oppose use of psychological tests on the grounds that they are overly intrusive, properly selected tests, administered and interpreted

Assessing Employment Discrimination and Harassment

by knowledgeable forensic psychologists, can be of assistance in the evaluation process. As with any psychological evaluation, the selection of tests requires consideration of a number of issues, including the appropriateness of the test for a given plaintiff. A variety of concerns relative to the use of psychological testing that apply to most assessment processes are addressed here because of the importance of attending to them in these evaluations. Psychologists using psychological tests in forensic evaluations should also review the most recent version of Standards for Educational and Psychological Testing (AERA, APA, & NCME, 1999). A first issue is: Does the plaintiff have the needed language skills to comprehend the test fully? In answering that question it is important to remember that reading level and grade level completed are not synonymous. Where issues of reading comprehension exist, the evaluator should consider some objective exploration of reading skills. Appropriateness also involves considering native language, culture, and the standardization sample. The issue of native language goes beyond simply having the required reading level in English, especially if there is substantial colloquial language in the test or if there is reason to believe that the plaintiff does not generally use English in her or his emotional life. Obviously, consideration of culture also requires considering whether the psychological concepts being assessed are culturally meaningful to the plaintiff. Finally, even if a test has been standardized in the plaintiff’s culture or country of origin, it is important to review whether the standardization sample included individuals at the plaintiff’s educational level. Individuals with advanced educations, for example, university students, have generally been exposed to literature and course work that may have given them familiarity with U.S. conceptions of mental health and illness not shared by less educated individuals in the same country. If there are no reasons to conclude generally that psychological tests should not be used, the next task is the selection of the particular tests relevant to the issues of the particular case. In most legal evaluations, some general personality measure such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) or the Personality Assessment Inventory (PAI) will be used. Additionally, both a psychological measure of current symptoms, such as the Symptom Checklist-90 Revised (SCL-90-R), and some psychological test or measure to assess response style should be included in a test battery. Other measures will be based on the issues involved and the evaluating

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expert’s judgment about what diagnostic categories need to be ruled out. For example, if the alleged harassment has included assault or the threat of assault, measures to assess PTSD or depression may be relevant. If there are allegations of cognitive impairment due to either injury or the effects of extreme emotional distress, cognitive testing may be relevant. In selecting tests a forensic evaluator should consider the reliability of those tests. Although forensic evaluations should never be based on a single test, tests still should have acceptable levels of reliability and validity. Psychological tests are best used as sources of hypotheses in forensic evaluations. This suggests that the testing is best administered and scored early in the evaluation process. That allows the evaluator to further explore the psychological issues suggested by the testing. In addition to psychological tests, evaluators may want to use standardized structured and semistructured psychological interviews. Systematic assessment of the harassing behaviors being alleged through the use of paper-and-pencil measures in addition to the clinical interview should be strongly considered. For example, some evaluators use versions of the Sexual Experiences Questionnaire (SEQ; Fitzgerald et al., 1988), developed as a research instrument, to collect systematic reports of the plaintiff’s alleged experiences. This is consistent with the general standard in forensic assessment that all issues be assessed by multiple methods (Committee on Specialty Guidelines for Forensic Psychologists, 1991). Additionally, follow-up interview exploration of the items reported on a questionnaire can lead to a better understanding of the plaintiff’s reported experiences. In assessing the effects of conduct that may have extended over months or years it may be helpful to construct a timeline. This allows the evaluator to identify when in the course of the employment situation various issues, including performance, health, or attendance problems, surfaced. Prognosis, including an assessment of the length of time that the plaintiff is likely to experience distress and impairment, is also a part of the assessment. Usually, this is based on the assessment of the impairment and comparative assessment of functioning before the discrimination/harassment occurred. Estimation of the extent of treatment that will help restore the person’s functioning is a part of the prognosis. The plaintiff’s motivation may be a factor, and while challenging, also requires careful determination. Once the evaluation is completed, it is good practice to prepare a report. The Federal Rules of Civil Procedure require an expert report (Rule 26, a-2-B, F.R. Civ.P.,

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2010). If the complaint has been made in a state court, a report may not be required but is nonetheless advisable. Although some attorneys prefer not to have a report written because it is discoverable, preparing a report is useful for the expert. At the conclusion of an evaluation process, the expert is generally quite immersed in the facts and issues of the case. Months or years later, when the case is going to trial or a deposition is being taken, those facts may be harder to remember. A report guides the expert back to the issues that were most relevant and the facts most pertinent to those issues. Prior to preparing a report, it is advisable to determine that the retaining attorney is willing to pay for the preparation of the report. The best practice is to have addressed this issue when negotiating the retention agreement. Prior to testifying, the attorney retaining an expert may want to meet to review the expert’s opinions. The attorney may want and need to know what the opinions are and what they are based on. In such a meeting, it is important for the psychologist to resist any efforts by the attorney to reshape his or her opinion. Competently and clearly expressing one’s opinion is a desirable thing. Helping an attorney understand the expert’s opinions is also appropriate. For a psychologist to bend the facts or the conclusions to create a misleading impression is not appropriate or ethical.

CONCLUSION Since 1964, equal opportunity for employment has been the law of the land. The notion that people should have equal opportunity in employment regardless of race, sex, religion, or national origin has gone from novel or radical to settled law and expected practice. The unquestioned assumption that occupations are “raced” or “sexed” has gone from accepted to bizarre. The view of subordinates, especially female subordinates, as the appropriate target of supervisor’s sexual interest has gone from normative to offensive. But, employment discrimination and harassment continues to exist and legal actions concerning these issues will continue to be needed, at least for the foreseeable future. Psychological research and expertise has been and will continue to be useful to policymakers and triers-of-fact in dealing with these issues. Discrimination and harassment are expensive. For the most part that is because of the lowered morale, work engagement, and job performance and the increased turnover that follow from harassment and discrimination, not the cost of litigation. For example, one report estimated

that same-sex harassment costs the U.S. Army approximately $95 million a year (Faley et al., 2006). The good news is that there is some evidence that organizational efforts to oppose discrimination and harassment are having a positive effect (O’Leary-Kelly et al., 2009). One of the most important recent directions in the psychological research on issues of harassment and discrimination has been the recognition that multiple aspects of the self influence both the nature of the harassment directed at people and their experience of that harassment. Researchers are increasingly exploring the effects of race/ ethnicity and culture on the form and the experience of sexual harassment. Similarly they are exploring the gendered aspects of racial harassment and discrimination. This awareness is somewhat reflected in the EEOC standards that specifically note that people can experience more than one type of harassment in a setting. However, the law does not appear to have caught up with psychological understandings on this issue. Hopefully progress will be made on both fronts over the next decade. Other important areas of research are explorations of the physical health effects of experiencing discrimination and harassment, as well as exploration of the types of preventative and corrective actions most likely to reduce discrimination and harassment. Although training is often instituted as a means for preventing harassment and discrimination, relatively little research has focused on the outcome of such training or the specific factors in training that have the greatest effects on the workplace. Such research will be important if training is to be anything more than a cynical effort to reduce liability in discrimination and harassment cases.

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U.S. Merit Systems Protection Board. (1994). Sexual harassment in the federal workplace: Trends, progress and continuing challenges. Washington, DC: U.S. Government Printing Office. Vescio, T. K., & Biernat, M. (2002). She swings, she hits, she’s great, she’s benched: Implications of gender-based shifting standards for judgment and behavior. Personality and Social Psychology Bulletin, 28 (1), 66–77. Waldo, C. R., Berdahl, J. L., & Fitzgerald, L. F. (1998). Are men sexually harassed? If so, by whom? Law & Human Behavior, 22, 59–79. Wards Cove Packing Co. v. Atonio, No. 87-1387, Supreme Court of the United States, 490 U.S. 642; 109 S. Ct. 2115; 104 L. Ed. 2d 733; 1989 U.S. Lexis 2794; 57 U.S.L.W. 4583; 49 Fair Empl. Prac. Cas. (BNA) 1519; 50 Empl. Prac. Dec. (CCH) P39,021 (Argued, January 18, 1989; Decided, June 5, 1989). Wasti, S. A., & Cortina, L. M. (2002). Coping in context: Sociocultural determinants of responses to sexual harassment. Journal of Personality & Social Psychology, 83, 394–405. Waugh, I. M. (2010). Examining the sexual harassment experiences of Mexican immigrant farmworking women. Violence Against Women, 16 (3), 237–262. Wiener, R. L., Hackney, A., Kadela, K., Rauch, S., Seib, H., Warren, L., & Hurt, L. E. (2002). The fit and implementation of sexual harassment law to workplace evaluations. Journal of Applied Psychology, 87, 747–764. Wigboldus, D. H. J., Dijksterhuis, A., & van Knippenberg, A. (2003). When stereotypes get in the way: Stereotypes obstruct stereotypeinconsistent trait inferences. Journal of Personality and Social Psychology, 84, 470–484. Williams v. Saxbe, 413 F.Supp. 654, 11 EPD § 10,840, D.D.C. 1976, rev’d and rem’d on other grounds sub nom. Willness, C. R., Steel, P., & Lee, K. 2007. A meta-analysis of the antecedents and consequences of workplace sexual harassment. Personnel Psychology, 60 (1), 127–162. Yoder, J. D., & Aniakudo, P. (1997). “Outsiders within” the firehouse: Subordination and difference in the social interactions of African American women firefighters. Gender & Society, 11, 324–341. Zigarelli, M. A. (1995). Clarifying the boundaries of sexual harassment and employer liability: Judicial application of Harris v. Forklift Systems, Inc. Employee Responsibilities & Rights Journal, 10, 49–63.

CHAPTER 11

Forensic Assessment for High-Risk Occupations DAVID M. COREY AND RANDY BORUM

ETHICAL ISSUES IN HIGH-RISK OCCUPATIONAL ASSESSMENTS 246 PREEMPLOYMENT PSYCHOLOGICAL SCREENING 249

FITNESS-FOR-DUTY EVALUATIONS SUMMARY 267 REFERENCES 267

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Over the past 40 years, psychological assessments for applicants and incumbent employees in law enforcement and other high-risk occupations (e.g., firefighters, emergency dispatchers, correctional officers, pilots, air traffic controllers, flight deck officers, security personnel, nuclear reactor operators, health-care workers) have become a standard institutional practice (Blau, 1994), although these assessments have been ongoing for nearly a century (Corey, Cuttler, Cox, & Brower, 2011). Psychological assessment is considered a core competency for psychologists specializing in police and public safety (Aumiller, Corey et al., 2007; Corey & Honig, 2008). Two categories of assessments are most commonly conducted for highrisk occupations: preemployment psychological screening (PPS)—appraising an applicant’s psychological suitability for employment in a high-risk position; and fitnessfor-duty evaluations (FFDEs)—evaluating the impact of psychological conditions or impairments on an incumbent employee’s ability to perform the position’s essential functions. These evaluations constitute forensic evaluations when “they address and inform a legally relevant issue of psychological suitability for a sensitive position” (Borum, Super, & Rand, 2003, p. 133) or when they are conducted for the purpose of, or in anticipation of, litigation (Heilbrun, 2001). The complex federal and state laws pertaining to the timing, content, and disclosures of psychological evaluations for high-risk occupations require evaluators to understand the relevant legal frameworks and statutory requirements.

In this chapter, we first review common ethical issues that emerge in conducting high-risk occupational assessments generally, then discuss legal and practice implications for preemployment psychological screening and fitness-for-duty evaluations specifically. Although most of the current literature and practice guidelines focus on assessing law enforcement personnel, many of the same issues apply to other high-risk occupations that affect public safety, including correctional officers, security officers, firefighters, air traffic controllers, airline pilots, nuclear power plant operators, and potentially even physicians and other health-care workers (Gold & Shuman, 2009; Rigaud & Flynn, 1995).

ETHICAL ISSUES IN HIGH-RISK OCCUPATIONAL ASSESSMENTS There are two primary sources of authority for psychologists for describing the ethical contours of conducting high-risk occupational assessments: the American Psychological Association’s (APA) Ethical Principles for Psychologists and Code of Conduct (hereinafter, EPPCC; APA, 2002), and the Specialty Guidelines for Forensic Psychology (hereinafter, SGFP; APA, in press) adopted by the American Psychological Association, American Psychology–Law Society, and the American Board of Forensic Psychology. In addition, the Police Psychological Services Section of the International Association of Chiefs of Police (IACP), the largest organization of practicing 246

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police psychologists in the country, has published a series of practice guidelines for use by police administrators and police psychologists. Among these guidelines are the “Preemployment Psychological Evaluation Guidelines” (IACP, 2009a), and the “Psychological Fitnessfor-Duty Evaluation Guidelines” (IACP, 2009b), each of which is updated every 5 years. These practice guidelines describe and encourage the use of best practices among psychologists who perform these examinations at the request of police agencies and can guide the expectations of examiners, examinees, and agencies. In the following, we consider several key ethical issues drawn from these sources. Preemployment psychological screenings and fitnessfor-duty evaluations for public safety and other high-risk occupations are specialized assessments. Psychologists should not assume that they are qualified to conduct these assessments based solely on their knowledge of testing and competence to conduct general psychological assessments. At a minimum, the psychologist should have an understanding of and experience working with individuals in the public safety (or high-risk occupation) environment of the respective position, familiarity with the essential job functions of the position, a knowledge of the scientific and professional literature on testing and screening for high-risk occupations, a clear understanding of the unique roles and limits of confidentiality and privilege, and strong familiarity with the state and federal legal issues that affect these evaluations (Super, 1997a, 1997b; see also SGFP, Section 2; IACP, 2009a, 2009b). Practicing only within one’s sphere of competence is a basic tenet of psychological practice. Indeed, Standard 2.01(a) of the EPPCC directs: “Psychologists provide services, teach, and conduct research with populations and in areas only within the boundaries of their competence, based on their education, training, supervised experience, consultation, study, or professional experience” (APA, 2002). The SGFP similarly addresses this issue as it applies specifically to forensic practice: “Forensic practitioners recognize the importance of obtaining a fundamental and reasonable level of knowledge and understanding of the legal and professional standards, laws, rules, and precedents that govern their participation in legal proceedings and that guide the impact of their services on service recipients” (American Psychological Association, in press, Guideline 2.04). Proposed benchmarks for competent practice in these specialized areas of assessment, as applied to police and public safety occupations, are spelled out in the Examination Manual of the American Board of Police & Public Safety Psychology (ABPPSP,

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2011), a newly affiliated specialty board of the American Board of Professional Psychology (Corey et al., 2011).

Role Definition Defining and navigating roles pose some of the most vexing ethical issues for psychologists conducting psychological assessments for high-risk occupations (McCutcheon, 2011; Super, 1997a, 1997b; Zelig, 1988). Typically, when an individual meets with a mental health professional, he or she expects that any information exchanged will not be disclosed to third parties. This is not the case in preemployment or fitness-for-duty assessments. The psychologist’s primary client in these evaluations is the referring party—most often the hiring or employing agency—not the applicant/employee. The examinee should be notified of this before the evaluation begins, and reminded that the evaluation is being conducted solely to address the employment-related referral question(s) and not to provide treatment or therapeutic services. Standard 3.11(a) of the EPPCC underscores this recommendation: Psychologists delivering services to or through organizations provide information beforehand to clients and when appropriate those directly affected by the services about (1) the nature and objectives of the services, (2) the intended recipients, (3) which of the individuals are clients, (4) the relationship the psychologist will have with each person and the organization, (5) the probable uses of services provided and information obtained, (6) who will have access to the information, and (7) limits of confidentiality. As soon as feasible, they provide information about the results and conclusions of such services to appropriate persons. (APA, 2002)

Despite the examiner’s fiduciary duty to the referring client or agency, it is important to note that psychologists also have ethical obligations that extend to the examinee and other parties as well (Fisher, 2009). Preemployment psychological screening and fitness-for-duty evaluations, respectively, pose different challenges due to differences in procedure and consequences of the outcome. Requirements for informed consent, authorization, and disclosure vary accordingly. For this reason, we provide a more detailed treatment of this topic in the specific context of these two types of examinations.

Confidentiality and Access to Results In PPS and FFD assessments, the psychologist typically owes a primary duty of confidentiality to the hiring/ employing agency as the client of record. But it is often

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erroneously assumed that no doctor–patient relationships exists in the context of PPS and FFD examinations because the evaluation is being conducted at the behest of a third party, it is statutorily required, and it is conducted for purposes other than treatment. However, analyses of ethical principles and standards (Fisher, 2009), as well as court decisions and other judicial authorities, have failed to support this assumption such that “it is neither an ethical truism nor a matter of law in all jurisdictions that the examiner-examinee relationship is devoid of the obligations traditionally and statutorily associated with a doctor–patient relationship” (Corey, 2011, p. 274). A particularly stark example of this perspective is the Nevada Supreme Court decision in Cleghorn v. Hess (1993), in which the court held that individuals examined by a psychologist to determine their suitability for employment were “patients” within the meaning of a statute requiring health-care providers to make a patient’s records available for review upon request. The Nevada legislature made no exception for police or other public safety applicants. In Pettus v. Cole (1996), the California Court of Appeals determined the employer’s examining psychiatrist in a mandated evaluation of an incumbent employee did have a “doctor–patient” relationship with the employee even when no treatment was involved and the examination was performed for the benefit of the employer. The 7th Circuit Court of Appeals reached a similar decision in McGreal v. Ostrov (2004), as have other courts and attorneys general when deciding whether examinees were “patients” with respect to the meaning of confidentiality laws and records access statutes when undergoing independent medical evaluations mandated by employers, or even in the context of court-ordered evaluations (see Arkansas Attorney General Opinion, 2001; Crandall v. Michaud, 1992; Elkins v. Syken, 1996; Simmons v. Rehab Xcel, Inc., 1999). In some circumstances, civil service procedures provide another mechanism by which applicants may have the rights to access to assessment records. In Cremer v. City of Macomb Board of Fire and Police Commissioners (1994), the Appellate Court of Illinois held that the civil service commission had to release the results of a preemployment psychological evaluation to a firefighter applicant-plaintiff because Illinois’s Administrative Review Act required the commission to file an answer to a plaintiff’s complaint. The Court decided that the Board’s answer had to include the “entire record of proceedings” before the Board, including the evidence heard by it: “Since the results of the plaintiff’s examination were part of the evidence

before the Board, we hold that those results must be provided to the plaintiff as part of the Board’s answer” (1994, p. 1082). Not all courts have provided examinees access to their preemployment psychological screening records. In Roulette v. Department of Central Management Services (1987), an applicant who was not selected for employment as a police officer filed a request under the Freedom of Information Act (FOIA) to obtain the psychologist’s preemployment evaluation report. The circuit court ordered the psychologist to provide the report; however, he did not comply and was found in contempt. The appellate court reversed the decision, holding that the “information was exempt from disclosure under the Freedom of Information Act exemptions for examination data, information relating to internal personnel rules and practices, and trade secrets and commercial or financial information” (p. 60). Similarly, a Michigan appeals court in Schroeder v. Detroit (1997) held that public interest in disclosure of the evaluation under FOIA was outweighed by public interest in nondisclosure. Importantly, the court reached this conclusion after noting that the city had already provided the plaintiff “with a detailed explanation of the results of the psychological evaluation” and concluding that “this explanation was sufficient to apprise plaintiff of defendant’s reasons for denying him employment and to determine the reasonableness of defendant’s administration of the evaluation” (1997, p. 500). Courts in other jurisdictions have decided the issue differently. In Stamford v. FOIC (1999), for example, a Connecticut court dismissed the City of Stamford’s administrative appeal from a FOIA Commission’s order that a rejected police applicant be provided with her psychological evaluation. In a case involving a failed FBI applicant seeking access to his preemployment psychological evaluation, a federal court upheld the FBI’s refusal to release portions of the records under an exemption to the federal FOIA (Patton v. FBI, 1986). But even in jurisdictions where the courts have upheld that preemployment psychological evaluations of police officers should not be made public under FOIA (cf. Roulette v. Department of Central Management Services, 1986), an individual applicant may still be granted access under civil service rules or medical records statutes (Cremer v. Macomb, 1994). Incumbent employees—such as FFDE examinees— may have broader rights to access assessment records than do applicants. This is because employees, in contrast to applicants, typically have a property interest in the position they hold, and depriving them of that interest often requires they be provided a full explanation of the

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charges and evidence leading to job termination, as well as an opportunity to refute the charges (cf., Cleveland Board of Education v. Loudermill, 1985). When an employee is terminated or otherwise suffers an adverse outcome in response to an FFDE, case law in some jurisdictions has interpreted Loudermill to require the full disclosure to the employee of all charges, including the FFDE report (Bass v. City of Albany, 1992; Bauschard v. Martin, 1993). Thus, when conducting PPS and FFD evaluations, examiners should be aware that, in some circumstances, case law may provide the examinee access to the examination records and written reports. Although psychologists typically have an ethical obligation to provide feedback to an individual who has been evaluated, this obligation is exempted in preemployment or security screenings and forensic evaluations, but only when “this fact has been clearly explained to the person being assessed in advance” (APA, 2002, Standard 9.10). If an examinee does request evaluation results, information can be provided only with consent of the agency that holds the primary right to confidentiality unless the law provides otherwise. If feedback is provided—either with agency consent or because of statutory access—the examinee should be informed that evaluation results apply only to his or her present suitability for the particular position at the specific agency for which he or she is applying and may not relate to his or her mental health or adjustment in other areas. Informed Consent Gold and Shuman (2009) contended that informed consent in employer-mandated evaluations is a broad ethical obligation “that costs nothing and treats the examinee with respect” (Gold & Shuman, 2009, p. 28). Furthermore, they asserted that the fundamental legal principle underlying the necessity for consent “is now beyond debate” (p. 27). As a general rule, whether conceptualized as consent, informed consent, assent, or disclosure, psychologists should always make reasonable attempts to inform the examinee about key procedures and elements of the examination (Corey, 2011). The EPPCC (APA, 2002) stipulates that even when informed consent may not be legally required, psychologists should nevertheless give an appropriate explanation, seek the person’s assent, and consider the person’s preferences and best interests (Standard 3.10(b)). Prevailing practice guidelines suggest that the following information, at a minimum, should be presented to examinees prior to the assessment: (a) a description

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of the nature and scope of the evaluation; (b) the limits of confidentiality, including any information that may be disclosed to the employer without the examinee’s authorization; (c) the party or parties who will receive the report of findings, and whether the examinee will have access to the report; (d) the potential outcomes and probable uses of the examination; and (e) other provisions consistent with legal and ethical standards for mental health evaluations conducted at the request of third parties (see IACP Preemployment Guidelines, 2009a, Guideline 6.1; IACP Psychological Fitness-for-Duty Evaluation Guidelines, 2009b, Guideline 8.1). Although the importance of obtaining consent or, in the alternative, providing disclosure, is an established ethical and legal principle (cf. Schloendorff v. Society of New York Hospital, 1914), some commentators disagree about how an evaluator should proceed if the examinee refuses to provide written consent. Some (e.g., Rostow & Davis, 2004) contend that the examiner can proceed under some circumstances, while others insist that the examination should not take place, noting that “[f]ailing to obtain a consent later determined to be required cannot be remedied” (Gold & Shuman, 2009, p. 28). But even when written informed consent is obtained prior to the examination, the evaluator must remain mindful that consent is a process, not simply an event (Corey, 2011; Heilbrun, 2001). During the course of the examination, the examiner may need to revisit important aspects of the informed consent document/notification in order to clarify, for example, the limits of confidentiality, the purpose of the examination, or the potential outcomes.

PREEMPLOYMENT PSYCHOLOGICAL SCREENING Most major law enforcement agencies in the United States have comprehensive, multistage selection systems that include psychological screening as one component of the process. Cochrane, Tett, and Vandecreek (2003) surveyed a cross-section of police agencies of all sizes and reported that nearly 90% of the responding agencies used psychological testing in their preemployment selection. Indeed, this component of the screening process has been widely advocated (Milton, Halleck, Lardner, & Albrecht, 1977; National Advisory Commission on Criminal Justice Standards and Goals: Police, 1967) and is mandated by the Commission on Accreditation for Law Enforcement Agencies (CALEA) for police and sheriff’s departments seeking accreditation.

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Although preemployment psychological screening does not guarantee the identification of all applicants who may have or subsequently develop psychological problems that could interfere with job performance, it can provide relevant information to hiring agencies about candidates who may be at greater risk for engaging in counterproductive behavior (Aamodt, 2004; Blau, Super, & Brady, 1993; Boes, Brewster, & Stoloff, 1999; Cortina, Doherty, Schmitt, Kaufman, & Smith, 1992; Costello, Schneider, & Schoenfeld, 1996; Cullen, Ones, Drees, Viswesvaran, & Langkamp, 2003; Detrick, Chibnall, & Luebbert, 2004; Detrick, Chibnall, & Rosso, 2001; Sellbom, Fischler, & Ben-Porath, 2007; Weiss, Davis, Rostow, & Kinsman, 2003). For example, personnel interviews, written tests, and careful background investigation may reveal characteristics such as a history of impulsive or aggressive behavior or poor emotional control that suggest the applicant has a propensity to show an inappropriate response in a stressful use-of-force encounter (Stock, Borum, & Baltzley, 1996, 1999). Indeed, courts have ruled that police agencies have a right to conduct psychological evaluations (Conte v. Horcher, 1977; McCabe v. Hoberman, 1969) and they may be held liable for the actions of employees who were not properly screened or evaluated (Bonsignore v. City of New York, 1982) under the doctrine of respondeat superior. Identifying Screening Standards The first step in conducting preemployment psychological screening is to establish and understand the psychological requirements for the position. According to the Americans with Disabilities Act (ADA), a candidate must be able to perform the essential functions of the job with or without reasonable accommodation; therefore, the examiner must know the nature of those functions and the capacities required to perform them under conditions relevant to the particular hiring agency. The most precise source of information on job requirements is a job task analysis, which many public safety agencies have conducted. This analysis should distinguish essential functions and critical job tasks from marginal work functions and identify the knowledge, skills, abilities, and other characteristics necessary for the position. The IACP Preemployment Guidelines (IACP, 2009a) stipulate that 1. Information about duties, powers, demands, working conditions, and other job-analytic information relevant to the intended position, should be obtained by the psychologist before beginning the evaluation process. This information should be directed toward identifying behaviors and

attributes that underlie effective and counterproductive job performance. (Guideline 5.1) 2. The psychologist should consult with the hiring agency to establish selection criteria and the agency’s level of acceptable risk for problematic behaviors. (Guideline 5.2)

This information should guide the psychologist’s selection of assessment instruments, interview focus, and collateral records review. But underlying all of these considerations are the statutory standards for screening in jurisdictions that mandate a psychological evaluation as a prerequisite for employment.

Jurisdictional Statutory Standards Thirty-eight states have established some form of preemployment or precertification requirements for the emotional, mental, or psychological health, functioning, fitness, or suitability of peace officers. Specific criteria in statutes and administrative rules, however, vary significantly across jurisdictions. Analysis of their similarities and differences reveals five categories of mental health-related qualification criteria for peace officer applicants, each of which is summarized in the following (see Table 11.1).1 Exclusionary or Psychopathology-Based (Screen-Out) Criteria Seventeen states, or roughly 45% of those requiring mental health evaluations (although not necessarily by a psychologist), have statutes, administrative rules, and/or TABLE 11.1 Legal Criteria for Mental Health Qualification of Peace Officer Applicants 1. Exclusionary or Psychopathology-Based (Screen-Out) Criteria States: Arizona, Arkansas, Georgia, Hawaii, Idaho, Kansas, Massachusetts, Michigan, Minnesota, Montana, New Hampshire, New Mexico, Oklahoma, Tennessee, Utah, Wisconsin, Wyoming 2. Inclusionary or Suitability-Based (Select-In) Criteria States: Alabama, Colorado, Connecticut, Indiana, Kentucky, Maine, Maryland, Mississippi, North Carolina, Pennsylvania, Rhode Island, Texas, Vermont 3. Combined Screen-Out and Select-In Criteria States: Alaska, California, Delaware 4. “Pass” Criterion States: Iowa, North Dakota, Washington 5. Physician Screening to Determine Need for Further Examination States: Nebraska, Oregon

1

Statutory law and administrative rule changes occur often, and readers are advised not to rely on this listing as necessarily reflecting the requirements in their jurisdiction.

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agency regulations requiring peace officer applicants to “be found . . . free from any physical, emotional, or mental conditions which might adversely affect his/her exercising the powers or duties of a peace officer” (Georgia Administrative Rules and Regulations 464-3-.02(1)(e)) or similar language (cf. Idaho Administrative Code, IDAPA 11.11.060). These standards are designed to exclude or screen out candidates with psychiatric disorders or conditions, which would be likely to impair functioning as a peace officer. For all but two of these states the criterion of concern is not simply the diagnosis of psychopathology or mental disorder, but rather a condition that might adversely affect performance as a peace officer. Thus, for the condition to be deemed exclusionary or disqualifying, these states require evidence of a connection between the disorder/condition and job-related impairment. Hawaii’s statute is quite broad in its exclusionary scope and does not pertain specifically to peace officers, but rather to any person who seeks to “own, possess, or control any firearm or ammunition therefore” (HRS § 134-7). Consequently, it does not require job-relevance. Instead, Hawaii excludes “anyone who is or has been under treatment or counseling for addiction, abuse, dependence, mental disease, disorder, or defect . . . unless the person has been medically documented to be no longer adversely affected by the [condition]” (HRS § 134-7). The law in Massachusetts is absolutely exclusionary only for “Category A” psychiatric conditions (i.e., “disorders of behavior, anxiety disorders, disorders of thought, disorders of mood, [and] disorders of personality”). On the other hand, “Category B” conditions (“any other psychiatric condition that results in an individual not being able to perform as a police officer”) require a job-related nexus (Massachusetts HRD Regulations for Initial Medical and Physical Fitness Standards Tests for Municipal Public Safety Personnel, Section 10, 2007). Inclusionary or Suitability-Based (Select-In) Criteria Thirteen states specify criteria for an applicant’s suitability or fitness to perform as a peace officer without any explicit reference to exclusionary criteria. For example, Colorado requires “fitness to serve as a peace officer” (CRS § 24-301-303(5)(b)) and North Carolina specifies that the candidate must be “mentally and emotionally suitable to properly fulfill the responsibilities of the position” (12 NCAC § 09B.0101). In contrast to the 17 states with criteria to exclude, or screen out, candidates based on a mental condition or disorder, the criteria for these 13 states are designed to select in candidates who possess suitability, fitness, and traits and/or competencies presumed to

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enable, rather than impair, safe and effective peace officer performance. Except for Kentucky and Maine, the other 11 states from this group provide no specific guidance concerning the parameters of fitness, suitability, or competence. Kentucky and Maine stand alone among these states in defining, or at least illustrating, the inclusive job requirements. Maine requires “suitability to work as a law enforcement officer” that includes, at a minimum, “an evaluation of anxiety, mood, anger, antisocial characteristics, ability to accept criticism, ability to communicate, assertiveness, self-confidence, ability to get along with others, judgment, and verbal skills” (Code of Maine Rules § 16-227, Chap. 3). Kentucky specifies that the “[s]creening shall measure a broad spectrum of abilities which are relevant to job related duties, including: (1) cognitive abilities; (2) personality characteristics; and (3) related constructs, including: (a) integrity, (b) conscientiousness, and (c) vocational preference” (503 KAR § 1:140, Section 4(3)(a)). Combined Screen-Out and Select-In Criteria Three states combine psychopathology-based exclusion with suitability-based criteria. Alaska specifies only that the candidate must be “mentally capable of performing the essential functions of the job of police officer” and be “free from any emotional disorder that may adversely affect the person’s performance as a police officer” (13 AAC § 85.010). Delaware illustrates suitability to perform law enforcement duties as including “race relations, use of force and authority, flexibility, and maturity” and specifies the basis for “mental exam rejection” to include “psychoneurotic reaction resulting in hospitalization, prolonged care by physician or loss of time for repeated periods” (Delaware Register of Regulations, Title 801, 3.5). Among all 50 states, California provides the most detailed and comprehensive set of statutes, administrative rules, and agency regulations pertaining to psychological screening for peace officer candidates. The overarching statute, Government Code 1031(f), specifies that, as the minimum criterion for employment as a peace officer, the applicant shall “be found to be free from any physical, emotional, or mental condition that might adversely affect the exercise of the powers of a peace officer.” California Peace Officer Standards and Training Commission (POST) Regulation 9055 specifies the following: The psychological screening procedures and evaluation criteria used in the conduct of the psychological evaluation shall be based on the peace officer duties, powers, demands, and

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working conditions as defined by the department. This information shall be provided to the evaluator, along with any other information (e.g., risk management considerations) that will allow the evaluator to make a psychological suitability determination. Every peace officer candidate shall be evaluated, at a minimum, against job-related psychological constructs herein incorporated by reference contained and defined in the POST Peace Officer Psychological Screening Dimensions (2005): Social Competence, Teamwork, Adaptability and Flexibility, Conscientiousness and Dependability, Impulse Control, Integrity and Ethics, Emotional Regulation and Stress Tolerance, Decision Making and Judgment, Assertiveness and Persuasiveness, and Avoiding Substance Abuse and Other Risk-Taking Behavior.

California POST defines these psychological screening dimensions in detail, and these minimum criteria, combined with and amplified by other employer requirements, constitute the screening standard for applicants to an agency in that state. “Pass” Criterion The requirements in Iowa, North Dakota, and Washington are silent with respect to specific psychological criteria for peace officer applicants. Washington specifies that “the applicant shall successfully pass a psychological examination as administered by the county, city, or state law enforcement agency that complies with the requirements of this chapter” (WAC 139-07-010), and North Dakota stipulates that the applicant must “pass” an approved psychological examination (North Dakota Century Code Section 12-63-06(4)). In contrast, Iowa simply establishes the minimum requirement that the applicant be administered the Minnesota Multiphasic Personality Inventory (Iowa Law Enforcement Academy Council, Code 501-2).

2009a) and criteria from other states, for guidance on the screening criteria. Jurisdictions Without Screening Mandates Even in jurisdictions where it is not statutorily mandated, many municipal, county, and state public safety agencies require preemployment psychological screenings, in part because employers may be held liable for the conduct of employees who were not screened for emotional suitability and later engage in negligent behavior or misconduct on the job (Super, 1999). Under the doctrine of respondeat superior, also referred to as vicarious liability, employers may be responsible for the acts of their employees when the acts are performed in the line of duty. Indeed, in Monell v. Department of Social Services (1978), the U.S. Supreme Court ruled that municipalities and administrators could be held liable for behavior of subordinates if the subordinate employees were negligently supervised, trained, or selected. Courts have generally supported the right of public safety agencies to require a psychological examination as part of their selection procedure. In McKenna v. Fargo (1978), several firefighter applicants challenged, as a violation of their civil rights, the municipality’s requirement that they undergo psychological testing to determine their ability to withstand the psychological pressures inherent in the job. The district judge denied the claim, ruling that “the interest of the City in screening out applicants who would not be able to handle the psychological pressures of the job was sufficient to justify the intrusion into the privacy of the applicant” (p. 1355). A number of courts have reached similar decisions in relation to police officers (Matter of Murray v. Co. of Nassau Civ. Serv. Cmsn., 2007), and correctional officers (Coleman v. N.Y., 2007; Greenberg v. N.Y. Dept. Corr. Serv., 1996). Procedural Issues

Physician Screening to Determine Need for Further Examination Nebraska and Oregon are alone in deferring to an examining physician to determine whether an applicant has “any mental or emotional conditions which suggest further examination” (Nebraska Police Standards Advisory Council: Administrative Code 79-8; see also Oregon Administrative Rules 259-008-0010(8)(l)). But these are minimum standards, and agencies throughout both states routinely require psychological evaluations for police and public safety applicants. In doing so, however, the agencies and their examining psychologists must rely on other sources, including professional practice guidelines (e.g., IACP,

One of the most significant and far-reaching legal provisions affecting these assessments is Title I of the Americans with Disabilities Act of 1990 (ADA) (ADA, 1991) and the ADA Amendments Act of 2008 (ADAAA) (ADAAA, 2008). These federal statutes were enacted to prevent discrimination in employment and related activities based on an applicant’s physical or mental disability, but they also impose strict limits on an employer’s ability to make disability-related inquiries and require medical examinations of applicants and incumbents. For purposes of the statute, a psychological assessment includes “disability-related questions” or a “medical examination” if it seeks information about an individual’s physical

Forensic Assessment for High-Risk Occupations

or mental impairments or health or provides evidence that would lead to identifying a mental disorder or impairment, as now broadly defined under the ADAAA. Inquiries and examinations designed to identify “traits or behaviors,” such as irritability, chronic lateness, honesty, and poor judgment, are not generally considered medical. The ADA permits an employer to make medical inquiries and require medical examinations of a job applicant if (a) the applicant is first given an offer of employment conditioned on the results of the inquiry/ examination; (b) all entering employees in the same job category are subjected to the inquiry/examination, regardless of disability; and (c) the medical information obtained is kept confidential through restricted disclosure and access. The ADA stipulates that the job offer must be “real” in order for the post-offer medical inquiries and examinations to be permissible: “A job offer is real if the employer has evaluated all relevant nonmedical information which it reasonably could have obtained and analyzed prior to giving the offer” (EEOC, 1995). The 9th Circuit U.S. Court of Appeals underscored the procedural necessity of attending to this bright line of medical privacy between pre-offer and post-offer inquiries/examinations in Leonel v. American Airlines (2005). According to the Leonel court, “The ADA bars not only intentional discrimination, but it also regulates the sequence of an employer’s hiring processes” (p. 4697). Thus, the examining psychologist should be reasonably assured by the hiring agency that candidates referred for screening have been given a conditional offer of employment (i.e., a real offer) before conducting any inquiry or administering any psychological test that might otherwise be proscribed. The Leonel court described the purpose of the pre-offer/post-offer split in this way: This two-step requirement serves in part to enable applicants to determine whether they were “rejected because of disability, or because of insufficient skills or experience or a bad report from a reference.” When employers rescind offers made conditional on both nonmedical and medical contingencies, applicants cannot easily discern or challenge the grounds for rescission. When medical considerations are isolated, however, applicants know when they have been denied employment on medical grounds and can challenge an allegedly unlawful denial. . . . This two-step structure also protects applicants who wish to keep their personal medical information private. Many hidden medical conditions, like HIV, make individuals vulnerable to discrimination once revealed. The ADA . . . allow[s] applicants to keep these conditions private until the last stage of the hiring process.

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Applicants may then choose whether or not to disclose their medical information once they have been assured that as long as they can perform the job’s essential tasks, they will be hired. (pp. 4698–4699)

Bifurcation In light of the fact that nonmedical inquiries are affirmatively positioned at the pre-offer stage, and given that some inquiries/tests used by examining psychologists are designed only to assess the normal traits of applicants, a growing number of psychologists and employers “have begun to employ nonclinical, pre-offer tests as the first step in screening police applicants, while reserving the use of . . . other clinical evaluations for post-offer assessments” (Jones, Cunningham, & Dages, 2010, pp. 161–162), a procedure commonly referred to as the bifurcated assessment model (Corey, 2008; Jones, Cunningham, & Dages, 2010). Hitchcock, Weiss, Weiss, Rostow, and Davis (2010) reported that “recent research and practice suggests that a bifurcated model involving ‘nonmedical’ evaluation preoffer and then a more traditional psychological evaluation post-offer will probably improve screening procedures” (p. 284). Berner (2010) similarly concluded that “[t]here are clear indications that a personality test administered early on in the hiring process may aid in identifying applicants who would be disqualified in the background investigation or psychological evaluation” (p. 1). Berner further advocated for the bifurcated model by noting its coherence with the ADA’s two-step requirement: A personality test can lawfully be administered prior to a conditional offer of employment if it is designed and only capable of assessing normal-range traits and characteristics, rather than identifying mental or emotional impairments, and if there are no individual items that would constitute inquiries into medical or psychological condition or disorder. In fact, administering a normal-range personality test preoffer is consistent with the requirement that an applicant be determined to be “otherwise qualified” prior to extending a conditional offer of employment. (2010, p. 13)

Gender-Neutral Norming The Civil Rights Act of 1991 (CRA, 1991) was adopted to prevent discrimination based on gender, race, or creed. This law has several important implications for psychologists who conduct preemployment psychological screenings (Rubin, 1995), but one of the most practical is that it prohibits using differential cutting scores on job-related tests based on a candidate’s gender. Many

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psychological test publishers provide different comparisons based on race and gender for determining a respondent’s norm-referenced score (such as a T-score). It has been argued that this practice would violate CRA requirements (Inwald, 1994). It is easily avoided by using combined or “unisex” norms (i.e., gender-neutral reporting)—a practice now adopted by most major test publishers in reports used for preemployment screening.

Assessment Methods Current practice guidelines, including the IACP Preemployment Guidelines, establish that preemployment psychological screenings incorporate psychological testing and a job-related interview at least at the post-offer stage. Serafino (2010) observed, “In most law enforcement evaluations, it is fundamental to administer two personality inventories, one for abnormal behavior . . . and a second one for normal behavior” (p. 45). This basic model is also incorporated into regulations in many states (e.g., California POST Regulation 9055(d)(2)). Serafino contended that the basic model “is useful no matter what the legal criteria may be in a given jurisdiction” (p. 45), with a particular advantage being the ability to compare and contrast indices of an examinee’s response style. Instrument Selection An established principle in any forensic mental health assessment (FMHA) is that relevance and reliability (validity) should guide the selection of information and data sources relied upon in the evaluation (Heilbrun, 2001). Heilbrun, Grisso, and Goldstein (2009) advised that “[s]tandard psychological tests and specialized forensic assessment instruments should have their psychometric properties described in a manual before they are selected for use in FMHA, so appraising their published psychometric properties, established through peer-reviewed research, should be straightforward” (p. 108). The IACP Preemployment Guidelines (2009a) further specify that tests used to screen peace officer applicants “should have a substantial research base for interpretation with normal range populations in general, and public safety applicants in particular. Validation evidence should be consistent with Principles for the Validation and Use of Personnel Selection Procedures” (Guideline 7.2.1). Based on a review of the existing literature, Dantzker (2011) reported that the Minnesota Multiphasic Personality Inventory–2 (MMPI-2), Inwald Personality Inventory (IPI), California Psychological Inventory (CPI),

Personality Assessment Inventory (PAI), NEO Personality Inventory–Revised (NEO PI-R), and the Sixteen Personality Factor–Fifth Edition (16-PF) were the assessment instruments most frequently used in preemployment psychological screening for police applicants. Dantzker concluded: “It appears the most often cited protocols being used are the MMPI-2, CPI, and the IPI, with the MMPI-2 being identified as the most common choice” (p. 279). Super (2006) reported that 42% of the law enforcement agencies participating in his selection procedures survey included the PAI in their battery, and Weiss and Weiss (2010) reported an “increasing” use of the PAI for police screening, noting that “[i]t is frequently used with the Inwald Personality Inventory [Inwald, 1982] or the MPULSE [Davis & Rostow, 2010; Davis & Rostow, 2008], which are measures more specifically directed toward security personnel” (pp. 73–74). Weiss (2010) identified the MMPI-2-RF (Restructured Form) as having “considerable promise in the area of pre-employment screening” (p. 68), and cited the inclusion of law enforcement applicant norms in the MMPI-2-RF technical manual (Ben-Porath & Tellegen, 2008), its reliance on the Restructured Clinical (RC) scales with their evidence of predictive validity for law enforcement performance (see Sellbom, Fischler, & Ben-Porath, 2007), and the comparatively smaller number of items (338 versus 567 in the MMPI-2) as particular benefits. Ben-Porath, Corey, and Stewart (2011a) found similarly encouraging evidence of validity in predicting postemployment performance for police applicants using the MMPI-2-RF. From among the most frequently used assessment instruments cited by Dantzker (2011), Weiss (2010), and Weiss and Weiss (2010), the CPI, NEO PI-R, 16-PF, and M-PULSE could be appropriate for pre-offer use in a bifurcated model, inasmuch as they assess normal traits and behaviors rather than psychopathology. At the postoffer stage, the MMPI-2, MMPI-2-RF, the PAI, and the IPI would be useable as measures of psychopathology or abnormal functioning. When using these or any other structured instruments for screening or selection decisions, evaluators should bear in mind that practice guidelines suggest that specific cutoff scores be applied “only when there is adequate statistical evidence that such scores are predictive of personality or mental health problems that are detrimental to job performance. If cut-off scores are used, the psychologist should acknowledge their use and be prepared to provide the justification for using the specific cut-off level” (IACP Preemployment Guidelines, 7.2.2).

Forensic Assessment for High-Risk Occupations

Clinical Interview Although psychological testing is an important part of preemployment psychological screening, it is only one component of a basic model. IACP Preemployment Guidelines (2009a) state that “individual, face-to-face interviews with applicants should be conducted before a final determination of the applicant’s psychological suitability is made” (Guideline 8.1). The guidelines also recommend that this interview take place after the examining psychologist has reviewed the results of the psychological testing, so that any concerns raised by these results can be explored or clarified with the applicant. The semistructured job-related interview should allow for sufficient time to cover appropriate background, test results verification, and clinical assessment (Guidelines 8.2 and 8.3). Inconsistencies in an applicant’s statements or selfreported background information, as reported in the psychological evaluation or when comparing self-reports at various stages of the selection process, are known to be predictive of counterproductive work behaviors in subsequent law enforcement employment (Cuttler & Muchinsky, 2006). As such, careful evaluation and comparison of applicants’ self reports, and comparison of those reports to collateral information, is an essential element of a standard preemployment screening evaluation. Ben-Porath et al. (2011b) referenced the use of “two basic styles of clinical interviewing” in preemployment psychological screening of law enforcement applicants: “One is a more traditional, in-depth interview, and the other focuses more specifically on behavioral markers” (p. 68). They noted that the semistructured nature of the interviews allows for flexibility to extend time with an applicant given the responses to interview questions, and that, consequently, the duration of the interview can vary depending on the applicant’s personal history and responses. Even when there is consensus about assessment methods, reasonable psychologists still have different opinions about the best approach or method for arriving at a conclusion. There is consensus on one point, however: Unstructured and unsystematic clinical judgments are seriously deficient. Cuttler (2011) has argued for applying an actuarial model to screening police and public safety applicants based on validated personality measures and biodata. In actuarial assessments, the predictor and outcome variables are explicitly identified, rules are applied uniformly and mechanically, and predictions are hypothesized. Ideally, follow-up outcomes are recorded, and the actuarial decision rules are subsequently modified accordingly. In a pure actuarial approach, predictions must be determined

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exclusively by applying the formula without any modification or use of discretion by human judgment. An alternative to a pure actuarial approach is structured professional judgment (SPJ), in which a set of specified and defined risk (and sometimes protective) factors are presented as a foundation for the risk appraisal. Fundamentally, SPJ approaches are designed to structure the assessment process to make it more systematic and reliable and ultimately to support better decision making (Webster, Hucker, & Bloom, 2002). To our knowledge, no formal SPJ tools have been developed for high-risk occupational assessments, though some evaluators have informally structured their assessments to make them more systematic by using structured or semistructured interviews, standardized test batteries, and operationalized definitions of suitability/unsuitability and their determinants. Some have even designed their own interview forms to gather biodata that is known (or believed on the basis of the literature) to be relevant to the position for which they are selecting, and created explicit decision schemes to weigh and integrate those findings with personality measures in a consistent and uniform manner. Table 11.2 contains an illustrative, noncomprehensive list of areas of inquiry common to preemployment psychological screening interviews.2 Background and Collateral Data Important information may also be discerned from the hiring agency’s official background investigation, and other third-party information. In the basic model of 2 Examiners

should be aware of the federal prohibition against the use of an employee’s genetic information in employment evaluations (both preemployment and fitness-for-duty). Genetic information is defined under the Genetic Information Nondiscrimination Act (GINA, 2008) as including the manifested medical conditions of family members (see 29 C.F.R. §1635.3(b)). Thus, for an examiner who is performing the examination as an agent of the employer, both acquiring information about the employee’s family medical history and disclosing that information is prohibited under GINA. This prohibited medical information includes the family medical history, defined under GINA as information about the manifestation of disease or disorder in your family members, including your children, siblings, and parents (first degree) and extends to great-great grandparents and first cousins once removed (the children of a first cousin), as well as family members who are in between you and these persons (including parents, siblings, half-siblings, nieces, nephews, grandparents, great grandparents, aunts, uncles, great aunts and uncles, and first cousins).

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TABLE 11.2 of Inquiry

Preemployment Psychological Interview Areas

• Family history: • Where born and raised • Siblings • Mother: status and background • Father: status and background • Home problems, abuse/neglect, fighting • Marital status and history • Children • School history: • High school attended and graduated • Grade average, failures • Learning problems, special placements • Sports and club participation • School discipline • College education • Work history: • Past employers, position, time employed: • • • •

Reasons for leaving past positions Work-related disciplinary actions Work performance History of conflicts, reprimands, disciplinary actions, grievances, complaints, internal investigations, and so on

• Military; branch: • Type of discharge: • • • • •

Military occupational specialty Rank at discharge, time of enlistment Disciplinary actions Deployment, presence in combat zones Exposure to trauma

• Behavioral history: • Juvenile law enforcement contact/arrest • Adult law enforcement contact/arrest • Other legal system involvement • Physical fights as an adult • Moving violations and motor vehicle accidents • Mental health treatment or problems that needed treatment • Substance use treatment or problems that needed treatment • Alcohol consumption, amount and frequency of use, history of problems when drinking • Illicit drug use/experimentation • Medical problems • Job-specific:

(Ben-Porath et al., 2011b; Detrick, Chibnall, & Rosso, 2001; Kornfeld, 1995; Weiss, 2010). In response to this challenge, Serafino (2010) advised that “it is vital to gather relevant information from as many different sources as possible, especially the background data gathered by the referring department” (p. 44). The potential to mischaracterize self-report is common to many forensic examinees, not just police and public safety applicants. This fact underlies the established forensic principle of using multiple sources of information for key data in a forensic mental health assessment (Heilbrun, Grisso, & Goldstein, 2009). This principle also is reflected in the IACP Preemployment Guidelines (2009a), which recommend the following information as standard elements of a preemployment psychological evaluation: 9.1.1 Information regarding the applicant’s relevant history (e.g., school, work, interpersonal, family, legal, financial, substance use, mental health) should be collected and integrated with psychological test and interview data. When available, relevant information from the background investigation and polygraph examination should be shared with the psychologist. 9.1.2 If relevant to psychological suitability, health records should be obtained from treating health care professional(s) for review before a final determination is made of the applicant’s suitability. When such records are unavailable, consideration should be given to deferring the suitability determination until the health record can be reviewed or the basis for the concern is otherwise resolved. 9.1.3 When background investigation findings are not provided to the psychologist in advance of the evaluation, it is desirable for the psychologist to communicate with designated hiring agency staff, prior to making a final suitability determination, to compare and reconcile information obtained from the applicant. In all cases, substantive discrepancies between information obtained in the psychological evaluation and other stages of the hiring process should be reviewed thoroughly with the hiring agency before a final hiring decision is made.

• Reason for seeking position • Best qualities • Worst qualities • Perception of job and role

preemployment psychological screening, those sources of data, combined with objective psychological testing and clinical interviews, comprise the foundation. The problem of positive impression management and deceptive efforts by police and public safety applicants is well established

Suitability Analysis Once the relevant information has been collected through testing and interviews, the key to determining a candidate’s psychological suitability is to assess the degree of fit between his or her capacities and the requirements of the position (Grisso, 2003). If there are indications from records, test results, history, or interview of psychological

Forensic Assessment for High-Risk Occupations

or behavioral problems, the expert must assess the extent to which they would interfere with the applicant’s ability to safely perform the essential functions of the position under job-related conditions. For example, disturbances in thinking could impair perceptions or judgment under pressure, severe disturbances in mood could affect behavioral controls or reaction speed, and problems with impulsivity or anger management could increase the risk of inappropriate aggression. In jurisdictions with statutory and regulatory standards for defining suitability, the analysis will be guided by those requirements. For example, California POST regulations require that a peace officer applicant’s suitability be judged vis-`a-vis the 10 Peace Officer Psychological Screening Dimensions detailed by the POST Commission, and New Hampshire requires that a law enforcement, corrections, or probation/parole officer be evaluated for “both mental illness and behavioral traits that could adversely affect the person’s ability to successfully perform the essential functions” of the position (New Hampshire Administrative Rules, Pol 301.07).

Communicating Results Preemployment psychological screening reports vary widely in format, content, and length. An examining psychologist may even have a different report format for different agencies, depending on their needs and preferences. At a minimum, however, the screening report should contain identifying information for the applicant (e.g., name, position sought), a listing of the sources of information used in the assessment (e.g., assessment instrument, interview, third-party information sources), and conclusions. IACP Preemployment Guidelines (2009a) direct that, The report should contain, at a minimum, a clear determination of the applicant’s psychological suitability for employment based upon an analysis of all psychological assessment material, including background information, test data, and interview. Any agency-specific restrictions or other requirements relevant to the format or content of the psychological report should be communicated to the psychologist in advance of the evaluation. (Guideline 10.1)

Although some psychologists prefer to report an applicant’s suitability on a continuum (e.g., A–F or with nominal categories that include terms like marginally suitable or suitable with reservations), others use dichotomous categories (i.e., qualified vs. unqualified, or suitable vs. unsuitable). Indeed, the statutory requirements in states that mandate preemployment psychological

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screening typically require that the evaluator provide a categorical opinion. As an illustration, California POST requires that the report from the examining psychologist include “a statement, signed by the evaluator, affirming that the candidate was evaluated in accordance with Commission Regulation 9055. The statement shall include a determination of the candidate’s psychological suitability for exercising the powers of a peace officer” (California POST Regulation 9055(e)(3)(D)). Examining psychologists are understandably reticent to include references to psychiatric diagnoses in their reports, but this cannot and should not be avoided when the clinical facts of a particular examination warrant it and the evaluation is conducted in a jurisdiction that stipulates the disqualification of applicants with particular diagnoses or diagnostic categories (e.g., Arkansas, Hawaii, Massachusetts, New Hampshire, Oklahoma, Tennessee). Thus, the IACP Preemployment Guidelines (2009a) state: While a clinical assessment of overall psychological suitability should be made, clinical diagnoses or psychiatric labeling of applicants should be avoided unless relevant to the psychologist’s conclusion, necessary for the hiring agency to make an employment decision, and/or required by law. In all cases, the evaluation should be focused on an individual applicant’s ability to safely and effectively perform the essential functions of the position under consideration. (Guideline 10.3)

Tracking Outcomes IACP Preemployment Guidelines (2009a) recommend that examining psychologists collaborate with the hiring agencies to assure the validity of the selection process (Guideline 12.1). This requires that the hiring agency provide the psychologist with postemployment job outcome data, which should be collected and stored in accordance with the strict confidentiality provisions protecting individual applicant identities and in accordance with ethical research guidelines and the law. Ben-Porath et al. (2011a) described the preferred arrangement as follows: Ideally, the psychologist and the hiring agency will set up a procedure for systematically informing the psychologist about the job performance of hired officers, at least through their probationary periods. The psychologist can use this information to calibrate and modify evaluation procedures as needed to maximize the ability to identify ill-suited candidates. Publishing the results of such follow-up efforts in professional, peer-reviewed outlets will allow other agencies

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and their psychologists to benefit from these collaborative efforts. (p. 68)

Finally, the IACP Preemployment Guidelines recommend that the psychologist and/or hiring agency evaluate whether final suitability ratings have an adverse impact on protected classes of candidates (Guideline 12.2). This requires an analysis of the evaluator’s pattern of pass and fail ratings (i.e., qualified vs. unqualified, recommend vs. not recommend ) as they apply to candidates who are members of protected classes. Second-Opinion Appeals Some jurisdictions allow applicants to appeal an adverse preemployment psychological recommendation by obtaining a second opinion (see IACP Preemployment Guidelines, 13.1). Ben-Porath et al. (2011a) noted that “[b]ecause the Guidelines allow psychologists some flexibility in the tests and procedures they choose to use in a preemployment evaluation, different tests and interviewing procedures may be implemented in a second opinion evaluation—although some police psychologists have advocated for the use of identical tests” (p. 70). Khadivi (2010) outlined some of the unique challenges involved in conducting second-opinion evaluations and advocated for them being “more comprehensive than the preemployment screenings” that precede them. Specifically, he recommended that the second examiner conduct a thorough review of the report summarizing the previous evaluation, administer additional psychological testing, collect third-party collateral information, and conduct a clinical interview over two or more sessions (p. 339). FITNESS-FOR-DUTY EVALUATIONS Whereas preemployment psychological evaluations are designed to screen out unsuitable candidates before they are hired, FFDEs are indicated for incumbent employees whose communication, behavior, or performance raises a concern about whether they have a mental or emotional condition that may jeopardize safety or effectiveness (Rostow & Davis, 2004; Stone, 1995, 2000). There are two primary circumstances, broadly referred to under the ADA as the business necessity standard (42 U.S.C. §12112(d)(4)(A); 29 C.F.R. §1630.14(c)), that might cause an agency to refer an employee for an FFDE: 1. When there is reasonable cause to suspect that an employee may pose a significant risk of harm to self or others in the workplace as a result of a mental condition; or

2. When there is reasonable cause to suspect that the employee may have a mental condition that substantially impairs his or her ability to perform the essential functions of the position.

Behaviors that raise concerns about serious harm and violate policy may not always result in an FFDE. If the employee is to be terminated, however, an assessment or consultation may be useful to help the agency assess the nature and degree of any risk inherent in the termination itself. Concerns about psychological or psychiatric impairment may arise from direct observations or credible evidence that a disturbance in the employee’s behavior, thinking, mood, perception, orientation, or memory may, as a result of a mental condition, be interfering with his or her ability to perform the essential functions of the position or assigned duties. Whereas disability evaluations typically are triggered by the employee filing a mental injury claim, in an FFDE it is the employer who puts the employee’s mental condition at issue. “Fundamentally, the context of the FFD evaluation creates a tension between the needs of the employer to maintain a safe and productive workplace and the privacy rights of the employee. This situation presents unique challenges and requires knowledge of and attention to the procedural and substantive nuances inherent to the process” (Piechowski & Drukteinis, 2011, p. 571). Courts have recognized an agency’s authority to mandate FFDEs of police officers when the business necessity standard has been met (cf. Colon v. City of Newark, 2006; Deen v. Darosa, 2005; Kraft v. Police Commissioner of Boston, 1994; McKnight v. Monroe Co. Sheriff’s Dept., 2002; Tingler v. City of Tampa, 1981; Watson v. City of Miami Beach, 1999). The landmark case in this area is Conte v. Horcher (1977), a case in which a police lieutenant brought suit against the chief of police for ordering him to undergo a psychiatric evaluation, claiming that the mandate was inappropriate and unlawful. The court ruled that the police chief had not only the authority to order the evaluation, but also an obligation to do so if the facts warranted concern about an officer’s psychological suitability: It is the duty of the police chief to maintain a capable and efficient force. An examination, either physical or mental, enables the chief to ascertain the qualifications of a person to perform particular duties or to fill a particular position. (p. 569)

This supports the rulings of other courts that agencies employing high-risk personnel, particularly law

Forensic Assessment for High-Risk Occupations

enforcement officers, should have official policies and procedures in place to monitor their employees’ psychological fitness, and to require assessments where appropriate (Bonsignore v. City of New York, 1982). Agencies that hire employees for high-risk occupations should have policies in place addressing the substantive and procedural issues involved in FFDE referrals (Ostrov, Nowicki, & Beazley, 1987; Rostow & Davis, 2004; Saxe-Clifford, 1986). These policies should be developed and implemented before an employee-related crisis occurs. In the sections that follow we describe several key legal and practice issues in FFD assessments. Stone (1990) analyzed the reasons for FFDE referrals in his practice over a 10-year period. The most frequently cited causes were suspected psychopathology (26%), excessive force issues (19%), substance abuse (15%), repeated poor judgment (13%), and domestic violence (9%). More recently, Dawkins, Griffin, and Dawkins (2006) analyzed more than 200 FFDE referrals in their practice. Similar to Stone, they reported that 17% of the referrals involved alcohol use, but they reported more than twice as many referrals involving domestic violence (21%). They reported that 16% involved other behavioral concerns, 37% pertained to psychopathology or emotional distress, and 5% were for officers being considered for rehire following employment separation. Corey (2011) proposed 15 principles to guide police psychologists who are called on to conduct an FFDE, which are organized around four topics: (1) referral issues, (2) examination and procedural issues, (3) determining fitness, and (4) communicating the results. The principles are listed in Table 11.3 and are briefly summarized in the following. Referral Issues FFDE referrals often come with a sense of urgency. The employee may have been placed on paid leave pending the fitness determination, and the employer is understandably motivated to minimize that time. There may be considerable worry about the employee’s risk of harm to self or others, and the employer may be awaiting the findings and recommendations from the FFDE to help guide actions to ameliorate that threat. These and other considerations can put pressure on the examiner to act quickly. But the annals of case law, licensing board proceedings, and ethics complaints are replete with examples that underscore the importance of approaching these high-stakes examinations with careful attention to several critical steps before agreeing to take on the referral.

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TABLE 11.3 Principles of Fitness-for-Duty Evaluations Referral Issues: 1. Assess how the employer met the legal threshold for mandating a fitness examination. 2. Identify the relevant clinical and forensic questions. 3. Determine whether the referral is within your area of expertise or competence. 4. Decline the referral if you are unable to be impartial. 5. Identify the legal standard for determining fitness. 6. Determine the examinee’s rights and limitations to access the report and other personal health information. 7. Provide appropriate disclosure to the referring party concerning fees, evaluator role, and procedures. Examination and Procedural Issues: 8. Provide appropriate disclosure and obtain informed consent/authorization. 9. Decide whether to permit third-party observers and/or recording devices in the interview. 10. Select multiple sources of clinical and behavioral information, using relevance and reliability as guides. 11. Assess response style. Determining Fitness: 12. Use a model for determining fitness for duty. Communicating the Results: 13. Guard the legal and ethical limitations on report content. 14. Avoid mere conclusory opinions unless otherwise instructed by the referring party. 15. Address causation, treatment or restoration of fitness, and/or accommodation only if requested by the referring party.

Threshold Analysis In contrast to the ADA requirements for preemployment assessments, disability inquiries or medical examinations of an incumbent employee, under the ADA, require an employer to meet the business necessity standard: namely, objective evidence of job-related performance problems or safety threats and a known or reasonably suspected mental condition. One of these without the other is an insufficient basis for an FFDE (Gold & Shuman, 2009). The threshold analysis of determining whether the employer has reasonably and appropriately assessed the need for a psychological evaluation is the most fundamental legal issue in FFDEs (Corey, 2011). IACP Psychological Fitness-for-Duty Evaluation Guidelines (2009b) (hereafter IACP FFDE Guidelines) recommend that the employer and examiner “consult before an FFDE commences in order to ensure that an FFDE is indicated in a particular case” (Guideline 4.3). This prereferral consultation provides an opportunity for the examiner to discuss with the employer—when it is appropriate—less intrusive, nonmedical alternatives and helps the prospective

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examiner to better understand the employee’s behavioral history. The business necessity standard may be met when an employer knows about an employee’s medical condition, has observed performance problems, and reasonably can attribute the problems to the medical condition. This may occur because an employer receives reliable information from a credible third party that an employee has a medical condition, or because the employer directly observes symptoms/behaviors that suggest a medical condition that could impair the employee’s ability to perform essential job functions or that poses a direct threat. Although health problems that have had “a substantial and injurious impact on an employee’s job performance” (Yin v. California, 1996, p. 868) can justify an FFDE, these are not the only circumstances that satisfy ADA’s business necessity standard. More recently, some courts have held that an employer may preemptively require an FFDE without showing that an employee’s job performance has suffered as a result of health problems, “particularly when the employer is engaged in dangerous work” (Brownfield v. City of Yakima, 2010, slip op. at 10825; see also Cody v. CIGNA Healthcare of St. Louis, 1998; Watson v. City of Miami Beach, 1999). Although the business necessity standard “is quite high, and is not to be confused with mere expediency” (Cripe v. City of San Jose, 2001, at 890), the test may be met even in the absence of known medical problems or observed deterioration in the job performance. In Brownfield, the court concluded that an officer’s repeated volatile responses to co-workers and supervisors established the business necessity of requiring him to submit to a series of fitness evaluations. Moreover, the court wrote, Our consideration of the FFDEs’ legitimacy is heavily colored by the nature of Brownfield’s employment. Police officers are likely to encounter extremely stressful and dangerous situations during the course of their work. When a police department has good reason to doubt an officer’s ability to respond to these situations in an appropriate manner, an FFDE is consistent with the ADA. (slip op. at 10827)

Special consideration must be given to FFDE referrals involving an employee who is released from medical leave under the Family & Medical Leave Act (FMLA) of 1993. The FMLA provides that an employer typically cannot compel an employee to submit to an independent FFD assessment if the treating health-care provider has certified that the employee is ready to return to work. Pre-leave or post-return behaviors of concern, however, may justify an FFDE (Albert v. Runyon, 1998; see also Brumbalough v. Camelot Care Centers, 2005). Alternatively, an FFDE

also may be permissible when an employer can establish that it would have ordered such an evaluation on the basis of the employee’s pre-leave conduct or behavior (Carrillo v. National Council of Churches of Christ in the USA, 1997). For referrals involving a federal police agency under the authority of the Office of Personnel Management, federal regulations stipulate that employees may not be directed to undergo a psychiatric or psychological examination unless the agency has first shown through a general medical examination that there is “no physical basis to explain actions or behavior which may affect the safe and efficient performance of the individual or others,” and the position has medical standards that call for a psychiatric or psychological examination (5 C.F.R. §339.301(e)(1)). As Corey (2011) noted, because employers may refer employees precipitously when they perceive an imminent risk, “a prereferral conference helps to ensure that these requirements are satisfied before agreeing to conduct an evaluation that may ultimately be deemed invalid under the law” (p. 267). Clarifying the Referral Questions The urgent and hasty situation of an FFDE referral can also distract employers and examiners from the importance of a written referral letter. This documentation is valuable to both the referring employer and the examining psychologist. For the employer, the referral letter documents how it has met the “business necessity standard” that justifies the referral. For the examiner, the referral letter supports the threshold analysis and structures the evaluation and the resulting report by specifying the scope of the assessment and questions to be addressed (e.g., reasonable accommodation, treatment recommendations to restore fitness, industrial causation). The IACP FFDE Guidelines (2009b) address the referral letter in this way: It is recommended that the employer’s referral to the examiner include a description of the objective evidence giving rise to concerns about the employee’s fitness for duty and any particular questions that the employer needs the examiner to address. In most circumstances, the agency is encouraged to document the referral in writing. If the employer has not documented the reasons for the referral in writing, the examiner should send the employer a letter or memo restating the reasons for the referral. (Guideline 7.2)

The referral letter and the accompanying documentation also provide a final opportunity before beginning the examination for the psychologist to assess his or her competence to conduct it. Ethical standards and practice

Forensic Assessment for High-Risk Occupations

guidelines instruct psychologists to decline referrals for services that fall outside their areas of competence, for which they lack adequate training and experience, or when their objectivity or impartiality may be impaired. The high-stakes nature of FFDEs often leads to protracted disputes throughout the referral process and long after the evaluation has been completed. As Anfang and Wall (2006) observed, “The legal concepts, evaluation process, and administrative issues may be complex and unfamiliar to the nonforensic clinician. . . . FFD evaluations can often become the subject of administrative or legal dispute because of the significant personal, legal, and financial consequences” (p. 678). The IACP FFDE Guidelines (2009b) advise that, when accepting a referral for an FFD evaluation that is known or reasonably anticipated “to be in the context of litigation, arbitration, or another adjudicative process, the examiner should be prepared by training and experience to qualify as an expert in any related adjudicative proceeding” (Guideline 5.2). Gold and Shuman (2009) further advised clinicians who perform FFDEs to “consider the possibility that litigation or administrative processes may arise from claims requiring mental health assessments. Thus, the specialty guidelines for forensic clinicians may be interpreted to apply to third-party evaluations of all kinds whether litigation has occurred or not” (p. 2). The Fitness Standard If the threshold analysis is the most fundamental legal issue in FFDEs, then the standard by which fitness is assessed is the most fundamental clinical issue in these evaluations. Anfang and Wall (2006) pointed out that “‘fitness for duty’ has no consistent clinical definition,” and they proposed to resolve that issue by defining unfitness as “the inability to perform required occupational duties with reasonable skill and safety as a result of illness or injury” (pp. 676–677). In contrast, Rostow and Davis (2004) defined unfitness as “mental impairment that may impact upon the ability of the officer to perform his duty in a safe and effective manner” (p. 62). The IACP FFDE Guidelines (2009b) similarly conceptualize unfitness in a police officer as being “unable to safely and/or effectively perform his or her duties due to a psychological condition or impairment” (Guideline 3.1). Gold and Shuman (2009) opined that FFDE evaluators “should be certain to limit opinions to questions of psychiatric impairment” (p. 261). In general, clinical opinions about fitness for duty should rest on evidence that the layperson is not qualified to assess (e.g., signs and symptoms of psychopathology). As Corey (2011) observed,

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When judgments about unfitness are based [solely] on behaviors and other evidence [unrelated to a mental condition] that an employer, lay person, and psychologist can assess with equal facility—such as in the case of an insubordinate, disruptive, or dishonest police officer whose conduct does not result from a mental health condition—they fall outside the realm of a professional, clinical or “medical” opinion because they are devoid of the special expertise required for such judgments. (p. 268)

Psychologists evaluating the psychological fitness of law enforcement officers might begin by considering what statutory language may be used to define the suitability or fitness of a peace officer applicant. The case of Sager v. County of Yuba (2007) provides an instructive illustration of how these qualifying mandates for police officers can be applied in FFDEs, as well. In response to the argument of Sager, a deputy sheriff who was found to be psychologically unfit for duty—namely, that the California Government Code § 1031 standards apply only to applicants rather than incumbent deputies—the court wrote: [T]he section 1031 standards must also be maintained throughout a peace officer’s career. . . . At least two of the standards reflect fundamental law enforcement qualifications: good moral character (§ 1031, subd. (d)) and mental fitness (§ 1031, subd. (f )). If Sager’s position is correct, an officer who lost his moral compass would be immune from these standards and only subject to a moral character standard if the applicable job description in that department reiterated that standard as a defined duty of that classification of officers. That absurd result highlights the flaw in Sager’s position. (at 14)

The statutory and regulatory requirements for preemployment suitability in the examinee’s jurisdiction may inform an interpretation of the standard for incumbents and possibly even for other high-risk or sensitive professions. These include physicians, nurses, psychologists, and other health-care professionals; school teachers; nuclear reactor operators; correctional officers; firefighters and paramedics; emergency dispatchers; and other high-risk professions licensed or regulated by state or federal government. When evaluating the fitness of physicians, the American Psychiatric Association’s “Resource Document on Guidelines for Psychiatric Fitness-for-Duty Evaluations of Physicians” (Anfang, Faulkner, Fromson, & Gendel, 2005) is useful as an adjunct to statutory standards. Evaluating whether an employee poses a “direct threat” generally requires a different scope and threshold than

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general appraisals of fitness to perform essential job functions. Under the terms of the ADA, a direct threat means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation (29 C.F.R. § 1630.2(r)). Determinations of direct threat must be based on an individualized assessment of the examinee’s present ability to safely perform the essential functions of the job. The ADA stipulates that the determination must be based on a reasonable medical judgment relying on the most current medical knowledge and/or best available objective evidence (29 C.F.R. § 1630.2(r)). The factors that must be considered when making the determination are (a) the duration of the risk, (b) the nature and severity of the potential harm, (c) the likelihood that potential harm will occur, and (d) the imminence of the potential harm (29 C.F.R. § 1603.2(r); cf. Anderson v. Little League Baseball, Inc., 1992). The employer bears the burden to provide “substantial evidence” that the employee poses a significant risk of substantial harm. This standard is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion” (Richardson v. Perales, 1971, p. 401). But just as the court in Brownfield v. City of Yakima (2010) held that public safety employers may meet the FFDE referral standard without waiting to observe impaired performance, courts elsewhere have also held that the threshold for assessing direct threat in public safety employees is also lower than for other types of employees. In Lassiter v. Reno (1996/1997), the court concluded that when assessing whether an employee can perform his or her duties without a significant risk to the safety of the individual or others, consideration must be given to “the nature of the position and the consequences should the employee fail to perform his duties properly” (p. 1151). In a case involving a Deputy U.S. Marshal with paranoid personality disorder, the Lassiter court decided that the employer was not required to show that the employee was reasonably likely to become violent, but rather that he posed a significant risk to the safety of himself or others if he did so. The court wrote: Given the duties of a deputy marshal, a significant risk to the safety of others can arise not only from an inclination to strike out in violence, but also from a tendency to misperceive the true nature of events. . . . Placed in unfamiliar circumstances that may or may not be hostile, the deputy marshal must have the ability to decide in an instant whether the use of deadly force is warranted. If an innocent person is injured or killed because a deputy marshal “read . . . threatening meanings into benign remarks or events[,]” “it is not difficult to imagine the

public outrage, let alone the potential liability” to which the federal government would be subjected. (at 40)

Although the EEOC defines direct threat to mean “a significant risk of substantial harm” (29 C.F.R. § 1630.2(r)), where the employee’s position affects the safety of others, and the potential harm is severe, even a low probability that the harm will occur may be sufficient to establish a direct threat (cf. Butler v. Thornburgh, 1990; Hogarth v. Thornburgh, 1993; Myers v. Hose, 1995). Conversely, where the potential harm is not fatal or catastrophic, the employer usually will be required to demonstrate that the risk is highly probable in order to establish that a direct threat exists (Mariani & Avelenda, 2009). Clarifying Terms of the Referral Prior to conducting the examination, the psychologist should clarify with the referring party the specific terms of the referral, including the nature of the services to be provided, the estimated hours and time period, the provisions if the anticipated services cannot be performed within this period, fees, any differences in rate by type of service, who will be responsible for payment, any special financial considerations (e.g., fees in the event of cancellations, terms of payment, interest on delinquent balances), and anticipated work products (e.g., verbal consultation, report, testimony) (Heilbrun, 2001). Other aspects of the referral that are important to clarify prior to the evaluation include the intended recipients of the written report, any limitations in the employee’s access to the report and FFDE records, the availability of collateral informants, the records and documentation required in advance of the evaluation (including the job description and/or job analysis for the position), and the presence of third parties at the examination. A convenient form of disclosure that meets some, although not all, of these disclosure obligations may be achieved by providing the referring party with a copy of the IACP FFDE Guidelines (2009b), along with a statement that these guidelines are intended to apply to both the referring party and the examiner.

Examination and Procedural Issues Multiple parties are always involved in an FFDE, and this demands particular attention to the complexities of the relationships among the parties, as well as the sources and reliability of assessment information to be used in the evaluation. Here, too, the sense of urgency that often accompanies the referral can lead an examiner to give

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short shrift to these topics and rush into the examination, and form conclusions, without making proper disclosures; obtaining appropriate consents; and identifying, gathering, and weighing pertinent assessment information. These examination and procedural issues are central to any FFDE and form the foundation for a valid fitness determination. Providing Disclosure and Obtaining Informed Consent In addition to the general issues addressed in the first section of this chapter, “Ethical Issues in High-Risk Occupational Assessments,” psychologists conducting FFDEs should be mindful of the particular importance of full disclosure in these high-stakes examinations. At a minimum, to obtain informed consent in an FFDE, the evaluator should disclose/provide: (a) a description of the nature and scope of the evaluation; (b) the limits of confidentiality, including any information that may be disclosed to the employer without the examinee’s authorization; (c) the party or parties who will receive the FFDE report, and whether the examinee will receive a report; (d) the potential outcomes and probable uses of the examination, including treatment recommendations, if applicable; and (e) other provisions consistent with legal and ethical standards for mental health evaluations conducted at the request of third parties (IACP FFDE Guidelines, 2009b, Guideline 8.1). Disclosure and informed consent are ongoing processes, as well, and may require periodic clarification throughout the examination. Disclosures also may be required when conducting collateral interviews of third-party informants, including supervisors, co-workers, family members, and health-care providers. Corey (2011) thoroughly examined the issue of thirdparty observers or recordings in FFDEs. Although there are many factors to consider when deciding whether to permit third-party observers or recordings in the examination, what is most important is that the examining psychologist thinks through these issues before the evaluation. FFDE case law has often originated from instances in which the psychologist was caught off guard by the examinee’s requests or demands. Forethought about the range of contingencies sometimes encountered in fitness examinations can help to ensure that disclosure is as complete as possible and that the examinee’s resulting consent is commensurately informed. The IACP FFDE Guidelines (2009b) recommend that, in addition to obtaining informed consent, the examiner obtain written authorization from the employee to release the examiner’s findings and opinions to the employer: “If such authorization is denied, or if it is withdrawn once the

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examination commences, the examiner should be aware of any legal restrictions in the information that may be disclosed to the employer without valid authorization” (Guideline 8.3). Assessment Methods In contrast to preemployment psychological screenings of applicants, which are standardized protocols applied uniformly to all applicants in a job class, FFDEs involve an individualized approach based on the underlying psychological problems indicated by the referral information (Fischler, McElroy, Miller, Saxe-Clifford, Stewart, & Zelig, 2011). Piechowski and Drukteinis (2011) identified four sources of data normally relied on in an FFDE: (1) written records and documents, (2) collateral interviews, (3) a clinical interview with the examinee, and (4) psychometric test data. The IACP FFDE Guidelines (2009b) also recommend the use of multiple methods and data sources in order to optimize the reliability and validity of findings in the psychological FFDE: 1. A review of the background and collateral information regarding the employee’s past and recent performance, conduct, and functioning. This information might include, but is not limited to, performance evaluations, previous remediation efforts, commendations, testimonials, internal affairs investigations, formal citizen/public complaints, use-of-force incidents, reports related to officerinvolved shootings, civil claims, disciplinary actions, incident reports of any triggering events, medical records, prior psychological evaluations, and other supporting or relevant documentation related to the employee’s psychological fitness for duty. In some cases, an examiner may ask the examinee to provide medical/psychological treatment records and other data for the examiner to consider. (Guideline 9.1.1) 2. Psychological testing using assessment instruments (e.g., personality, psychopathology, cognitive, specialized) appropriate to the referral question(s). (Guideline 9.1.2) 3. A comprehensive, face-to-face clinical interview. (Guideline 9.1.3) 4. Collateral interviews with relevant third parties if deemed necessary by the examiner. (Guideline 9.1.4) 5. Referral to, and/or consultation with, a specialist if deemed necessary by the examiner. (Guideline 9.1.5)

One of the major methodological differences between preemployment screenings and FFDEs is the nature and degree of reliance on records and collateral information. It is imperative that the employer provides the examiner with a complete historical record in order to ensure a competent and objective appraisal of fitness (Colon v. City

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of Newark, 2006). As an added measure of fairness and balance, it may also be probative for the expert to ask the examinee if there are specific individuals he or she thinks should be interviewed or documents that should be reviewed. Reliance on collateral information is critical to gauge any changes in thinking, mood, or behavior that may be observable by others and to assess the extent to which they are consistent with the employee’s self-report. This may also include mental health treatment and other medical records. Interviews with treatment providers may also yield relevant information about the employee’s treatment progress and prognosis. When consulting a treating professional, however, the examiner must always consider that the provider has a primary alliance with the patient, and that the applicability of any information must be considered in light of the known distinctions between therapeutic and forensic roles. The ADA permits an employer to obtain only that medical information necessary to determine whether the employee can do the essential functions of the job or work without posing a direct threat (EEOC, 2000, Question 13). This often requires that requests for records be narrowly tailored to minimize intrusions into the employee’s medical privacy. An employee’s right to deny or limit access to medical records is substantially more constrained, however, if he or she has raised an issue of mental fitness prior to the FFDE. This principle was affirmed in Thomas v. Corwin (2007), a case involving an officer with the Kansas City Police Department who was placed on medical leave by her treating psychologist for work-related stress and anxiety and then later released for duty. The psychologist who conducted the subsequent FFDE concluded that Thomas did not appear to have any major psychological disorder, but he could not find her fit for duty in the absence of evidence of effective medical intervention for her anxiety or a change in working conditions to resolve her complaints within the police department. He reported that he could not issue a final report without access to her medical records. She refused and was fired. In turn, Thomas sued, alleging ADA violations, discrimination, and invasion of privacy. In awarding summary judgment to the employer, the district court affirmed the employer’s right to order the employee to release her treatment records to the examining psychologist. The court concluded: By refusing to provide [the examining psychologist] the opportunity to review her medical records and to discover the root of Thomas’s stress and anxiety, Thomas created a

stalemate in which KCPD had little choice but to terminate Thomas rather than return her to the position from which Thomas’s stress and anxiety originated. Thomas’s refusal to cooperate with the reasonable requirements of her FFD evaluation and her violation of KCPD’s rules of conduct provided the defendants with legitimate, nondiscriminatory reasons to terminate Thomas. (at 531)

Failure to obtain mental health treatment records in an FFDE also can lead to error and impede the employer’s ability to make decisions involving officer and public safety. In Thompson v. City of Arlington (1993), the employer sent police officer Ann Thompson for an FFDE once her treatment providers released her to return to work following a suicide attempt. The examining psychologist did not review the psychiatric records but determined Thompson to be fit for duty. In turn, the employer demanded a review of Thompson’s psychiatric treatment records, and she refused, leading the employer to place her on indefinite restricted duty. She sued in federal court, alleging, among other things, a violation of her right to privacy. The court dismissed her suit, citing the need for an objective return-to-work opinion and distinguishing it from the patient-centered advocacy of the treatment provider. The extent to which a psychologist uses psychological testing in an FFDE will depend on the facts of the case and the circumstances precipitating the referral. Although there is no standard protocol of psychological tests used in FFDEs (Piechowski & Drukteinis, 2011), it is typically helpful to administer at least one broad-based measure of psychopathology such as the PAI or the MMPI-2 because of the explicit predicate question of a mental condition underlying the referral. Psychological testing provides an efficient way to gather information across multiple symptom areas and to screen for indications of significant problems that may occur even if there is no history of prior treatment. Including in one’s test battery an inventory that assesses normal dimensions of personality, such as the NEOPersonality Inventory–Revised (NEO-PI-R), the CPI-434, or the 16PF, may help to reveal strengths that can lend balance to the evaluation, or may suggest problematic, inflexible, or maladaptive personality traits indicative of a personality disorder. Specialized assessments, such as neuropsychological testing, may also be required, in which case the psychologist can either refer the employee for further examination or obtain the services of a specialist while retaining primary responsibility for the FFDE. Fischler et al. (2011) listed the tests most commonly used in FFDEs as the MMPI-2, MMPI-2-RF, PAI, CPI,

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and IPI. They explained that although the CPI and IPI are typically used to assess preemployment suitability, “they may be useful if the evaluator is assessing the employee for a condition or an impairment of personality that negatively affects job functioning” (p. 75). They asserted that the validity scales contained in these tests may also be useful in evaluating the reliability of the assessment: Sometimes an examinee wants to prove fitness for returning to duty by exaggerating strengths and downplaying weaknesses. However, in the process of making a favorable impression, the examinee may go too far, producing test results that cannot be reliably interpreted. For example, a recent study [Walfish, 2011] found that nearly 60% of the subjects involved in an FFDE-like process produced “fakegood” results by denying common weakness that most psychologically healthy people possess. (p. 75)

Gold and Shuman (2009) argued that dissimulation (i.e., minimizing problems or feigning health) is “a prominent concern in FFD evaluations” (p. 257), underscoring the need for a multi-method assessment protocol guided by reliability and validity. A clinical interview is a core component of any psychological FFDE (Corey, 2011; Gold & Shuman, 2009; Piechowski & Drukteinis, 2011; Rostow & Davis, 2004; Stone, 2000). Whereas the IACP FFDE Guidelines (2009b) simply recommend a “comprehensive, face-toface clinical interview” with the examinee, Fischler et al. (2011) describe the goals of a well-conducted FFDE interview (p. 75): 1. It assesses the officer’s perspective regarding the reason for the referral. 2. It explores the officer’s personal and professional history for lifelong patterns of vulnerability or resiliency that are relevant to making predictions regarding the examinee’s ability to cope with the demands of the job. 3. It evaluates the officer’s mental status; symptoms of mental illness (for example, major depression, psychosis, and PTSD); personality problems (for example, impulsivity and rebelliousness); and other potential problems (for example, family or financial problems and alcohol or drug abuse).

Determining Fitness As with preemployment assessments, the psychologist conducting an FFDE must evaluate the degree of fit between the employee’s current capacities or impairments and the essential requirements of the position (Grisso, 2003; Stone, 1995). The assessment can be done by

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(1) determining whether the employee has a mental or emotional disorder, and if so, evaluating its impact on the employee’s ability to perform the functions of the job; or (2) determining whether there are any significant impairments in the employee’s ability to perform essential job functions, and if so, evaluating their cause. If impairments are caused by a mental or emotional disorder, the psychologist must then determine whether the condition is remediable and whether the nature and degree of impairment is sufficient to justify a designation of being unfit for duty. If impairment is sufficiently severe that the employee is unfit for duty and the condition causing that impairment is not reasonably remediable, the employee would typically be considered permanently unfit for duty. If the condition is treatable, however, the examiner should recommend a course of intervention most likely to remediate it and specify the conditions necessary for restoring the employee to work. Work impairments that result from causes other than a mental or emotional condition should not be used as a basis for finding an employee unfit for duty, but instead should be resolved by the employer through administrative procedures. Piechowski and Drukteinis (2011) described the “ideal situation” in an FFDE as one in which “all the evaluation data will be consistent and the evaluator will feel confident in reaching conclusions and expressing his/her opinion. In reality, this almost never happens” (p. 582). Indeed, FFDEs, like forensic mental health evaluations of all kinds, normally yield some degree of contradictory or ambiguous findings from a variety of sources. To the extent that these can be reconciled in favor of a determination that is, in the judgment of the examiner, more likely than not, then an opinion about fitness may be communicated (see EPPCC Standard 9.01). Communicating the Results Like all forensically oriented reports, the FFDE report differs from those written for traditional clinical settings (Melton et al., 2007). Corey (2011) described four principal ways in which they differ. First, the primary intended recipient of the report is the employer rather than other mental health professionals, a fact that affirms the advice of Heilbrun et al. (2009) to avoid the use of clinical jargon when writing these reports. Second, FFDE reports are more likely than traditional clinical reports to be more broadly distributed to other unanticipated persons and parties, whether through the employer’s decisions, administrative procedures, or subsequent litigation. In turn, “special care must be taken to minimize any infringement

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on the privacy rights of persons mentioned in the report” (Melton et al., 2007, p. 583). A third difference is the degree of scrutiny that the report and the author are likely to receive in the course of any adjudicative proceedings or negotiations. Examiners should expect to be asked to provide testimony concerning their opinions and the bases for them, and this testimony may take place in the context of adversarial proceedings, under oath, where attorneys for both the employer and employee may well hold the examiner accountable for every word. Finally, a fourth difference pertains to the outcomes or consequences at stake in an FFDE of an employee in a high-risk profession. In addition to the impact that the findings may have on the decision to retain or terminate the employee, the nature and content of the report could affect the employee’s reputation, standing, and career even if retained in his or her position. It is a standard of ethical practice that “[p]sychologists include in written and oral reports and consultations only information germane to the purpose for which the communication is made” (APA, 2002, Standard 4.04(a)). The ADA also imposes limits on how much private information can be disclosed to an employer, stipulating that an employer is entitled only to the information necessary to determine whether the employee can do the essential functions of the job or work without posing a direct threat (EEOC, 2000, Question 13, p. 12). Courts have held that FFD examiners who go too far in disclosing confidential aspects of an employee’s life or health may be subject to tort action for invasion of privacy (McGreal v. Ostrov, 2004; Pettus v. Cole, 1996). Piechowski and Drukteinis (2011) advised that “when the FFD evaluation yields detailed personal information about the employee, much of which may not be directly related to the employee’s job duties, the evaluator must safeguard this information and should share only the minimum data necessary to address the employer’s concerns” (p. 573). The IACP FFDE Guidelines (2009b) call for “a clearly articulated opinion that the examinee is presently fit or unfit for unrestricted duty” (Guideline 10.1). Although a great deal of information is gathered in the course of a fitness evaluation pertaining to the employee’s personal, occupational, and medical history, only information pertinent to the referral question(s) is to be communicated to the employer: The content of the report should be guided by the referral question(s), the employing agency’s written policies and procedures, the applicable terms of any labor agreement, relevant law, the terms of informed consent, the employee’s

authorization, and the pertinence of the content to the examinee’s psychological fitness. (Guideline 10.1)

As with determinations of suitability in preemployment examinations, some evaluators communicate their opinions about an employee’s fitness dichotomously (e.g., fit or unfit for unrestricted duty). Others advocate for a broader array of categories reflecting the possibility of conditional fitness in the context of certain recommended restrictions, interventions, accommodations, or modified duty assignments (see Piechowski and Drukteinis, 2011; Stone, 2000). Following their review of various reporting models, Fischler et al. (2011, p. 76) posed the following framework: • Fit for duty. There are no significant psychological conditions or impairments that would render the employee unable to carry out essential job functions. Although the employee may have some psychological issues or problems, they are not likely to render the employee unable to safely and effectively perform the duties of the job, or the issues are not due to a psychological condition or impairment. To the extent that performance or conduct problems appear to be due to reasons other than a mental condition or impairment, administrative options are best pursued, including coaching, counseling, education and training, or disciplinary action. • Unfit for duty. The employee has an underlying mental condition or impairment that precludes safe and effective performance. In cases where with a favorable prognosis, the employer and employee may authorize the examiner to make recommendations for remediation or restoration of fitness, with a post-remediation FFDE verifying readiness to return to work. • Invalid evaluation. The employee failed to cooperate with the evaluation, was untruthful, or was otherwise manipulating the findings from the assessment, thereby precluding a determination of fitness with a reasonable degree of certainty.

Regardless of an examiner’s preferred reporting framework, the report for any particular FFDE should be guided by the referral questions, preferences, and requirements of the referring party. Thus, it may be that the employer seeks the examiner’s opinions about treatment, accommodation, or modified duty, but even then they should be offered only when there is adequate evidence, and with a clear understanding that the “reasonableness” of accommodations is determined by the employer, not the examiner. Corey (2011) discussed the potential problems with FFDE reports that are limited only to a categorical opinion (e.g., fit or unfit) without further detail or elaboration. Noting that doing so may undermine the usefulness of the

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report, he recommended that examiners discuss the possible limitations and alternatives with the retaining party at the outset of the evaluation. The limitations derive primarily from the standard used by some adjudicators when weighing medical opinions in an FFDE. For example, in the federal environment, the Merit Systems Protection Board (Lassiter v. Department of Justice, 1993) held that the proper standard for assessing the probative weight of medical opinion in an FFD evaluation is (a) whether the opinion was based on a medical examination, (b) whether the opinion provided a “reasoned explanation for its findings as distinct from mere conclusory assertions” (p. 4), (c) the qualifications of the expert rendering the opinion, and (d) the extent and duration of the expert’s familiarity with the condition of the employee. In Slater v. Dept. of Homeland Security (2008), the Board concluded that the FFDE reports that were “entirely conclusory, devoid of any medical documentation or explanation in support of their conclusions” carried less “credibility and reliability” than one that was “a thorough, detailed, and relevant medical opinion addressing the medical issues of the agency’s removal action.”

SUMMARY Evaluating applicants and incumbents for high-risk occupations is a high-stakes activity that requires vigilant attention to the myriad interests, rights, and due process requirements associated with multiple stakeholders— principally the examinee, the employer, and the service recipients and co-workers associated with the position. Forensic assessments for high-risk occupations frequently impose a consequential dilemma, in which an examiner’s error may, on the one hand, unjustly deter or terminate the career of an applicant or incumbent employee, or, on the other, unnecessarily expose the employer, fellow workers, or the community to dangerous and potentially catastrophic outcomes. The weight and significance of this burden justifies careful attention to the legal requirements, practice guidelines, and ethical standards associated with these evaluations. REFERENCES Aamodt, M. G. (2004). Research in law enforcement selection. Boca Raton, FL: Brown Walker. ADA Amendments Act of 2008, Pub. L. 110-325 (2009). Alaska Administrative Code, 13 AAC § 85.010. Albert v. Runyon, 6 F.Supp.2d 57, 1998 U.S. Dist. Lexis 7505 (D.Mass. 1998).

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American Board of Police & Public Safety Psychology. (2011, November 7). Examination manual for specialty board certification in police & public safety psychology (7th ed.). American Board of Professional Psychology. Retrieved from www.abpp.org/ files/Page-specific/3606%20Police%20%26%20Public%20 Safety/ABPPSP%20Examination%20Manual%20v7.pdf American Psychological Association. (2002). Ethical principles for psychologists and code of conduct. Washington, DC: American Psychological Association. American Psychological Association (APA). (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1024–1040. American Psychological Association. (in press). Specialty guidelines for forensic psychology. American Psychologist. Manuscript submitted for publication. Retrieved from http://ap-ls.org/aboutpsychlaw/ SGFP_Final_Approved_2011.pdf Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2, 104 Stat. 328 (1991). Anderson v. Little League Baseball, Inc., 794 F.Supp. 342, 61 USLW 2050 (D. Ariz. 1992). Anfang, S. A., Faulkner, L. R., Fromson, J. A., & Gendel, M. H. (2005). American Psychiatric Association resource document on guidelines for psychiatric fitness-for-duty evaluations of physicians. Journal of the American Academy of Psychiatry and the Law, 33, 85–88. Anfang, S. A., & Wall, B. W. (2006). Psychiatric fitness-for-duty evaluations. Psychiatric Clinics of North America, 29 , 675–693. Arkansas Attorney General Opinion No. 2000-338 (January 21, 2001). Aumiller, G. S., Corey, D. M., Allen, S., Brewster, J., Cuttler, M., Gupton, H., & Honig, A. (2007). Defining the field of police psychology: Core domains and proficiencies. Journal of Police & Criminal Psychology, 22, 65–66. doi:10.1007/s11896-007-9013-4 Bass v. City of Albany, 968 F.2d 1067 (11th Cir. 1992). Bauschard v. Martin, 1993 WL 79259 (N.D. Ill. 1993) (not reported). Ben-Porath, Y. S., Corey, D. M., & Stewart, C. O. (2011a, October 23). Predicting law enforcement officer performance outcomes using the MMPI-2-RF . Paper presented at the annual meeting of the International Association of Chiefs of Police, Police Psychological Services Section, Chicago, IL. Ben-Porath, Y. S., Fico, J. M., Hibler, N. S., Inwald, R., Kruml, J., & Roberts, M. R. (2011b). Assessing the psychological suitability of candidates for law enforcement positions. Police Chief, 78 (8), 64–70. Ben-Porath, Y. S., & Tellegen, A. (2008). Minnesota Multiphasic Personality Inventory–2–restructured form: Manual for administration, scoring, and interpretation. Minneapolis: University of Minnesota Press. Berner, J. G. (2010). Pre-offer personality testing in the selection of entry-level California peace officers: A technical report to the California Commission on Peace Officer Standards and Training (Publication No. POST2007S&E-0388). Blau, H. L., Super, J. T., & Brady, L. (1993). The MMPI good cop/bad cop profile in identifying dysfunctional law enforcement personnel. Journal of Police and Criminal Psychology, 9, 2–4. Blau, T. H. (1994). Psychological services for law enforcement. New York, NY: Wiley. Bonsignore v. City of New York, 683 F.2d 635 (2d Cir. 1982). Borum, R., Super, J., & Rand, M. (2003). Forensic assessment for highrisk occupations. In A. M. Goldstein & I. B. Weiner (Eds.), Forensic psychology (Vol. 11, pp. 133–147). Hoboken, NJ: Wiley. Brewster, J., & Stoloff, M. L. (1999). Using the good cop/bad cop profile with the MMPI-2. Journal of Police and Criminal Psychology, 14, 29–34. Brownfield v. City of Yakima, No. 09-35628 (9th Cir. 2010). Brumbalough v. Camelot Care Centers, Inc., No. 04-5543, 427 F.3d 996 (6th Cir. 2005).

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Dantzker, M. L. (2011). Psychological preemployment screening for police candidates: Seeking consistency if not standardization. Professional Psychology: Research and Practice, 42 (3), 276–283. Davis, R. & Rostow, C. (2008). M-PULSE Inventory: Matrix-Predictive Uniform Law Enforcement Selection Evaluation Inventory- Technical Manual. Toronto: MHS. Davis, R. & Rostow, C. (2010). Use of the M-Pulse Inventory in Law Enforcement Selection in P. A. Weiss, (Ed.). Personality Assessment in Police Psychology: A 21st Century Perspective (pp. 132–158). Springfield, IL: Charles C. Thomas. Dawkins, M., Griffin, S., & Dawkins, M. (2006). Psychological fitnessfor-duty examinations: Making effective use of outcome data. Paper presented at the 113th Annual Conference of the International Association of Chiefs of Police, Police Psychological Services Section, Boston, MA. Deen v. Darosa, 414 F.3d 731 (7th Cir. 2005). Delaware Register of Regulations, Title 801 Delaware Council on Police Training, 13 DE Reg. 840 (2009). Denhof et al. v. City of Grand Rapids, 494 F.3d 534 (6th Cir. 2007). Detrick, P., Chibnall, J. T., & Luebbert, M. C. (2004). The Revised NEO Personality Inventory as predictor of police academy performance. Criminal Justice and Behavior, 31, 676–694. Detrick, P., Chibnall, J. T., & Rosso, M. (2001). Minnesota Multiphasic Personality Inventory–2 in police officer selection: Normative data and relation to the Inwald Personality Inventory. Professional Psychology: Research and Practice, 32, 484–490. EEOC. (1991a). Equal Employment Opportunity for Individuals With Disabilities: Final rule, 55 (44) Fed. Reg. (1991). EEOC. (1991b). Regulations to implement the equal employment provisions of the Americans with Disabilities Act, Title 29, Subtitle B, Chapter XIV, Part 1630. EEOC. (1995). ADA Enforcement Guidance: Preemployment DisabilityRelated Questions and Medical Examinations: Compliance manual (Vol. II, Sect. 902, No. 915.002). Washington, DC: Equal Employment Opportunity Commission. EEOC. (1997). EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities: Compliance manual (Vol. II, Sect. 902, No. 915.002). Washington, DC: Equal Employment Opportunity Commission. EEOC. (2000). Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act: Compliance manual (Vol. II, Sect. 902, No. 915.002). Washington, DC: Equal Employment Opportunity Commission. EEOC. (2002, October 29). ADA Technical Assistance manual: January 1992. (Publication EEOC-M-1A, Addendum). EEOC. (2008). The Americans with Disabilities Act: Applying performance and conduct standards to employees with disabilities. Retrieved from www.eeoc.gov/facts/performance-conduct.html Elkins v. Syken, 672 So.2d 517, 519 (Fla. 1996). Family & Medical Leave Act, 29 U.S.C. § 2601 (1993). Fischler, G. L., McElroy, H. K., Miller, L., Saxe-Clifford, S., Stewart, C. O., & Zelig, M. (2011). The role of psychological fitness-for-duty evaluations in law enforcement. Police Chief, 78 (8), 72–78. Fisher, M. A. (2009). Replacing “Who is the client?” with a different ethical question. Professional Psychology: Research and Practice, 40 (1), 1–7. Genetic Information Nondiscrimination Act of 2008 (GINA). Pub.L. 110-223, 122 Stat. 881 (2008). Gold, L. H., & Shuman, D. W. (2009). Evaluating mental health disability in the workplace. New York, NY: Springer Science & Business Media. Greenberg v. N.Y. Dept. Corr. Serv., 919 F.Supp. 637 (E.D.N.Y. 1996). Grisso, T. (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York, NY: Kluwer Academic/Plenum Press.

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CHAPTER 12

Forensic Evaluation in Americans With Disabilities Act Cases WILLIAM E. FOOTE

INTRODUCTION 271 THE EMPLOYMENT OF PEOPLE WITH DISABILITIES 272 PSYCHIATRIC/PSYCHOLOGICAL DISABILITIES AND THE ADA 274 PSYCHOLOGICAL CONSULTATIONS WITH EMPLOYERS AND WORKERS 279

LITIGATION-RELATED EVALUATIONS AND CONSULTATIONS 286 CONCLUSION 291 REFERENCES 291

INTRODUCTION

provide “reasonable accommodation” for disabled workers who could qualify for jobs if such assistance were provided (Parry, 1996). This remarkable and sweeping legislation has had an impact on many aspects of American life, including public accommodations, telecommunications, and transportation. This chapter focuses on how forensic mental health professionals can inform decisions that people with disabilities, employers, and the courts make as they engage the opportunities as well as the conflicts provided by the ADA. The chapter begins with some general information about disability in the workplace and explains how the ADA fits into existing disability systems. The second section addresses mental disabilities under the ADA. The third section focuses on how psychologists may work with employers to accommodate workers with disabilities. The fourth section examines litigation-related psychological evaluations and how psychologists may assist the court in determining damages in cases of discrimination or failure to provide reasonable accommodation. Because of space limitations, this chapter does not focus on the legal structure of the ADA, nor how the ADA applies to the hiring process. The interested reader is directed to Parry (1997), Stefan (2001), and Carling (1993) for information concerning the law, and to Parry (1997) and Hall and Cash (1992) for material related to hiring issues. The Web site provided by the Independent Living Research Utilization

In July 1990, President George Bush signed the Americans With Disabilities Act (ADA; Americans With Disabilities Act of 1990), which became effective 2 years later. In writing the most sweeping Civil Rights legislation since the Civil Rights Act of 1964 (Civil Rights Act of 1964), the framers of this law intended to assist people with disabilities to obtain jobs and achieve the goal of full functioning within the workplace. The ADA contains provisions that outlaw discrimination against people with disabilities in hiring, training, compensation, and benefits (Bell, 1997). The statute prohibits utilizing employment classifications based on disability or participation in contracts that result in discrimination against people with disabilities. The statute also precludes employers from using tests or other qualification standards that are not job related and have the effect of screening out individuals with disabilities. The ADA also protects individuals against retaliation for filing a charge or otherwise being involved in an Equal Employment Opportunity Commission (EEOC)-related action, and mandates that employers The author would like to thank Susan Stefan for her comments on an earlier version of this chapter. Without the constant and loving support and sharp-eyed editing of my wife, Cheryl, not only would the chapter never have been written but it would have many more whiches where there are now thats. 271

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program and the Southwest ADA Center (Southwest ADA Center, 2011a) provides a broad array of regulatory and legal resources.

THE EMPLOYMENT OF PEOPLE WITH DISABILITIES

specific symptoms, intelligence, and aptitude were poor predictors of work performance, ego strength and selfconcept were better predictors of functioning in the workplace, and the best predictors were workers’ vocational history and how well they functioned in a work-like setting (e.g., a sheltered employment or workshop). Impact of Discrimination

In the most recent Census Bureau measure of disability in the United States (Brault, 2008), approximately 19% of the population had some level of disability, and two-thirds of this group have severe disabilities. Whereas 78% of the general population work, disabled people are employed at a rate of 38% (Houtenville, 2006). These 2005 Census figures indicate that disabilities, not surprisingly, interfere with employment. As compared to the general population, in which about 67% of persons have full-time employment, only 27% of individuals with disabilities worked full time. However, when looking at part-time employment, the picture improves significantly. Whereas 17% of the general population works part time, 54% of those with disabilities hold part-time jobs. For those with severe disabilities, that figure drops to about 11%, however. As might be expected, the rate of disability increases as a function of age with, for example, about 10% of those in the 25-to-44-year-old group indicating the presence of any disability, compared to 37% of those between the ages of 65 and 69. Data from the Social Security Administration, which provides benefits for disabled workers, make clear that the cost of supporting disabled people is significant (Social Security Administration, 2010). In 2009, 2,462,764 people were receiving Social Security benefits due to an underlying mental illness that limited their ability to work and about 798,354 received support due to mental retardation, with the numbers split almost evenly between men and women. Although the above data indicate that people with disabilities are employed at a lower rate than those without disabilities, Yelin and Cisternas (1997) demonstrated that diagnosis per se did not dictate whether a disabled worker could function in the workplace. A number of variables determine the employability of people with mental disorders, with work history being a primary indicator. In addition, persons with nonpsychotic diagnoses, affective disorder diagnoses, and a positive reaction to work stressors show greater abilities to work. These data echo results of a much older study (Anthony & Jansen, 1984) that described how people with mental illnesses function in the workplace. Whereas diagnosis,

People with disabilities frequently report the presence of attitudes in the workplace that support discrimination, and Baldwin (1999), in summarizing his study examining the employment of disabled people, concluded: Overall, the results are consistent with the hypothesis that declining employment rates for workers with impairments between 1984 and 1990 are at least partly explained by increasing employer discrimination against men with disabilities. (p. 19)

Stefan (2001) conducted a brief survey with a broad array of people with mental disabilities. Stefan did not report the size of this sample, nor whether any comparison groups were used. Of this sample, three quarters (74%) reported that they had experienced some form of discrimination based on disability, and the behavior that caused them the most distress was their treatment by others on a daily basis. Some 65% of respondents reported that family, neighbors, friends, churchgoers, or fellow students had discriminated against them, while 55% reported some form of work-related discrimination. People with disabilities also reported negative experiences of differential treatment in institutional settings (34%), educational institutions (30%), medical care settings (29%), insurance contexts (29%), the legal system (24%), housing (23%), and commercial establishments (stores and restaurants) (9%). In a larger study of stigma, Wahl (1999) surveyed 1,301 consumers of mental health services. Approximately 90% reported overhearing someone utter a hurtful or offensive comment about their disability, 90% reported they had been treated as less competent because of their disability, and over 80% reported experiences where others shunned or avoided them. More than half the respondents reported experiencing job discrimination, but only 28% indicated that they had been frequently turned down for jobs for which they were qualified. An even smaller proportion (34%) indicated that they had been denied educational opportunities because of discrimination. However, 82% indicated that they had attempted to conceal their disability when completing job applications because of concerns that potential employers would discriminate against them.

Forensic Evaluation in Americans With Disabilities Act Cases

The stigma of mental illness has a significant adverse impact on employers’ decisions to hire workers with mental health histories (Scheid, 2005). Concern about the impact of stigma on hiring decisions for some disabled workers renders the decision to disclose the presence of a mental disorder a complicated one. Stefan (2001) noted that, although people with mental disabilities are often able to conceal their disability while in the workplace, their mental disorders may become disabling when they encounter a supervisor or employer who is overbearing, threatening, or overly critical. Hostile work environments test workers, and those with limited stamina and resilience are more likely to display impairment in work functioning. Stefan noted that courts often assume that the ability to function in a stressful work environment should be a fundamental qualification for most workers, which may adversely affect persons with mental disorders who lodge ADA claims. To summarize, research indicates that people with mental disorders are employed at lower rates than those without such impairments. Among persons with disabilities, those with psychotic disorders or who have little work experience have the greatest difficulty integrating into the workplace, whereas persons with good work histories, affective disorders, or some degree of self-confidence are better able to obtain and maintain employment. However, many people with mental disorders do not disclose their disability to employers or co-workers for fear of discrimination and stigmatization (Ravid, 1992; Ravid & Menon, 1993), and this fear appears to be well founded based on the experience of many (Stefan, 2001). This is, however, a feature of the American workplace that the ADA was designed to address. ADA-Related Litigation A large number of complaints have been adjudicated since 1992, when the ADA came fully into effect. Of the pool of 369,231 allegations of discrimination reviewed by the EEOC ADA Research Project (McMahon, Edwards, Rumrill, & Hursh, 2005), one third (32%) alleged wrongful discharge, 18% alleged failure to provide reasonable accommodations, 9% focused on the disabled person having different schedules, places of work, or other work conditions, 8% involved allegations of harassment, and 5% asserted discrimination in the hiring process. Overall, this research indicates that in disability cases, as in other areas of employment discrimination, defendant employers win the bulk of cases (Foote & GoodmanDelahunty, 2005; Goodman-Delahunty & Foote, 2011;

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McMahon et al., 2005). Two thirds of the cases brought under the auspices of the ADA were adjudicated in favor of the employer because the EEOC investigation failed to support the allegations. Courts ruled against plaintiffs in another 11% of the cases for various administrative reasons, including processing problems, or an uncooperative plaintiff, or because the EEOC lacked jurisdiction. Of the 21% of cases in which the plaintiff prevailed, about one third were withdrawn after independent settlement without a formal agreement. More than one quarter were resolved in favor of the plaintiff, with the EEOC involved in the settlement. Impact of ADA on Employment of Persons With Disabilities Data from the EEOC ADA Research Project reveal that the ADA has had variable impact on the employment of disabled people. For example, workers with traumatic brain injury (TBI) have, as compared to other disabled workers, suffered less discrimination (McMahon, West, Shaw, Waid-Ebbs, & Belongia, 2005). This result was unexpected. However, even mild brain injuries can have a serious impact on the work performance of TBI survivors because of the effects of TBI upon skill proficiency, endurance, and work rate. How the ADA affects individuals with mental retardation was the subject of another EEOC ADA Research Project study (Unger, Campbell, & McMahon, 2005). The researchers noted that about 8 million Americans— approximately 3% of the population—have mental retardation, which the researchers define as an impairment that is evident before age 18, and occurs concurrently with significant limitations in adaptive skills and behaviors essential for living everyday life. In the past, employment for individuals with mental retardation often occurred in sheltered work settings. In part because of the ADA, people with this disability have found more jobs in competitive employment. This study determined a very low rate of EEOC filings related to the ADA by people with mental retardation, amounting to less than 1% of the total number of filings. Most of these complaints were filed by individuals under the age of 26 and against retailers. The authors concluded, “Many individuals with mental retardation may not know or fully understand their rights, or how they may be exercised” (Unger, Campbell, & McMahon, 2005, p. 151). In the alternative, it may be that businesses that hire individuals with mental retardation may be more willing to make adjustments in work settings and do not require intervention

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through the complaint process to accommodate this class of disability.

PSYCHIATRIC/PSYCHOLOGICAL DISABILITIES AND THE ADA Mental disorders have always been troublesome to the legal system, and dealing with mental disorders as disabilities in the ADA perhaps illustrates those difficulties better than in other legal structures. In this section, I first explore how the ADA goes about defining mental disabilities. Then, the vexing issue of workers who engage in misconduct or who threaten others in the workplace is explored. These issues sometimes overlap with the complexities of treating substance abuse disorders as disabilities, the next topic of discussion. Then, I use the diagnosis of depression as an example of how the ADA approaches mental disorders.

How the ADA Defines Mental Disabilities When the ADA was passed, the legislation directed the EEOC to promulgate regulations to implement the statute (e.g., 29 C.F.R. Chapter XIV, Part 1630.2). These regulations provide a series of definitions that are critical for understanding the intent and implementation of the Act. The ADA includes a three-prong definition of disability: (1) A physical or mental impairment that substantially limits one or more of the major life activities of such individuals; (2) A record of such an impairment; (3) Being regarded as having such an impairment. (29 C.F.R. Chapter XIV, Part 1630.2, (g(1))–(3))

Only one of these prongs must be met in order to be considered eligible under the Act. The Act defines a qualified individual with a disability as a person with a disability who has the proper experience, education, and other job-related skills required by the job that the person either currently holds or wishes to obtain. Critically, a qualified individual with a disability, with or without reasonable accommodation, can perform the essential functions of that job. In the ADA, a mental impairment includes “[a]ny mental or psychological disorder, such as . . . emotional or mental illness” (29 C.F.R. Chapter XIV, Part 1630.2 (h)(2)). Examples include: major depression, bipolar disorder, anxiety disorders (which include panic disorder,

obsessive-compulsive disorder, and posttraumatic stress disorder), schizophrenia, and personality disorders. Note that the EEOC regulations include personality disorders, which were not listed in the original ADA statute. EEOC publications (U.S. Equal Employment Opportunity Commission, 1997) suggest that the current edition (soon to be the DSM-5) (Dimsdale, Levenson, & Sharpe, 2011) of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (fourth edition, DSM-IV-TR) is an appropriate source to identify such disorders. Specifically excluded as disabilities by the ADA, however, are (1) transvestism, transexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders; (2) compulsive gambling, kleptomania, or pyromania; or (3) psychoactive substance abuse disorders resulting from current illegal use of drugs. (29 C.F.R. Chapter XIV, Part 1630.3 (a)(1))

An impairment constitutes a disability under the ADA when it adversely affects one or more major life activities. The worker need not demonstrate that the impairment interferes with work. The inquiry begins with non-workrelated life activities, including caring for oneself, sleeping, reading, and concentrating, and it is only after it is determined that no other major life activity is impaired that the worker should consider impairments in working as a basis for disability. When one considers mental disorders in light of the ADA, the determination of whether a particular person has an impairment that substantially limits a major life activity should be based on how the condition affects that individual’s life. Decisions should not be made on the basis of stereotypes about people with mental illnesses or assumptions about the particular disorder of that individual. For example, stereotypes such as “no person with schizophrenia could do this job” would reflect this kind of inappropriate generalization (U.S. Equal Employment Opportunity Commission, 1997). An evaluation of an individual to determine the presence of an ADA-defined psychological disability would begin with the psychologist examining how the examinee functions at home, at work, and in a variety of other settings. It is critical to connect the individual’s functional limitations to impairments, although it is not necessary to use the testimony of experts to make this connection. The examinee, family members, friends, or co-workers may provide sufficient evidence for such determinations. The threshold for determining if a condition is sufficiently

Forensic Evaluation in Americans With Disabilities Act Cases

severe to constitute a disability can be met by reference to whether it prevents the person from engaging in a major life activity, or otherwise restricts the person in the performance of a major life activity. If the impairment results in only mild limitations, it may not meet this threshold. Duration is also of importance because impairments of several weeks or months do not constitute a disability, whereas many mental disorders that are chronic or episodic would be considered substantially limiting while they are active or if they are likely to recur. The ability to interact with others may be a focus for the determination of substantial disability. In this case, the examinee is compared to the average person in the general population. If the examinee is significantly restricted from performing essential daily activities compared to that average person, the condition is considered to constitute a substantial limitation. The threshold for impairment of abilities to interact with others would not be met in the case of one who was simply unfriendly or unpleasant in interactions with supervisors or co-workers. However, if the person demonstrated social withdrawal, high levels of hostility, or impairments in necessary communication skills, the threshold would likely be met. Issues of Conduct People with disabilities are no different from nondisabled workers in that they may be disciplined by employers for misconduct. In general, the employer may discipline an employee with a disability if he or she engaged in misconduct that would result in such discipline for a nondisabled employee (Rothstein, 1997). However, when mental disabilities affect conduct in the workplace, the employer may be required to accommodate future similar conduct in some way. But, if the conduct standard does not relate to job functions and is not consistent with business necessity, then the imposition of that conduct standard could constitute a violation of the ADA. In such circumstances, the employer must provide reasonable accommodations that would enable a person who is otherwise qualified to meet those conduct requirements in the future. This requirement does not compel an employer to excuse past conduct, however, as reasonable accommodations determinations are prospective. Direct Threat The ADA recognizes that the workplace should be safe for employees, customers, vendors, supervisors, and the general public. Generally, these safety concerns take

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precedence over principles of fairness to an individual worker. The ADA requires that the employer demonstrate that a worker would constitute a direct threat to others in the workplace, or, in some cases, to the worker him- or herself in order to discharge an employee. Direct threat is defined as “a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation” (U.S. Equal Employment Opportunity Commission, 1992, 29 C.F.R. § 1630.2(r)). In order to meet this definition, the risk must be high, more than a slightly increased risk, and the decision must be based on an individualized assessment of the worker’s ability to perform the functions of the job safely (see, e.g., School Board of Nassau County, Fla. v. Arline, 1964). The application of safety rules and the direct threat standards must be uniformly applied by the employer, who may not inappropriately utilize safety rules as a means of excluding persons with disabilities (U.S. Equal Employment Opportunity Commission, 2000). Examiners conducting assessment involving allegations that an employee constitutes a direct threat should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of potential harm. An employer must specify the behavior that constitutes the threat, and the mere presence of a psychiatric disorder or a history of psychiatric treatment would not prove that the worker poses a direct threat. Also, the feasibility of reasonable accommodation must be taken into account. If the employer can eliminate the direct threat by accommodations, the worker may be considered a qualified individual with a disability. Alternatively, if no reasonable accommodation can reduce the threat, the worker is no longer qualified for the job and is not considered a qualified individual with a disability. For example, Parry (1997) described a New York federal case (Altman v. New York City Health and Hosp. Corp., 1995) in which the court found that a physician who was discovered drinking alcohol while working could not demand reinstatement because no reasonable accommodation could be fashioned to allow him to safely treat patients. Violence and Threats of Violence Workers who threaten violence or commit a violent act may be sanctioned or discharged. If the worker files suit against the employer in response, the employer may utilize a defense based on direct threat. However, as Rothstein (1997) observed, in these circumstances the employer is in a difficult position. If the employer inappropriately discharges or disciplines a worker for threatening behavior,

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the probability of an ADA lawsuit may increase. If the employer fails to act in the face of a worker who poses a direct threat, the employer faces liability to those who are harmed by the worker. Some courts have ruled that a worker who engages in threatening behavior was not considered a qualified individual with a disability (e.g., Mazzarella v. United States Postal Service, 1994) based on the argument that the ability to do the job without posing a threat to others or without being involved in violent behavior is an essential job function. A history of violence or threats of violence may also be used as a basis for not hiring an otherwisequalified job applicant if it can be shown that the worker continues to pose a direct threat. Suicidal Workers: Danger-to-Self Issues Although the ADA relates the direct-threat language only to the health and safety of others, EEOC regulations (29 C.F.R. §1630.2 (r)) include danger to self as an element of direct threat. Parry (1997) noted that courts have handled this issue in different ways. Some have ruled that a history of suicide attempts does not necessarily translate into a direct threat in the workplace. As above, the employer must make an individualized determination of eligibility based on current and thorough professional assessment of the worker. As always, the central issue is whether the worker can perform job functions. The holdings in some cases (Chevron USA, Inc. v. Echazabal, 2002) suggest that, if the job proves dangerous to the worker, the employer could consider this the same as the worker posing a danger to others in the workplace. By this logic, if a worker was suicidal, and a link between the job and the suicidality were established, the worker could be discharged under the ADA. Substance Abuse Disorders and the ADA The ADA treats substance abuse disorders very differently, depending on whether the abused substance is illegal or legal. In general, a worker who uses illegal drugs is not protected by the ADA (LaPorte, 1996), and those who abuse prescribed drugs in such a way as to violate the law are considered to use illegal drugs (Parry, 1993). The ADA attempts to be neutral on the issue of drug testing, although the Act allows an employer to conduct drug testing with employees or applicants in contexts in which other types of medical evaluations would be prohibited (Jones, 1993). Thus, workers who were not hired or who were discharged for testing positive for illegal drugs are typically not protected by the Act.

In contrast, rehabilitated illegal drug users are provided some protection by the ADA. A history of illegal drug use cannot be used as a basis for non-hire or discharge but if a worker who has been drug free for some time experiences a relapse, he or she may be fired and not enjoy protection from the ADA. Unfortunately, as Jones (1993) notes, such extreme consequences of a relapse could encourage a worker to conceal substance abuse problems from an employer. A worker with an alcohol problem must experience a substantial limitation in a major life activity in order to be covered by the ADA (Aristeiguieta, 1998). A casual drinker would likely not be considered disabled, whereas one who is alcohol dependent would be (Allison & Stahlhut, 1995). Relapses for workers with alcohol problems may trigger discipline if the worker engages in conduct that would ordinarily trigger disciplinary action for any worker. For example, a worker considered disabled because of an alcohol-related disorder would not be shielded from discipline or discharge as a result of absenteeism or reporting to work drunk. The principle of direct threat applies to substance abuse disorders, as well. As noted above, the worker with an alcohol dependence diagnosis who engages in conduct that places anyone in danger could be disciplined in the same way as other workers. In addition, the employer can enforce a policy of not rehiring employees fired for drug use on the job, if that policy is not discriminatory (Raytheon Co. v. Hernandez, 2003). A recent study on the impact of substance abuse on employment (Baldwin, Marcus & De Simone, 2010) indicates that a history of substance abuse does not affect whether a worker is able to be hired for a job, but may reduce that worker’s job tenure. This finding is unexpected, and may reflect discrimination against the disabled person by the employer once the prior substance abuse is discovered. In the alternative, the worker may have cognitive or behavioral problems associated with the substance abuse that become evident only later in the worker’s employment. In general, the courts have been unsympathetic to anyone claiming discrimination on the basis of ongoing illegal drug use (Parry, 1997). A number of courts have ruled that current illegal drug use can serve as one basis for discharge or for not hiring an applicant, and some courts have expanded the meaning of current in relation to illegal drug use. Courts in the Ninth and Fourth Circuits have interpreted past-but-recent drug use as reflecting an “ongoing problem rather than a problem in the past” (e.g., Trans Mart, Inc., v. Brewer, 1993).

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Recent U.S. Census figures indicate that about 7% of U.S. citizens over the age of 15 and younger than age 65 have a mental disability (U.S. Census Bureau, 2008). Learning disabilities account for 1.6%; mental retardation, .6%; dementia, .9%; and other mental conditions, 1.9%. The ADA provisions for psychological and psychiatric disabilities are designed to treat all mentally disabling conditions in a manner similar to physical disabilities. As the research cited above demonstrates, however, when the disability is based on a mental disorder, stigma and adverse stereotypes abound. Stefan (2001) notes that mental illnesses that express themselves in abnormalities of behavior are often subject to value judgments, equating these problems with moral failings. These value judgments are evident in the government’s discomfort with mental disorders that become obvious when one reads the statute and the enabling regulations (see Stefan, 1998 for discussion of the legislative history of the Act). Because symptoms of mental disorders are often not easily observable, employers may be unaware that workers have such disorders (Calfee, 1998). Mental disorders frighten lay people because of common misconceptions about such illnesses (Wahl, 1999). The complicated natural history of chronic psychiatric disorders implies that the accommodations necessary to deal with mental disorders may change with time. Because the ADA requires employers to undertake an individualized approach to each case, it is difficult for them (and observers) to develop clear-cut rules for decision making for use in future cases (Stefan, 2001). Each new case that involves developing reasonable accommodations for those with mental disabilities may cause the employer to feel like one lurching into unknown and frightening territory.

had focused on activities related to work. In a decision focusing on a worker with carpal tunnel syndrome, the U.S. Supreme Court ruled that whether the impairments related to this illness affected the employee at work was not relevant. The inquiry should be whether the employee was impaired in a major life activity outside of the workplace. Together these decisions significantly reduced ADA claimants’ causes of action and available legal remedies because it was difficult for people with disabilities to prove that they were in fact disabled under the reinterpreted ADA. Congress responded to these court-imposed limitations in 2008 with passage of the ADA Amendments Act (ADAAA) (ADA Amendments Act, 2008), which took aim at the Supreme Court’s decisions in Sutton and Toyota by widening the narrowed definitions of disability resulting from these and other rulings. In particular, Congress broadened the third prong of disability (the “regarded as” stigma element) to reinstate the coverage of the ADA to its previous level. The law indicates that the evaluation of restrictions to major life activities is to be made “without regard to the ameliorative effects of mitigating measures.” In response to the Toyota decision, the law specifically states: “An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability” (ADA Amendments Act, 2008, Section 3, 5E). As Petrila (2009) noted, the ADAAA provides additional assistance for those with mental disabilities by including in the definition of disabling conditions those disorders that are episodic or in remission as long as they substantially limit a major life activity. A limited body of research exists on specific mental disorders as they are viewed through the lens of the ADA. The following sections of the chapter will examine some of this literature.

The ADA Amendments Act (ADAAA)

Depression

Since the ADA was enacted, courts have narrowed its range and application in three main areas (Petrila, 2009). First, the antistigmatization aspects of the ADA were eroded by a series of decisions that required courts to evaluate the worker’s disability in its corrected state (Albertson’s v. Kirkingberg, 1999; Murphy v. United Parcel, 1999; Sutton v. United Airlines, 1999). These decisions significantly limited an individual from seeking redress through the ADA. Second, the U.S. Supreme Court changed the range of activities that fell into the category of “major life activities” (Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 2002). Prior court decisions

Accommodation may be complicated by the inherent characteristics of some mental disorders. The workplace is one setting in which the complications presented by mood disorders become clearly evident. Croghan, Kniesner, and Powers (1999) observed that the reduction in vocational functioning in the workplace caused by depression is greater than the combined impact of low-back pain, heart disease, high blood pressure, and diabetes mellitus. Because of effective treatments for the disorder that enjoy widespread use, many people with depression are able to seek and obtain jobs. However, these people may still suffer relapses of depression that occur while they are

Dealing With Mental Disabilities Under the ADA

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working. Thus, many concerns about depression relate to accommodations for employed workers rather than those seeking employment. For example, a supervisor may become aware of the worker’s depression-related symptoms: poor concentration, impaired cognitive ability, irritability, or loss of interest in work. These observations may trigger an obligation on the part of the employer to work with the employee to design accommodations for the disorder. As noted above, diagnosis alone does not determine eligibility. And, as noted by Foote (2000), the worker and employer may find themselves in the quandary of there being too little distance between being disabled enough to meet the entry definition for qualified individual with a disability and being too disabled to be qualified even with reasonable accommodation. Depressed people face another barrier to seeking accommodation because the disorder itself may deprive the worker of sufficient energy to proactively seek ADA accommodations. In addition, depressed workers who are concerned about the stigma associated with their disability may believe the ADA might not provide sufficient incentives to outweigh the disadvantages of making their disability known to supervisors and co-workers. Croghan et al. (1964) argued that the employer must play an active role in addressing a worker’s depression. In general, treatment for depression does not cost much and results in improved productivity, reduced hospitalization, reduced absences, and lower turnover. If either the employer or employee triggers the accommodation process, the employer may require participation in treatment as the first accommodation. In one case (Roberts v. County of Fairfax, Va., 1996) an employer placed a worker on medical leave of absence with instructions to obtain treatment, which was available through the Employee Assistance Program and county emergency services. Although the employee’s general physician believed that the employee could function on the job with treatment, a year went by and the worker failed to seek any. The court ruled that the employee was not a qualified individual with a disability because he refused to accept his employer’s efforts to accommodate his condition. Prior decisions indicate that courts suggest that it is reasonable for an employer to require treatment as a condition of employment because other courts have ruled that the employer’s duty to accommodate ends when the employee is noncompliant with treatment. In Keoughan v. Delta Airlines (1997) an employee with bipolar disorder who had problems with performance, dependability, and attendance was deemed not otherwise qualified because she failed to

comply with her medication regimen, which would have controlled the condition. Courts and employers have conceptualized people who choose not take medication that will effectively remediate their disorder as experiencing a “voluntary disability” and are not protected as a result (Croghan et al., 1999). As Croghan et al. (1999) noted, even a person with a diagnosis of depression who is controlling the expression of the illness with treatment may run afoul of the ADA’s emphasis on the employer’s ability to maintain requirements related to attendance and performance. Depressed workers who miss work to participate in treatment (e.g., attend psychotherapy sessions) may face adverse job actions or discharge, without protection from the ADA. Learning Disabilities Learning disabilities may interfere with the functioning of an adult in the same way that they do in a school-age child (Resnick, 2000). Reading is the most frequent problem area, and impairments of written expression occur with nearly equal frequency (Anderson, Kazmierski, & Cronin, 1995). As these areas form the basis for basic literacy, adults with learning disabilities have difficulty functioning in many work settings. Anderson et al. (1995) noted that, even with specific education experiences directed toward remediating the learning disability, many people still find themselves unprepared for employment. Because these impairments are sometimes not visible to employers and because the impact of learning problems is not as clearcut as better-known disabilities, employers may be less willing to provide accommodation. Gerber (1992) notes that employers, supervisors, and co-workers may misunderstand learning disabilities, and they may confuse them with other stigmatizing impairments such as mental illness and mental retardation. He further notes that learning-disabled people must frequently compete with people who are not disabled, and recommends that learning-disabled workers carefully consider whether disclosure is in their best interests. Learning-disabled workers often fail to take advantage of the ADA (Price, Gerber, & Mulligan, 2003, 2007). Many learning-disabled adults report not knowing of the existence of the ADA, or how the Act would apply to them. Courts have difficulty dealing with learning disabilities in such contexts. In some cases, judges place the threshold for considering a learning problem as a “significant impairment” so high that few persons with impairments could meet the criterion. For example, in Davidson v. Midelfort Clinic, Ltd. (1998), a psychotherapist employed

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by a mental health clinic had a longstanding problem with concentration and other difficulties related to learning that impaired her ability to complete paperwork, and she asked her employer to provide a transcription device as a reasonable accommodation. Davidson’s employer refused the request and discharged her when she could not make up the paperwork backlog. The trial court and the Seventh Circuit held that her learning problem did not constitute a disability since it did not substantially limit her ability to work, speak, or learn.

job (Bennett, 2009; Moss, Ullman, Johnsen, Starrett, & Burris, 1999; Parry, 1997). In some cases, accommodations for mental disabilities may be relatively straightforward, such as time off for psychotherapy sessions or special breaks so that the worker may take psychotropic medication (Mancuso, 1990). In other cases, the accommodations may be less obvious and may require expert assistance to both the employer and employee to fashion accommodations that fit both the worker and the organization (Carling, 1993; Croghan et al., 1999; Mancuso, 1990).

Summary

Conceptualizing ADA Disability

I have chosen depression and learning disabilities as examples of how mental disabilities interfere with functioning in the workplace, and how the ADA deals with these “invisible” impairments. Depression is a condition manifested by chronicity and fluctuation in levels of functioning. Until the recent passage of the ADAAA, depressed workers seeking accommodation through the ADA had frequently been denied because medications and other treatment mitigated their condition for much of the time. The ADAAA restored eligibility for these workers. In contrast, people with learning disabilities often have difficulty mitigating their condition but may be able to conceal their problems from employers until faced with a task that requires concentration or extensive verbal or written work. Because they have been able to “cover” through much of their lives or complete educational tasks because of accommodations, they are often not perceived to be suffering from any disability.

The definitions of disability and of a qualified individual with a disability in the ADA present the psychologist with a dilemma. On the one hand, the worker has to experience substantial limitations in one or more major life activities in order to be considered disabled under the statute (Bell, 1997). As noted earlier, courts have frequently assumed that those limitations must be relatively pervasive and severe in order for the worker to be considered disabled. On the other hand, the worker has to meet the educational and experiential requirements for the position and must be able to perform the essential functions of the job with or without reasonable accommodation. As Foote (2000) suggests, one may conceptualize the problem this way: If a job may be described in terms of skills (essential job functions) necessary for working in that position, those may be listed as shown in Figure 12.1. An incumbent in the position may have a broader array of skills than those listed, and may be deserving of a promotion to a position with greater responsibilities. Those skills may be compared to those of a worker who has suffered a traumatic frontal lobe brain injury. In this case, the injury resulted in impaired planning and sequencing abilities, and reduced abilities to engage in social interaction (Prigitano, 1991). Those skills require reasonable accommodation. An assessment of the worker with frontal lobe impairment would begin with an inquiry to determine if the individual is otherwise qualified for the position. That is, can the person perform the essential functions of the position with or without reasonable accommodation? The first step is to review the experiential and educational requirements of the position (Blanck, Andersen, Wallach, & Tenney, 1994). If the worker meets these standards, then the other job skills would be examined as described above. If reasonable accommodation can alter the work situation such that the worker can fulfill the job requirements, the worker is a qualified individual with a disability.

PSYCHOLOGICAL CONSULTATIONS WITH EMPLOYERS AND WORKERS1 Because Title I of the ADA requires employers to provide reasonable accommodation to qualified workers with disabilities, an employer may request the assistance of a psychologist to determine the best course of action for that accommodation plan (Crist & Stoffel, 1992; Foote, 2000; Mancuso, 1990). The ADA requires that the employer work with each employee as an individual and develop a plan that takes into account the worker’s specific disability, the worker’s strengths, and the context of the worker’s 1 Some

of the material in this section was previously published in an article in Professional Psychology (Foote, 2000). Please refer to that paper for a more detailed elaboration of issues in this area.

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Forensic Evaluations in Civil Proceedings Essential Job Functions Color vision Gross motor dexterity Fine motor dexterity High school mathematics skills

Skills of Worker Color vision Gross motor dexterity Fine motor dexterity High school mathematics skills

Planning Sequencing Social Skills to be compensated by reasonable accommodation

Figure 12.1

Reasonable accommodation of work-related deficits

This accommodation can be accomplished in several ways. One is to change the job qualifications to better match the worker’s skills (Carling, 1993). For example, while most electronics technicians work independently, the worker with a brain injury, as described earlier, may be able to work under supervision (Hantula & Reilly, 1996). In this case, a supervisor would do planning and sequencing and provide the worker with a written punch-list of tasks to perform. Using a written list would eliminate one social component, another area of weakness for this worker. Additional accommodations would include added time for using lists or dispensation from worker meetings.

ADA-Related Employer Consultation: Return to Work Some workers with mental disabilities experience fluctuations in their illnesses that cause them to take extended sick leave or leave without pay. For example, a worker with schizophrenia may experience an acute psychotic episode. This deterioration in functioning may be an element of a pattern of exacerbations and remissions that have been a previous part of the worker’s performance on this job. In contrast, especially in the case of mood disorders, it may be the first time the illness has become manifest. For some workers who have concealed their disability, symptoms may become evident only in response to high levels of stress (Stefan, 1998). Stress may result from the actions of the supervisor or may occur if the worker is promoted—and is exposed to the stresses associated with increased responsibilities. However, once the worker is stabilized and is in supportive treatment, the employer would then consider whether the worker can return to work. In these evaluations, the psychologist is not actually functioning in a forensic role, as the expert is not hired in anticipation of court-related reports or testimony (see

Committee on the Specialty Guidelines for Forensic Psychology, 2011). Rather, the psychologist is hired as a consultant to the employer and owes a duty to the employer to provide accurate information concerning the status of the worker. Notice of the nature of this hiring situation should be included in any informed consent provided to the evaluee/worker. In general, for return-to-work evaluations, the referral from the employer should contain specific questions to be answered. In this and subsequent sections, employer is used to denote the actual employer in smaller organizations or the human resources person or supervisor in larger concerns. The essential question is whether the worker has regained a level of functioning so that he or she would qualify as a qualified individual with a disability (Pollet, 1995). That is, is the worker able, with or without reasonable accommodation, to perform the essential job functions of that position? If the worker is a qualified individual with a disability, then the consultation may focus on adapting to characteristics of the job such as shift work, interpersonal demands, environmental conditions, workplace dangers, noise, or distractions. Initial Considerations The consultant’s first task is to review the employee’s work history with the company, relying on personnel documents and other work records that might provide clues about how the disability developed. In some cases, medical records and evaluation reports that provide this documentation might be available. These records may have been provided by the worker if he or she disclosed the disability and requested reasonable accommodation. The consultant’s second step is to determine what tasks constitute the job. This determination may require the consultant to visit the workplace so that he or she can talk with the worker’s supervisor concerning demands not listed in official job descriptions or other documentation, observe what the worker does to accomplish the job,

Forensic Evaluation in Americans With Disabilities Act Cases

and assess the noise, distraction, and activity level of the workplace. The consultant’s third responsibility is to consider the parameters of the job. These include the hours that the worker puts in, the nature and duration of shifts, and whether the worker is required to function in the context of rolling or graveyard shifts since persons with some mental disabilities (e.g., anxiety or mood disorders) may have more difficulty adapting to nonstandard shift patterns because of the sleep impairment often caused by these work patterns (Costa, 1996). The consultant’s fourth task is to assess the social aspects and demands of the position. This involves examination of the chain of command, the composition of the pool of co-workers, and the demands of the position for the worker to cooperate and work closely with others. The fifth responsibility of the consultant is to determine the cognitive skills the position requires. Again, this determination begins with the job requirements as detailed through the listed job description, which may include the education and training required for the position. In addition, the consultant may want to perform a formal job analysis (Colledge, Johns & Thomas, 1999), which may require additional training (Colledge et al., 1999; Pape & Tarvydas, 1994). Psychological Evaluation Once the appropriate background information has been gathered, it is usually necessary to conduct a psychological evaluation. Before beginning the assessment, the psychologist must obtain informed consent from the examinee that details who is requesting the evaluation, the purpose of the evaluation, who will have access to the report, and any limitations on confidentiality (American Psychological Association, 2002; Committee on the Specialty Guidelines for Forensic Psychology, 2011). If the psychologist is concerned that the worker may have some disability that interferes with understanding the informed consent procedure, it may be appropriate to contact the employer for further guidance. The accommodation evaluation may include psychological testing, which should be selected on the basis of the evaluee’s disability and job requirements. For example, the consultant may want to include measures of reading, visual-motor functioning, and specific vocationally related tests. In the course of selecting and administering tests, the psychologist should be sensitive to several issues in relation to the specific worker who is being evaluated.

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First, cultural issues may be an important consideration (Smart & Smart, 1993). If the worker’s first language is not English or if the worker is from a cultural group with characteristics that may affect the evaluation procedures, the psychologist must take those into account. If the worker has a disability that would affect the testing process, the psychologist should, to the extent possible, modify the testing situation or the tests administered to accommodate the disability (American Educational Research Association, American Psychological Association, & National Council of Measurement in Education, 1999; Council on Licensure, Enforcement, and Regulation, 1996; Fischer, 1994; Tenopyr, Angoff, Butcher, Geisinger, & Reilly, 1993; Zuriff, 1997). Modification of standardized testing procedures and how the modification may have affected the test results and validity should be reflected in any written report of the evaluation (American Educational Research Association, American Psychological Association, & National Council of Measurement in Education, 1999). Of course, one of the main purposes of conducting testing is to gain information relevant to identifying what disabilities the worker has. However, one main purpose of the evaluation is to determine the nature and extent of the person’s disabilities. If all tasks affected by the disabilities are eliminated or provided compensation, this purpose is thwarted. In the interview the psychologist should obtain a full vocational history, including a review of the duties and pay levels of previous positions. When examining the examinee’s employment history, it is important to determine if the person has experienced similar difficulties in prior positions in order to discern whether the worker had an unrecognized disability (or disability that the worker chose to keep confidential). This discussion should also include an exploration of other behavioral patterns that may have negatively affected job tenure, but are unrelated to the worker’s disability. For example, a worker may have impulse control problems or low frustration tolerance and report a history of workplace discipline or frequent discharge from employment. As part of the employment history it is often helpful to determine if the worker has other recurrent behavioral or symptom patterns in the workplace. These might include exacerbations of symptoms following a change of supervisor or co-workers, problems in adapting to changes in duties, or failure upon promotion or job change. In the course of the evaluation it is essential to determine if the worker is a qualified individual with a disability. In some cases, the worker may have personality traits or predispositions that do not qualify as disabling

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conditions under the ADA but that nonetheless prevent the worker from performing essential job functions (Mickey & Pardo, 1993). The next task is to determine whether reasonable accommodation is required (Blanck et al., 1994). Would reasonable accommodations allow the worker to perform “essential job functions”? If that question is answered in the affirmative, then the next question is whether the accommodation is feasible (Pollet, 1995). This determination cannot be made in isolation, however, because the employer must provide sufficient information to determine feasibility (Croghan et al., 1999). Recall that the employer is not required to implement accommodations that constitute an “undue burden” (Rothstein, 1997). Courts have determined the parameters for what constitutes feasibility and undue burden. For example, employers are not required to violate seniority rules to accommodate a worker’s disability (US Airways, Inc. v. Barnett, 2002). However, undue-burden concerns are put aside in situations in which the employee requests accommodation and the employer’s failure to do so results in dangerous working conditions (EEOC v. Federal Express Corp., 2008). The psychologist must ask a series of questions concerning the accommodations suggested by the nature of the worker’s disability, or by the employer, who may be more aware of the business’s operational requirements. First, is there such a job consistent with the worker’s experience, training, and skills in the organization? In general, employers are not required to create a job for a qualified disabled employee. Will implementing the accommodation tax the resources of the organization? Is the accommodation in scale with the size of the company? Is adequate staff available for supervision or other aspects of the accommodation (Hantula & Reilly, 1996)? Can the accommodation be made without disrupting the work of the organization? Finally, what will the accommodation cost? After making these determinations, the consultant evaluator may meet with the employer or the worker’s supervisor. In that discussion, the evaluator and employer may help choose an alternative position for the worker to develop an alternative work context for the same job. In discussions with the employer, the psychologist may also want to develop a written return-to-work plan or contract (Blanck, et al., 1994) that explicitly considers the responsibilities of the employer and the worker. The employer lists the accommodations that the employer will provide to the returning worker. These may include a physical aid (Berven & Blanck, 1999) or assistive technology that can allow the worker to perform in the task. For example,

a worker with a learning disability may require a laptop computer in which to keep notes in business meetings. The employer should also list people who are part of the plan in the written plan. For example, if the supervisor is to devote additional time to assisting or planning for the worker (Hayes, Citera, Brady, & Jenkins, 1995), the written document should outline those assignments. In addition, the plan should also include a section directed toward the worker. The worker will be expected to utilize accommodations to compensate for the disability. The employee may be required to attend psychotherapy sessions, to take medicine (although this may be controversial, Rothstein, 1997), or to advise a particular supervisor when emotional problems begin to impair functioning. The plan may include a “ramping up” period in which the worker would begin on a part-time basis for several weeks or months, then gradually increase time on the job until full-time functioning is resumed. In this regard, the plan should be coordinated with the worker’s treatment providers so that it will fit with the therapeutic regime already in place. Given the confidentiality provisions of the ADA (Ravid & Menon, 1993), disclosure of the worker’s disability status and proposed accommodations should be limited to those in the workplace with a need to know in order to implement the plan. The accommodation plan itself should be kept in a confidential file (along with the psychologist’s report) that the employer maintains. Depending on the job context, the consultant may suggest that the employer discuss the implementation plan with the disabled worker’s co-workers as a means of facilitating the return to work. To the extent possible, those changes should be discussed as a supervisory decision and no reference should be made to the worker’s disability status. If it is not possible to make these arrangements without disclosing the worker’s disability status, written authorization should be obtained from the worker. The psychologist may want to continue consulting with the employer to determine if the suggested accommodations are effective and to provide guidance on the implementation of modifications as the person returns to the workplace. This will allow for some “fine tuning” of the program to reflect the realities of how the worker and the employer deal with the employee’s return to work. As Blanck et al. (1994) noted, one advantage to these kinds of workplace consultations is to increase the employer’s sensitivity to people with disabilities in general and, specifically, those with mental disabilities. The negotiation process in which the worker and the employer (with the assistance of a consulting psychologist) develop

Forensic Evaluation in Americans With Disabilities Act Cases

and implement an accommodation plan can serve as a template for other uses of alternative dispute resolution procedures in the workplace (Parry, 1997). Case Example: Return to Work Evaluation Janet Baker’s childhood was spent in the disarray caused by a mother with psychosis and a father who was disengaged from both his children and his emotionally inaccessible wife. Baker was the second sibling of four girls, and was mothered by her older sister. After age 6, she in turn mothered her younger sisters. By the time she was 10, she did most of the ironing and half the cooking, and made a stab at cleaning a house that her mother insisted upon cluttering with her “valuables.” Her mother spent most of her time in her bedroom in conversation with voices that no one else could hear. Because of her mother’s bizarre behavior and deficiencies as a housekeeper, Ms. Baker never brought friends home. Although she was a talented musician, the only training she received was in junior high and high school band, in which she excelled. She also excelled in most academic subjects, and by the time she was in high school, her teachers recognized her keen intellect and recommended her for National Honor Society and ensured that she was in accelerated and college preparatory courses. Ms. Baker graduated from high school in 1990 second in her class and was immediately accepted into a large Midwestern university. She was interested in optical physics, and participated in a work-study program in order to supplement the meager amount of money she obtained from her parents for tuition. In her junior year, she started taking advanced optics courses, and spent her senior year on “co-op” at a nearby telephone equipment design firm. In her senior year, Ms. Baker began having instances in which she became alienated from friends who she believed had treated her badly. When these instances were explored in the clinical interview, it became apparent that Ms. Baker had taken something that the person said as impugning her integrity or intellect. Most of these relationships were never recovered, and by the end of her senior year, she had few friends and spent most of her time working, putting in 60-to-80-hour weeks in her job. Her work was rated as outstanding by her co-op supervisors, and in December 1994 she graduated with an A average from one of the country’s most difficult physics programs. Ms. Baker was recruited by a large communications firm prior to graduation, and the firm paid for her move to Los Angeles to work in their plant. She was placed in a section that engaged in advanced design and manufacture

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of state-of-the-art optical interfaces. She quickly got up to speed and was functioning in the job at an advanced level. However, this particular company relies on close collaboration between design personnel, who work together as a team. Team leaders meet with the group several times a week and ideas are shared, criticisms are offered, and problems are resolved. These meetings became occasions of great stress for Ms. Baker. She dreaded the sessions where she was called upon to think on her feet and to put herself and her ideas before the group for review and critique. She also took everything that was said about her work very personally, and came to view several of the other people in the team as harsh and unfair critics. She began to avoid these meetings whenever she could, which drew the attention of her team leader and resulted in a memo regarding meeting attendance that summer. Nevertheless, her work was brilliant and her team came to view her behavior as a little eccentric, but she was considered valuable to the team and the company. She worked very hard, putting in 60 hours of work a week at the plant, and taking work home. She reported actual workweeks of about 80 hours. While her work was intense, Ms. Baker’s personal life deteriorated. She had an apartment, and was unsuccessful in her attempt to establish a social network through a local church. Her friendships rapidly dwindled in number as her work took priority. Somehow, all the boxes she had moved with never got unpacked, and they were kept in the corners of all the rooms in her small apartment. She rarely cooked a whole meal for herself, and often ate fast food or meals at the plant cafeteria. After several years at the Los Angeles plant, Ms. Baker had no friends. Her life consisted solely of work and there were times when her team leader would arrive at the beginning of the shift and find her asleep at her desk, wearing the same clothes she had worn the day before. About the same time, her supervisor noticed that Ms. Baker had been pulling her hair as part of a pattern in which she would twist a hair around her finger, then yank it out. This left her hair very thin with clumps missing from some areas. Ms. Baker seemed oblivious to how her hair looked and to the dismay her appearance provoked in others. In the next year, Ms. Baker was sent on a temporary assignment to the company’s Minnesota plant. As a key person in designing and implementing the manufacturing process in the Los Angeles plant, she was to train the Minnesota engineers in new procedures and to learn from them innovations that they had made in creating new electronic wonders. The move to Minnesota was a

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disaster. Ms. Baker had difficulty getting an apartment even though the company staff had procured one for her. The company also had a contract from a rental company to provide full furnishings for her apartment, but she was able to manage to get only a bed, a desk, and a kitchen table and chairs. Boxes from her Los Angeles apartment, some the same that had never been unpacked from college, filled out the rest of the space. In the Minnesota plant, she was never quite able to connect with her professional counterparts. She saw them as hypercritical, she worried that they were talking behind her back, and she often felt that the cafeteria conversations of co-workers sitting some distance away were about her. She continued to work very long hours, but she was not able to get restful sleep because she kept hearing people shouting in the next apartment. It was several months later that she learned that the next apartment was vacant. Ms. Baker had trouble washing her clothes, and often went to work in clothing that was dirty, unironed, and stained. Her dental hygiene deteriorated and she started getting periodontal infections. Ms. Baker’s work performance began to deteriorate, and she started acting so peculiarly that her supervisor referred her to the occupational health nurse. Upon brief examination, the nurse referred her to a local psychiatrist who immediately admitted her to a psychiatric hospital, where she remained for 3 weeks while she was stabilized on an antipsychotic medication, with her agitation, auditory hallucinations, and ideas of reference coming under some control. She remained out of work for several more weeks while involved in outpatient therapy, and returned to work in September. Ms. Baker’s supervisor noted that she was much less “weird” than she was before, and was pleased that she seemed able to focus on her work better. She was at least able to tolerate meetings again, but her personal hygiene remained problematic. Her grooming was poor and her clothing was still unkempt, and her hair never did look right. Her work was within expectations until late fall of that year, when she did not come into work on her scheduled shift. The company occupational nurse later learned that she had been found in a local airport confused, disoriented, and asking for her family. The police located her physician, who admitted her to the hospital for a second 3-week stay. Ms. Baker again stabilized, and her physician learned that she had stopped taking her medications 6 weeks before “because they stifled my creativity.” She returned to work within days after being released from the hospital, and was to return to the western U.S. city in February. This move was accomplished, although she

moved into a short-term apartment of the sort used by college students traveling through town. Her boxes followed, few of which were even opened, and almost filled the small space. Her car broke down and it stayed at a local garage. For a reason still unknown, although she had sufficient income to cover repairs, she could not make arrangements to fix it. She started taking the bus to get to work, no small feat in an automobile-oriented town like hers. Ms. Baker never seemed to get reintegrated into her old team upon her return to Los Angeles. She felt that her supervisors treated her indifferently or with hostility and that they did not instruct her properly about changes that had been made since she left, and she felt that she was out of the loop. Her supervisors saw her as much less efficient, remote, and never even meeting the relaxed company standards for dress and grooming. One morning in the fall of that year, her supervisor found her asleep at her desk wearing clothing she had worn for three days. He learned that she had not been home that whole time, and that the work that she had done was largely incomprehensible. He referred her to the occupational health nurse, and she was directed to undergo a fitness-for-duty evaluation. When I evaluated her, I observed a woman who was wearing stained, dirty, and un-ironed jeans and sweatshirt. Her lips were cracked and bleeding and her scalp showed the effects of her hair pulling. She seemed distracted throughout the interview, and her answers were often tangential and guarded. She acknowledged auditory hallucinations, olfactory hallucinations, and ideas of reference, and reported she stopped taking her medication in late October of the year before. Her personality assessment revealed a 6-8-2 MMPI-2 pattern, a Rorschach X+% of 53, and a positive Schizi index. Her intellectual assessment showed an IQ diminished by serious impairments of attention and concentration, and by intrusions of irrelevant material into verbal responses. After reviewing the data, in a discussion with the occupational health nurse, my recommendation was that Ms. Baker should be placed on medical leave of absence and returned to her physician for resumption of medication. She spent much of the holidays at home with her sister and was to return for evaluation at the end of January. Upon return for reevaluation, Ms. Baker’s self-care had improved to the point that her clothing, while unironed, was at least clean. Her lips looked cared for, and much of her hair had grown back. She was able to respond to questions in a coherent manner and was distinctly less guarded. She expressed an interest in returning to work as soon as possible.

Forensic Evaluation in Americans With Disabilities Act Cases

I secured permission to talk with her sister, who confirmed Ms. Baker’s history and discussed her behavior over her last visit home. She indicated that she could tell when Ms. Baker had been taking her medication just by looking at her hair. Retesting revealed reductions in elevations of the MMPI scales, although the codetype remained generally the same. Repeat Rorschach testing showed few changes, save improvements in scales related to psychotic thinking processes. A review of the data from the interviews and testing yielded a number of conclusions. Ms. Baker suffers from chronic paranoid schizophrenia. This illness is primarily expressed in interpersonal alienation caused by disordered thinking processes and a suspicious perspective relative to others. Her illness is characterized by exacerbations and remissions. The exacerbations appear when she is exposed to stress from external changes, such as the move to Minnesota, or by deteriorations in her own functioning that generate work-related problems. Her symptoms respond to antipsychotic medications, but she has a pattern of noncompliance that contributed significantly to her three episodes of decompensation. Between decompensations, she still has significant negative symptoms of the psychosis that cause her life to have some degree of inherent stress because of her problems in maintaining her residence, vehicle, and personal hygiene. Her personal hygiene appears to be a good barometer of the severity of negative symptoms. I participated in a conference call with her immediate supervisor, the occupational health nurse, the plant human relations director, and the firm’s lawyer. In that call, we discussed a number of different aspects of returning Ms. Baker to work. In discussions with her supervisor, it was evident that Ms. Baker was still considered a valuable asset to the development division. Her insights into leading-edge design were exceptional and some of her innovations had allowed the state of the art in her area of expertise to advance significantly. The supervisor wanted her to return to her old job if she was capable of doing it without disrupting the work of the others in the workplace. Discussions with the human relations director and the occupational health nurse indicated that they were willing to provide sufficient support to allow Ms. Baker to return to the workplace. Specifically, the occupational health nurse was willing to assume a monitoring function with Ms. Baker. On the basis of this discussion, we developed a returnto-work plan for Ms. Baker. This contract included the following components. First, Ms. Baker was to take her antipsychotic medication as prescribed by her physician.

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To ensure compliance and safety with the medication, Ms. Baker would go to her doctor for tests to determine blood levels of the medication on a regular basis. Second, Ms. Baker would meet with the occupational health nurse on a regular basis. This would allow for the nurse to assess her hygiene and other metrics of her condition to ensure that she was functioning in spite of some negative schizophrenic symptoms. Third, Ms. Baker’s supervisor would be alert to specific behaviors that indicated deterioration of her condition, which included increased social isolation, unusual speech, and changes in her personal hygiene or work habits. Long work hours, though occasionally necessary, were to be monitored to ensure that she did not become exhausted and vulnerable to breakdown. The program has been in place for over a year at the time of this writing. Her physician has made changes in her medication regime on several occasions, in an attempt to fine-tune the control of her illness. She has had no further decompensations, although she took 2 weeks of sick leave to recover emotionally from the loss of her grandmother in the fall of last year. Overall, her work performance has been within the high-level parameters that her employer expects. This case illustrates how a psychologist assisted both the worker and employer to work within the ADA framework to arrive at a plan for accommodation of a serious psychological disability. The psychologist employed clinical assessment procedures, including record review, interviews, and testing with additional information obtained through the employer to follow a series of steps. First, the psychologist determined whether the worker was qualified for the job or could be qualified with reasonable accommodation. In this case, Ms. Baker was not only appropriately educated for the job, but her history revealed that she was a highly valued employee when she was functioning well. Second, the psychologist determined the nature of the impairments experienced by the worker. Ms. Baker experienced a number of cognitive and interpersonal problems related to her psychosis, and these problems adversely affected her work performance. Third, the psychologist gathered information from the employer to determine the most appropriate changes in the workplace, and in Ms. Baker’s behavior, which would allow her to return to the job. Fourth, the psychologist worked with the employer to develop a return-to-work contract that enumerated the accommodations that the employer would provide along with things that Ms. Baker would be expected to do to maintain her position as a qualified worker with a disability.

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LITIGATION-RELATED EVALUATIONS AND CONSULTATIONS

the elements noted earlier in the section on return-to-work evaluations, the following elements should be added.

The second general role of a psychologist is as an expert working for the plaintiff, defendant, court, or administrative law judge in the context of litigation of ADA cases. Plaintiffs may put forward a number of claims under the ADA (Goodman-Delahunty, 2000; Melton, Petrila, Poythress, Slobogin, Lyons, Otto, 2007), including allegations that the employer failed to make reasonable accommodation; of disparate treatment and disparate impact; of reprisal for protected conduct; and of disability harassment and a hostile work environment. This section of the chapter deals with the psychological evaluation of plaintiffs who file claims based on each of these issues.

Record Review

Failure to Provide Reasonable Accommodation An employer’s failure to hire a potential employee because of the need to provide a reasonable accommodation, or to make a reasonable accommodation that a worker requests, can serve as the basis for a discrimination claim under the ADA (Parry, 1997). The forensic evaluations of plaintiffs who have filed claims alleging a failure to accommodate are in many ways similar to the evaluations noted earlier for return-to-work assessments. The similarity centers on the comparison of the worker’s skills to the job requirements in such a way as to illuminate the compatibility of the worker’s existing or potential capacity (with reasonable accommodation) to perform the essential job functions. This determination is central because the employer has four basic defenses against a reasonable accommodation claim: (1) The employee is not a qualified individual with a disability; (2) the proposed accommodations are not feasible or will impose an undue hardship on the employer; (3) the employer in fact provided an accommodation that was reasonable, but the plaintiff did not accept it; or (4) for the particular work situation in which the worker and employer encounter each other, no effective accommodation exists (Goodman-Delahunty, 2000). Psychological evaluations in these cases should, of course, be conducted with appropriate informed consents and other ethical and legal elements of any proper forensic evaluation (American Psychological Association, 2002; Committee on the Specialty Guidelines for Forensic Psychology, 2011; Foote & Shuman, 2006). It is often helpful to have several evaluation sessions with the plaintiff in order to observe behavior on several occasions and under different circumstances. However, in addition to

The evaluation for psychological damages of a plaintiff with a reasonable accommodation claim should begin with a review of available documentation (Foote & GoodmanDelahunty, 2005; Goodman-Delahunty & Foote 1995, 2011), including job descriptions, job advertisements, and the employee’s personnel file. In addition, the psychologist should review the worker’s vocational records, medical and psychiatric treatment records, school records, military records, records from prior litigation, criminal records, and any other documents related to the case. When reviewing vocational records the psychologist should identify the total number of positions held by the worker over his or her career. Reasons for changing jobs should be a focus of the inquiry, along with the examinee’s pattern of employment. This will allow the psychologist to determine if the worker has had a pattern of job success with repeated promotions or job changes to higher paying positions, as opposed to a pattern of impairment reflected in repeated firing, downsizing, moves to new locations, or lateral transfers. Medical and psychiatric records provide not only information relevant to determining whether the worker has a disability that substantially impairs major life functions, but information regarding the course of the potentially disabling condition. In addition, these records may identify the situations or stressors that trigger episodic breakdowns and mark the severity, duration, and residuals of those breakdowns. The impact of treatment may also be evident in these records, and the efficacy of individual or group treatment. The worker’s history with medication may be especially important, because pharmacologic regimes vary in effectiveness and potential for the worker to be noncompliant because of side effects. School records provide evidence of basic academic skills not only through grades earned but also through the periodic achievement testing. For people with learning disabilities, the evidence of their disability should be early and pervasive (Resnick, 2000). For younger workers who have been in school since enactment of the Individuals With Disabilities Education Act (IDEA; Roberts & Mather, 1995), school records may include psychological evaluations conducted during childhood. Again, the impact of remediation may be evident in these records. Military records are often an excellent source of information concerning the worker’s ability to adapt to novel situations. Of course, many workers with physical

Forensic Evaluation in Americans With Disabilities Act Cases

disabilities may have no military service, but those with mental disorders may have experienced onset of symptoms during military service and may have a Veterans Administration file documenting the condition and disabling aspects of it. In addition, for those workers for whom conduct problems are a major issue, the demands of military service may highlight those difficulties. A history of courts martial, or captain’s mast, Article 15, or other forms of nonjudicial punishment may reflect impulse control and anger management problems. Records of prior litigation may also be important. In some cases, the disability issue may arise after a worker’s compensation action or may occur in the context of a Social Security disability claim (Foote, 2008; Pincus, Kennedy, Simmens, Goldman, Sirovatka, & Sharfstein, 1991; Pryor, 1997). The filing of a claim for disability under one system does not preclude the filing of a claim under another system (Cleveland v. Policy Management Systems Corp., 1997), as these systems differ in scope and goals. For the psychologist evaluating a plaintiff in an ADA-related lawsuit, records from these sources may provide expert evaluations conducted in those contexts. In some cases, it may be possible to obtain testing from the earlier evaluations that provides excellent baseline data to determine the later impact of allegedly discriminatory activities on the part of the employer. Other records of interest may include information gathered from sources reflecting a plaintiff’s criminal history, including prison, probation, or parole records. In workers with these histories, records may provide information concerning the issue of direct threat, as previously discussed. In some cases financial records also can assist the examiner to determine changes in spending habits from before to after the alleged discriminatory activity. Credit card receipts and check registers can provide an empirical basis for reviewing the impact of discriminatory actions (Greenberg, 2000). In addition, it is always critical to review legally related documents in the case at hand. At minimum, these should include a copy of the claim, which lays out the plaintiff’s allegations. Interrogatories and depositions of the plaintiff, supervisors, co-workers, and other experts are often invaluable sources of cross-validation and corroboration of information gathered through interview and other sources. Interviews Interviews with the plaintiff should follow the procedures noted for return-to-work evaluations. However, in

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the interviews associated with litigation, it is also critical to focus on issues of damages (Foote & GoodmanDelahunty, 2005; Goodman-Delahunty & Foote, 1995, 2011). That is, if the worker has filed a lawsuit, a critical element of the case is the injury that the worker claims was suffered as a result of the employer’s adverse actions. Thus, in addition to the personal, medical, social, vocational, and military history gathered above, it may be appropriate to conduct a mental status examination and make other inquiries into the worker’s current psychological status. Structured interview methods are often useful. For example, the examining psychologist may utilize the Structured Clinical Interview for the DSM-IV (SCID; First, Spitzer, Gibbon, & Williams, 1997) or the Structured Interview for DSM-IV Personality (SIDP-IV; Pfohl, Blum, & Zimmerman, 1997). These not only provide a systematic method for information gathering, but may have better reliability and validity than standard unstructured interviews and even traditional psychometric testing (Rogers, 1995). Recent work (Goodman-Delahunty & Foote, 2011) has emphasized the need to obtain a clear picture of the claimant’s life before the alleged discrimination or harassment began. This “day-before analysis” provides an anchor point for the damages assessment as well as a basis for determining causation of injury. This assessment is sometimes difficult because litigants are likely to view their lives before events that are the focus of litigation as having been more problem free and happier than their lives following the events leading to the litigation (LeesHaley, Williams, Zasler, Margulies, English, & Stevens, 1997). A careful consideration of life activities, including hobbies, religious life, family life, and social contacts, can help elucidate the worker’s state before the alleged discrimination began. As discussed ahead, obtaining information from collateral sources can be invaluable (Heilbrun, Marczyk, & DeMatteo, 2002). Likewise, a review of all those features can help establish the losses experienced by the worker. For example, an employee who experienced humiliation as a result of the employer’s actions may significantly change life activities, avoiding social contacts made through work and other social situations. Psychological Testing The use of psychometric testing is often an essential element of the psychologist’s assessment armamentarium. As noted above, cognitive testing, such as the Wechsler Adult Intelligence Scale–IV (Lichtenberger & Kaufman, 2009;

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Wechsler, 2008), is a critical part of the ADA reasonable accommodation evaluation; an assessment of the ability of the worker to engage in work-like activities is important to determine what work the plaintiff can do. Similarly, some vocationally related tests might be appropriate to determine specific job-related skills (Pape and Tarvydas, 1994). Measures of psychological functioning, including the Minnesota Multiphasic Personality Inventory–2 (Greene, 2011; Pope, Butcher, & Seelen, 1997) or the Minnesota Multiphasic Personality Inventory–2–RF (Ben-Porath & Tellegen, 2008) and the Personality Assessment Inventory (PAI; Morey, 1991, 1996) can provide a means of assessing symptoms and character patterns. Projective testing such as the Rorschach (Exner, 1986; Weiner, 2003) may also provide supportive data indicating a mental disorder. Any forensic battery of psychological tests should contain some measures of response style (Rogers, 1997). These may include measures of effort such as the Test of Memory Malingering (TOMM; Tombaugh, 1997) and the Validity Indicator Profile (VIP; Frederick, 1997). In some cases in which the feigning of psychosis is of concern, the Structured Interview of Reported Symptoms (SIRS; Rogers, 1992), or, in its more recent version, SIRS-2 (Rogers, Sewell, & Gillard, 2010), may be helpful. Of course, measures such as the MMPI-2 and PAI also contain measures of exaggeration and minimization and can provide information concerning the plaintiff’s tendency to over- or underreport emotional distress. For a discussion of the evaluation of malingering and defensiveness, see Chapter 21 in this volume. The examiner should be careful to administer only tests that are valid and appropriate for those who are being tested, taking into account cultural and disability issues as part of the test administration and interpretation process (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, 1999). As noted earlier, failure to take the plaintiff’s disability into account in the assessment process would itself be a violation of the ADA. Collateral Interviews A developing standard in forensic evaluations is interviewing people who know the examinee in some significant way. These collateral sources or third-party interviews (Heilbrun, Rosenfeld, Warren, & Collins, 1994) are invaluable sources of information concerning the activities of the plaintiff before and after the alleged

discrimination. The plaintiff’s spouse or other appropriate family members, neighbors, and fellow members of religious organizations and clergy may be useful sources of information concerning the worker. In these cases, co-workers and supervisors are also sources of data concerning the worker’s life. The plaintiff may provide a list of names and contact information for friends and family members who can provide information. In addition, it may also be helpful to get a list of collateral sources from the employer. This provides for balance and may allow for a perspective on the worker otherwise unavailable through the worker alone. Disparate Treatment and Disparate Impact Evaluations Disparate treatment is a type of claim in which the person must establish that he or she is disabled according to the criteria of the ADA, that he or she has suffered adverse treatment from the employer in the form of being terminated, not hired, or not promoted, and that “a similarly situated nondisabled employee was treated more favorably” (Goodman-Delahunty, 2000, p. 202). In the alternative, if the employer states or does something indicating that he or she is biased against disabled employees, a similar presumption arises. In either case, the employer has the opportunity to present evidence that the actions were based on a legitimate, nondiscriminatory reason, and the employee has the burden of proving that the basis for the adverse treatment was the worker’s disability. In effect, the employee has to prove that the supposed legitimate basis offered by the employer is in fact a pretext for discrimination (Parry, 1997). Disparate impact differs from disparate treatment in that the adverse job action that the worker suffered is not a result of the employer’s deliberate discrimination, but rather is a result of a policy or plan that, on its face, was designed to be neutral toward people with disabilities. If the policy has a disproportionately adverse impact on people with disabilities, causing them not to be hired or to be passed over for promotion in comparison with nondisabled workers, then the policy is considered to have disparate impact (Goodman-Delahunty, 2000). Evaluations of plaintiffs in disparate treatment and impact cases generally focus on the impact of nonhire, nonpromotion, or termination. Emotional damages in such cases may be significant if the worker has a strong emotional stake in the position or promotion (Foote & Goodman-Delahunty, 2005; Goodman-Delahunty & Foote, 1995, 2011) since the loss of employment can

Forensic Evaluation in Americans With Disabilities Act Cases

have strong emotional consequences (French, Caplan, & VanHarrison, 1982; Kasl & Cobb, 1980; Merriam, 1987; Schlossberg & Leibowitz, 1980). Discharged workers may experience increased depression, sleep disturbance, family problems, increased vulnerability to serious illness, loss of self-esteem, and a general reduction in well-being (Prussia, Kinicki, & Bracker, 1993). Loss of contact with fellow workers and the loss of contacts for obtaining future employment can have serious emotional consequences as well. In many cases, the worker who has lost an expected promotional opportunity or a job feels as if he or she has lost an important piece of property. In some cases, social status is diminished, and income suffers significantly (Foote & Goodman-Delahunty, 2005; & Foote, 1995, 2011). The desire to actively search for a new position may be diminished by the emotional reaction to the job loss (Prussia et al., 1993). In these cases, consultation with the worker’s family is especially important. If the worker has been fired, he or she is frequently spending more time at home and has lost a primary role identification. These changes sometimes alter family dynamics, having an adverse impact on both spouse and children. Reprisal for Protected Conduct Workers who are the recipients of adverse treatment or discharge following their participation in an EEOC case can file a claim for reprisal. In these cases, workers must prove that they engaged in statutorily protected expression and suffered an adverse employment action as a result (Weeks v. Harden Manufacturing Corp., 2002). In general, such cases are easier to prove than disparate impact and intent cases (Goodman-Delahunty, 2000) and are often based on evidence of coercion, harassment, or intimidation of the employee (Parry, 1997). In general the evaluation of these cases is similar to the evaluation of disparate impact cases noted above. Discharge or other adverse job action may affect a worker in a variety of ways that a psychological evaluation may reveal. In these cases, accounts of co-workers are especially important to determine whether others observed the alleged adverse job actions. One problem that can arise in reprisal cases is the finding of paranoid or hypervigilant elements in the worker’s presentation or test data. This is of special importance in such cases because the perception that the employer’s actions were connected to the protected activity of the worker is sometimes a subjective one (McDonald & Lees-Haley, 1996). When an evaluation produces evidence of paranoid thinking, the clinical

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issue becomes one of causation. One alternative to consider is whether the worker became paranoid because the employer repeatedly treated the employee inappropriately or overreacted to the worker’s appropriate behavior. Such repeated experiences could cause a worker to become hypervigilant and distrustful, thus raising scales designed to measure such tendencies on instruments like the MMPI-2 and PAI. The other alternative to consider is that the employee has come to consider the world as a hostile place in which he has become the focus of undeserved bad treatment. This could arise from a personality disorder (paranoid or narcissistic) or a delusional system (paranoid delusional disorder or paranoid schizophrenia). The psychologist can assess this causation issue through an overall review of the test data to determine the pervasiveness and severity of the cognitive distortions. If the cause of the paranoid thinking arises from an Axis I or Axis II disorder, in most cases (notwithstanding the paranoid delusional disorder, which may be narrow in scope), those distortions should be pervasive. Also, the paranoid pattern should be reflected in non-work situations. The paranoid individual should have a history of difficulty establishing and maintaining relationships, frequently demonstrating jealousy, distrust, and retributive actions. More difficult to discriminate is a paranoid pattern that may emerge following inappropriate employer actions such as public humiliation or blatant discrimination. Even if the difficulty is apparently resolved through arbitration or court action, the employee may still be sensitized to the employer’s behavior. This sensitivity may cause the worker to perceive subsequent neutral job actions or actions that are rationally based as evidence of reprisal. In such circumstances, the causation issue is more difficult to assess because the worker is not suffering from a mental disorder. Rather, the worker has experienced a situationally bound change in perceptual predisposition. Generally, the only way to differentiate between this mild paranoid pattern and a reaction to real-world events is to interview co-workers who may have observed the allegedly retaliatory conduct. Disability Harassment and Hostile Work Environment Two Federal Court of Appeals decisions have confirmed that Title V Hostile Work Environment concepts may be applied to the ADA (Flowers v. Southern Regional Physician Services, Inc., 2001; Fox v. General Motors, 2001). These cases looked to established Title VII models

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for defining hostile work environment. In order to establish a hostile work environment claim under the ADA, the plaintiff must show that: 1. 2. 3. 4.

he is a qualified individual with a disability; he was subjected to unwelcome harassment; the harassment was based on his disability; the harassment was sufficiently severe or pervasive to alter a term, condition, or privilege of employment; and 5. some factual basis exists to impute liability for the harassment to the employer (that the employer knew or should have known of the harassment and failed to take prompt, remedial action). (Southwest ADA Center, 2011b, para. 6)

Jones (2008) observed that many legal scholars expect the U.S. Supreme Court to apply Title VII logic to some discrimination claims under the ADA. For example, in two decisions (Burlington Industries, Inc. v. Ellerth, 1997; Faragher v. City of Boca Raton, 1998) the Court placed the responsibility for the behavior of supervisors and managers squarely on the employer’s shoulders. The Court attempted to balance the duty of the employer to provide a harassment-free environment through appropriate procedures and notification mechanisms with the responsibility of the aggrieved worker to utilize available means of registering complaints. As applied to ADA hostile work environment claims, these cases clearly extended the legal principle of respondeat superior (the employer is responsible for the actions of subordinates) to cases involving harassment (see Equal Employment Opportunity Commission, 1999). Holzbauer and Berven (1996) researched harassment of people with disabilities and determined that they reported experiencing a number of adverse emotional reactions including self-doubt. Denial and self-blame discourage people from taking action by preventing them from recognizing that they are being harassed. Humiliation and devaluation are frequent reactions to harassment experiences, as are anger and depression (see also Paludi, DeSouza, & Dodd, 2011). Psychological evaluation of people who claim they experienced a hostile work environment follows the same general outline noted above. However, several components would be added for harassment claims. A reasonable expectation is that a harassed worker may experience more anxiety-related symptoms than other workers. If the harassment is relatively minor, such as the use of derogatory terms or the posting of cartoons that make fun of people with disabilities, the worker may experience a steady low-to-moderate level of tension related to the

work environment. Similar patterns are observed in workers who are sexually harassed in the workplace (Fontana & Rosencheck, 1998; Richman, Flaherty, & Rospenda, 1996; Rosell, Miller, & Barber, 1995). For many harassed workers, their motivation to work diminishes, they become reluctant to go to work, have more sick days, and are more likely to leave employment. In general, a hostile work environment is experienced by workers as a “war of attrition” in which their will to continue functioning in the workplace is tested by frequent humiliations and slights. Although most employment discrimination cases do not provide occasions for workers to experience lifethreatening or other serious trauma that would usually qualify as a triggering stressors for posttraumatic stress disorder (PTSD) or acute stress disorder (ASD; Foote & Goodman-Delahunty, 2005), in situations that involve public humiliation, such as singling out a disabled person on the basis of his or her disability, or a practical joke involving the disabled person’s impairments, anxiety symptoms similar to PTSD or ASD may develop. In sexual harassment settings, similar events sometimes produce PTSD-like symptom patterns (Fitzgerald, Drasgow, Hulin, Gelfand, & Magley, 1997; Schneider, Fitzgerald, & Swan, 1997). The reexperiencing of the traumatic events through waking recollections and nightmares, the social isolation and withdrawal from favored activities, and the symptoms of hyperarousal may characterize the emotional reactions of those who experience such humiliating events. Reports, Depositions, or Court Testimony In cases that result in discrimination claims, as in failureto-accommodate cases, the retaining party (either the defendant’s counsel or plaintiff’s counsel) may request a written report of the evaluation findings. As required by ethical and forensic standards (APA, 2002; Committee on the Specialty Guidelines for Forensic Psychology 2011, the report should accurately reflect the procedures conducted and the results of the evaluation. To the extent possible, the legal issues in the case, such as causation of damages and future damages (Goodman-Delahunty & Foote, 1995, 2011), should be addressed. Either the hiring party or the opposing party in a case may depose the expert. In many cases, a subpoena duces tecum is issued, which demands not only that the psychologist submit for an oral deposition, but also that the psychologist bring along all test and interview data that serve as the foundation for professional opinions in the case. Preparation for depositions is critical and should

Forensic Evaluation in Americans With Disabilities Act Cases

be commensurate with the complexity and detail of the case. For the small proportion of ADA cases that do not settle, it may be necessary for the examining psychologist to testify at trial about the evaluation process and findings. Again, before the psychologist testifies in court it is appropriate to prepare extensively so that testimony is accurate and resistant to cross-examination. As always, fairness, truthfulness, and clarity are goals to guide courtroom testimony. CONCLUSION The ADA was designed to address a societal ill: discrimination against people with disabilities. While the impact of the ADA on public accommodations and transportation are observable every time one enters a public building or boards public transportation, it is harder to discern the impact of the statute on the lives of people with disabilities generally and on people with mental disabilities in particular (Stefan, 2001). Psychologists can be agents in the implementation of the ADA. Through serving as consultants to workers and employers we can share our knowledge of behavior, mental illness, and rehabilitation in a way that helps improve the lives of workers as well as the bottom line of employers. By serving as examiners of persons initiating ADA complaints we can provide information so that judges, administrative panels, and juries can make more informed decisions. As in other areas of psychology and the law, the clinical and legal aspects of our work are constantly changing. Nowhere is that more true than in disability law, where U.S. Supreme Court decisions can at times hew great swaths through the accepted legal landscape. In some cases, these changes have been reversed by the U.S. Congress, as was the case with the ADAAA, which returned the landscape to a more disability-friendly environment. Knowing this territory is a critical part of forensic work in ADA cases. Equally critical, however, is the knowledge of how disability alters the lives of people for good and for ill. While psychologists cannot “level the playing field,” we can do our work with sensitivity to both the strengths and impairments of people with disabilities. Exercising this sensitivity (whether we are hired by the worker, the employer, or the court), we can be agents of fairness for the worker and employer. REFERENCES ADA Amendments Act. (2008). Retrieved from www.law.georgetown .edu/archiveada/documents/ADAAACR9.17.08.pdf

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Rothstein, L. F. (1997). The employer’s duty to accommodate performance and conduct deficiencies of individuals with mental impairments under disability discrimination laws. Syracuse Law Review, 7, 931–986. Scheid, T. (2005). Stigma as a barrier to employment: Mental disability and the Americans With Disabilities Act. Law and Psychiatry, 28, 670–690. Schlossberg, N. K., & Leibowitz, Z. (1980). Organizational support systems as buffers to job loss. Journal of Vocational Behavior, 17, 204–217. Schneider, K. T., Fitzgerald, L. F., & Swan, S. (1997). Job-related psychological effects of sexual harassment in the workplace: Empirical evidence from two organizations. Journal of Applied Psychology, 82 (3), 401–415. School Board of Nassau County, Fla. v. Arline, 480 U.S. 273 (1987). Smart, J. F., & Smart, D. W. (1993). Vocational evaluation of Hispanics with disabilities: Issues and implications. Vocational Evaluation and Work Adjustment Bulletin, 26, 111–122. Social Security Administration. (2010). Annual statistical report on the Social Security Disability Insurance program, 2009. Washington DC: Office of Retirement and Disability Policy. Southwest ADA Center. (2011a, March 27). Retrieved from www.dlrp.org/index.html Southwest ADA Center. (2011b, March 27). Employment ADA: Hostile work environment. Retrieved from www.dlrp.org/html/ topical/employment/emp_hostile.html Stefan, S. (1998). “You’d have to be crazy to work here”: Worker stress, the abusive workplace and Title I of the ADA. Loyola Law Review, 31 (3), 795–846. Stefan, S. (2001). Unequal rights: Discrimination against people with mental disabilities and the Americans With Disabilities Act. Washington, DC: American Psychological Association Press. Sutton v. United Airlines, Inc., 527 U.S. 471, 119 S. Ct. 2139 (1999). Tenopyr, M. L., Angoff, W. H., Butcher, J. N., Geisinger, K. F., & Reilly, R. R. (1993). Psychometric and assessment issues raised by the Americans With Disabilities Act. The Score, 15 (4), 1–15.

Tombaugh, T. (1997). The Test of Memory Malingering (TOMM): Normative date from cognitively intact and cognitively impaired individuals. Psychological Assessment, 9 (3): 260–268. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). Trans Mart, Inc. v. Brewer, 630 So. 2d 469 (Ala. Civ. App. 1993). Unger, D. D., Campbell, L. R., & McMahon, B. T. (2005). Workplace discrimination and mental retardation: The national EEOC ADA research project. Journal of Vocational Rehabilitation, 23 (3), 189–195. US Airways, Inc. v. Barnett, 535 U.S. 391 (2002). U.S. Census Bureau. (2008) Americans with disabilities: 2005. Washington, DC: U.S. Department of Commerce, Economics and Statistics Administration. U.S. Equal Employment Opportunity Commission, 29 C.F.R., 1630 et seq. (1992). U.S. Equal Employment Opportunity Commission. (1997). EEOC enforcement guidance on the Americans With Disabilities Act and psychiatric disabilities. (EEOC Notice Number 915.002 ed.). Washington, DC: U.S. Government Printing Office. U.S. Equal Employment Opportunity Commission. (2000). Questions and answers on amending the interpretive guidance on Title I of the Americans With Disabilities Act [On-Line]. Retrieved from www.eeoc.gov/regs/1630-mitigating-qanda.html Wahl, O. F. (1999). Mental health consumers’ experience of stigma. Schizophrenia Bulletin, 25 (3), 467–478. Wechsler, D. (2008). WAIS-IV administration and scoring manual. San Antonio, TX: The Psychological Corporation. Weeks v. Harden Manufacturing Corp., 291 F.3d 1307 (11th Cir. 2002). Weiner, I. (2003). Principles of Rorschach interpretation (2nd ed.). New York, NY: Taylor & Francis. Yelin, E. H., & Cisternas, M. G. (1997). Employment patterns among persons with and without mental conditions. In R. J. E. Bonnie & J. E. Monahan (Eds.), Mental disorder, work disability, and the law (pp. 25–54). Chicago, IL: University of Chicago Press. Zuriff, G. E. (1997). Accommodations for test anxiety under ADA? Journal of American Academy of Psychiatry Law, 25 (2), 197–206.

CHAPTER 13

Civil Competencies ERIC Y. DROGIN AND CURTIS L. BARRETT

INTRODUCTION 295 RETROSPECTIVE ASSESSMENT OF COMPETENCIES 296 ASSESSMENT OF CURRENT COMPETENCIES 298

ASSESSMENT OF FUTURE COMPETENCIES 300 CONCLUSION 305 REFERENCES 305

INTRODUCTION

The reader should also note that the civil competencies addressed in this chapter represent a sampling of those that may arise in criminal as well as civil contexts, such as testimonial capacity (Eliasberg, 1953; Otto, Sadoff, & Fanniff, 2011) and the ability to retain and collaborate with counsel (Rogers & Johansson-Love, 2009; Stafford & Sadoff, 2011). An assessment of “capacity” ultimately refers to “whether a person can actually do each of those things that comprise the legal competency in question. Can examinees perform the tasks at issue, or can they not?” (Drogin & Barrett, 2010, p. 31). In the context of civil competencies, this construct involves more than the mere ability to “receive or retain information and knowledge,” as it also encompasses the ability to “function in mental or physical tasks” (VandenBos, 2007, p. 146). From the perspective of the law, “capacity” denotes an insufficiency of “mental ability” (Garner, 2009, p. 235) that comports with a finding of specifically “functional impairment” (Parry & Drogin, 2007, p. 143) for the imposition of substituted judgment. For forensic evaluators, this means that assessments limited to determining if the examinee either does or does not “know” what is required to exercise his or her rights will not suffice. To reach a forensically supportable conclusion regarding the capacities relevant to civil competency, it will often be necessary to obtain as close to an in vivo demonstration of behaviorally defined skills as is feasible. Forensic evaluators may find it considerably challenging to assess an examinee’s past, current, or future capacities (Simon & Shuman, 2002)—and in some cases, a scientifically supportable opinion will simply be

The evaluation of civil competencies can be conceptualized as an investigation of opportunities to apply “substituted judgment” (Abrams, 2010; Drogin & Barrett, 2003; Rosenfeld & Jacobson, 2007) to decisions made or contemplated by examinees at different points in time. Substitutions for prior judgment involve the displacement of “advance directives” (Appelbaum, 2004; Elbogen, Swanson, & Swartz, 2008) put in place by examinees whose hope it was at one point to control their future circumstances or the ultimate distribution of their possessions. Were these persons capable of making such plans and assignments at that time? Substitutions for present judgment involve second-guessing examinees who are currently on the brink of committing to a certain course of action, such as supplying informed consent—or refusing to consent—to recommended medical treatment (Koocher, 2005; Miller & Anderson, 2010). Substitutions for future judgment are addressed by the notion of guardianship (Drogin & Barrett, 2010; Drogin & Gutheil, 2011; Greene, 2008), which potentially removes from examinees the right to make such basic determinations as where they will live, how they will spend their money, and whether they may vote, marry, determine their residence, or drive an automobile. Temporal considerations for these broad categories do not always follow a set pattern—for example, as noted in the following, evaluators are sometimes asked to assess an individual’s testamentary capacity at the time that a will is executed, and such notions as undue influence may be relevant to past, present, and future exercises of judgment. 295

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unreachable (Gutheil & Dattilio, 2008). Legal standards and their corresponding forensic methodologies are predictably distinct for each temporally determined category of substituted judgment. The purpose of this chapter is to identify a research-based, ethically grounded, and procedurally informed approach to addressing these issues. We have found practicing in this area to be an intellectually stimulating and professionally rewarding pursuit, and hope to enlist more of our colleagues in this endeavor.

RETROSPECTIVE ASSESSMENT OF COMPETENCIES Wills and other “advance directives”—such as living wills, durable powers of attorney, and health-care surrogacies—are means by which individuals attempt to ensure that their wishes will be followed in the future. When the time comes either to honor—or to circumvent—the directive in question, courts may be asked to determine whether, at the time of an instrument’s execution, the person’s capacity was so lacking that the substituted judgment of others must now be instituted. Legal and Historical Background As early as the late 12th century, English law began to recognize the rights of persons to bequeath personal property. It was not until the Statute of Wills in 1540 that ownership of various classes of real property—such as residences and land—could be transmitted on a similar basis (Robitscher, 1966; Scalise, 2011). When feudalism was outlawed in 1660, all barriers to disposition by will were eradicated (Irvine, 2003; Kempin, 1973). Variously dated in the forensic literature as 1572 (Smith & Meyer, 1987) and even 1839 (Robitscher, 1966), it was actually in 1542 (Howard, 2006) that an amendment to the Statute of Wills barred “any person de non sane memory” (Turano, 1998, p. 182) from making a will. This exception persists to the present day, defined in most American jurisdictions as the requirement that persons wishing to bequeath property be “of sound mind” (Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007, p. 396). In the landmark case of Cruzan v. Missouri Department of Health (1990), the Supreme Court of the United States extended testamentary notions into the health-care arena, upholding the constitutionality of a requirement that a judge could not order termination of life support without clear and convincing evidence that the patient would

have wished this to occur. Cruzan left states with the ability to set their own standards in this regard, such that “the outcome for a person who has become permanently unconscious may very well depend on geography” (Gilfix & Gilfix, 1992, p. 44). In virtually every jurisdiction, the recognition and components of a valid living will are now specified by statute (Nachman, 2011). The durable power of attorney “remains in effect during the grantor’s incompetency” and will “commonly allow an agent to make health-care decisions for a patient who has become incompetent” (Garner, 2009, p. 1290). As noted by Rhein (2009), these instruments “allow principals to select agents to act on their behalf in the event that they later lose the ability to act for themselves” (p. 165). A critical distinction regarding the durable power of attorney—primarily distinguishing it from the living will—is the rebuttable presumption that the individual in question may eventually regain his or her capacity for independent decision making (Insel, 1995; Kohn, 2006). In many jurisdictions, the right to make such designations is further buttressed by statutory guidelines for “health-care surrogacy,” a device that establishes “through an ordered hierarchy of priority, a surrogate decisionmaker, who is legally allowed to make medical decisions for the incompetent patient” (Moore, 2003, pp. 411–412). The uniformity and predictability of surrogate laws have been touted as a necessary supplement to living wills and durable powers of attorney (Longan, 2009; Nachman, 2011), as well as an alternative to the perceived lack of procedural safeguards associated with guardianship proceedings (Davis & Morrell, 2005). Forensic Assessment Forensic psychological assessment of prior competencies is sought subsequent to the individual’s demise or incapacity. It involves a determination of whether valid judgment was ever exercised or expressed. Establishing “that a testator met or fell short” of the applicable legal standard will typically include “expert evidence that conflicts with non-expert evidence given by those who knew the testator best” (Champine, 2006, pp. 26–27). In one popular novel at the turn of the previous century, the murderer’s identity was revealed when a powerful microscope was trained upon the victim’s retina, wherein the image of her killer was retained (Dixon, 1905). Despite the promise implied by such fanciful notions, researchers in the succeeding decades have understandably failed to produce instruments and methods that can

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divine the intent, actions, or experiences of deceased or permanently noncommunicative persons. Historically, psychologists have been largely left to their own inferential devices in regard to assessing testamentary capacity. The methodology employed is often similar to that associated with “psychological autopsies.” According to Dattilio and Sadoff (2011): Psychological autopsies have a number of weaknesses. They suffer from the unavailability of the decedent for direct observation or questioning. Obviously, this makes the type of evaluation extremely arduous and more complicated than most evaluations that are typical of mental health professionals because specific details or elaboration are unobtainable. What is more, investigations may be convoluted by the number of individuals who have something to gain based on the results, such as the decedent’s survivors, third party beneficiaries, insurance companies, and other individuals involved with the case. Probably the most critical has been the lack of standardized protocol and methods for conducting psychological autopsies, which can sometimes have a profound effect on the results obtained. (p. 596)

This is not to suggest that such methods are universally disregarded. On the contrary, Foster (2011), Knoll, (2009), and Wong, Chan, Conwell, Conner, and Yip (2010) are among the authors who most recently have asserted the utility of psychological autopsies across a broad range of clinical and research applications, and the legal profession has generally been willing to accept that “psychological autopsies are proving to be a useful tool in giving doctors and jurors alike a well-rounded view of suicide victims and their suicide ideation” (Biffl, 1996, p. 123). Along similar lines, Parry and Drogin (2007) observed that: With the proper documentation, these assessments of what happened in the past may provide courts with adequate alternatives where interviewing the testator is impossible. What makes such psychological autopsies less daunting is that the threshold requirements for executing a valid will are quite low. In other words, for testamentary incapacity to be confirmed by this methodology, records or observations at the time the will was executed would have to show that a gross psychological or neuropsychological disorder or impairment existed. This type of extreme disorder, when present, is easier to establish than a more subtle condition. (p. 183).

Conducting these procedures is not merely a hit-andmiss undertaking in which the forensic evaluator offers up his or her best guess about what may have occurred at a relevant point in time. Expanding on procedures pioneered by Shneidman (1981) and Young (1992), Dattilio and Sadoff (2011) developed a “template protocol

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for psychological autopsies” that includes the following elements: 1. 2. 3. 4. 5. 6. 7. 8. 9.

identifying information; details of death; decedent’s history (personal and medical); recent tensions or anticipated trouble; role of alcohol or drugs in overall lifestyle; decedent’s interpersonal relationships; fantasies, dreams, thoughts, premonitions, or fears; changes in the decedent’s habits; and information related to the “lighter side” of the decedent. (pp. 559–601)

In terms of the specific forensic context within which these determinations are made, the psychologist will need to review, with counsel’s guidance and support, the relevant statutes, regulations, and case law for those jurisdictions in which the advance directive was executed and interpreted. Experts are aided in this regard by the fact that such laws have become increasingly uniform across jurisdictions, and typically mirror requirements for the valid execution of a contract (Parry & Drogin, 2007). Melton, Petrila, Poythress, Slobogin, Lyons, & Otto (2007) addressed the assessment of testamentary capacity, offering several suggestions for avenues of forensic inquiry: 1. Testator Knowledge That Will Is Being Made. This involves an exploration of such issues as “conception of a will, what it is intended to do, and why they are preparing theirs at this time” (p. 397). 2. Testator Knowledge of Nature and Extent of Property. This involves “questions designed to elicit information about his or her property holdings” (p. 398), including “questions regarding occupation, salary, living accommodations, personal possessions,” (p. 398), and the like. 3. Testator Knowledge of Natural Objects of Bounty. This involves an inquiry into the testator’s ability to identify “family, friends, and those who might have played a major role” (p. 398) in his or her life. 4. Testator Knowledge of the Manner in Which Property Is Disposed. This involves an analysis of the testator’s understanding of “the general consequences of the property disposition made” (p. 399), with particular attention to the potential effects of “delusion, personal pique, or simply mistake” (p. 399). Numerous disorders can result in impairments that interfere with testamentary capacity, including delusional disorder, schizophrenia, substance abuse, and “a host of physiologically based conditions that might permanently

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or even temporarily affect the examinee’s ability to distinguish between fantasy and reality” (Drogin & Barrett, 2010, p. 32). The notion of “temporary” incapacity is critical in such evaluations insofar as the law allows that the testator may have executed the advance directive in question during a “lucid interval” in which symptoms were effectively held at bay (Whipple, 2010). Often, the potentially disruptive issue is one of “undue influence” (Hellman, 2004), a frequently visited notion defined as “engaging in manipulation or deception to significantly impair the ability of testators to freely decide on the distribution of their property” (Regan & Gordon, 1997). According to the American Bar Association Commission on Law and Aging and the American Psychological Association (2005): Undue influence refers to a dynamic between an individual and another person. It is certainly more challenging to assess such a dynamic, but there are certain factors to assess with the elderly client to gauge whether undue influence is at work. Lawyers might attend to whether the elderly client appears fearful, isolated, overly dependent or vulnerable, or seems overwhelmed by or unaware of financial information. It is also useful to determine the history of the relationship between the elderly client and any person who appears to be in a position of power: is it a long-term trustworthy relationship or is it a family member, caregiver, or acquaintance who has more recently become a “new best friend.” (p. 16)

As described by Spivack (2010), forensic evaluators investigating this construct should consider whether “(1) the influencer had disposition or motive to exercise it, (2) the influencer had opportunity to exercise the influence, (3) the influencer did in fact exercise the influence, and (4) the testamentary disposition at issue was a result of the undue influence” (p. 262). Undue influence issues can clearly extend beyond wills and other advanced directives to a host of other formal decision-making activities that surface in the assessment of current and future competencies as well.

ASSESSMENT OF CURRENT COMPETENCIES Cases and procedures surrounding the doctrine of informed consent and the right to accept and refuse treatment constitute a legally indispensable affirmation of patient and client autonomy. Only when an individual’s current decision-making capacity is impaired will these principles bow to emergent practical concerns. This may

occur when the health and safety of those whom the health-care professional seeks to treat and/or the health and safety of others would be threatened if treatment is not imposed. Legal and Historical Background In a landmark case for the legal doctrine of informed consent, the District of Columbia Circuit Court of Appeals in Canterbury v. Spence (1972) held: True consent to what happens to one’s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible. (p. 780)

The court’s ruling acknowledged an exception to this general requirement, “when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment” (Canterbury v. Spence, 1972, p. 788). Appelbaum, Lidz, & Meisel (1987) observed in their seminal text on informed consent that “the translation of ethical principles into concrete requirements for physicians’ behavior has been largely a function of the courts (usually state, occasionally federal),” while “state legislatures to a lesser extent have been involved in making law in this area” (p. 35). Overall, “the primary goals of informed consent are the protection of patient or subject welfare and the promotion of autonomy” (Berg, Appelbaum, Lidz, & Parker, 2001, p. 18). Forensic Assessment Evaluations of the present capacity for informed consent focus on “an examinee’s ability—or lack thereof—to comprehend the nature and purpose of the [procedure], to weigh its risks and benefits, to reach a reasoned conclusion, and to convey that conclusion” (Drogin & Barrett, 2010, p. 113). Can the examinee grasp what occurs during the procedure? Why the procedure is being proposed? Why the procedure might help? What could go wrong? Can the examinee put all of this information together to come up with a valid response that the treatment provider in turn is capable of understanding?

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Melton, Petrila, Poythress, Slobogin, Lyons, & Otto (2007) have succinctly described the forensic evaluator’s fundamental approach to investigating this construct: It is important to find out first (usually by talking with the patient’s physician or social worker) what the patient has been told about the treatment. If it becomes apparent that the patient has misunderstandings or points of ignorance about the treatment, it is appropriate to try to teach the relevant information to him or her . . . to ensure that perceived problems in understanding are not simply the result of inadequate disclosure. To carry out this sort of interview, the clinician obviously needs to have at least a basic knowledge of the proposed treatment. (p. 388)

It is not only the psychiatric patient or client—or the patient or client with identified psychiatric issues—who may be subjected to an informed consent evaluation. As noted by Grisso (2003), “although mental illness, mental retardation, and degenerative neurological conditions” may form a basis for such inquiries, “the question may be raised in cases involving no mental illness but rather the presence of significant cognitive deficits related to a trauma or the effects of prolonged illness” (p. 392). Some authors have approached analysis of a patient’s decision-making processes from a more theoretically abstract perspective. Gigliotti and Rubin (1991) explored “characteristics of competent choice” from the perspective of “expected utility models,” isolating assumptions that the “competent” individual will be able to: 1. Use sensible probability weights for possible outcomes, when such weights are available or computable. 2. Evaluate, that is, determine the utility of, the possible outcomes of risky prospects. 3. Calculate the expected utility of risk prospects correctly, given sensible probability weights and evaluations of outcomes. (p. 413)

The forensic evaluator whose head is left spinning by such notions will take comfort in the availability of psychological tests purporting to assess the relevant constructs, and by the conclusion that “the instrument of choice for clinical use is the MacArthur Competence Assessment Tool for Treatment Decisions (MacCAT-T),” as this is the assessment tool “that has been most extensively studied, and the book in which it was published provides ample instruction for its clinical use” (Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007, p. 389). Particularly useful features of the Mac-CAT-T include its separate focus upon “understanding,” “appreciation,” “reasoning,” and “expressing” components of the informed

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consent calculus, its sample inquiries and probes, and its specific accommodation of responses regarding alternative forms of treatment. It is also reassuring to note that the test authors do not seek to overreach with this instrument, as in and of itself it “does not provide all of the information that clinicians will need in order to perform competency assessments regarding patients’ abilities to make informed treatment decisions” (Grisso & Appelbaum, 1998, p. vi). This certainly comports with the legal system’s corresponding perspective that “while various instruments can provide evidence that is useful in the courtroom, it has been observed that none of these measures alone is a substitute for judicial determinations of legal incompetency to consent to treatment” (Parry, 1998, p. 96). Additional measures relevant to informed consent include the Assessment of Consent Capacity for Treatment (ACCT; Cea & Fisher, 2003), the Hopemont Capacity Assessment Interview (HCAI; Edelstein, 1999), and the Vignette Method (Vellinga, Smith, Van Leeuwen, van Tilburg, & Jonker, 2004). What these approaches bear in common is the examinee’s structured exposure to different hypothetical treatment situations that compel exposure of relevant reasoning skills. Beyond psychological testing, Foubister and Connell (2011) recommend a “general assessment” approach that addresses “general background data,” “medical and mental history,” “legal history,” “screening for cognitive impairment,” and “screening for symptoms of psychopathology” (p. 508), and a reporting scheme summarized as follows: The integration and interpretation of data should focus on the individual’s capacity or incapacity to make treatment decisions rather than on an ultimate declaration of competence. When the data are not consistent or clear and the determination cannot be made then both the data in support of a finding and the data that argue against such finding should be clearly set forth to assist the fact finder. The ultimate competence judgment may rest on balanced consideration of the severity of consequences and the individual’s capacities, a decision that invokes moral or “values” considerations and may best be made by the court. (pp. 511–512)

Moye, Karel, and Armesto (2007) contemplated three different categories of informed consent “capacity conclusions” that include “persons with gross and severe impairment,” “persons with moderate impairment in some areas of function,” and “persons with subtle or variable impairments, unique perspectives or values, or eccentric decisional styles” (p. 282). The significant differences between these categories underscore the need for assessment batteries, while the product of some forethought

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on the part of the forensic evaluator, to remain reasonably flexible—discoveries along the way may necessitate substantial variations in the focus and complexity of psychological tests and interview queries. Questions of an individual’s capacity to refuse treatment (at least, mental health treatment) typically arise when psychoactive medications are recommended and refused. Although assessment of one’s capacity to refuse treatment involves many of the same issues that apply when considering one’s capacity to consent to treatment, evaluations of the former are likely to be more forensically complex. This reflects a line of legal decisions indicating that, with rare exceptions (see, e.g., Washington v. Harper, 1990, in which the Supreme Court addressed the issue of involuntary medication of prison inmates for purposes of institutional management), involuntary administration of psychoactive medications requires, in addition to a finding of incapacity to make treatment decisions, a finding of imminent risk of some type of harm if the medication is not administered (see, e.g., Rennie v. Klein, 1978; Rogers v. Okin, 1979; and Sell v. U.S., 2003). Thus, in these cases forensic examiners—in addition to assessing capacity issues—will likely be called on to address questions of risk for harm. In these cases, it is crucial that the forensic evaluator identify the specific mode of treatment being rejected, as “the origins of treatment refusal are manifold; in addition, the psychology of refusal of medication is not necessarily similar to the psychology of refusal of psychotherapy or of electroconvulsive therapy” (Appelbaum & Gutheil, 2007, p. 93). The means and formats of preserving interview data may be crucial factors in their ultimate utility and persuasiveness for a judge or jury. For this reason, as noted by Sprehe and Kerr (1996), there has been an increasing acceptance—and, in fact, even encouragement—by attorneys and courts of video-recorded evaluations. Caution is warranted, of course, in choosing the technology to be utilized, as some data recording media are likely to be unusable within a relatively short time. In fact, there is a constantly expanding thicket of codified obligations—and associated penalties for failure to employ them—when it comes to the preservation of legally relevant information (Allman, 2007). For psychologists in particular, this notion is echoed in the latest revision of the American Psychological Association’s Record Keeping Guidelines, which recognize that “advances in technology, especially in electronic record keeping, may create new challenges for psychologists in their efforts to maintain the security of their records” (2007, p. 998).

Indeed, new technologies may compel yet another revision of these Guidelines ahead of the currently contemplated schedule (Drogin, Connell, Foote, & Sturm, 2010). In addition, forensic evaluators wishing to video-record their examinations must consider ethical—and, in some jurisdictions, explicitly legal—proscriptions against the revelation of raw psychological test data in a way that may serve to invalidate certain assessment measures for future examinees (Committee on Legal Issues, 2006). Another factor for consideration is the extent to which the presence of video recording equipment may be asserted by those opposing the evaluation’s results as having affected the validity of the evaluation (Constantinou, Ashendorf, & McCaffrey, 2002).

ASSESSMENT OF FUTURE COMPETENCIES Guardianship proceedings represent the state’s obligation to infer from a present state of mental illness or defect that (a) currently identifiable conditions may manifest themselves at some later date; and (b) these disabilities will limit the examinee’s future decision-making opportunities. An examinee’s failure to identify adequate strategies for meeting his or her responsibilities in a range of hypothetical situations may result in broad refutation of basic civil competencies, including voting, choosing among health-care options, self-determined transportation, and determining a place of residence. Legal and Historical Background Guardianship may represent the earliest historical manifestation of mental health law (Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007). During the period of the Roman Empire, “the need for surrogates to handle the property and commercial affairs of disabled citizens was first legally recognized” (Appelbaum, 1982, p. 183). “After the fall of the Roman Empire, in England, by the 16th century, the approach to this issue had evolved into one recognizable in many aspects by modern standards, including the supervision of persons with disabilities by court-appointed guardians” (Neugebauer, 1989, p. 1582). The first guardianship petition in the New World was decided under English law in 1637. The disposition of Benoni Buck, a person with mental retardation, had become the subject of considerable dispute in English courts, with particular attention to the cost of his

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maintenance in Jamestown, Virginia. Unfortunately, Mr. Buck’s revenues eventually “were to be used almost entirely for purposes other than his upkeep; no guardian accounted for his stewardship; [and] surplus estate profits were not preserved for any heirs,” although “exploitative guardianships of this form had been abandoned in England at least 80 years earlier and, from this perspective, were socially regressive” (Neugebauer, 1987, p. 481). During this colonial period, “the expectation was that the immediate family would care for the incompetent individual,” and “the colony had an ability to act to protect the interest of the incompetent if necessary” (Adkins & Ciccone, 2010, p. 274). In America, through the later 20th century, “guardians came to have control of their wards’ place of residence, choice of life style, and selection of care-givers,” with the result that “the consent of the guardian alone was sufficient for the provision of most medical treatment” (Appelbaum, 1982, p. 183). As Hafemeister and Sales (1982) note, “all 50 states and the District of Columbia provide for some form of guardianship” (p. 255). An increasing tendency has been noted toward the availability of “limited” or “partial” guardianship: Limited guardianship . . . created a mechanism for individuals who were incapable of managing certain affairs of their lives, though fully capable of managing others. Limited guardianships were designed to promote self-determination and autonomy; the expressed intent of such guardianships was that wards retain those rights and decision-making authorities not granted to the guardian. (Watkins, 2007, p. 35)

A particular advantage of limited guardianship is that it “requires post-guardianship monitoring for the court to know whether the guardian is carrying out the prescribed duties and whether the powers granted to the guardian are sufficient to protect the interests of the ward” (Frolik, 2002, p. 754). “Blanket pronouncements on competency” have been “particularly suspect where the controlling statute calls for determinations of partial versus limited guardianship and the separate assessment of a specified list of abilities and disabilities” (Drogin & Gutheil, 2011, p. 538). Even as these and other guardianship reforms were being instituted across the nation, it was also being acknowledged by legal scholars and practitioners alike that “procedural deficiencies” remained in many states (Pleak & Appelbaum, 1985, p. 78). Research on guardianship assessment methodology conducted by Moye, Wood, Edelstein, Armesto, Bower, Harrison, and Wood (2007),

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found numerous significant deficiencies and inconsistencies in the course of a multistate practice survey: 1. Format of clinical testimony submitted to the courts. In Massachusetts, the mean length of the written reports was only 83 words, compared to 244 words in Pennsylvania and 781 words in Colorado. Seventy-five percent of the Massachusetts reports were handwritten, and of these almost two thirds contained illegible passages. 2. Evaluations of clinical status. In Colorado, 18.6% of guardianship examinees were subjected to some form of cognitive screening, compared to only 5.3% in Pennsylvania and 5.2% in Massachusetts. Similar disparities were noted for neuropsychological testing (34.3% of Colorado cases, 1.8% of Pennsylvania cases, and 0.7% of Massachusetts cases) and for brain imaging (22.9% of Colorado cases, 1.8% of Pennsylvania cases, and 1.3% of Massachusetts cases). The overall incidence of interviews with family members ranged between 4.3% and 11.4% for these three jurisdictions. 3. Missing prognoses. Prognoses were offered in only approximately half of Colorado cases, with “lower rates” (p. 608) in Pennsylvania and Massachusetts cases. 4. Conclusory statements about decision making. “Across states, 28.8% of the files included conclusory comments about decision making; that is they provided a general conclusion about decision-making abilities but did not describe significant symptoms of mental impairment” (p. 609). 5. Conclusory statements about functioning. “Across states, 64.1% of the files offered conclusory statements about functioning; that is, they included a statement about the ability to care for self with no description of specific functional symptoms” (p. 609). 6. Frequency of limited orders. Thirty-four percent of cases in Colorado allowed for preservation of at least some rights for guardianship examinees; in Massachusetts and Pennsylvania, however, only one case in each state was characterized by a limited order of this nature (pp. 608–609). “It is easy to forget that the very nature of guardianship can deprive an individual of fundamental rights of choice, movement, and association, and even life and death decisions, authorized and enabled through state power” (Reinert, 2006, p. 40). From the examinee’s perspective, the stakes may be no less dire than those encountered in the course of criminal law matters.

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Forensic Assessment Much has changed in the realm of substitutions for future judgment since Anderer’s (1990) assertion that “the literature provides little practical advice for performing assessments specifically geared toward guardianship cases” (p. 19) and the complaint of Quinn (1996) that regarding guardianship-specific tests for psychologists: “Clearly they are needed. Just as clearly they do not exist” (p. 139). In fact, the past two decades have witnessed an outpouring of measures specifically relevant to guardianship evaluations. The following are excerpted from a list compiled by Drogin & Barrett (2010, pp. 92–98): 1. Community Competency Scale (CCS). The CCS requires examinees to answer questions about and also to demonstrate their mastery of a range of daily living skills. One valuable component of the CCS is its inclusion of “a small section on money management” (Hoskin, Jackson, & Crowe, 2005, p. 357). Test items address such issues as how to ensure a proper diet, how to go about maintaining a household, and how to utilize public transportation. 2. Multidimensional Functional Assessment Questionnaire (MFAQ). Focusing on an examinee’s knowledge of resource utilization as well as personal functioning, the MFAQ has been featured in research on the physical health perspectives of thousands of elderly persons and has also been adapted for forensic use with Spanish-speaking examinees. Test items address such issues as meal preparation, extent of social interactions, and the identification of significant impairments (Grisso, 2003). 3. Decision-Making Instrument for Guardianship (DIG). According to Melton, Petrila, Poythress, and Slobogin, Lyons, and Otto (2007), the DIG “appears to focus on the domains most relevant to guardianship assessment” and “uses vignettes designed to probe functioning with respect to hygiene, nutrition, healthcare, residence, property acquisition, routine money management in property acquisition, major expenses in property acquisition, and property disposition” (p. 374). Moye (2003) noted that “the DIG appears to be nicely and appropriately grounded in problem solving theory” (p. 361). 4. Philadelphia Geriatric Center Multilevel Assessment Inventory (MAI). The MAI assesses behavioral competence in older adults, surveying activities of daily living, cognitive ability, use of time, interpersonal skills, the examinee’s perception of the quality of his or her environment, and psychological well-being.

5.

6.

7.

8.

9.

This measure has also been used successfully in research assessing depression in non-demented adults (Kiosses & Alexopoulos, 2005). Everyday Problems Test for Cognitive Challenged Elderly (EPPCE). The EPPCE is a performance-based measure of day-to-day activities that shows promising predictive utility regarding functional decline and risk of mortality (Allaire & Willis, 2006). In turn, processing speed, verbal facility, and memory performance have been shown to be significant predictors of performance on this test (Burton, Strauss, Hultsch, & Hunter, 2006). Functional Independence Measure (FIM). The FIM has proven useful in assisting evaluators to predict which examinees will remain dependent on caregivers and which will become independent, subsequent to discharge from hospitalization following a stroke, surveying such items as eating, grooming, bathing, dressing, and bladder and bowel management (Timbeck & Spaulding, 2004). This measure may be more accurate in identifying the level of required assistance than the amount of time necessary to deliver such assistance (Cotter, Burgio, Stevens, Roth, & Gitlin, 2002). Aid to Capacity Evaluation (ACE). The ACE addresses the examinee’s ability to understand medical problems, proposed treatments, treatment alternatives, and the consequences of accepting or refusing treatment, with “high interrater reliability” (Sturman, 2005, p. 959). This test also calls for the evaluator to inquire into the potential effects of depression, delusions, and psychosis while noting accompanying behavioral observations. The ACE is “a short, more clinically oriented tool that can be administered and scored in 5 to 10 minutes” (Tunzi, 2001, pp. 302–305). Capacity Assessment Tool (CAT). The CAT calls for examinees to display reasoned choices concerning a range of treatment situations. It assesses “registration, recall, description of the choices, descriptions of risks and benefits of those options, insight . . . ability to explain reasons for a choice, and ability to discuss how to handle a potential problem associated with a choice” (Moye, Gurrera, Karel, Edelstein, & O’Connell, 2006, p. 1057). Competency Interview Schedule (CIS). The CIS contains questions designed to address “four domains of competence” for patients referred for medical treatment, including “ability to evidence a choice,” “ability to understand the issues related to treatment,” “ability to manipulate information and give a rational decision

Civil Competencies

regarding treatment decisions,” and “appreciation of the nature of the treatment situation and the consequences of treatment”; for example, examinees are asked “why they agreed to or refused treatment, and if they want to get better” (Douglas & Koch, 2001, p. 370). 10. Hopemont Capacity Assessment Interview (HCAI). The HCAI is a manualized assessment tool proven to possess “adequate interrater reliability” as a measure of “initial capacity screening,” conveying hypothetical vignettes on eye infection and CPR in a semistructured interview format, for a total administration time of approximately 30 to 60 minutes (Dunn, Nowrangi, Palmer, Jeste, & Saks, 2006, p. 1329–1330). 11. Independent Living Scales (ILS). The ILS measure “cognitive skills required for independent living” and are “intended to provide guidelines for appropriate supervision requirements for persons in residential placement” (Revheim & Medalia, 2004, p. 1052). This measure includes subscales that address financial, transportation, home management, social adjustment, and health and safety issues (Baird, 2006; Loeb, 1996). Where the subject is an older adult and there are concerns about cognitive impairment limiting some relevant decision-making capacity, the American Psychological Association’s Guidelines for the Evaluation of Dementia and Age-Related Cognitive Decline (1998) may prove of some value. In particular, these Guidelines come to life when interpreted and applied in the context of another American Psychological Association resource, What Practitioners Should Know About Working With Older Adults (Abeles, 1997). This reference describes “Basic Principles in the Assessment of Older Adults,” including the following: 1. Familiarize the older adult with the purpose and procedures of testing. Older adults, especially those with little formal education, are often less familiar with testing than younger adults and may be more cautious in responding. 2. Ensure optimal performance. Older adults should be prepared in advance for testing. They should be given prior notice to bring all assistive devices (e.g., hearing aids, eyeglasses). 3. Create a well-lighted and quiet environment. Glare should be minimized. Arrange the space to accommodate a wheelchair or other device for those with physical limitations. 4. Preferably use tests that have been constructed specifically for older adults. Most commonly used psychological

5.

6.

7.

8. 9.

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tests have not been developed for use with older people, although some have age-related norms. Ensure that the older adult understands the test directions. Speak in clear, simple language but do not shout. Query and repeat if necessary. If needed, use large print materials. Determine if the older adult patient is experiencing pain or discomfort and attempt to reduce it when possible. Find out what medication(s) the patient is taking and assess effect on performance. Adjust the testing time to suit the optimal functioning of the older adult. Older adults tire more easily than younger adults. Plan for frequent rest and bathroom breaks. If fatigue sets in, resume testing at another time. Use encouragement and verbal reinforcement liberally when testing. Utilize multiple testing sessions to gauge how the older adult performs at varied times of the day. (pp. 20–21)

Representative of the highly detailed, specific statutory schemes instituted in some jurisdictions, Kentucky’s guardianship law requires court-appointed examiners to provide: 1. A description of the nature and extent of the respondent’s disabilities, if any. 2. Current evaluations of the respondent’s social, intellectual, physical, and educational condition, adaptive behavior, and social skills. Such evaluations may be based on prior evaluations not more than three months old, except that evaluations of the respondent’s intellectual condition may be based on individual intelligence test scores not more than 1 year old. 3. An opinion as to whether guardianship or conservatorship is needed, the type of guardianship or conservatorship needed, if any, and the reasons therefor. 4. An opinion as to the length of time guardianship or conservatorship will be needed by the respondent, if at all, and the reasons therefor. 5. If limited guardianship or conservatorship is recommended, a further recommendation as to the scope of the guardianship or conservatorship, specifying particularly the rights to be limited and the corresponding powers and duties of the limited guardian or limited conservator. 6. A description of the social, educational, medical, and rehabilitative services currently being utilized by the respondent, if any. 7. A determination whether alternatives to guardianship or conservatorship are available. 8. A recommendation as to the most appropriate treatment or rehabilitation plan and living arrangement for the respondent and the reasons therefor. 9. A listing of all medications the respondent is receiving, the dosage, and a description of the impact of the medication upon the respondent’s mental and physical condition and behavior.

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TABLE 13.1

Selected Issues Addressed in the Disability Court Psychologist’s Outline

1. Identifying Information

Responding to being lost in public

Respondent’s name

Responding to the need to make telephone contact

Respondent’s age and date of birth

Use of microwave oven and other appliances

Respondent’s Social Security number

6. Social Contact and Leisure Pursuits

Respondent’s race

Friends and acquaintances: names and occupations

Date of evaluation

Frequency of social contact

Site of evaluation

Television: favorite programs

Date of admission

Movies: favorite films

Physician name and contact information

Use of spare time in general

Diagnoses

Community involvement

Medication

7. Testamentary Capacity

Assistance needs

Definition of a will

Notable characteristics

Existence of a will

Examination setting

Date of drafting of a will

Respondent’s initial presentation

Property to be devised or bequeathed

2. Orientation Reason for examination

Beneficiaries 8. Medical Care

Definitions of guardianship and disability

Name of physician

Identity of petitioner

How physician would be contacted

Reason for petition

Illness/medical conditions

Identity of attorney

Current physician’s orders

Respondent’s name, age, and date of birth Current date Current location Respondent’s marital status

Medications: name/dosage/frequency/purpose Medications: prescriber/payment Medical insurance 9. Driving an Automobile

Identity of respondent’s spouse

Driver’s license

Respondent’s home address and telephone number

Last time driving an automobile

3. Education Extent of education Alphabet recitation

Traffic signals Road markings Signs Speed limits

Counting from 1 to 20

Intentions regarding driving

Basic calculations: addition

Reasons for any limitations

Basic calculations: subtraction Basic calculations: multiplication Basic calculations: division 4. Finances

10. Voting Last time voted Frequency of presidential elections Year next presidential election to occur

Social Security number

Registration: status and mechanics

Location and contents of bank account

Purpose and importance of voting

Home ownership and value

Identity of president and governor

Additional property

Capitals of country and state

Monthly and annual income

11. Behavioral Response

Source and nature of income

Counting fingers

Calculation of change: basic transactions

Touching nose

5. Self-Care Clothing for 95-degree, 70-degree, 5-degree weather Suicidal and/or interpersonally aggressive ideation

Raising left and right hands Looking up and to the right 12. Review

Responding to fire in the home

Purpose of visit

Responding to burglary

Issues discussed

Responding to natural disasters

Ability to conduct personal and financial affairs

Source: Drogin & Barrett (2010).

Civil Competencies

10. An opinion whether attending a hearing on a petition would subject the respondent to serious risk of harm. 11. The names and addresses of all individuals who examined or interviewed the respondent or otherwise participated in the evaluation. 12. Any dissenting opinions or other comments by the evaluators (Guardians; Conservators; Curators of Convicts, 2010).

To respond to this array of considerations, Drogin and Barrett (2010) developed a “Disability Court Psychologist’s Outline” to assist examiners in addressing the indicated domains in detail (see Table 13.1). In addition to these construct-specific domains of inquiry, forensic evaluators should also “conduct a standard psychiatric [or psychological] examination, including a mental status” (Gold, Anfang, Drukteinis, Metzner, Price, Wall, et al., 2008, p. S15). It may also be important in some cases to be in a position to assess the general capabilities of potential caregivers. According to Appelbaum and Gutheil (2007), the “characteristics of the ideal guardian” will include “availability,” “competence,” “empathic intuition,” “freedom from conflict of interest,” and “willingness” (pp. 205–206). Psychologists must remain aware of the many alternatives to guardianship, should some incapacity be present that fails to meet the relevant statutory standard, or if, for some other reason, a less restrictive alternative should be recommended. The American Bar Association (1998) has developed a comparative description of the range of different options that may be available in such situations, depending on the laws of a particular jurisdiction. Some of these alternatives potentially involve substitutions of prior judgment (e.g., living wills and powers of attorney), as discussed earlier in this chapter. To this list can be added curatorship, often construed as a form of “temporary” guardianship or conservatorship (Garner, 2009, p. 438), requiring the informed consent of the individual for its initiation.

CONCLUSION Those practicing in the field of forensic psychology have traditionally regarded criminal law issues such as criminal responsibility and competency to stand trial as the most interesting and challenging of forensic areas. Candidly speaking, we, too, held this view at one time. With experience, however, we have come to believe that the arena of civil competencies pushes the theories, measures, and instruments of forensic psychology to their very

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limits. Although criminal issues are important in liberty interests, civil competency issues speak directly to the capacity to experience, in whatever way is possible, the full potential of one’s quality of life. There can be no doubt that the evaluator’s role, in contributing to the ability of a trier of fact to reach a sound decision, can be crucial. What more rewarding role is available for a forensic psychologist?

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CHAPTER 14

Civil Commitment and Involuntary Hospitalization of the Mentally Ill CRAIG R. LAREAU

INTRODUCTION 308 LEGAL ASPECTS AND CONTOURS OF INVOLUNTARY HOSPITALIZATION 309

EVALUATION FOR INVOLUNTARY HOSPITALIZATION 322 SUMMARY 330 REFERENCES 331

INTRODUCTION

as “the inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality, and justice” (Garner, 2004, p. 1196). Although it is a stated goal in many jurisdictions to rehabilitate convicted prisoners serving penal sentences, the primary purposes of criminal commitment are punishment, societal retribution, and deterrence, and these come under the state’s police powers. In the context of civil commitment, the police power functions to protect others from the dangerous propensities of those who are involuntarily committed. In contrast to the police powers of a state, parens patriae authority ostensibly serves a more benevolent purpose. It refers to the authority of “the state in its capacity as provider of protection to those unable to care for themselves” (p. 1144). It authorizes the state to act in the role of a “parent” to protect and care for those citizens who cannot care for themselves. Historically, civil commitment was conceptualized as an exercise of the state’s parens patriae authority to protect individual citizens with mental illness and in need of treatment. One of the first cases that explicitly noted this authority was In re Oakes (1845), in which the Supreme Judicial Court of Massachusetts held, among other things, that involuntary treatment is justified not only by dangerousness of the person detained, but also for the detainee’s own welfare (Meyer & Weaver, 2006). Under the parens patriae rubric, the use of civil commitment to hospitalize individuals with mental illness and in need of treatment grew for more than a century following In re Oakes. By 1955, there were more

Civil commitment1 refers to the process and procedure by which the state mandates hospitalization for persons with mental illness who require incapacitation, treatment, or care due to concerns of self-harm or harm to others. Unlike criminal commitment and confinement, which occurs after a person has been found to have committed a criminal offense, persons subject to civil commitment are not confined to punish them for what they have done, but rather, because of concerns for what they might do in the near future. Thus, commitment is a form of preventive detention. The focus of this chapter is the description of the procedures, criteria, and evaluation issues for several types of civil commitment: involuntary civil hospitalization, outpatient civil commitment, confinement following a finding or verdict of not guilty by reason of insanity, hospitalization of mentally disordered offenders during and after their prison sentences, and hospitalization of those adjudicated incompetent to stand trial for a criminal offense. The authority of the government to involuntarily detain and confine its citizens derives from two separate sources: police power, and parens patriae authority. The police power is the primary basis for criminal law, and is defined 1 Civil

commitment is commonly known as involuntary civil commitment. For purposes of this chapter the term civil commitment is used throughout because all commitment is by definition involuntary. 308

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than 550,000 state hospital beds for civilly committed patients in the United States (Lamb & Weinberger, 2005). Through the 1960s, the legal process that accompanied civil commitment was quite informal. The most common standard was that the individual was mentally ill and in need of treatment, and often the commitment could occur upon the certification of one or more physicians with no court involvement (Melton, Petrila, Poythress, & Slobogin, 2007). Beginning in the late 1950s, the number of patients housed in psychiatric hospitals began to decline. This decline has continued to the point where it is estimated that presently there are fewer than 60,000 civilly committed mental patients in hospitals in the United States at any given time (Lamb & Weinberger, 2005). However, given the much shorter durations of psychiatric hospitalizations today, one commentator has noted that there may be as many as 660,000 admissions to psychiatric hospitals in a given year (Winick, 2005). Perhaps the most potent statistics of the deinstitutionalization of persons with mental illness show that in 1955 there were 339 psychiatric hospital beds in the United States per 100,000 in the population; by 2000, that number had dropped to 22 beds (Lamb & Weinberger, 2005). This precipitous decrease in state hospital census resulted from a synergistic function of a number of developments. The late 1950s saw the introduction of antipsychotic medications, which allowed for the stabilization of psychotic symptoms in thousands of patients and their return to the community. In the 1960s, there was a significant reform movement that pushed for the development of community services for persons with mental illness, in part lead by anti-psychiatry forces that challenged the profession’s use of the label mental illness as simply a means to segregate “unacceptable” individuals from the rest of society (Melton et al., 2007). Fiscal considerations also played a role, with the closing of facilities and release of thousands of state hospital patients used as a cost-cutting measure for many states. Along with the decrease in hospitalization in state facilities, private hospitals witnessed decreased censuses with the onset of managed care in the 1980s and 1990s, as hospital stays grew shorter as a way to maximize profits for health insurance companies. Perhaps the most important development was the change in legal requirements for involuntary commitment, which are described in the next section. Many commentators have noted that the decrease in the number of persons involuntarily hospitalized in the latter part of the 20th century corresponded with an increase in the number of persons with mental illness in jails and

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prisons (see, e.g., Acquaviva, 2006; Bard, 2005; Lamb & Weinberger, 2005; Stavis, 2000). This “criminalization of the mentally ill” is characterized as a revolving door of “minor, non-violent crime, followed by a court appearance, followed by incarceration, followed by release, followed by another minor, non-violent crime” (Acquaviva, 2006, p. 974). Stavis asserted that the closing of many public psychiatric hospitals without adequate planning and community support resulted in thousands of homeless mentally ill individuals entering the criminal justice system as a consequence of engaging in otherwiseavoidable criminal activity. Bard (2005) described the Cook County and Los Angeles County jails as “the largest providers of mental health in the country” (p. 16) and reported that, with 16% of inmates experiencing some form of severe mental illness, there are 3 times as many impaired people in prisons as there are in state psychiatric hospitals. Clearly the landscape of civil commitment has seen a dramatic shift in the past 50 years. Although there have been important legal reforms, they come against a backdrop of fewer and briefer hospitalizations, accompanied by a greater push toward outpatient services in the community. Furthermore, as a result of sparse resources in the community, many mentally ill individuals who would have been hospitalized for extended periods of time a half-century ago now find themselves in regular contact with the criminal justice system and spending time in jails and prisons, which have become the de facto psychiatric hospitals of today.

LEGAL ASPECTS AND CONTOURS OF INVOLUNTARY HOSPITALIZATION Under certain circumstances, the state has the authority to confine citizens in psychiatric hospitals. Over the past 50 years, the circumstances permitting this civil commitment have changed considerably. What follows is a review of the developments in civil commitment procedures, highlighting the legal reforms that have lead to the substantive and procedural criteria necessary for civil commitment. Then the legal aspects and criteria for other types of involuntary hospitalization are reviewed. History of Involuntary Commitment The first psychiatric hospital in the United States opened in 1773, and the second did not appear for another

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51 years (Melton et al., 2007). These facilities, called asylums, began to proliferate in the mid-1800s, housing both the violent mentally ill and the nonviolent mentally ill. Using both the police power of the state to protect society from the mentally ill who were violent, and the parens patriae authority to protect the nonviolent mentally ill from themselves, these asylums became warehouses of citizens with mental illnesses. There were few, if any, procedural protections to prevent the state from inappropriately confining those who did not need psychiatric hospitalization. Frequently the commitment duration was indefinite, and patients were subject to lengthy periods of confinement that could last for the remainder of their lives. Although the ostensible purpose of commitment was the protection of those who were mentally ill and needed treatment, the unstated purpose often was to “isolate and distance ourselves from social ‘undesirables’” (Elkins, 1979). In the wake of the Massachusetts Supreme Judicial Court’s decision in In re Oakes (1845), in which it held that protecting the mentally ill from themselves was a valid use of civil commitment, many states incorporated their parens patriae authority into their civil commitment laws to justify indefinite commitment in the absence of meaningful procedures for either initial commitment or review. As previously noted, by 1955 there were more than 550,000 patient beds in state mental hospitals in the United States. Commitment was based on a “medical model” wherein tremendous deference was given to psychiatrists and other physicians who recommended involuntary hospitalization; since the underlying mental health problem was considered medical in nature, there was little basis to challenge the mental health experts on their decisions. Melton et al. (2007) noted that as recently as 1970, 31 states allowed for civil commitment simply based on certification from one or more physicians that the person had a mental illness and needed treatment. For those states that did employ a judicial decision maker, the courts often deferred to the physicians recommending commitment, resulting in minimal legal oversight. However, changes soon began that would alter the landscape of civil commitment. Legal Reforms The 1960s witnessed a number of changes on a societal level, most notably regarding civil rights. Racial and ethnic minorities, prisoners, and persons with mental illness all became a focus of attention in the push for greater civil rights. During that time there grew a movement of

mental health system reformists, led by Thomas Szasz, a psychiatrist who advocated against psychiatry and the foundational concepts of mental illness. Against this backdrop, public-interest lawyers began investigating and challenging the medical model of civil commitment and the status quo. Two foundational legal cases that set the stage for dramatic changes in civil commitment law involved persons charged with criminal offenses. In Humphrey v. Cady (1972), the United States Supreme Court heard an equalprotection challenge by a defendant convicted of a misdemeanor, contributing to the delinquency of a minor. Rather than receiving a jail sentence limited to no more than 1 year, Humphrey was committed to a “sex deviate facility” (p. 506) located in the state prison under Wisconsin’s Sex Crimes Act. Humphrey argued that following the first year of his imprisonment (which was the maximum sentence he could serve for a misdemeanor), subsequent confinement could be based only upon the procedures established for civil commitment proceedings. The Supreme Court upheld his habeas corpus petition, and the majority described civil commitment as a “massive curtailment of liberty” (p. 509), which served as a foundation for arguments alleging violations of both substantive and procedural due process in civil commitment proceedings. Later in the same term the Supreme Court decided Jackson v. Indiana (1972), which involved involuntary hospitalization of a defendant adjudicated incompetent to stand trial (see ahead for an extended discussion of this case). In describing involuntary hospitalization the Supreme Court wrote, “At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed” (p. 738) and “It is perhaps remarkable that the substantive constitutional limitations on this power have not been more frequently litigated” (p. 737). These cases provided support for the claim that the constitutionality of civil commitment proceedings was suspect, and thus ripe for litigation. In 1972, a federal district court in eastern Wisconsin decided a case that had ramifications throughout the nation. In Lessard v. Schmidt (1972), a three-judge panel of the federal district court decided a class action case brought by Alberta Lessard, representing herself and all other civilly committed adults in Wisconsin. The plaintiffs alleged several due process violations stemming from the civil commitment procedures in Wisconsin law. After noting that similar fundamental liberties are at stake in both criminal and civil commitment proceedings, the court observed that persons subject to criminal

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commitment were provided many procedural safeguards that their counterparts who were subject to civil commitment did not enjoy and concluded, “It would thus appear that the interests in avoiding civil commitment are at least as high as those of persons accused of criminal offenses. The resulting burden on the state to justify civil commitment must be correspondingly high” (p. 1090). In fashioning a remedy, the court looked to the criminal justice system for a model of due process protections and ruled that, to be constitutional, Wisconsin law must provide the following minimum protections: (a) emergency detention of no longer than 48 hours prior to a preliminary hearing; (b) a full hearing within 14 days of the preliminary hearing; (c) advanced detailed notice of the hearing to allow for opportunity to prepare, including information regarding the basis for detention, the right to a jury trial, the standard used for detention, and names of examining physicians and others who might testify for the detention, with the substance of their proposed testimony; (d) proof beyond a reasonable doubt (the criminal standard) that the person is mentally ill and dangerous, with proof of imminent dangerousness through a recent overt act; (e) provision that commitment is the least restrictive alternative; (f) the right to representation by an attorney, with attorneys being provided for indigent detainees; (g) the privilege against self-incrimination applies; and (h) the exclusion of hearsay testimony at the hearing. The decision in Lessard proved to be a high-water mark for procedural protections in civil commitment cases. The court provided a full panoply of rights and protections that previously had been limited to criminal defendants. Other courts saw the Lessard case as persuasive and emulated many of the protections fashioned in the case. Although in future years the standards that developed for due process were not as protective of the detainee as those found in Lessard, the reasoning in the case remains powerful. One of the major criticisms of the Lessard decision involves the inexact nature of both psychiatric diagnosis and the prediction of dangerous behavior. Given that the standard for civil commitment after Lessard, at least in that jurisdiction, was proof beyond a reasonable doubt that the person was both mentally ill and imminently dangerous, the inherent levels of uncertainty in psychiatric diagnosis and dangerousness prediction could foreseeably result in the failure to commit many mentally ill and dangerous persons who may have needed inpatient hospitalization. In other words, psychiatric diagnosis and dangerousness prediction may themselves be too inexact to meet the very high burden of proof beyond a reasonable doubt.

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The United States Supreme Court had the opportunity to review the issue of substantive due process protections for persons who were subject to civil commitment in the case of O’Connor v. Donaldson (1975). Kenneth Donaldson had been civilly committed to Florida State Hospital for “care, maintenance, and treatment” for 15 years. Although he frequently requested release, and the record showed that he was not considered by staff to be dangerous, Donaldson’s requests were consistently denied by the hospital superintendent, Dr. O’Connor. Although Donaldson refused medications that were offered to him, he received no other treatment other than the hospital’s claims of “milieu therapy” (p. 569) which were described by the Supreme Court as “enforced custodial care” (p. 569). Although released shortly after Dr. O’Connor retired, Donaldson sued, alleging that the hospital and Dr. O’Connor intentionally and maliciously deprived him of his right to liberty. The Supreme Court addressed the substantive standards that must be met for continued civil confinement to comport with the Constitution. It held that mental illness alone is an insufficient basis to civilly commit a person; the person must also be dangerous to justify the commitment. “In short, a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends” (p. 576). This decision set a minimum constitutional standard for civil commitment: The person must be both mentally ill and dangerous to justify civil confinement. However, the court did not set out any specific procedural requirements that must be met. Of note, a concurrence by Chief Justice Burger suggested the continued viability of parens patriae principles, and he disagreed with an earlier Court of Appeals holding that there is a constitutional right to treatment when an individual is civilly committed (although that issue was not before the court). Subsequent to O’Connor, the Connecticut Supreme Court addressed the issue of periodic recommitment of those who are involuntarily hospitalized in Fasulo v. Arafeh (1977). This case was brought by two women challenging their civil commitments who had been involuntarily hospitalized for 26 and 13 years, respectively. Both argued that their commitments, because they were indefinite in duration and did not provide for periodic review, violated the due process clause of the Connecticut constitution. In its persuasive and strongly reasoned opinion, the court mandated periodic review of commitment decisions: “The state’s power to confine terminates when the patient’s condition no longer meets the

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legal standard for commitment. Since the state’s power to confine is measured by a legal standard, the expiration of the state’s power can only be determined in a judicial proceeding which tests the patient’s present mental status against the legal standard for confinement” (p. 556). The court ruled that the state was responsible for initiating recommitment proceedings periodically, and that it bore the burden of proof at the recommitment hearing: “The burden must be placed on the state to prove the necessity of stripping the citizen of one of his most fundamental rights, and the risk of error must rest on the state. Since the state has no greater right to confine a patient after the validity of the original commitment has expired than it does to commit him in the first place, the state must bear the burden of proving the necessity of recommitment, just as it bears the burden of proving the necessity of commitment” (p. 557). Four years after O’Connor v. Donaldson, Chief Justice Burger authored a unanimous opinion of the United States Supreme Court in their next major civil commitment case, Addington v. Texas (1979), in which the court addressed the issue of the standard of proof required by the Constitution to allow for civil commitment. Although the federal district court in Lessard (see above) ruled that the state had to prove its case “beyond a reasonable doubt,” the Supreme Court unanimously ruled that the Constitution only required proof by a lesser standard, that of “clear and convincing evidence.” In coming to its holding the Court first noted that “civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection” (p. 425). It then validated the use of parens patriae authority to commit individuals, stating the “state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves” (p. 426). When balancing the state’s interests under the parens patriae power and police power with the individual’s liberty interests, the court concluded that the “preponderance of the evidence” standard was too lax. In contrast, the court ruled that the “beyond a reasonable doubt” standard was inappropriate because civil commitment is not punitive and the higher standard might result in persons who need treatment being unable to receive it. In regard to this latter point, the Court believed it would be wrong for those who “need” treatment to be unable to receive it due to an overly burdensome standard of proof: “It cannot be said, therefore, that it is much better for a mentally ill person to ‘go free’ than for a mentally normal person to be committed” (p. 429). The Court also noted the fallibility

of psychiatric diagnosis in rejecting the beyond a reasonable doubt standard, questioning “whether a state could ever prove beyond a reasonable doubt that an individual is both mentally ill and likely to be dangerous” (p. 429). The Addington decision has been criticized as a “retrenchment” on the legal reforms of the 1970s. Melton et al. (2007) noted that the Supreme Court’s decision in Addington, in comparison to lower courts, embraced the medical model and conceptualized civil commitment as less punitive and harsh. Notably, the Court, while acknowledging the significant curtailment of liberty associated with involuntary hospitalization, supported the use of “expert psychiatrists and psychologists” to offer opinions regarding mental illness, the need for treatment, and any risk presented, thereby suggesting a return to vestiges of the medical model. The Supreme Court went on to offer an even less critical view of involuntary hospitalization when presented with a case involving minors. In Parham v. J. R. (1979), the Supreme Court addressed what procedures are required when a parent or guardian seeks “voluntary” psychiatric hospitalization of a minor over his or her objection. J. R. had been involuntarily hospitalized by his parents because of disruptive behaviors. Under Georgia law, he was not provided an attorney or an adversarial hearing to challenge the commitment decision, and there was no judicial review. The federal district court ruled the Georgia procedures unconstitutional. On appeal, the Supreme Court reversed the district court and held that the Georgia procedures were adequate for minors. The Court noted that parents usually have their children’s best interest in mind, in the absence of evidence of neglect or abuse their decision to commit their children should be respected, and requiring judicial review of hospitalization proceedings wasted valuable resources and could discourage parents from seeking treatment for their children. The Court ruled that all that was necessary was an independent judgment by a neutral fact finder that hospitalization was necessary, after a consideration of all relevant information. The Court also ruled that some periodic review was needed to ensure hospitalization remained necessary, but that decision need not be made by the courts. Despite the Court’s decision, many states provide greater protections to minors whose parents seek to hospitalize them (Melton et al., 2007). Substantive Civil Commitment Criteria The substantive criteria for civil commitment emerged from the legal developments over the last part of the

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20th century, and comprise the “substantive due process” that is required for the state to deprive a citizen of liberty under both federal and state constitutions. Although there is considerable variability across jurisdictions, many states have similar criteria, which are reviewed in this section. All states require the presence of a mental disorder, although the definition of what is a mental disorder varies across jurisdictions and is sometimes not well defined. All states also include a provision for commitment if the person is considered to pose some kind of danger to self or to others as a result of the predicate mental disorder. If not dangerous to self or others, most states include an alternative criterion that the person be gravely disabled, which is often defined as an inability to take care of basic needs of food, clothing, and shelter. However, in some states the manifestation of grave disability is subsumed within the danger to self criterion. A number of states also require that the person “needs treatment” while some mandate that the placement be in the “least restrictive alternative” setting. Due to the variability between states, it is important to be familiar with the civil commitment standards in one’s jurisdiction (for a compilation of state civil commitment laws, see Treatment Advocacy Center, 2008). Mental Disorder A requirement for civil commitment in all jurisdictions is that the individual have a mental disorder or mental illness. States define mental disorder for purposes of civil commitment differently, and some states offer explicit definitions while others offer no such specificity. Generally speaking, the definitions pertain to conditions that impair thought, mood, memory, or perception, that grossly impair behavior, or that impair understanding of reality. An example is from Virginia: “A disorder of thought, mood, emotion, perception, or orientation that significantly impairs judgment, behavior, capacity to recognize reality, or ability to address basic life necessities and requires care and treatment for the health, safety, or recovery of the individual or the safety of others” (Virginia Code Annotated § 37.2-100, 2009). In some cases, states exclude specific conditions such as mental retardation, personality disorders, or organic syndromes. What is constitutionally required regarding the mental illness criterion can be very broad, if one uses as a metric the standard announced by the United States Supreme Court in Kansas v. Hendricks (1997). In this case involving special commitment of an individual as a “sexually violent predator” the Supreme Court ruled that the Constitution allowed for an expansive definition of the predicate

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“mental abnormality” and could include disorders typically not offered as the basis for civil commitment, including personality disorders, paraphilias, and substance use disorders (for more information about sex offender commitment and evaluations, please see Chapter 15 in this volume). Danger to Others The Supreme Court’s holding in O’Connor v. Donaldson (1975) made clear that for civil commitment to occur, the individual must be both mentally ill and dangerous. Although all states include danger to others as a qualifying criterion for involuntary commitment, they differ with respect to issues such as the imminence of danger and whether there needs to be some type of recent “overt act.” Whereas most states require the risk to be of “bodily harm,” some states include emotional harm (e.g., Hawaii Revised Statutes § 334-1, 2011) or damage to property (e.g., Delaware Code Annotated, title 16, § 5001(6), 2011). Melton et al. (2007) noted that, when contemplating the meaning of danger to others, it is important to consider: (a) the severity of the harm that is predicted; (b) the likelihood that the harm will occur; (c) how often the harm may occur; and (d) the imminence of the predicted harm (Brooks, 1984). Thus, if the severity of the harm is severe (such as murder), commitment may be appropriate even if the harm is not imminent and not likely. In comparison, if the severity of harm is mild (such as spitting at someone), the harm would in most cases need to be imminent, likely, and potentially recurrent to justify involuntary commitment. Danger to Self Every state allows for civil commitment of a person who presents a danger to self. Although definitions vary across jurisdictions, the “danger to self ” criterion is typically interpreted as involving a risk for engaging in suicidal or severe self-injurious behaviors. While some states do not offer a precise definition of what is meant by danger to self, others offer quite specific definitions, requiring a suicidal or self-mutilating act within a circumscribed time in the recent past (e.g., the past 30 days). Grave Disability The concept of grave disability as a criterion relates to a person’s inability to provide for basic health and safety. These often are explicitly listed as food, clothing, and shelter, but some statutes also make reference to medical care and personal safety. The use of involuntary commitment to protect an individual who cannot provide

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for such comes directly from the state’s parens patriae authority. All states permit commitment of individuals who are gravely disabled, with most states including it as a separate commitment criterion; for those that do not include it as a criterion itself, it most often is subsumed under a broader definition of danger to self. Wisconsin added an additional standard related to grave disability that is intended to prevent future, not present, harm (Wisconsin Statutes § 51.20(1)(a)2.e, 2011–2012). Dubbed the Fifth Standard, it permits “commitment of an individual who, due to mental illness, is unable to understand the advantages, disadvantages, or alternatives to a particular treatment or is unable or unwilling to apply them to his or her situation and requires such treatment to prevent severe mental, emotional, or physical harm” (Erickson, Vitacco, & Van Rybroek, 2005, p. 362). This Fifth Standard, which emphasizes whether the person can continue living in the community, and does not rely on overt violent acts or neglect of personal care, constitutes an expansion of the state’s parens patriae authority insofar as it expands the number of persons who may be subject to involuntarily hospitalization. Commitment based on this criterion is designed to prevent “substantial deterioration” of the person, which is predicted to occur due to the person’s unwillingness or inability to understand the benefits of a form of treatment. Inability to Make Treatment Decisions In some jurisdictions the person must also be deemed unable to make treatment decisions in order for commitment to occur. There is a logic to this criterion because, if the person being evaluated for commitment is competent to make his or her own treatment decisions, there would appear to be no basis for the parens patriae rationale for involuntary treatment. Why should the state be able to involuntarily hospitalize someone who is competent to make a decision about hospitalization? This criterion usually becomes operational only when the person is not a danger to others, because the police power basis for protecting the public when the individual is a danger to others will always take precedence over other criteria. Need for Treatment Regardless of whether the person understands the potential benefits of treatment, part of the civil commitment criteria of most states is that the person committed is in need of treatment. Usually the language concerning need for treatment is found in the definition of mental illness or in the grave disability standard. However, in one or two states the need for treatment is an independent

criterion or requirement (Melton et al., 2007). Recall that “need for treatment” was the primary civil commitment criterion in virtually all states before the legal reforms of the 1970s and 1980s, but subsequent to O’Connor v. Donaldson (1975) its continued constitutional viability as a separate criterion is questionable. The need for treatment does beg the question of what should happen if there is no treatment available for the individual’s underlying disorder. This issue was faced by the Supreme Court in the sexually violent predator context in Kansas v. Hendricks (1997). The Court wrote, “We have never held that the Constitution prevents a State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others. . . . To conclude otherwise would obligate a State to release certain confined individuals who were both mentally ill and dangerous simply because they could not be successfully treated for their afflictions” (p. 366). Thus, the Supreme Court has held in the context of civil commitment for dangerousness, “need for treatment” does not require the availability of effective treatment. Least Restrictive Alternative Nearly every state requires civil commitment to occur in the least restrictive setting that exists. The first case that clearly set out this requirement was Lake v. Cameron (1966). In the case, Judge Bazelon asserted there was a right to treatment in the least restrictive alternative setting under the District of Columbia code, and required the government to show there was no less restrictive alternative to hospitalization. Judge Bazelon reasoned that confinement of those who are dangerous to themselves should not exceed what is necessary for their protection. This perspective often posits that commitment to a state hospital is most restrictive, which generally is true in a physical sense, but which may not be true with respect to different treatment interventions or to duration of involuntary treatment. One of the primary concerns when a least restrictive alternative issue is raised is whether such services exist or are otherwise available. Generally, courts are reluctant to order states to provide specific services that are otherwise unavailable, including services in less restrictive settings. When the Supreme Court addressed this issue in Olmstead v. L. C. ex rel. Zimring (1999) it held that hospitalizing a person who could be treated in the community may violate the Americans With Disabilities Act. But in determining whether community treatment should go forward, the state can rely on evaluations by its own professionals, and can consider relevant costs in determining whether to create community treatment

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alternatives. Thus, the Court did not require treatment in a least restrictive alternative as a constitutional mandate. Nevertheless, many states require consideration of a least restrictive alternative setting as part of their involuntary commitment laws. Procedural Requirements for Civil Commitment As a practical matter, all states provide at least two separate stages of involuntary hospital commitment. The first stage is emergency commitment, which, due to exigent circumstances, has limited procedural protections but is brief in duration as a result. The second stage is longer-term commitment, which provides greater due process and protections to the subject of the proceedings. Emergency Commitment Due to the need to respond immediately to prevent persons from harming themselves or others, all states provide for emergency commitment with few procedural obstacles. Typically, a mental health professional or law enforcement officer can authorize an emergency admission, but in some states the authorization comes through a judicial decision maker. Judicial review is generally not provided prior to the emergency commitment. The standard most often used is that there is probable cause to believe that, without inpatient mental health intervention and treatment, the person would pose a serious risk of immediate harm to self or to others (Parry & Drogin, 2001), but a state’s other substantive civil commitment criteria also can form the basis of the emergency commitment. Once committed, every state requires the person to be given prompt notice regarding the length of confinement, when the right to an attorney becomes available, and after what period of time a hearing must be held. The length of emergency detention is usually quite brief, typically ranging from 48 to 72 hours. After that time, long-term commitment procedures must begin. Long-Term Commitment Unlike the minimal procedural protections in place for emergency commitment, long-term detention requires considerable procedural due process. These protections came out of the legal reform movement from the 1970s, and are incorporated into the civil commitment statutes in every state. There is little variability among the core procedural due process protections among the different states, and most provide for rights similar to those enjoyed by criminal defendants. The core procedure to determine appropriateness for long-term commitment is the commitment hearing.

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There are numerous procedural protections in all jurisdictions that are designed to make the commitment hearing a fair but adversarial process. The following protections are provided in virtually all states: (a) written notice of the hearing that includes the advisement of rights; (b) the right to counsel or appointed counsel if indigent; (c) the right to a jury trial in final hearings; (d) the right to call favorable witnesses and to crossexamine adverse witnesses; (e) the state bears the burden of proof, and must prove its claims by clear and convincing evidence; and (f) the right to a judicial (as opposed to clinical) decision maker regarding the commitment decision. Where there is some variability among states it is with respect to when the commitment hearing must occur, and the duration of the commitment that can result. For instance, in California the individual may be committed for 14 days following the initial 72-hour hold upon the certification of two health-care professionals, but he or she can request a certification review hearing within 4 days of the certification decision (California Welfare and Institutions Code § 5250 et seq., 2011). If, as a result of the certification review hearing, the individual remains involuntarily committed, he or she may petition for a writ of habeas corpus to the superior court for release. Depending on the type of danger the person poses, he or she can be detained for different lengths of time following the 14-day hold. A suicidal person can be held for an additional 14 days, a gravely disabled person can be held for another 30 days, and a person considered dangerous to others can be held for up to 180 days following a court hearing. Processes in other jurisdictions can be much simpler. For example, in Florida, following an initial 72-hour period for inpatient examination (not counting weekends and holidays), if the administration of the facility believes a person requires long-term commitment, a petition must be filed, and a court hearing must be held within 5 days of the filing for long-term commitment to occur (Fla. Stat. Ann. § 394.467). As a result of the hearing, the court can order the person to a treatment facility, and the person can be held for up to 6 months, but the facility must discharge the person at any time he or she no longer meets criteria for involuntary inpatient placement. In many jurisdictions, if, at any time during the involuntary commitment, hospital staff conclude that the person no longer satisfies involuntary commitment criteria, the patient must be released from the hospital—without judicial review. Alternatively, if at periodic recommitment proceedings, the state is unable to meet its burden that the person continues to meet commitment criteria, the person must be released from involuntary commitment as well.

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Voluntary Hospitalization Voluntary hospitalization generally is seen as preferable to involuntary hospitalization for a number of reasons. For example, voluntary patients generally are believed to be more motivated for treatment than involuntary patients, and voluntary patients require fewer due process procedures than involuntary patients. All states allow competent adults to voluntarily admit themselves into psychiatric facilities. Although since the early 1990s there has been a significant decrease in the number and percentage of patients who have been voluntarily hospitalized (likely due to insurance and other fiscal issues), voluntary admission nevertheless is still a viable method through which people with severe and persistent mental illness can seek inpatient treatment. Not all voluntary admissions to psychiatric hospitals are the same. Most may assume that someone who has voluntarily entered the hospital has done so because of a perceived need for treatment, and can leave the hospital at any time, provided the staff at the facility do not institute involuntary commitment proceedings because of a perceived danger to self or others or grave disability. This does occur, but it is only one voluntary hospitalization scenario. A more common circumstance involves the person signing into the hospital “voluntarily” based on threats by clinicians, families, or others that, if such does not occur, they will initiate the involuntary hospitalization process. Similarly, when threatened with involuntary commitment at a court proceeding, the individual may have chosen “voluntary” hospitalization over the alternative. Should a hospital accept a “voluntary” admission when there is a question of whether the person has the capacity to make a decision about hospitalization? In the case of Zinermon v. Burch (1990), a heavily medicated, disoriented, psychotic patient “voluntarily” agreed to enter a state psychiatric hospital. After his release 149 days later, he brought an action claiming the hospital deprived him of liberty by letting him sign himself into the hospital “voluntarily” while he lacked the capacity to make a knowing and informed decision. The petitioner claimed the hospital knew or should have known that he was incompetent to consent to his admission, and that its failure to initiate an involuntary commitment procedure denied him of his constitutionally guaranteed procedural safeguards. The United States Supreme Court held that allowing incompetent persons to voluntarily admit themselves into a hospital violates due process and that, in such cases, a hearing should be held using the involuntary commitment standards. Some have argued that the Zinermon decision dealt a severe blow to persons with

mental illness and the facilities that treat them. If a severely mentally ill person seeks hospitalization and treatment, why should the facility have to devote resources to comply with the involuntary commitment process to provide them with help? Perhaps most significant in the Zinermon case was that it should have been obvious to everyone involved that Burch was not competent to sign himself into the hospital, yet all accepted his signature as valid consent. Outpatient Commitment Outpatient commitment is the use of formal procedures to mandate mental health treatment in the community. There are three potential benefits for utilizing outpatient commitment as an alternative to inpatient commitment: (1) It is considerably less expensive to treat persons with mental illness in the community than in the hospital; (2) It can be used with those who do not meet involuntary hospitalization commitment criteria; (3) It can be a vehicle through which jurisdictions can meet the least restrictive alternative requirement. There are three different contexts through which outpatient commitment operates (Parry, 1995). The first most faithfully follows the least restrictive alternative policy that is part of the civil commitment law in most states. Simply stated, outpatient commitment can be used as an alternative to hospitalization for those who do not need the restrictiveness of inpatient hospitalization. Often these states include outpatient commitment as an alternative to involuntary hospitalization, and the substantive standards mirror those for inpatient commitment. The second outpatient commitment context is conditional release. This type of commitment is a form of step-down treatment and supervision that is implemented following a period of inpatient hospitalization. It is a common form of commitment for those who have been found not guilty by reason of insanity, but who no longer need the restrictive setting of a state hospital. It also is offered in civil commitment contexts (i.e., with persons who have been involuntarily hospitalized as mentally ill and gravely disabled, or dangerous to self or others), but less commonly. At the outset of the conditional release commitment, the patient usually is provided detailed conditions referencing matters such as treatment compliance and living arrangements that must be met in order to avoid rehospitalization. Importantly, the person who has been conditionally released often remains committed to the hospital, and this commitment allows for revocation from community placement and a return to the

Civil Commitment and Involuntary Hospitalization of the Mentally Ill

hospital if the mandated conditions are not met. The person will remain on conditional release in outpatient commitment provided he or she continues to maintain stability in his or her treatment. The eventual goal is full release into the community, but this can take a substantial period of time in many jurisdictions. The commitment criteria usually include being both mentally ill and dangerous, but the dangerousness usually is not imminent. If the person considered for conditional release were imminently dangerous, in all likelihood he or she would not be released into outpatient treatment in the community. The third context for outpatient commitment is the most controversial, and is used in just a handful of states. It is referred to as preventive commitment, and it typically employs commitment standards that are less stringent and less protective of civil rights than customary civil commitment standards. The purpose of preventive commitment is to intervene with mandated mental health treatment in the community before the person deteriorates to the point of requiring hospitalization (Parry, 1995). Thus, these statutes allow for involuntary, coerced, mental health treatment when the individual does not meet the standards for inpatient commitment. These statutes most often are based on a person’s history of mental illness combined with evidence of treatment noncompliance and psychiatric instability, and are premised on the person’s need for treatment to prevent deterioration. Parry and Drogin (2001) noted, “The legislative purpose of such a scheme is to mandate a structured, involuntary community placement, without having to comply with the substantive and procedural due process protections of extended, involuntary inpatient commitments” (p. 148). Melton et al. (2007) highlighted some of the arguments in favor of preventive commitment, noting that people with mental illness who need treatment are unable to get it because they do not meet the technical requirements of involuntary commitment. Often friends and family are demanding treatment for their loved ones and are working with mental health professionals to ease commitment standards, because they are too difficult to meet. Note that this also is one of the arguments for why there often are lax substantive protections employed in involuntary hospitalization proceedings, as this allows persons with mental illness to receive treatment when they technically do not meet commitment criteria. The argument follows that without preventive detention, these persons languish in a state of mental illness “purgatory” until either they voluntarily seek treatment (if available) and do better, or they engage in some overt act or criminal behavior that allows the state to step in and mandate involuntary treatment.

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The most well-known of the preventive outpatient commitment laws is New York’s Kendra’s Law , named after Kendra Webdale, who was killed when Andrew Goldstein, who suffered from schizophrenia, pushed her in front of an oncoming subway train. Shortly before the killing Goldstein unsuccessfully sought mental health treatment. The New York law permits intervention by the state if the person: (a) “is in need of assisted outpatient treatment in order to prevent a relapse or deterioration which would be likely to result in serious harm to the patient or others”; and (b) has been noncompliant with treatment in the past such that the person has been hospitalized at least twice within the past 36 months or has been seriously violent within the past 48 months (New York Mental Hygiene Law § 9.60). There are similar laws in other jurisdictions. The substantive standards for the three types of outpatient commitment may not differ much in practice. Although the first type—outpatient treatment as a less restrictive alternative to hospitalization—uses the traditional standards for civil commitment, in practice those who are imminently dangerous will not qualify for community treatment as a less restrictive alternative. In this way, the least restrictive alternative standard may not be much different from either the conditional release or preventive commitment standards—an imminently dangerous person would not be considered appropriate for community treatment. However, if the person was not dangerous in the absence of treatment, he or she would not be appropriate for commitment at all. Thus, in all three types of outpatient commitment, the de facto standard becomes a predicted deterioration standard, wherein a mentally ill person who is “dangerous” would become more dangerous in the absence of treatment, but does not need (or qualify for) inpatient hospitalization presently (Melton et al. 2007). (The conditional release type of outpatient commitment will be discussed later in the context of mandated treatment of insanity acquittees.) Aside from the standards used to initially place an individual in outpatient commitment, community programs that provide services to these persons must have a monitoring system in place to evaluate progress, and the courts must have an enforcement mechanism to require hospital treatment if the person either does not comply with required conditions or deteriorates so that he or she is unable to remain safely in the community. There is tremendous variability across jurisdictions in judicial oversight in the monitoring systems for outpatient commitment, especially in traditional outpatient and preventive commitment contexts; in most cases it is controlled by the agency

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providing the outpatient treatment. In the conditional release context, however, there usually is more intensive court monitoring. With traditional outpatient commitment and preventive commitment, the decision to revoke or terminate outpatient commitment and hospitalize the individual for noncompliance or psychiatric decompensation should be met with the full panoply of procedural due process rights that is in place for traditional inpatient civil commitment, because in fact, that is what is occurring. Furthermore, the standard that should apply to these proceedings is that used for inpatient civil commitment.

Involuntary Hospitalization of Insanity Acquittees Upon either a finding or a plea bargain in a criminal proceeding that a defendant is not guilty by reason of insanity (NGRI), the acquittee usually is committed automatically to a state forensic hospital or unit for a period of evaluation, which typically ranges from 30 days to 6 months. At the conclusion of this period, usually a court will determine whether the acquittee meets criteria for continued hospitalization. The criteria for continued confinement are that the acquittee is mentally ill and dangerous. If committed at the end of the evaluation period, depending on jurisdiction, the acquittee is confined for a period ranging from 3 months to 2 years until his or her next release hearing. At release hearings, in most jurisdictions the burden is on the acquittee to prove that he or she is no longer either mentally ill or dangerous. If the acquittee cannot carry this burden, he or she is recommitted or extended for an additional period of time. The constitutionality of automatic commitment upon a finding of NGRI was challenged in the case of Jones v. United States (1983). Jones was charged with attempted shoplifting of a jacket. He was adjudicated NGRI and committed to a state hospital. As the crime was a misdemeanor, the maximum time he could have been incarcerated was 1 year. After 1 year, Jones petitioned for his release, arguing he could not be held as an NGRI acquittee longer than the maximum sentence he could serve for the underlying offense. The United States Supreme Court ultimately heard the case and addressed the constitutionality of both automatic commitment upon a finding of NGRI and duration of hospitalization that exceeded the length of the sentence that the person would otherwise have had. As to the first issue, the Court held that statutes providing for automatic commitment upon a finding of NGRI were permissible because it was reasonable to presume that a defendant adjudicated NGRI is both mentally ill and dangerous. Regarding mental illness, it must be recalled

that an insanity plea is an affirmative defense, and the burden is on the defendant to prove that he or she was both mentally ill and not criminally responsible for the offense. The Court concluded it is reasonable to believe that a defendant with a successful insanity defense continues to have a mental illness for purposes of automatic commitment: “It comports with common sense to conclude that someone whose mental illness was sufficient to lead him to commit a criminal act is likely to remain ill and in need of treatment” (p. 366). The rationale for continuing dangerousness is slightly less intuitive. They reasoned that a person who violates any criminal law because of a mental illness is presumptively dangerous, regardless of whether the criminal offense involved violence or risk of physical harm. Notably, this presumption continues despite the fact that often there are many months or even years between the criminal offense and the finding of NGRI. Regarding the length of time an NGRI acquittee can be confined, the Court reasoned that Jones was not found guilty for the offense, but rather, upon his intentional pursuit of the affirmative defense of NGRI, he was found to be not criminally responsible for the crime. Therefore, his commitment was not criminal in nature, and the duration of his hospitalization was unrelated to the length of the sentence he could have received if he had been convicted. Rather, the commitment following a finding of NGRI is governed solely by the relevant commitment and extension criteria. Thus, it is possible for a person found NGRI for a minor, nonviolent offense to remain hospitalized for many years, provided he or she cannot meet the burden of showing that he or she no longer meets commitment criteria. Similarly, it is possible for a person found NGRI for a murder to spend only a few months in a hospital prior to being able to meet release criteria (although in practice such a situation is exceedingly unlikely, based upon violence risk assessment considerations of the severity of risk that may be present). As a result of Jones, automatic commitment upon a finding of NGRI is standard in most jurisdictions. The duration of confinement for NGRI acquittees in most jurisdictions is indefinite, although usually there are periodic reports to the court that must be made by the facilities confining the acquittee, and periodic recommitment hearings are guaranteed as well. In most jurisdictions, the burden of proof is on the acquittee to demonstrate that he or she no longer meets criteria for continued confinement, irrespective of what the offense was that served as the predicate for the NGRI commitment. In Foucha v. Louisiana (1992), the Supreme Court addressed the substantive requirements for continued

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commitment of NGRI acquittees. Foucha was being held at a state forensic hospital following an adjudication of NGRI. Hospital staff concluded that Foucha presented an ongoing danger not because of a severe mental disorder, but rather because of an “antisocial personality,” which they did not consider to be a mental illness. Foucha challenged his confinement, arguing the state must show him to be both mentally ill and dangerous to justify ongoing commitment. A four-member plurality of the Supreme Court reasoned that continued confinement requires a showing of both mental illness and dangerousness, as in the civil commitment context. Despite the lack of a majority in the core reasoning in Foucha, most states do require a showing of both mental illness and dangerousness for continued confinement of an NGRI acquittee. The requirement for a showing of both mental illness and dangerousness for inpatient commitment was again challenged in Kansas v. Hendricks (1997), a sexually violent predator commitment case. In Hendricks, the Supreme Court held that, for civil commitment of sexually violent predators at the end of their prison sentences, the state need only show the individuals have a “mental abnormality” that makes them “dangerous beyond their control” (p. 357), even if they are not treatable. After Hendricks, there is question about whether the Supreme Court would require, on constitutional grounds, a showing of both mental illness and dangerousness for the continued confinement of NGRI acquittees. Nevertheless, as most states have statutorily adopted the plurality’s reasoning from Foucha requiring both mental illness and dangerousness for continued NGRI acquittee confinement, that is the relevant standard that is used in those jurisdictions. The most common method for release of NGRI acquittees from the state hospital is through conditional release into outpatient commitment in the community. Most often, the person remains “committed” to the state hospital, but is conditionally released into the community provided he or she follows strict behavioral and monitoring criteria in the outpatient treatment facility. Failure to comply with mandated conditions can result in revocation of the patient’s release and a return to the hospital. Many states provide for revocation without judicial intervention, while others may allow a period of temporary revocation prior to a court hearing on the issue of permanent revocation. Involuntary Hospitalization of Mentally Disordered Criminal Offenders Most individuals with mental illness who commit crimes do not go to psychiatric hospitals following the conclusion

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of the criminal proceedings; rather, they go to prison just like other criminal defendants without mental illness. Nevertheless, in some circumstances it may become necessary to transfer mentally disordered prison inmates to psychiatric hospitals during their incarcerations to more effectively manage the symptoms of their mental illnesses. Other inmates with mental illness may successfully complete their prison sentences, but be too mentally ill and dangerous to be released to ordinary parole, and as a result are transferred to psychiatric hospitals following their incarceration. For each there are substantive and procedural protections to prevent inappropriate involuntary hospitalizations. Transfers From Prisons to Psychiatric Hospitals As noted earlier, prisons have become the largest mental health facilities in most states, housing more mentally ill individuals than psychiatric hospitals. Most prisons routinely screen inmates for mental health problems and provide treatment, albeit with varying levels of intensity. Whereas some prisons provide extensive mental health services, others may do little more than make medication available to some of the less seriously mentally ill inmates. It is not uncommon for persons with the most severe illnesses to be placed in “special housing units,” which is essentially solitary confinement, both for their protection and the protection of other inmates. In many prisons there are special psychiatric units that treat inmates with mental illness during periods of acute decompensation. In many states, collaborative relationships have been developed between state departments of corrections/prisons and mental health to allow for transfers of inmates to state hospitals for treatment and stabilization (Maier & Fulton, 1998). Although many would view the transfer of an inmate experiencing a psychiatric decompensation from a prison to a state forensic hospital to be both humane and noncontroversial, courts have held that such transfers affect constitutional rights. In Vitek v. Jones (1980), the Supreme Court addressed the issue of what legal procedures prison inmates are entitled to when the state seeks to transfer an inmate to a psychiatric hospital. In the case, a Nebraska inmate was transferred from a state prison to a mental hospital under the provisions of a statute that allowed for the transfer by the Director of Correctional Services if a physician or psychologist believed that the prisoner “suffers from a mental disease or defect” that “cannot be given proper treatment” in prison (p. 483). The prisoner was to remain at the hospital until treatment was no longer necessary. Jones was transferred under

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this procedure over his objection, and he challenged the transfer on procedural due process grounds. A three-judge panel of the federal district court held the Nebraska procedure unconstitutional. On appeal, the Supreme Court affirmed the decision of the federal district court and held that the transfer implicates a liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Court ruled that a prisoner could reasonably expect not to be transferred to a mental hospital without a finding he was suffering from a mental illness for which there was not adequate treatment in prison, but the Nebraska statute did not provide adequate protection. The Court noted that mental hospitalization carries significant stigma, and is outside the scope of the liberties that are lost through imposition of a prison sentence: “The stigmatizing consequences of a transfer to a mental hospital for involuntary psychiatric treatment, coupled with the subjection of the prisoner to mandatory behavior modification as a treatment for mental illness, constitute the kind of deprivations of liberty that requires procedural protections” (p. 494). The Court held that to transfer a prison inmate to a mental hospital, at the least the state must provide: (a) written notice about the possible transfer, (b) an adversary hearing before an independent decision maker, (c) qualified and independent assistance to the inmate for the hearing, and (d) a written statement by the fact finder about the evidence used and reasons for the decision. While the decision in Vitek provided significantly greater protections regarding transfers to a psychiatric hospital than prisoners had formerly received, the process nevertheless provides fewer protections than those required for civil commitment from the community (Melton et al., 2007). For example, the Court did not rule that the Constitution requires a judicial proceeding or appointment of an attorney. Rather, the Court determined that Jones’s due process rights were adequately protected through an administrative hearing with an independent decision maker, for which he was to be provided notice, time to prepare, and a qualified, independent advisor to assist in presentation of his case. He was also entitled to be present at the hearing, to present his own witnesses, and to cross-examine witnesses against him. The substantive standard to transfer an inmate to a psychiatric hospital does not need to include dangerousness to self or to others; it is sufficient that the inmate be seriously mentally ill and need treatment that is unavailable within the prison. Parole Hospitalization Most criminal offenders receive determinate sentences for their offenses, that is, they are sentenced for a fixed

number of years. Thus, in a majority of the states most inmates are eligible for parole after completing some portion of their sentences. Parole is a period of conditional release from prison with fixed conditions of supervision and behavior; if parolees violate the conditions of their parole, they can be returned to prison to complete their sentences. For inmates with mental health problems, it is common that a condition of their parole includes participation in outpatient mental health treatment services that might involve medication, therapy, and substance abuse monitoring. Under most circumstances, if a parolee experiences a psychiatric decompensation, but has not otherwise violated the conditions of parole, the process to hospitalize the parolee would be through either voluntary or involuntary hospitalization. Clearly the parole officer could exert considerable leverage over the parolee to enter the hospital voluntarily. However, if the parolee is so compromised as to not understand the need for treatment and has become a danger to self or others, or has become gravely disabled, involuntary hospitalization may be the necessary means to intervene. Committing an inmate to a hospital at the end of his or her prison term involves a deprivation of liberty not unlike that which occurs in civil commitment. The Supreme Court addressed this issue in Baxstrom v. Herold (1966). Baxstrom had been transferred to psychiatric prison hospital during his sentence. The director of the prison hospital filed a petition seeking his continued confinement upon the expiration of his prison sentence under existing New York law. A proceeding was held in which medical certificates were submitted by the state from two physicians stating Baxstrom was still mentally ill and needed hospital and institutional care. Baxstrom appeared alone at the hearing and was provided an opportunity to ask questions. Upon completion of the proceeding, Baxstrom was found appropriate for continued hospitalization. On the day his prison sentence expired, his custody shifted to the Department of Mental Health, but he remained at the same prison hospital, where his commitment was indefinite. Baxstrom sought a writ of habeas corpus. After being denied relief in the New York state courts, the Supreme Court granted review of the case and held that Baxstrom “was denied equal protection of the laws by the statutory procedure under which a person may be civilly committed at the expiration of his penal sentence without the jury review available to all other persons civilly committed in New York” (p. 110). The Court also ruled that he was denied equal protection by his commitment to a hospital managed by the Department of Corrections after his prison term expired without a judicial determination

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“that he is dangerously mentally ill such as that afforded to all so committed except those, like Baxstrom, nearing the expiration of a penal sentence” (p. 110). Under New York law, all other persons subject to civil commitment had the right to a jury trial: “For purposes of granting judicial review before a jury of the question whether a person is mentally ill and in need of institutionalization, there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments” (pp. 111–112). This case was significant not only because it occurred at the outset of the legal reforms in civil commitment, but also because it clarified that inmates whose prison sentences were expiring had to be afforded the same procedures as others in the community when instituting civil commitment. Involuntary Hospitalization of Those Incompetent to Stand Trial (For a complete description of the law and evaluation of trial competence, please refer to Chapter 18 in this volume.) Upon a finding of incompetence to stand trial, the trial process is suspended until the defendant is “restored” to trial competence. Criminal defendants facing felony charges who are found incompetent to stand trial usually are committed to a state hospital for treatment or habilitation to restore competence. Many jurisdictions authorize automatic commitment to a hospital, and do not consider whether the incompetent defendant could be treated and restored in a less restrictive alternative setting (Melton et al., 2007). Other states do require information about this issue to be provided to the court so it can make a placement decision. However, in many cases the court will order confinement in a forensic hospital or unit upon an opinion by an examiner or administrator that, due to the serious nature of the crime charged, the person is too dangerous for outpatient commitment. This conclusion presumes the person is guilty of the unproven offense for purposes of involuntary hospitalization. The American Bar Association (ABA) has proposed that inpatient commitment of an incompetent defendant should occur only if the court determines by clear and convincing evidence that no less restrictive alternative facility can accommodate the incompetent defendant (American Bar Association, 1989, Standard 7-4.9). Adopting the ABA standard would place involuntary hospitalization of an incompetent defendant on similar footing with others in the community who are involuntarily hospitalized, with respect to the issue of least restrictive alternative placement.

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The purpose for the involuntary hospitalization of incompetent criminal defendants is to restore trial competence so the trial can resume. Prior to 1972, criminal defendants who were committed to a state facility as incompetent to stand trial usually faced long-term or lifetime commitments with meager attempts to provide treatment. This lifetime institutionalization of incompetent defendants was brought before the Supreme Court in the case of Jackson v. Indiana (1972). Theon Jackson was both deaf and mute, with a mental age of preschool child. He could not read, write, or otherwise communicate. He had been arrested for two counts of robbery, with amounts taken totaling nine dollars. Soon after his arrest, Jackson was adjudicated incompetent and committed to the Indiana Department of Mental Health for treatment to restore his competence, despite findings by mental health professionals that he likely would never become competent. Jackson’s attorney argued this was tantamount to a “life sentence” without his ever having been convicted, and it deprived him of due process and equal protection under the Fourteenth Amendment. The Supreme Court held that the Indiana procedures violated equal protection requirements because those who were civilly committed in Indiana were provided with substantially more protections than Jackson was as an incompetent defendant: “We hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses . . . Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment” (p. 730). The Supreme Court also held that the Indiana procedure violated due process because the duration of the commitment was not rationally related to the restoration of competence. The Court ruled that a defendant adjudicated incompetent to stand trial “cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain the capacity in the foreseeable future” (p. 738) and that, if it is not probable that the defendant will be restored to competence in the foreseeable future, “the State must either institute the customary civil commitment proceedings that would be required to commit indefinitely any other citizen, or release the defendant” (p. 738). In addition, the Court noted that for those defendants who will soon become competent to stand trial, their continued commitment can be justified only by progress toward trial competence. As a result of the holding in Jackson, most states altered their laws concerning the duration of commitment for those found incompetent to stand trial. Melton et al. (2007) noted that “32 states

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still had not required periodic judicial review of those found incompetent” (p. 137) and that “[a]bout half these states place no time limit whatever on the confinement of those found incompetent, whereas the rest tie it either to the maximum sentence that could have been received had conviction occurred or to some arbitrary period (e.g., five years in Florida) bearing no relationship to the time needed to restore someone to competency or to determine that they are not restorable” (p. 137). Other states have set more reasonable periods of time (e.g., 6 months or 1 year) to determine whether the person is restorable to competence. Also, a number of states require periodic judicial review or approval of continuing confinement. The standard for release from hospitalization for defendants committed as incompetent to stand trial is that the person has been restored to trial competence. For those whose competence is unlikely to be restored, the Court in Jackson suggested as alternatives civil commitment or outright release. However, the Court did not state that the criminal charges faced by the incompetent defendant had to be dismissed upon a finding of “unrestorability.” As a result, in many states the charges are dropped “without prejudice” and can be reinstated at a later time if the defendant is deemed to have become competent to proceed with the legal process. The practical effect of this is that unrestorably incompetent defendants who are civilly committed will usually be held in a secure forensic hospital or unit, often very similar to where they had been held as incompetent to stand trial. Recently, the Indiana Supreme Court heard a case involving an incompetent defendant who had been deemed unrestorable and had been civilly committed with charges still pending (Indiana v. Davis, 2008). The civil commitment continued for longer than she could have been incarcerated if found guilty of her charges. Her attorney petitioned the trial court to dismiss the charges, which the court did. However the appellate court reversed and reinstituted the pending charges. On appeal, the Indiana Supreme Court reversed and dismissed the charges with prejudice on the grounds that it violated fundamental fairness of the Due Process Clause of the Fourteenth Amendment to continue to allow pending charges once an incompetent defendant had been committed for longer than she could have been incarcerated if convicted (Morris & Parker, 2009). A creative solution to the dilemma of how to handle the mandates of Jackson while continuing to hospitalize incompetent defendants is found in California. Under California law the “reasonable time” used to determine whether an incompetent defendant can be restored to competence is set as a maximum of 3 years. By then, if the

person has not been restored to competence, the state must institute civil commitment proceedings or release the defendant. In response to Jackson and its California progeny, In re Davis (1973), the legislature made an addition to the civil commitment law, adding an alternative definition to grave disability that allows for civil commitment of those facing serious charges and adjudicated incompetent to stand trial (California Welfare and Institutions Code § 5008(h)(1)(B)). The following is the definition that was added to the traditional definition of grave disability: “A condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist: (i) The indictment or information pending against the defendant at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical wellbeing of another person. (ii) The indictment of information has not been dismissed. (iii) As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner.” This type of civil commitment is called a Murphy Conservatorship after the legislator who proffered the additional definition of grave disability. Review of California’s solution reveals that the language for the civil commitment criteria, despite being an alternative definition of grave disability, lacks the foundational criteria for civil commitment of both mental illness and dangerousness required by O’Connor v. Donaldson (1975). In the case Conservatorship of Hofferber (1980), the California Supreme Court read into the requirements for a Murphy Conservatorship a dangerousness criterion such that the person conserved must represent a “substantial danger” of physical harm to others.

EVALUATION FOR INVOLUNTARY HOSPITALIZATION As with virtually all types of forensic psychological evaluations, the relevant legal criteria should guide the form and content of the evaluation. Most important is that the examiner knows and understands the substantive criteria and standards that are at issue in the case. With that information in mind, the examiner can focus on the psychological issues, behaviors, and functional abilities that are relevant in the matter. What follows are general issues to consider in different types of commitment evaluations, as it is not possible to address the specific criteria from each state.

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Civil Commitment As noted earlier, evaluations for civil commitment occur at three different time periods. The first is for the initial, or “emergency,” commitment. The second time period is at the conclusion of the emergency commitment, to determine long-term commitment. The third time is less succinct: It is the continuing responsibility to evaluate the ongoing presence of commitment criteria in a long-term commitment, especially at periodic reviews. The evaluation criteria are fundamentally similar at all time periods, but the access to information and the potential for change through ongoing interventions can result in differences to the complexity of the evaluations. For all time periods the essential criteria require assessment for the presence of a mental illness, the examinee’s need for treatment, dangerousness to self, dangerousness to others, whether the examinee can procure the fundamentals for survival outside the hospital (grave disability), and whether a less restrictive alternative setting can meet the examinee’s needs. Mental Illness All jurisdictions require the presence of a mental illness or mental disorder (Werth, 2001). The definition of mental illness can vary between jurisdictions, with some states specifically defining the term with respect to symptoms and functional deficits, and other states leaving it largely undefined. In any event, this type of assessment should be familiar to a trained mental health professional. One should be prepared to use available clinical assessment techniques and tools to determine the presence or absence of a relevant mental illness. In the context of emergency commitment for someone not well known to the mental health system, the examiner will likely have little more to rely on than a clinical interview and perhaps collateral information from an interested friend or family member. For long-term commitment and periodic reviews, the examiner may also have access to records, psychological test data, additional collateral information, evidence from psychotropic medication trials, behavioral observations, and expanded clinical interviews. Given the consequences of an inappropriate diagnosis, it is important for the examiner to be as thorough as possible in coming to a conclusion regarding the presence or absence of a serious mental illness. Need for Treatment A number of states include in their definition of mental illness or in the standard for grave disability that the individual is in need of treatment. In theory it is hard

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to argue that a person who is otherwise appropriate for civil commitment (because of dangerousness to self or others or due to grave disability) should not be hospitalized because the person does not need treatment. That argument would appear to be a logical non sequitur. Most would agree that someone who is appropriate for civil commitment does “need treatment” due to the manifestation of his or her mental illness on risk to self or others. Recall, however, that use of the parens patriae authority to commit an individual presumes it is necessary to do so because the individual is unable to recognize his or her need for treatment (perhaps through anosognosia). If the person is aware of the potential benefits of treatment, but nevertheless elects not to seek treatment, should that decision be disregarded in the absence of a significant risk of harm to self or others? In assessing an individual’s capacity to make such treatment decisions, it is important to assess the examinee’s capacity to (1) understand relevant information about why treatment is being recommended; (2) appreciate the nature of the situation and consequences of one’s choice to either accept or refuse treatment; (3) reason about the risks and benefits of accepting treatment and rejecting treatment; and (4) communicate a choice about whether or not to accept treatment (Appelbaum & Grisso, 1988). The MacArthur Competency Assessment Tool–Treatment (MacCAT-T; Grisso, Appelbaum, & Hill-Fotouhi, 1997) is a useful device that was designed to assess the four relevant capacities related to treatment competence. It is unlikely that the use of such a tool is feasible in the context of emergency commitment, but clinicians should nevertheless consider these issues when assessing competence for treatment. When determining appropriateness for long-term commitment, an instrument such as the MacCAT-T can assist an examiner in properly evaluating the individual’s treatment competence. Dangerousness to Self Assessment of suicide risk is difficult in the absence of expressed suicidal ideation, intent, and plan since, although the literature has identified numerous factors that increase the risk for a suicide attempt or completed suicide, the vast majority of persons with one or more of these factors do not commit suicide. Busch, Fawcett, and Jacobs (2003) stated, “It has been repeatedly concluded that the prediction of suicide in an individual is statistically impossible.” Overestimation of suicide risk is common; this is in part due to the low base rate of suicide in the general population and the dynamic nature of suicide risk. Notwithstanding the challenges in assessing suicide

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risk, the relative risk of suicide is increased for psychiatric patients through the presence of certain demographic and clinical variables (Busch et al., 2003; Hirschfield & Davidson, 1988), including: • Gender—males are at greater risk of completed suicide than females. • Age—middle-aged psychiatric patients are at higher risk (the elderly and adolescents are at higher risk in non-psychiatric populations). • Race—whites are at a much higher risk than nonwhites. • Marital status—not married. • Employment status—unemployed. • Diagnosis—depression, schizophrenia, and alcohol dependence. • Severe personality disorder. • Severe anxiety or agitation. • Suicidal ideation or plan. • History of suicide attempts, except for patients with psychosis. • Undesirable life events, especially humiliating ones, or loss of a key person. • Family history of suicide. • Timing—during hospitalization or within 6 to 12 months of discharge. Melton et al. (2007) reviewed the literature regarding suicide correlates associated with major depression, alcohol dependence, and schizophrenia. They noted that for those with major depression, correlates for suicide include: severe anxiety; hopelessness; severe anhedonia; insomnia; diminished concentration; difficulty making decisions; alcohol abuse; panic attacks; obsessivecompulsive features; cycling of affective illness; no young children in the home; having few friends; and prior depressive episodes. For those dependent on alcohol, correlates include: imprisonment; disruption of a major interpersonal relationship; not being hospitalized; abuse of drugs; and presence of depression or a depressive episode. For those with schizophrenia, correlates include: young white males with good premorbid and intellectual functioning in early course of illness. For an excellent review of suicide risk factors generally, see Chiles and Stroshal (1995), Clark and Fawcett (1992), and Kleespies and Dettmer (2000). For a review of suicide risk factors in the context of civil commitment, see Mrad and Nabors (2007). As noted, the presence of some or even several risk factors for suicide does not mean the person being evaluated will attempt or complete suicide. Nevertheless, given

the finality of suicide, caution must always be used. When assessing suicide risk, the examiner should take a direct, matter-of-fact approach in discussing suiciderelated information. This nonpejorative approach can make it easier for those patients contemplating suicide to feel comfortable sharing the information (Melton et al., 2007). Regarding content, it is crucial to have a discussion about the person’s suicidal thoughts and plans. Those who have gone beyond general suicidal thoughts and are making plans to complete the act are at substantially higher risk. For this reason the examiner should inquire about: • How often the person thinks about suicide • Prior suicide attempts (if yes, assess severity) • Thoughts that have progressed to the point of considering different methods • The degree of lethality of the methods contemplated • Access to weapons or other means to complete suicide • Steps taken to put his or her suicide plan into action • A view of death as a realistic end for current pain and suffering • Preparations for death by making arrangements for distributing property In considering suicide potential, it is important that the examiner inquire about recent events that may have triggered suicidal thinking (e.g., recent loss of a loved one, job loss, severe financial hardship, severe marital/relationship discord). It also is important to assess the degree of hopelessness the person feels, as suicidal ideation is associated with an inability to perceive potentially successful alternatives for change. Impulsivity and the inability to engage in consequential thinking can increase risk for suicide. In addition, certain types of personality disorders are associated with a higher suicide risk. Specifically, borderline personality disorder is associated with increased serious suicide attempts, as well as high levels of impulsivity and hopelessness (Soloff, Lynch, Kelly, Malone, & Mann, 2000). When possible, the examiner also should speak with the examinee’s family and friends, as it is common for suicidal thoughts to be shared with others prior to an attempt. However, some who are most determined to commit suicide may avoid telling others out of a concern they will be stopped. If the examiner has the luxury of time, testing with instruments designed to assess depression, hopelessness, and suicide risk may be of value (e.g., the Beck Hopelessness Scale, the Beck Depression Inventory–II, and the Suicide Probability Scale). When using psychological tests to assist in the evaluation of suicide risk,

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please note that no tests are able to provide empirically validated cutoff scores that accurately categorize those who will attempt suicide. Dangerousness to Others In the context of civil commitment, practical constraints can limit the examiner’s access to information that would usually be available in other violence risk assessment contexts. Unlike violence risk assessments of insanity acquittees for release decision making (see ahead), the brief time available to examiners in a civil commitment situation likely will result in less access to collateral informants, police and treatment records, and psychological test data. Notwithstanding the potential lack of available risk-relevant information, the assessment of dangerousness to others in a civil commitment context may be both easier and more accurate (Binder, 1999) than dangerousness assessments in other contexts. The reason for this is that the assessment for dangerousness in civil commitment involves dangerousness for imminent harm, that is, violence likely to occur in the immediate future. As such, many historical and personality-based risk factors that are important when assessing long-term risk are of less or little importance when assessing risk in the immediate future. Much more relevant considerations include recent overt acts of violence, voiced violent or homicidal intent, and access to intended victims. An important distinction must be made with respect to the assessment of dangerousness to others. The assessment is a here-and-now assessment of present dangerousness. It is not a prediction of short-term violence, although the two are inextricably intertwined. The question is not whether the examiner has predicted that imminent violence will occur in the absence of intervention. Such predictions are fraught with false positive predictions, due in part to low base rates for violence and the dynamic nature of violence. Rather, the question before the examiner is whether the examinee is presently at a substantial risk for imminent violence in the absence of intervention. How serious that risk must be is a question for a legal decision maker in determining whether the individual should be involuntarily hospitalized. Due to the short-term nature of the risk evaluation, the most important assessment considerations involve variables that increase risk for imminent violence. The examiner should consider: • Present threats of violent behavior • Recent acts of similar violence • Evidence that the violence level will be escalated

• • • • • •

• • • •

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Access to intended victims Presence of violent fantasies against specific others Intended methods of violence Access to lethal weapons Anger or revenge motives for violence Belief that someone poses a threat to him or her, and thus the need to strike first for protection (this belief may or may not be delusional) Ability to voice alternatives to violence to address his or her problems The person’s use of violence as a problem-solving technique The person’s history of impulse control problems and impulsive violence Recent and continuing abuse of alcohol or drugs

In addition to these situational violence risk considerations among persons with severe and persistent mental illness, there are known violence risk correlates that increase risk across most situations, including age (young are at greater risk) and gender (males are at higher risk than females), as well as personality considerations (antisocial personality and psychopathy), impulsivity, and compromised judgment. Substance use is a robust risk factor for violence of all types. See Chapter 22 for a thorough discussion about the assessment of risk for violence. In the context of civil commitment, it is common to observe symptoms of active psychosis in examinees. In such situations, it is important to determine how the psychotic symptoms may impact violence risk. Thus, if the person is experiencing auditory hallucinations, determine if the hallucinations are supportive of violence or, in the case of command hallucinations, are advocating violence. Also determine whether the individual appears capable of resisting such command hallucinations, and his or her success in avoiding violence in similar circumstances in the past. If the person is experiencing delusions, it is important to determine the content and nature of the delusions. Those with delusions may believe they must engage in violence to protect themselves or others. Similarly, they may believe they have unbridled power and authority, leading to potentially violent conflicts when they are challenged. Few violence risk instruments have been normed on a civilly committed population. One such tool is the Classification of Violence Risk (COVR), developed through the MacArthur Violence Risk Assessment Group (Monahan et al., 2005). The COVR is an actuarial tool, developed for predictive purposes. It was developed in studies examining more than 1,000 civil psychiatric patients. It

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uses an “iterative classification tree” approach in which individuals are first categorized on superordinate classifications (e.g., “high psychopathy” versus “low psychopathy”) and subsequently placed by the presence or absence of additional variables until they are categorized in a terminal group associated with an actuarially determined risk for violence. (The COVR is described at greater length in Chapter 22 in this volume.) Assuming an ability to access the information to code the relevant variables on the COVR, it can be a useful tool in determining violence risk in an involuntary commitment context. Grave Disability The evaluation of grave disability involves assessment of the individual’s ability to care for himself or herself. The most common language in statutes including this as a criterion for civil commitment requires a determination of the examinee’s ability to provide for his or her own food, clothing, and shelter. Additional factors in other jurisdictions include the ability to seek appropriate medical care and provide for personal safety. Ultimately, if one cannot provide for these basic needs, he or she will be in danger for his or her own survival. Despite the seemingly straightforward nature of this evaluation, a proper assessment requires access to accurate information about how a person has been functioning (and presently is functioning) in the community, which can be difficult to obtain in a hospital setting. A clinical interview is important, as the person evaluated may be able to provide accurate information about recent functioning in the community. However, when one is separated from the community setting it can be difficult to accurately assess how he or she functions in the community. Often it is crucial to interview third-party informants, including family, friends, and others, who can provide independent descriptions of the person’s functioning in the community. It is common that this evaluation will be requested when a person with mental illness is homeless and is having significant difficulty caring for his or her basic needs. Also it is common that family members may request this evaluation when a loved one has experienced a psychiatric decompensation but is not suicidal or a danger to others. Similar issues are present in the context of guardianship or conservatorship evaluations, but with grave disability the issue usually involves a greater likelihood of imminent harm if immediate action is not taken. Often the issues in grave disability evaluation are readily apparent; for example, the person may be disrobing and walking around at night in the cold, or the person may be sleeping in the streets due to a delusional fear

that a spaceship will crash through the roof of his or her home. However, other less severe presentations can be more difficult to evaluate because the nexus to the criteria for grave disability may not be obvious. Of course, an examiner should determine why the person is unwilling to seek hospitalization or other mental health services on his or her own. In performing this assessment, the examiner should provide a thorough description of any relevant impairment in functioning, ideally tied to the manifestation of the person’s mental illness. Unfortunately, many people have difficulty providing for food, clothing, and shelter due to causes unrelated to mental illness. Unless those difficulties are exacerbated or extended by present symptoms of a mental illness in an individual, an argument can be made that the loss of liberty occasioned by civil commitment is not appropriate. Outpatient Commitment In order to be subject to outpatient commitment as a less restrictive alternative to traditional civil commitment, one must meet civil commitment criteria. In those states that provide in their statutes for the least restrictive alternative placement, that invariably refers to outpatient commitment. Thus, the examiner may be asked to provide information about whether the individual who otherwise is appropriate for civil commitment can nevertheless be treated and live safely in the community through outpatient commitment. To properly assess this question, the examiner must first be aware of community-based outpatient programs, and the level of security, types of treatment, and degree of monitoring available in these programs. Based on this knowledge, the examiner must be prepared to provide information to the legal decision maker about whether the facilities available in the outpatient programs can protect both the person committed and the community from harm. It may be rare that a person who meets civil commitment criteria is also appropriate for outpatient commitment. That is because the criteria required to involuntarily hospitalize an individual require the person to be an imminent danger of harm to self or others or be gravely disabled. It does not logically follow that the severity of problems faced by those individuals could be adequately managed on an outpatient basis. Although possible in the abstract, a recommendation for outpatient commitment should lead to questions about the presence of civil commitment criteria in the first place. Preventive commitment is a form of outpatient commitment that is used when an individual does not meet

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criteria for inpatient civil commitment, but will likely deteriorate to the point of requiring inpatient hospitalization in the absence of outpatient treatment. As noted above, the standards most often require the examiner to assess whether an individual will relapse or deteriorate in the absence of outpatient treatment to the point that serious harm to the patient or others would result. Additional criteria may include a history of noncompliance with treatment resulting in hospitalization or violence (see, e.g., New York Mental Hygiene Law § 9.60, 2010). The potential benefits of preventive commitment notwithstanding, the assessment of the predicted deterioration criterion can be challenging. Certainly if the person has a history of decompensation to the point of violence, selfharm, or grave disability, and the person has recently started to decompensate, assessment of the predicted deterioration criterion can be straightforward. However, the criterion presupposes that an examiner will be able to intervene after the start of a psychiatric decompensation, but prior to full decompensation, so that outpatient commitment can prevent the individual from meeting involuntary hospitalization criteria. This may be possible if the individual has concerned family members or friends who are aware of available outpatient commitment and seek to help the individual in getting treatment. The availability of third-party informants can assist the examiner in determining the course of decompensation and the need for intervention. What may be more common, however, is that an individual has a chronic mental illness and would benefit from treatment but is not likely to deteriorate to the point of qualifying for involuntary hospitalization in the near future. It may be difficult for an examiner to offer informed opinions about predicted deterioration in jurisdictions that allow for outpatient commitment based upon such. In those states that also require there be recent hospitalizations or violence, these additional criteria can serve as a buffer to overreaching by examiners and courts that may mandate outpatient treatment on an unwilling individual. Involuntary Commitment of Insanity Acquittees Recall from the earlier discussion that involuntary hospitalization typically occurs automatically upon a finding of NGRI, and the United State Supreme Court has found such practice constitutional (Jones v. United States, 1983). Thus, the criterion for initial commitment upon a finding of NGRI is the court verdict or plea bargain finding the defendant NGRI. After the initial period of commitment, which typically ranges between 30 days and 6 months,

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continued hospitalization commonly requires that the acquittee be both mentally ill and dangerous. In many jurisdictions, if the NGRI acquittee would not be dangerous in a less restrictive setting, he or she may be granted conditional release into highly structured treatment in the community. Although this is possible at the end of the initial period of commitment, this rarely happens. It is much more common for insanity acquittees to be hospitalized for many years prior to being released to conditional release, and some acquittees are never released. The statutes of many states do not include specific definitions of the mental illness criterion. Even in states where the standard is identical to the civil commitment standard, the mental illness criterion may be applied more broadly with respect to insanity acquittees (Melton et al., 2007). For example, under California law, an individual can be adjudicated NGRI only if he or she has a “mental disease or defect” that causes the person to meet the insanity standard (Judicial Council of California Criminal Jury Instructions, 2011, CALCRIM 3450). However, when determining whether a person is appropriate for release to a less restrictive setting or for extension of commitment, the language used is “mental disease, defect, or disorder” (California Penal Code § 1026.5(b)(1)). While seemingly a benign difference, allowing a “mental disorder” to be considered for extension or release purposes allows for consideration of personality disorders and substance abuse disorders that specifically are barred from consideration at the insanity stage of the trial. As is always the case, examiners must be familiar with the legal definition for mental illness in their jurisdictions when determining whether an insanity acquittee has met release or extension criteria. Also important to determine is whether the law requires a nexus between the mental illness and dangerousness for purposes of ongoing commitment. Recall that in Foucha v. Louisiana (1992), a plurality of the Supreme Court required both mental illness and dangerousness for continued confinement as an NGRI acquittee. However, the Court did not require dangerousness by reason of mental illness. Thus, it was left to the states to determine the degree of nexus required between mental illness and dangerousness for continued confinement. Although, in Kansas v. Hendricks (1997), the Supreme Court did require the person to have a “mental abnormality” that makes the person “dangerous beyond their control,” evidencing a link between the mental condition and dangerousness, this involved commitment as a sexually violent predator, and may not be considered applicable to the insanity context by some states.

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Although it is possible that NGRI acquittees may suffer only from transient psychotic symptoms that afflict them at the time of their offenses, most NGRI acquittees will have chronic and severe mental illnesses. Given the access examiners likely will have to examinees’ records, in most circumstances the determination of the presence of a mental illness will not present significant challenges to the examiner. What is more likely to prove challenging is the assessment of dangerousness required under the law. Dangerousness in the NGRI commitment context generally refers to long-term dangerousness, in contrast to the dangerousness criterion for civil commitment, which refers to short-term, or “imminent” harm. For this reason, the dangerousness evaluation in NGRI contexts typically involves a more comprehensive violence risk assessment. (The topic of violence risk assessment is given thorough treatment in Chapter 22 of the book, and the interested reader is encouraged to review that chapter for information regarding the different methods and tools available for completing a violence risk assessment.) When assessing the risk of violence that an insanity acquittee presents, it is important to review both static and dynamic risk factors related to violent recidivism, as well as individualized factors that may increase or decrease the risk for violence in the person evaluated. A comprehensive assessment will include thorough consideration of: (a) the acquittee’s institutional chart, paying special attention to any violent incidents that have occurred during hospitalization; (b) the offense leading to the NGRI finding, including the situational variables present and the acquittee’s emotional, behavioral, and cognitive functioning at the time of the offense; (c) all prior acts of significant violence, paying special attention to the nexus of mental illness with violence; (d) the acquittee’s prehospitalization mental health history, including explanations of decompensation; (e) the acquittee’s response to treatment during hospitalization, with attention to any protective factors that may have developed over the course of hospitalization; (f) the acquittee’s present emotional, behavioral, and cognitive functioning; (g) the acquittee’s present status, prior violence, present thoughts and concerns about release, and the relapse prevention strategies in place to prevent future psychiatric decompensation; (h) information from the acquittee’s treatment team to determine any stressors or triggers not documented in the institutional chart; and (i) data gathered through administration of violence risk assessment instruments and tools (e.g., PCL-R, VRAG, HCR-20). The procedures outlined above will facilitate an anamnestic assessment of violence risk, along with actuarial

assessment of risk and structured professional judgment regarding risk. Anamnestic assessment uses clinical interviewing to “identify violence risk factors for a specific examinee, based on a detailed consideration of his or her violence history” (Melton et al., 2007, p. 307). This allows an examiner to identify the individual’s unique factors that have led to aggression, including personal or situational factors and interactions that have been present in violent incidents. Through a combination of the static risk variables available through actuarial assessment, the dynamic variables gleaned through structured professional judgment, and the idiosyncratic factors that have been associated with violence in the particular acquittee, the examiner will have the information necessary to make a determination about the level of risk that will be present if the acquittee is conditionally released into the community. Similar violence risk assessment considerations are present when considering the need for extension of hospitalization (in those states that require extension evaluations), and when evaluating continued confinement once the person is on conditional release. In addition, when an acquittee has been granted conditional release, in most circumstances he or she will have agreed to abide by a list of specific conditions that involve matters such as treatment attendance, medication compliance, and abstinence from substance use that must be complied with to avoid revocation and return to the state forensic hospital. As noted earlier, when conditional release is granted, the commitment generally remains to the state forensic hospital, which allows the conditional release agency in the community that is responsible for the acquittee to revoke conditional release and return the acquittee to the hospital without significant procedural due process. In most circumstances, once an acquittee has been conditionally released, the conditional release agency will be responsible for periodic reports to the court regarding the acquittee’s mental illness and continuing dangerousness. As in the hospital context, once the acquittee is no longer mentally ill and dangerous (assuming all other statutory requirements about conditional release have been met), he or she must be released from commitment. Evaluation of Mentally Disordered Criminal Offenders The purpose for evaluating mentally disordered criminal offenders differs based on whether the offender has time remaining in his or her criminal sentence or is completing his or her sentence. For those with time remaining in their sentences, the involuntary hospitalization is

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for the purpose of stabilizing the offender’s psychiatric symptoms. For those ending a criminal sentence, the hospitalization is for the protection of the offender and the community because the offender would be a danger if released to the community on parole. The evaluator must be aware of the purpose of the evaluation and the relevant evaluation criteria. Prison Transfers to Psychiatric Hospitals Although the due process procedures required for involuntary transfer of a prison inmate to a state psychiatric hospital are substantial pursuant to the Supreme Court’s decision in Vitek v. Jones (1980), the evaluation associated with such a transfer is not complex. The relevant standard is that the inmate is seriously mentally ill and needs treatment that is unavailable within the prison. Most often, those inmates who eventually will be considered for transfer to a psychiatric hospital for stabilization and treatment of their mental illnesses will be well-known to prison mental health staff. In most cases, those inmates who will be considered for transfer to a psychiatric hospital have been under the care of the prison mental health staff, and have either not responded to the treatment or have further decompensated. When evaluating the appropriateness for transfer to a psychiatric hospital, the examiner must assess the inmate’s mental illness, including course of the illness, present symptoms, recent exacerbations, and responses to psychotropic medications. The possibility of symptom exaggeration and fabrication (i.e., malingering) must be considered, given the more relaxed custodial environment usually present at a state forensic hospital relative to a prison. In most circumstances, transfer is appropriate only for the most challenging psychiatric presentations, including severe psychosis, severe depression or mania, frequent suicidal ideation and attempts, and problematic delusions affecting behaviors. If, however, it is believed that an inmate’s behavior would be so unmanageable in the state hospital as to compromise the safety of the staff or other patients, transfer may not be appropriate. The examiner should also determine whether the intensive mental health treatment that is available in the state hospital, but unavailable in the prison setting, would be likely to help the inmate stabilize to the point that he or she could be returned to the prison. Once the transfer has been completed and the inmate is housed at the state psychiatric hospital, the relevant evaluation issue becomes whether the inmate has stabilized to the point that he or she can be safely returned to prison. This is a dynamic assessment based on the

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inmate’s admission presentation and response to treatment. Occasionally it will become evident soon after an inmate is admitted that the transfer was not appropriate. This will be either because the inmate’s functioning is not significantly compromised by mental illness (perhaps due to the delay in arranging the transfer in the first place), or because the inmate feigned symptoms to facilitate a transfer that have subsequently been detected by the hospital staff. However, in most cases the transfer will have been appropriate, and the inmate should remain at the state psychiatric hospital until his or her psychiatric condition has stabilized to the point that a return to prison will not result in a rapid psychiatric decompensation. Parole Hospitalization (Please see Chapter 15 on evaluation of sexually violent predators for information regarding potential hospitalization of these individuals at the end of their prison terms.) As discussed earlier in this chapter, in Baxstrom v. Herold (1966) the Supreme Court held that to transfer a prison inmate at the end of his penal sentence to a psychiatric hospital without the protections afforded to others in the community prior to civil commitment violates constitutional due process. As a result, in many circumstances the evaluation for involuntary psychiatric hospitalization of a prison parolee may be identical to that performed with others who are civilly committed. It is essential for examiners to be familiar with the involuntary commitment standards in their respective jurisdictions regarding prison parolees, since some states, such as California, may have developed different commitment standards for certain subgroups of parolees. In California, evaluation for the parole commitment of mentally disordered offenders (MDOs) requires the evaluator to address six legal criteria (California Penal Code § 2962). Among other things, the initial MDO evaluator must assess present mental illness, present dangerousness, and perform a brief mental state at the time of the offense evaluation. To complicate matters further, the dangerousness assessment is not simply for global dangerousness; rather, the individual must presently be a “substantial” danger of “physical” harm “to others,” and the danger must be by reason of his or her severe mental disorder, as opposed to any personality or substance use disorder. Due to the limitations and specifiers in the legal standard for dangerousness under the California MDO law, many of the most useful violence risk assessment tools are inapplicable or of limited utility. The need to determine a nexus between the parolee’s severe mental disorder and dangerousness can be facilitated

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though an investigation of prior acts of violence related to the individual’s mental disorder throughout his or her lifetime. This information, coupled with data about present symptoms of the severe mental disorder and any risk or protective factors related to psychiatric exacerbation will serve as the foundation for a thoughtful MDO evaluation. Evaluation for Continued Hospitalization of Those Incompetent to Stand Trial Evaluation of patients who are hospitalized as incompetent to stand trial is a dynamic assessment based on the likelihood that the patient is restorable to trial competence. For those determined to be restorable, the evaluation simply is one of present trial competence. However, for those who are determined to be unrestorable, continued hospitalization requires evaluation of civil commitment criteria that can differ among the states. Continued Commitment as Incompetent to Stand Trial Upon a finding of incompetence to stand trial, most defendants are transferred to a state forensic hospital or unit for restoration of trial competence. Periodically the hospital must report back to the court about progress toward competence restoration. In those circumstances, the evaluation criteria simply are whether the person is now competent to stand trial. (See Chapter 18 in this volume about assessing trial competence for a full discussion of this type of evaluation.) As with the initial evaluation of trial competence, malingering must always be a consideration when considering periodic evaluations of trial competence. When the person is restored to trial competence, the criminal trial process should resume. If one follows closely the Supreme Court’s holding in Jackson v. Indiana (1972), the examiner (or patient’s treatment team) should also consider whether it is likely this hospitalized individual is restorable to trial competence or whether he or she is permanently nonrestorable. If restorable, and making progress toward the goal of restoration of competence, the commitment may continue (unless there is a state law barrier to continued hospitalization). If, however, the individual is considered permanently nonrestorable, the state may be required to drop the charges and civilly commit the individual or release the person. Civil Commitment of Permanently Incompetent Defendants The civil commitment of individuals who are permanently nonrestorable, or those who otherwise have reached

an arbitrary maximum time determined by the state for competence restoration, may differ from the customary civil commitment procedures for other civilly committed patients, and this varies from state to state. Typically, they are held in a secure forensic hospital, based in large part on the unproven criminal charges that may or may not still be pending. The dangerousness criterion often is met through reference to the pending or dismissed criminal charges, which “prove” the individual is dangerous (Levitt, Vora, Tyler, Arenzon, Drachman, & Ramos, 2010). As noted earlier, in California a permanently incompetent defendant can be civilly committed as gravely disabled if he or she remains incompetent, charges remain pending, the crime charged involved serious harm, and the person is found to be a substantial danger of physical harm to others by reason of his or her mental illness.

SUMMARY Beginning in the 1960s, the landscape of civil commitment changed dramatically in the United States. Legal reforms resulted in a transformation from a paternalistic model that had traditionally led to long-term confinement of individuals into a legal model designed to be more protective of the civil rights of persons with mental illness. The reforms resulted both in more specific criteria to initiate and maintain civil commitments and markedly decreased durations of hospitalizations. As the number of persons with mental illness in the civil commitment system dropped substantially, the criminal justice system saw a corresponding rise in numbers of defendants and inmates with mental illnesses. Similar to the civil commitment reforms, involuntary hospitalization of individuals from within the criminal justice system also became more structured and criteria-driven, with competing goals of balancing the civil rights of those who are hospitalized with the need to protect the public from those individuals who are dangerous by reason of their mental illnesses. This chapter reviewed the development of the legal reforms affecting civil commitment and involuntary hospitalization, providing both background and context to understand contemporary practice in these areas. Mental health professionals involved in civil commitment and involuntary hospitalization contexts must not only possess sound clinical skills, but also be knowledgeable about the legal criteria that apply in their jurisdictions, because although there are numerous constitutional requirements that must be met, there is some variability in specific criteria between the laws in different states.

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Understanding how the law in this area developed will provide examiners the necessary background to balance the competing interests of civil rights with the protection of the individual and society.

REFERENCES Acquaviva, G. L. (2006). Mental health courts: No longer experimental. Seton Hall Law Review, 36, 971–1013. Addington v. Texas, 441 U.S. 418 (1979). American Bar Association. (1989). ABA criminal justice mental health standards. Washington, DC: Author. Appelbaum, P. S., & Grisso, T. (1988). Assessing patients’ capacities to consent to treatment. New England Journal of Medicine, 319, 1635–1638. Bard, J. S. (2005). Re-arranging deck chairs on the Titanic: Why the incarceration of individuals with serious mental illness violates public health, ethical, and constitutional principles and therefore cannot be made right by piecemeal changes to the insanity defense. Houston Journal of Health Law & Policy, 5, 1–73. Baxstrom v. Herold, 383 U.S. 107 (1966). Binder, R. L. (1999). Are the mentally ill dangerous? Journal of the American Academy of Psychiatry and the Law, 27, 189–201. Brooks, A. (1984). Defining the dangerousness of the mentally ill: Involuntary civil commitment. In M. Craft & A. Craft (Eds.), Mentally abnormal offenders. London, England: Bailliere Tindal. Busch, K. A., Fawcett, J., & Jacobs, D. G. (2003). Clinical correlates of inpatient suicide. Journal of Clinical Psychiatry, 64, 14–19. California Penal Code (West 2011). California Welfare and Institutions Code (West 2011). California Welfare and Institutions Code § 5250 et seq. (West 2011). Chiles, J., & Stroshal, K. (1995). The suicide patient. Washington, DC: American Psychiatric Press. Clark, D. C., & Fawcett, J. (1992). Review of empirical risk factors for evaluation of the suicidal patient. In B. Bongar (Ed.), Suicide: Guidelines for assessment, management and treatment. (pp. 16–48). New York, NY: Oxford University Press. Conservatorship of Hofferber, 616 P.2d 836 (Cal. 1980). Delaware Code Annotated, title 16, § 5001(6) (2011). Elkins, J. R. (1979). Legal representation of the mentally ill. West Virginia Law Review, 82, 157–250. Erickson, S. K., Vitacco, M. J., & Van Rybroek, G. J. (2005). Beyond overt violence: Wisconsin’s progressive civil commitment statute as a marker on a new era in mental health law. Marquette Law Review, 89, 359–405. Fasulo v. Arafeh, 378 A.2d 553 (Conn. 1977). Foucha v. Louisiana, 504 U.S. 71 (1992). Garner, B. A. (Ed.). 2004. Black’s law dictionary (8th ed.). St. Paul, MN: West. Grisso, T., Appelbaum, P. S., & Hill-Fotouhi, C. (1997). The MacCATT: A clinical tool to assess patients’ capacities to make treatment decisions. Psychiatric Services, 48, 1415–1419. Hawaii Revised Statutes § 334-1 (2011). Hirschfield, R. M. A., & Davidson, L. (1988). Risk factors for suicide. In A. J. Frances & R. A. Hales (Eds.), Review of psychiatry: Volume 7 . Washington, DC: American Psychiatric Press. Humphrey v. Cady, 405 U.S. 504 (1972). In re Davis, 505 P.2d 1018 (Cal. 1973). In re Oakes, 8 Law Rep. 122 (Mass. 1845). Indiana v. Davis, 898 N.E.2d 281 (Ind. 2008). Jackson v. Indiana, 406 U.S. 715 (1972).

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Jones v. United States, 463 U.S. 354 (1983). Judicial Council of California Criminal Jury Instructions (2011). Kansas v. Hendricks, 521 U.S. 346 (1997). Kleespies, P. M., & Dettmer, E. L. (2000). An evidence-based approach to evaluating and managing suicidal emergencies. Journal of Clinical Psychology, 56, 1109–1130. Lake v. Cameron, 364 F.2d 657 (D.C. Cir. 1966) (en banc). Lamb, H. R., & Weinberger, L. E. (2005). The shift of psychiatric inpatient care from hospitals to jails and prisons. Journal of the American Academy of Psychiatry and the Law, 33, 529–534. Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972). Levitt, G. A., Vora, I., Tyler, K., Arenzon, L., Drachman, D., & Ramos, G. (2010). Civil commitment outcomes of incompetent defendants. Journal of the American Academy of Psychiatry and the Law, 38, 349–358. Maier, G. J., & Fulton, L. (1998). Inpatient treatment of offenders with mental disorders. In R. M. Wettstein (Ed.), Treatment of offenders with mental disorders. New York, NY: Guilford Press. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press. Meyer, R. G., & Weaver, C. M. (2006). Law and mental health: A casebased approach. New York, NY: Guilford Press. Monahan, J., Steadman, H., Appelbaum, P., Grisso, T., Mulvey, E., Roth, L., . . . Silver, E. (2005). Classification of violence risk: Professional manual. Lutz, FL: Psychological Assessment Resources. Morris, D. R., & Parker, G. F. (2009). Indiana v. Davis: Revisiting due process rights of permanently incompetent defendants. Journal of the American Academy of Psychiatry and the Law, 37, 380–385. Mrad, D. F., & Nabors, E. (2007). The role of the psychologist in civil commitment. In A. M. Goldstein (Ed.), Forensic psychology: Emerging topics and expanding roles. Hoboken, NJ: Wiley. New York Mental Hygiene Law § 9.60 (2010). O’Connor v. Donaldson, 422 U.S. 563 (1975). Olmstead v. L. C. ex rel. Zimring, 527 U.S. 581 (1999). Parham v. J. R., 442 U.S. 584 (1979). Parry, J. (1995). Mental disability law: A primer (5th ed.). Washington, DC: American Bar Association. Parry, J., & Drogin, E. Y. (2001). Civil law handbook on psychiatric and psychological evidence and testimony. Chicago, IL: American Bar Association. Soloff, P. H., Lynch, K. G., Kelly, T. M., Malone, K. M., & Mann, J. J. (2000). Characteristics of suicide attempts of patients with major depressive episode and borderline personality disorder: A comparative study. American Journal of Psychiatry, 157, 601–608. Stavis, P. F. (2000). Why prisons are brim-full of the mentally ill: Is their incarceration a solution or a sign of failure? George Mason University Civil Rights Law Journal, 11, 157–202. Treatment Advocacy Center. (2008). State standards for assisted treatment: Civil commitment criteria for inpatient or outpatient psychiatric treatment. Retrieved from www.treatmentadvocacycenter. org/storage/tac/documents/standards_the_text-_jan_2011_partial_ update.pdf Virginia Code Annotated § 37.2-100 (2009). Vitek v. Jones, 445 U.S. 480 (1980). Werth, J. (2001). U.S. involuntary mental health commitment statutes: Requirements for person perceived to be a potential harm to self. Suicide and Life-Threatening Behavior, 31, 348–357. Winick, B. J. (2005). Civil commitment: A therapeutic jurisprudence model . Durham, NC: Carolina Academic Press. Wisconsin Statutes § 51.20(1)(a)2.e (2011–2012). Zinermon v. Burch, 494 U.S. 113 (1990).

CHAPTER 15

Evaluation and Management of Sexual Offenders MARY ALICE CONROY AND PHILIP H. WITT

INTRODUCTION 332 SEX OFFENDER STATUTES 332 THE ISSUE OF DIAGNOSIS 335 RISK ASSESSMENT OF SEX OFFENDERS 337 RISK MANAGEMENT WITH SEX OFFENDERS 347

PRESENTING EXPERT OPINION 350 SPECIAL ETHICAL CONCERNS 350 FUTURE DIRECTIONS 351 REFERENCES 352

INTRODUCTION

will conclude with some special attention to the pragmatic and ethical issues of providing testimony about evaluation results as well as future directions for psychologists involved in this area of forensic assessment.

Throughout much of the previous century, legal and mental health professionals have been searching for ways of evaluating and managing individuals who repeatedly commit sexual offenses. Their crimes are viewed as aberrant in the extreme, and society has often vacillated between treating them as criminals and as mental patients. In recent decades, intense scrutiny has been focused on the adjudication and treatment of sex offenders. Legislatures in many jurisdictions have authorized unique combinations of procedures under both criminal and civil law. These included lengthy, mandatory sentences for sex-related crimes, requirements that sex offenders register with authorities following release from incarceration, community notification when a sex offender moves into a neighborhood, the imposition of lifelong periods of probation, and the pursuit of civil commitment after criminal sentences have expired (Bumby & Maddox, 1999). Forensic psychologists are increasingly being called on to evaluate sex offenders in both the civil and criminal arenas. Evaluations typically focus on understanding the offender’s motives for offending, psychopathology (if present), identifying treatment and management needs, and/or predicting the likelihood the individual will reoffend. This chapter will begin by providing a legal and historical context for these evaluations and then discuss issues of evaluating the sex offender’s mental abnormality and assessing and managing the risk for recidivism. It

SEX OFFENDER STATUTES Like perhaps no other crimes, sexual offenses have resulted in a welter of legislation over the past eight decades. As society has wrestled with the issues of how to manage sex offenders, various statutory solutions have been proposed. Many have treated sex offenders differently than other criminals, segregating sex offenders into specialized treatment facilities or placing a variety of special restrictions on sex offenders. The intention of these various laws has been to reduce the offenders’ risk to the community through treatment, punishment, or incapacitation. Whether these laws have been effective or not is a matter of considerable debate (cf., Ewing, 2011). This chapter reviews some of the more typical sex offender statutes.

Sexual Psychopath Laws Early in the 20th century, sex offenders were primarily the object of blame and punishment rather than treatment (Brakel & Cavanaugh, 2000). During the 1930s, society began turning increasingly to the medical community in search of explanations for criminality. If sexually deviant 332

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behavior was in fact a type of mental illness, it could surely be treated. In a rare show of consensus, the medical community, the news media, and the anxious public optimistically converged on the idea that this aberrant behavior could be diagnosed and treated by psychiatrists (Lieb, Quinsey, & Berliner, 1998). The first of the sexual psychopath laws, allowing for the commitment of sexual offenders to treatment facilities, was passed in Michigan in 1937. Although that particular Michigan law was ultimately ruled unconstitutional by the Michigan Supreme Court, it was followed quickly by similar legislation in Illinois in 1938, and California and Minnesota in 1939. The Minnesota statute soon reached the United States Supreme Court, where the justices ruled that it was constitutional because it sufficiently narrowed the class of persons to whom it could be applied to those who demonstrated “an utter lack of power to control their sexual impulses and . . . are likely to attack or otherwise inflict injury, loss, pain, or other evil on the objects of their uncontrolled or uncontrollable desires” (Minnesota ex rel Pearson, 1940, p. 273). Sexual psychopath statutes were considered to be enlightened, scientific, and humane, and spread quickly throughout the country. By the mid-1960s, 26 states had enacted such legislation (Lieb et al., 1998). Jurisdictions varied widely in regard to persons included within the scope of the statutes; some limited the law to the most violent rapists while others included nonviolent, noncontact offenders such as voyeurs. A few states enacted laws aimed at postconviction commitments and/or indeterminate sentences; however, most mandated treatment programs in lieu of criminal sanctions. Many statutes included some mechanism for transferring unsuitable treatment candidates to prison settings. However, sex offenders committed for treatment were usually released much sooner than they would have been had they been sentenced to prison (La Fond, 1998). By the mid-1960s, California was sending the largest number of offenders to treatment of any jurisdiction, committing approximately 800 per year (Brakel & Cavanaugh, 2000). Minnesota also had an active program, committing about 15% of their potentially eligible offenders from 1939 until 1969 (Janus, 2000). By the late 1970s, the pendulum of public and professional opinion was clearly swinging. By the mid-1980s, opposition to the sexual psychopath statutes had been voiced by the American Bar Association, the Group for the Advancement of Psychiatry, and the President’s Commission on Mental Health (Brakel & Cavanaugh, 2000). As a result, only five states (Massachusetts, Nebraska,

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New Jersey, Oregon, and Washington) were still applying these laws with any frequency by 1985. Registration and Community Notification Along with the enactment of sexual psychopath laws, the 1930s saw the initiation of statutes requiring sex offenders to register with law enforcement authorities upon entering a community. In 1994, the United States Congress passed the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program (Pub. L. No., 103322, 108 Stat. 2038, 2042 (1994)), which required states to create a system of registries for released sex offenders or risk forfeiting 10% of their federal crime prevention funding. The law further strengthened the registration program by mandating that registration continue for life, with addresses to be verified every 90 days by law enforcement authorities. By the mid-1990s, all states had sex offender registration programs in place, with approximately 185,000 sex offenders registered nationally (Lieb et al., 1998). An additional step was taken by the state of Washington in 1990 with enactment of the first community notification statute; however, this practice was not widely used or publicized until July 1994, when 7-year-old Megan Kanka was brutally raped and murdered in her quiet New Jersey neighborhood. Approximately three months later, the New Jersey legislature passed a community notification statute, which has become known as “Megan’s Law” (N.J.S.A. 2C:7-1 et seq.). In 1996, Congress amended the Jacob Wetterling Act to include the major provisions of Megan’s Law and mandate that states release information to the public relative to a released sex offender as deemed necessary to protect the public. Community notification acts have withstood legal challenges in both Washington and New Jersey with relatively minor alterations. Studies examining the effectiveness of these laws are primarily composed of surveys of law enforcement agencies and policymakers, who generally report great satisfaction but provide only anecdotal evidence as to a decrease in sex offending (Zevitz, Crim, & Farkas, 2000). Few studies have been conducted on the effectiveness of these laws in reducing sex offending, and those studies to date have been inconclusive on this point. Some researchers have reported that community notification laws decreased sex offense rates (e.g., Barnoski, 2005; Duwe & Donnay, 2008), some have found no effect on sex offense rates (Schram & Milloy, 1995; Zgoba, Witt, Dalessandro, & Veysey, 2008), and Freeman (2009) reported that community notification laws increased sex offense rates.

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Critics of the notification laws decry the weakening of civil liberties protections, and argue that the laws discourage sex offenders from seeking rehabilitation, create a false sense of community security, waste funds that might otherwise be devoted to treatment and prevention programs, and can lead to vigilantism (Lieb et al., 1998). Results of two surveys of offenders who were subject to notification included reports of problems ranging from ostracism to physical assault (Tewksbury, 2005; Zevitz et al., 2000). However, verification with law enforcement agencies in Wisconsin, Washington, Oregon, and New Jersey revealed that fewer than 1% of sex offenders subject to community notification reported subsequent physical attack or intentional damage to their property. Sexually Violent Predator (SVP) Statutes In 1989, a particularly horrendous sex offense in the state of Washington breathed new life into the idea of committing violent sex offenders to treatment programs. The next year, the state of Washington enacted the first of a second generation of sex offender civil commitment statutes (RCW 71.09.010 et seq.). Known as sexually violent predator (SVP) statutes, these laws differed from sexual psychopath laws in that commitment occurred after a term of incarceration was completed rather than in lieu of imprisonment. They also differed from more traditional civil commitment statutes in that neither a serious mental illness nor a recent dangerous act was a prerequisite. Whereas the usual civil commitment of persons with mental illness is for shorter periods of time and commitment status is reviewed frequently, SVP commitments were envisioned as long-term containment. In many instances, nothing recognizable as treatment was in place at the time of commitment (La Fond, 1998). By recent count, 20 states have enacted SVP laws (Deming, 2008), and it is evaluations in this context that are the primary focus of this chapter. Criteria for commitment under SVP statutes vary by jurisdiction but typically include four linked constructs (see Witt & Conroy, 2009 for extended discussion): 1. The individual has committed a sexually violent act, as defined in the specific jurisdiction. 2. The individual has a mental abnormality, again variously defined. 3. That mental abnormality causes volitional impairment. 4. That volitional impairment results in some likelihood of future sex offenses by the individual. Jurisdictions generally limit their commitments to a small percentage of sexual offenders released from

correctional custody. Statutes are intended to apply to the highest risk offenders, due in part to the high cost of these programs. The total budgeted state expenditure for SVP commitments varies widely from a low of $900,000 in Texas (which engages only in outpatient SVP commitments) to a high of $147 million in California (which has the highest number of commitment cases) (Deming, 2008). The vast majority of jurisdictions screen out over 90% of their sex offender population from consideration for commitment. As of 2006, the total number of persons in the United States committed as SVPs was roughly 2,600, with another 1,000 being detained pending their commitment hearings (Deming, 2008). In addition to civil commitment, states have pursued other avenues to contain high-risk sex offenders. Arizona, for example, developed a system of lifetime probation (A.R.S. 13604.01, 1985), covering a much larger percentage of offenders than would qualify for civil commitment. In 1997, California was the first state to enact legislation requiring the administration of antiandrogen medications to sex offenders on probation (Act of Sept. 17, 1996, ch. 596, § 2, 1996 Cal. Stat. 92, codified at Cal. Penal Code § 645 (West 1997)), and eight other states followed (Lieb et al., 1998). New Jersey has lifetime parole supervision for some sex offenders after their release from incarceration. Kansas v. Hendricks Early in the 1990s, constitutional challenges to SVP laws began to mount. In 1996, the U.S. Supreme Court granted certiorari in the case of Kansas v. Hendricks, and subsequently issued a final ruling in June 1997. The Kansas act under challenge allowed for the postincarceration civil commitment of “any person who has been convicted of or charged with a sexually violent offense and who suffers from a mental abnormality or personality disorder which makes the person likely to engage in the predatory acts of sexual violence” (Kansas v. Hendricks, 1997, p. 2077). The Court ruled on a number of legal issues relevant to SVP statutes generally. They were persuaded that the statute was in fact civil and not criminal and, therefore, did not violate the defendant’s due process rights. They also concluded it violated neither the double jeopardy nor ex post facto clauses of the federal Constitution. Of greatest significance to the forensic evaluator were positions taken by the Court regarding diagnoses and treatment requirements. The ruling rejected Hendricks’s contention that some serious mental illness, such as a

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psychosis, was a necessary prerequisite for civil commitment and accepted as sufficient the Kansas broader requirement for a “mental abnormality” or “personality disorder.” The Court went on to refute Hendricks’s contention that treatment was an essential element in any civil commitment. Justice Thomas wrote: While we have upheld civil commitment statutes that aim both to incapacitate and to treat, . . . we have never held that the Constitution prevents the State from civilly detaining those for whom no treatment is available, but who nevertheless pose a danger to others. (Kansas v. Hendricks, 1997, p. 2084).

THE ISSUE OF DIAGNOSIS Diagnosis is of particular importance in SVP proceedings. Here, some form of mental disorder or abnormality, variously defined in the different jurisdictions, is one of the requisite statutory conditions for commitment. This statutory requirement of some form of mental disorder has led to reliance on traditional diagnostic categories and manuals for such classification. This chapter explores the issues involved in reaching a diagnosis and using a diagnosis in legal proceedings, particularly with regard to civil commitments. Who Can Be Civilly Committed? For the past two centuries, our government has allowed persons to be involuntarily committed to treatment facilities either under parens patriae authority or under the auspices of police power. Parens patriae commitments were generally limited to those who were unable to make decisions for themselves or otherwise unable to care for their own basic needs (Melton, Petrila, Poythress, & Slobogin, 2007, p. 297). Historically, such hospitalizations usually required some combination of mental illness and treatment need. However, the parens patriae model is rarely, if ever, applicable to repeat sexual offenders. The second type of commitment, which was conducted under police power, also requires the presence of a mental disorder and cannot be used simply as preventive detention (La Fond, 1998). Mental disorder is considered to be an essential limiting and justifying factor (Janus, 2000). However, the nature of the disorder involved in a police power commitment is often defined more in terms of the danger posed than the precise nature of the mental incapacity.

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Legal Versus Clinical Mental Disorder Scholars from both the legal and mental health fields have noted that terminology describing mental conditions means different things to legal authorities than to mental health professionals (Campbell, 1990; Datz & MacCarthy, 1989; Gerard, 1987; Greenberg & Bailey, 1994; Moore, 1984; Prentky & Burgess, 2000; Schopp & Quattrocchi, 1995; Schopp & Sturgis, 1995; Slovenko, 1984). Witt and Conroy summarized the issues (2009, p. 19): For decades, forensic mental health experts have struggled with the gap between mental health constructs and legal constructs. Although the two types of constructs may sound similar, there is frequently not a direct correspondence between them. The two families of constructs have different roots and traditions. Legal constructs are the result of legislative statutes and interpreted case law. Mental health constructs flow from medical and behavioral science theory and validating research.

With regard to the constructs involved in SVP commitments, some mental health professionals contend that, when applied to sex offenders, the term mental abnormality should simply refer to one of the paraphilias outlined in the DSM-IV (Becker & Murphy, 1998). Others argue that it is the prerogative of the trier of fact and not the clinician to determine what conditions will form an adequate basis for commitment (Melton et al., 2007). Some evaluators have attempted to inform the court how a diagnostic term translates into a legal one, as in a Kansas case regarding a sexual predator. Specifically, the psychologist testified that exhibitionism alone would not be enough to find an individual is a sexual predator under the statute. However, in the psychologist’s opinion, the defendant should have been classified as a sexual predator due to his combination of antisocial personality disorder and exhibitionism (In the Matter of the Care and Treatment of Michael T. Crane, 2000). Although most forensic psychologists are careful to allow the courts to define statutory terms for themselves, courts nonetheless rely heavily on the testimony of mental health professionals in doing so (Conroy, 2000), leading to conflicting results. Whereas one court may rule that antisocial personality disorder is not a mental disease or defect (U.S. v. Bilyk, 1994), another may reach the opposite conclusion (Parrish v. Colorado, 1996). However, as Jackson noted, (2008, p. 395), “Because no disorders are statutorily excluded, a comprehensive assessment of psychopathology is required.” In lieu of reviewing testimony, courts may consider documents published by professional

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organizations, most notably the Diagnostic and Statistical Manual–Fourth Edition–Text Revision (DSM-IV-TR; American Psychiatric Association, 2000), in their search for explanations. In the case of U.S. v. Murdoch (1996), one of the justices of the U.S. Ninth Circuit consulted the DSM-IV directly and concluded that personality disorder not otherwise specified “comports with the general connotation of a ‘disease or defect’ in that it is neither a temporary condition nor a chosen way of responding but rather a systemic, impairing psychiatric abnormality” (p. 480). Perhaps, as Friedland (1999) noted, “removing the anchor of psychiatry in determining legal meaning all too often leaves no viable alternative meaning” (p. 139). Mental Abnormality or Personality Disorder With the exception of a paraphilia or substance abuse disorder, a serious Axis I diagnosis in a sex offender, such as a psychosis, is rare (Barbaree & Marshall, 1998; Hanson & Bussiere, 1998). The most common diagnoses are some form of substance abuse or dependence, a paraphilia, or a personality disorder. These diagnoses are based almost entirely on observable behavior. For example, someone who is at least 16 years of age and has molested a child on more than one occasion over a 6-month period meets the DSM criteria for the diagnosis of pedophilia. It has been suggested that diagnoses such as this are more psychosocial than biomedical (Winick, 1998). Harris, Rice, and Quinsey (1998) contend that antisocial personality disorder is most accurately described as neither a mental illness nor a mental disorder, but rather as a pattern of aberrant behavior. The Kansas SVP statute, upheld by the Supreme Court in Kansas v. Hendricks, specifically recognized that most SVPs have antisocial personality disorder and are not amenable to the modalities used to treat mental illness (Cornwell, 1998). And, during the lower court proceedings, the state admitted the defendant did not have any mental illness, although the state contended that he had a mental disorder, more broadly defined. Courts have historically had difficulty grappling with the concept of personality disorder (Conroy, 2000). In the case of Foucha v. Louisiana (1992), the U.S. Supreme Court appeared to decide that antisocial personality disorder was not a mental illness; however, the opinion was somewhat murky and lacked extensive explanation. Subsequent decisions, such as Hendricks, appear to reach differing conclusions. A major part of the difficulty may arise from the propensity to confuse a discriminative with a causative category (Schopp, Scalora, & Pearce, 1999). A

discriminative category is merely a group of people who evidence a particular behavior, whereas a causative category is a group of people evidencing a behavior caused by a common factor. Simply including personality disorders under the large umbrella of mental disorders—the same umbrella that shades schizophrenia, bipolar disorder, dementia, and so on—may imply there is some definable entity, distinct from the behaviors themselves, that causes the individual to have symptoms (as in certain viruses causing flu symptoms). However, to date, science has identified no such entity. Diagnostic Practice Jackson and Hess (2007) surveyed 41 mental health professionals who conducted SVP commitment evaluations about their assessment practices. In order to diagnose an Axis I disorder, 43.9% reported relying primarily on file documentation, 19.5% reported relying primarily on an unstructured clinical interview, and 9.8% reported employing a structured diagnostic interview. Regarding an Axis II diagnosis, 63.5% reported relying primarily on a file review and 20% referenced use of an unstructured interview. There is some controversy regarding whether diagnoses in this context are accurate. Although findings from an initial study by Levinson (2004) suggested low reliability of SVP diagnoses, a reanalysis of these data by Packard and Levenson (2006) suggested that the diagnoses are in fact reliable and that evaluators in SVP cases more often agree than not regarding diagnoses. Hendricks and the Issue of Control Leading authorities in the field of risk assessment have questioned the necessity of considering psychopathology as central to an evaluation of risk (Lieb et al., 1998). However, the legal community has long relied on some type of control-incapacity as the legitimizing principle in civil commitments or other non-punitive restrictions on individual liberties (Janus, 2000). Specifically, in Kansas v. Hendricks (1997), Justice Thomas wrote: “A finding of dangerousness, standing alone, is ordinarily not a sufficient ground upon which to justify indefinite involuntary commitment” (p. 2080). The Supreme Court found the Kansas SVP statute constitutional precisely because of what it judged to be its narrow focus. Commitment required some “factor,” beyond simply the sexual offenses, that served to define and limit the class of persons who may be committed and

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considering their behavior as something other than a criminal justice matter. The Court went on to describe the obligatory “factor” as an entity that must significantly impair the individual’s ability to exercise control over his or her behavior in some domain: The Kansas Act is plainly of a kind with other civil commitment statutes: It requires a finding of future dangerousness, and then links that finding to the existence of a “mental abnormality” or “personality disorder” that makes it difficult, if not impossible, for the person to control his dangerous behavior. The precommitment requirement of a “mental abnormality” or “personality disorder” is consistent with the requirements of these other statutes that we upheld in that it narrows the class of person eligible for confinement to those who are unable to control their dangerousness. (Kansas v. Hendricks, 1997, p. 2080)

Even the dissenting justices conceded, “Hendricks’ abnormality does not consist simply of a long course of antisocial behavior, but rather it includes a specific, serious, and highly unusual inability to control his actions” (pp. 2088–2089). No less than 17 times in Hendricks does the Court reiterate the central importance of some factor that impairs volition. No alternative paradigm is suggested. In the Crane case (In the Matter of the Care and Treatment of Michael T. Crane, 2000), the Supreme Court clarified a previously ambiguous position: whether complete volitional impairment was required for an SVP civil commitment. Crane contended that because his volitional impairment was not absolute, he did not qualify for an SVP commitment. The court opined that the volitional impairment need only be “serious,” not complete (2000, p. 413). The concern over impaired volitional abilities is not new; in fact, it has been central to court rulings on the exercise of police power in civil commitment hearings for the past 50 years (Janus, 1998). Beyond making clear its importance, however, courts have provided little guidance as to what constitutes volitional impairment. Nonetheless, attorneys searching for testimony regarding a personality disorder in relation to sexually violent predators are clearly seeking testimony about some factor that would impair control (Schopp et al., 1999). Given the vagueness of the legal conceptualization of impaired volition and the paucity of scientific evidence regarding entities that would so impair an individual, it is doubtful a forensic psychologist should or could testify with any degree of clinical certainty that a diagnosis of personality disorder, paraphilia, or even substance abuse

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would make it impossible or nearly impossible for an individual to control his or her behavior. Even the authors of the DSM-IV-TR (American Psychiatric Association, 2000) included the following caveat: The fact that an individual’s presentation meets the criteria for a DSM-IV diagnosis does not carry any necessary implication regarding the individual’s degree of control over the behaviors that may be associated with the disorder. Even when diminished control over one’s behavior is a feature of the disorder, having the diagnosis in itself does not demonstrate that a particular individual is (or was) unable to control his or her behavior at a particular time. (p. xxxiii)

As a result, perhaps a decision about the impact of any mental abnormality or personality disorder on a person’s capacity to exercise free will should rightfully be left to the trier of fact. Although rulings in different jurisdictions have varied, Mercado, Schopp, and Bornstein (2005) summarized the findings in Minnesota, giving some idea about how one jurisdiction has articulated its view on this difficult issue. Mercado et al. reported that Minnesota courts have found the following (quoted from Witt & Conroy, 2009, p. 32): • There is no requirement that the impairment be caused by an extreme cognitive deficit resulting from conditions such as severe mental retardation, dementia, organic brain damage, psychosis, sleepwalking, or seizures. • Planning or grooming behavior does not necessarily preclude a finding of volitional impairment, although such planning may be one factor potentially inconsistent with such a finding. • Lack of insight into one’s behavior may indicate volitional impairment. • Loss of control may be situational, may result from removal of external controls, and need not be present all the time. • Repeated illegal conduct despite consequences or fear of capture is relevant. • Loss of control may be present even when the offender has entrenched beliefs to justify contact with minors.

RISK ASSESSMENT OF SEX OFFENDERS The assessment of risk and the prediction as to whether a specific individual is apt to reoffend have been areas fraught with controversy for many years. High rates of false-positive predictions have been recorded even when evaluators were attempting only to predict any criminal

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offense and not that it be specifically violent or specifically sexual. In 1983, the American Psychiatric Association submitted an amicus curiae brief to the Supreme Court in the case of Barefoot v. Estelle, acknowledging that, when members of their organization made predictions about future dangerousness, they were likely wrong two out of three times. Notwithstanding the evidence presented, the Justices ruled that “[n]or, despite the view of the American Psychiatric Association supporting petitioner’s view, is there any convincing evidence that such testimony is almost entirely unreliable, and that the fact finder and the adversary system will not be competent to uncover, recognize, and take due account of its shortcomings” (1983, p. 463). Since the Barefoot case, a new generation of risk assessment research has emerged, providing additional tools to improve the accuracy of such assessments. However, the advent of SVP statutes has increased the difficulties faced by evaluators. Most sex offender commitment laws focus only on repeat sexual offenses and not on criminal offenses in general (Janus & Meehl, 1997). Variables that predict general recidivism or violent recidivism may not be applicable to prediction of exclusively sexual reoffending (Hanson & Bussiere, 1998; Hanson, Scott, & Steffy, 1995; Rice & Harris, 1997). Problems Associated With Clinical Prediction The term clinical prediction is generally applied to an assessment in which the clinician relies exclusively on traditional methods combined with his or her own anecdotal experience and clinical wisdom. This method may include interviews, an assessment of clinical presentation, a review of case files, and the application of broad testing batteries not specifically designed for the purpose at hand. As early as 1954, Meehl compared this type of prediction with predictions made using actuarial methods and found it to be inferior. More recent studies, including large meta-analyses, have confirmed his conclusion (Grove & Meehl, 1996; Hanson & Bussiere, 1998; Janus & Meehl, 1997; Mossman, 1994). One of the problems identified by Hanson (1998), with respect to prediction of sex offender recidivism, is clinicians’ reliance on factors that are not correlated with reoffending, such as general psychological maladjustment, low self-esteem, a history of being sexually abused as a child, and denial of one’s offense. Despite evidence of its flaws, courts have largely continued to admit testimony from mental health professionals about risk assessments based solely on clinical judgment. As a result, courts have been schooled in

numerous beliefs that do not stand up to scientific scrutiny. For example, in surveying the judiciary, Bumby and Maddox (1999) found that over two thirds of judges believed that one of the main reasons sex offenders abuse others is because they were sexually abused as children. Because the courts have not always acted as effective gatekeepers in this area, it becomes incumbent on the profession to carefully scrutinize its own practices and to educate the court regarding the science in the field. Use and Abuse of Sex Offender Profiles Another belief commonly held in the community is that of a sex offender profile—that is, a set of clearly identifiable characteristics of persons who commit sex crimes. Of the judges surveyed by Bumby and Maddox (1999), 47.6% believed mental health professionals had the ability to present such a profile to the court. It is not unusual for attorneys to ask whether the MMPI-2 profile of a specific examinee demonstrates the person is or is not a sex offender. In fact, research has not yielded a profile specific to sex offenders, nor to any particular category of such offenders. No test successfully differentiates sex offenders from other criminal or mental health populations (Becker & Murphy, 1998; Levin & Stava, 1987; Murphy & Peters, 1992). No sex offender classification systems or psychometric instruments for profiling sex offenders have been developed (Prentky & Burgess, 2000). Federal courts have continued to reaffirm that mental health experts are not allowed to testify as to whether a defendant could or could not have committed the crime at issue (U.S. v. Robinson, 2000). Moreover, the guidelines of the Association for the Treatment of Sexual Abusers (2005) state: “Evaluators do not offer conclusions regarding whether an individual has or has not committed a specific act of sexual abuse” (p. 11). Thus, the forensic psychologist should not imply that any personality characteristics found are probative in establishing whether any individual committed or did not commit a specific offense or types of offenses. The Rise of Actuarial Prediction A growing awareness in the scientific community of the inadequacy of much information provided to the courts regarding risk spurred a plethora of studies in recent decades aimed at establishing solid actuarial predictors of recidivism. Research specifically directed toward sex offenders generated one of the largest bodies of data (Quinsey & Lalumiere, 1996).

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Correlates of Sex Offender Recidivism

Substance Abuse

A number of individual factors correlate with recidivism in sexual offenders, and these are especially helpful in identifying the highest risk offenders. Researchers have generally found that variables predictive of sex offender recidivism are sometimes different from those predictive of other types of criminal reoffending (Hanson & Bussiere, 1998; Rice & Harris, 1997).

The abuse of drugs or alcohol is highly predictive of criminal recidivism in general (Gendreau, Little, & Goggin, 1996) and it is considered in a number of actuarial instruments designed to assess sex offender risk (Boer et al., 1997; Epperson et al., 1998; Quinsey, Harris, et al., 2006). However, in what is probably the largest meta-analysis of recidivism predictors in sex offenders conducted to date, substance abuse was not among the highest correlates (Hanson & Bussiere, 1998). To determine whether substance abuse is a significant risk factor in an individual case may require a careful examination of the individual’s offenses. If the person’s pattern of aberrant behavior is somehow triggered by drugs or alcohol, such usage would elevate risk. On the other hand, there are offenders who only commit sex crimes when sober, despite a history of alcoholism or drug abuse. In such cases, it would be difficult to opine that the history of substance abuse in itself raises their level of risk.

History One of the most consistent and robust predictors of the propensity to reoffend is a history of criminal offenses generally and sexual offenses in particular (Boer, Wilson, Gauthier, & Hart, 1997; Epperson, Kaul, & Hasselton, 1998; Hanson, 1998; Harris, Rice, & Quinsey, 1998; Prentky, Knight, & Lee, 1997). If one’s assessments are to be limited to future sexual crimes, a history of these specific crimes is most predictive (Quinsey, Rice, & Harris, 1995). Within that history, an identifiable pattern of sexually deviant interests is also related to sexual reoffending. Such interests may be assessed using phallometric devices (Barbaree & Marshall, 1989; Freund & Watson, 1991) or by examining social histories for evidence of a wide array of victims, deviant victim choices, and unusually deviant activities (Hanson, 1998; Lieb et al., 1998). In terms of victim choice, evidence of deviance is generally defined as victims who are extrafamilial or complete strangers, victims who are minors, and male victims (Hanson, 1998; Hanson & Bussiere, 1998; Harris et al., 1998; Prentky et al., 1997; Quinsey & Maguire, 1986). Treatment Compliance A failure to cooperate with law enforcement authorities or treatment providers may indicate increased likelihood of reoffense. For example, a history of violating conditional release is included in four of the more widely used actuarial instruments (Boer et al., 1997; Epperson et al., 1998; Quinsey, Harris, Rice, & Cormier, 2006) and a history of treatment refusal or withdrawal from treatment also correlates with recidivism (Epperson et al., 1998; Hanson, 1998; Hanson & Bussiere, 1998; Hanson & Harris, 1998). This should not, however, be interpreted as indicating that simply not receiving treatment increases risk; nor should the conclusion be drawn that the treatment itself is effectively curtailing further offenses. Rather, the data focus on refusal to accept or withdrawal from treatment that is made available as correlating with increased risk of recidivism.

Psychopathology In general, neither personality variables nor the major psychopathologies have been found to predict reoffending in sex offenders. One exception is psychopathy as conceptualized by Cleckley (1941) and Hare (1993)—not what the DSM-IV-TR (American Psychiatric Association, 2000) outlines as antisocial personality disorder (APD), which is a much broader construct that applies to the majority of individuals with a substantial criminal history. Whereas APD is primarily defined in behavioral terms, psychopathy also requires an array of personality traits such as grandiosity, superficial charm, egocentricity, insincerity, shallow affect, a lack of empathy, and a propensity to manipulate other people. As measured by the Psychopathy Checklist—Revised (Hare, 1991), psychopathy is a particularly robust predictor of violent behavior (Hart, 1998; Hemphill, Hare, & Wong, 1998; Salekin, Rogers, & Sewell, 1996). In addition to general criminal behavior, PCL-R scores also predict sexual violence (Hanson, 1998; Hanson & Bussiere, 1998; Prentky et al., 1997). Some states (e.g., Texas) require assessment of psychopathy under their SVP commitment laws. One difficulty in using psychopathy as a predictor of violence (sexual or otherwise), however, is a misunderstanding on the part of the courts that it can be equated with APD. Expert witnesses have on numerous occasions reinforced this thinking by applying the empirical data on psychopathy and risk to anyone who met the DSM-IV-TR (American Psychiatric Association, 2000) criteria for APD (Hare, 1998; Ogloff & Lyon, 1998). This

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is an egregious error resulting in serious overprediction of risk. In the prison system alone, up to 80% of the male population may qualify for a diagnosis of APD, while less than a third of these individuals would meet the criteria for psychopathy (Cunningham & Reidy, 1998). Offense Type Differences in recidivism and characteristics of child molesters versus rapists have been significant enough for some authorities to suggest developing different actuarial instruments for the two groups (Lieb et al., 1998). In general, rapists are more criminally versatile. Although they may be at high risk for criminal recidivism, it is difficult to predict whether their crime will be sexual in nature (Quinsey, 1984). Child molesters, on the other hand (particularly those with male victims), may be totally focused on a single type of offense (Hanson & Bussiere, 1998). Elevated PCL-R scores are much more predictive of recidivism for rapists than for child molesters (Rice & Harris, 1997). In evaluations of chronic child molesters who have no other criminal record, it is relatively rare to encounter PCL-R scores in the psychopathic range (Bauer, 2006; Porter, Fairweather, Drugge, Herve, Birt, & Boer, 2000). However, this does not mean the offender does not present a high risk to this very specific population. Although significant and consistent across numerous studies, the actual predictive value of each indicator alone is relatively small. Hanson (1998) noted that correlation coefficients of the most powerful variables range from r = 0.11 to r = 0.32. For such analysis to be of value, the evaluator needs to examine an array of factors. Static Versus Dynamic Predictor Variables Researchers have generally divided variables thought to be predictive of future risk into two categories: static and dynamic (Bonta, Law, & Hanson, 1998; Hanson & Harris, 1998; Quinsey et al., 1995). Static variables are fixed and unchanging (e.g., number of past offenses, age at first offense), whereas dynamic variables may fluctuate or be amenable to intervention (e.g., anger, availability of social support systems). Although the well-researched static variables (such as number and type of victims or prior conditional release violations) can be very helpful in predicting long-term recidivism potential, they tell us little about the imminence of risk, nor are they useful in the measurement of change. Research on static factors provides no guidance to the probation staff attempting to predict when an offender is at greatest risk and may warrant additional restrictions. Rather, clinicians are seeking

information about dynamic changes that may occur during treatment that could be demonstrated to correlate with reduced recidivism. While symptoms of traditional psychopathology or limited ability to cope with stress may not predict long-term risk, it is entirely possible they may contribute to an increased level of risk in the immediate future (Bonta et al., 1998), and a better understanding of these issues could assist those monitoring offenders on an ongoing basis. Suggestions for dynamic variables to be explored have included intimacy deficits, attitudes tolerant of sexual offending, general self-regulation, negative social influences, negative mood, current substance abuse, anger control problems, and victim access (Hanson & Harris, 1998; Seidman, Marshall, Hudson, & Robertson, 1994). In 2000, Hanson and Harris published preliminary findings on a scale designed to measure dynamic variables and assess their relationship to risk of recidivism. Through an ongoing research project, the Sex Offender Need Assessment Rating (SONAR) has undergone two revisions, the most recent versions being the Stable-2007 and the Acute-2007 (Hanson, Harris, Scott, & Helmus, 2007). Researchers found that systematically combining scores from the Stable-2007 and Acute-2007 with scores from the Static-99 raised the area under the curve value for the Receiver Operator Characteristic analysis (ROC) values to 0.76 for sexual offense predictions (Hanson, Harris, Scott, & Helmus, 2007), thus providing support for the usefulness of considering dynamic risk factors. Another recent development has been the Violence Risk Scale, both its general version and, in particular, its sex offender version (VRS:SO) (Olver, Wong, Nicholaichuk, & Gordon, 2007; Wong, Olver, & Stockdale, 2009). These scales combine static and dynamic risk factors to provide estimates of risk regarding general and sexual violence. A factor analysis of the dynamic variables yielded three factors: sexual deviance, criminality, and treatment responsivity, and a growing body of literature supports both the reliability and validity of the VRS:SO, with ROC values above 0.70—thus again providing support for the value of assessing dynamic risk factors (Wong, Olver, & Stockdale, 2009). A recent cross-validation supported the predictive validity of both the static and dynamic factors of the VRS:SO (Beggs & Grace, 2010). Overall, sufficient data on static variables has been collected and studies replicated to provide a solid basis on which to formulate predictions of long-term risk. Dynamic variables clearly play a crucial role in prediction and are particularly valuable in the day-to-day management of risk.

Evaluation and Management of Sexual Offenders

Adjusting Actuarial Predictions Given the poor track record of using clinical judgment alone to assess risk, no authority in the field is likely to recommend using it as the primary predictive tool, and some would suggest eliminating it altogether and relying solely on actuarial formulas. Quinsey and his colleagues have adamantly defended pure actuarial prediction, saying that currently available actuarial methods are too good to risk contaminating them with (poor) clinical judgments (Quinsey, Harris et al., 2006). A recent meta-analysis by Hanson and Morton-Bourgon (2009) found actuarial methods of risk assessment to have a much higher effect size than the application of clinical judgment. Mann, Hanson, and Thornton (2010) noted that because there are a relatively large number of potential risk factors, none of which has a strong causal relationship to sex offending, this is the ideal situation in which mechanical integration of risk factors will outperform human judgment. Others, however, have taken a more moderate position, and argued that applying clinical judgment to some degree is unavoidable (Grove & Meehl, 1996; Hanson, 1998). They have argued that because empirically validated predictors still account only for less than half the variance, in most risk assessments issues unique to a specific case may merit attention (e.g., a physical disability, a direct threat, a unique social circumstance, a major mental illness clearly related to past offenses). From this perspective, actuarial predictions can be employed as screening devices and to anchor the clinical risk assessments. However, in deviating from the actuarial results, the clinician should establish compelling reasons to do so and avoid the use of factors that have been demonstrated insignificant as predictors.

Problems Establishing Base Rates Most risk assessments begin by establishing a base rate against which to compare the particular offender. If one is to conclude the individual is at low, moderate, high, or extremely high risk to reoffend, it is generally in comparison to the base rates for reoffending in the particular category. However, this becomes a daunting task when considering sex offenders. In a landmark review of the literature, Furby, Weinrott, and Blackshaw (1989) found reported base rates for detected sexual reoffending ranging from zero to 50%—an enormously wide range. The general public commonly believes that recidivism for sex offenders approaches 100%. However, a review of Bureau of Justice statistics from 1992, 1993, and 1995, indicates no

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higher rate of parole violations among sex offenders than among other offenders (Heilbrun, Nezu, Keeney, Chung, and Wasserman, 1998). Conservative estimates, based on reconvictions over a 5-year period, indicate an overall detected recidivism rate for sex offenders of 13.4%, with an 18.9% rate for rapists and 12.7% for child molesters (Hanson & Bussiere, 1998). The reasons for the wide range of base rates recorded in the literature are complex and need to be considered while reviewing that literature (Prentky & Burgess, 2000). The very term sex offense is imprecise, often used to refer only to offenses with stranger victims (Lieb et al., 1998). However, when incest offenses are included, the overall rate of reoffending is lower (Barbaree & Marshall, 1988). Some data include any detected reoffense by a sex offender in the recidivism rate; others count only those offenses that are sexual. If only offenses of a sexual nature are included, the rate is significantly reduced, particularly for rapists who are apt to be more criminally versatile (Harris et al., 1998). Other statistics refer only to violent offenses or only to contact offenses. A significant number of offenses that involve sexual violations are subsequently plea-bargained down to charges that make no mention of sexual offending. The problem comes when attempting to compare the various data sets. Zgoba, Sager, and Witt summarized these methodological difficulties in understanding recidivism rates as follows (2003, pp. 136–137): 1. Lack of a standard definition of recidivism: Recidivism is variously defined as a new sex offense arrest, a new sex offense conviction, a new arrest of any kind, a new conviction of any kind, or even a new technical violation of parole. 2. Underreporting of sex offenses: Because sex offenses are underreported, probably more than other offenses, it is difficult to ascertain true reoffense rates. 3. Lack of a homogeneous sample: Recidivism studies frequently aggregate diverse groups of offenders, failing to separate offenders into meaningful subgroups. Different groups of offenders reoffend at different rates. 4. Variation in follow-up period: The longer the follow-up period, the more opportunity offenders have to reoffend and the higher the rate of recidivism is likely to be. 5. Attrition: Some participants drop out of the studies during treatment. Some are unable to be located during a lengthy follow-up period.

Perhaps, then, it is impossible to agree on a base rate for detected sexual reoffending, even if rapists, child molesters, and incest offenders are considered separately. Even if a number were established, it would be difficult

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to come to agreement on its meaning. Therefore, great caution should be exercised in quoting such base rates in the legal forum. Use of Forensic Assessment Instruments Traditional psychological tests often have limited value in the forensic arena. They are not designed to answer the specific questions posed by most courts and, thus, may tempt the evaluator to overinterpret the results. They also may yield a plethora of information not relevant to the question at hand and risk unnecessary invasion of privacy. As Witt and Conroy (2009) noted, “There are no studies that relate psychological test results to SVP commitment status. Currently, there is no information on what psychological testing pattern or patterns might characterize individuals found suitable for SVP commitment” (p. 114). Over the past decade, a number of forensic assessment instruments have been designed to answer commonly posed psycholegal questions. Instruments have also been developed to measure both violence risk generally and sexual offense risk in particular. Instruments for Use With Sex Offenders According to Salekin et al. (1996), the instrument that demonstrates the strongest predictive power for general violent recidivism is the PCL-R. Among sex offenders the PCL-R is a much stronger predictor of reoffending for rapists than for child molesters (Rice & Harris, 1997). Its use, however, requires not only clinical skill, but specialized training. Many PCL-R items on their surface appear very subjective, and the author emphasizes that all reliability data were gathered with specially trained examiners (Hare, 1991). Untrained examiners take the risk of presenting inaccurate data to the court and research indicates that scores may vary significantly depending on who has retained the evaluator (Murrie et al., 2009) and idiosyncratic scoring practices (Boccaccini, Turner, & Murrie, 2008). The Violence Risk Appraisal Guide (VRAG; Quinsey, Harris, Rice, & Cormier, 1998, 2006) is an actuarial instrument composed of 12 static variables (the most heavily weighted being the examinee’s PCL-R score) that was normed on a population of maximum-security treatment center offenders with a significant history of violence. It is a better predictor of violent recidivism in general (ROC = .76) than of sexual reoffending in particular (ROC = .62) (Harris et al., 1998).

Based on studies applying the VRAG to sexual offenders, the developers (Quinsey, Harris et al., 2006) concluded the sex offender population required a more specific instrument. Sexual deviance has been demonstrated to be predictive of sexual reoffending (Hanson & Bussiere, 1998), a factor not included on the VRAG. The penile plethysmograph is designed to measure physiological responses to deviant and nondeviant sexual stimuli, and there are results from number of studies supporting its usefulness in identifying high-risk pedophiles (Barbaree & Marshall, 1988; Freund & Watson, 1991; Lalumiere & Harris, 1998). Plethysmographic data can be a particularly strong predictor when combined with information about the examinee’s level of psychopathy (Rice, Harris, & Quinsey, 1991). With these factors in mind, the research group developed the Sex Offender Risk Appraisal Guide (SORAG); This is a 14-variable actuarial device, which includes most of the VRAG factors, but adds a plethysmographic assessment (Quinsey, Harris et al., 1998). Initial results appeared promising. However, on cross-validation, the SORAG performed only marginally better that the VRAG in predicting sexual offender recidivism (Rice & Harris, 1997). One additional clinical tool in the armamentarium is the Sexual Violence Risk–20 (SVR-20; Boer et al., 1997). It is best characterized as a set of guidelines or checklist rather than an actuarial instrument. Although it is possible to calculate an additive score, the developers indicate that the total number does not correspond to any specific level of risk. The instrument encompasses 20 factors in three domains: psychosocial adjustment, sexual offending, and future plans. Rather than an application of statistical equations, it is a Structured Professional Judgment (SPJ) tool developed based on a broad review of the professional literature and includes some dynamic as well as static factors. A number of the SVR-20 factors are similar to those found on other instruments and have strong support in the empirical literature (e.g., psychopathy, sexual deviance, past supervision failures). However, others factor (e.g., being the victim of child abuse, denial/minimization of one’s offense) do not correlate highly with recidivism among sexual offenders (Hanson & Bussiere, 1998). A second SPJ instrument is the Risk for Sexual Violence Protocol (RSVP; Hart et al., 2003). Considered an evolved form of the SVR-20, and developed by some of the same authors, it elaborates on specific areas. For example, the RSVP includes additional criteria regarding risk management (such as problems with supervision or treatment) and the construction of risk scenarios (considering, for example, severity, imminence, and frequency

Evaluation and Management of Sexual Offenders

of potential reoffense), as well as explicit management strategies (such as monitoring, treatment, and victim safety planning). The most widely used sex offender risk assessment measures are not clinical, do not require interviewing the defendant, and are designed to be completed by case management personnel. The Static-99, developed by Hanson and Thornton (2000), is designed to measure longterm risk potential and, true to its name, is composed of 10 static variables, including items that address the number of prior sexual offenses, contacts with male victims, and prior nonsexual assaults. Although widely used, the Static-99 is not without critics. Boccaccini, Murrie, Caperton, and Hawes (2009) cross-validated the Static-99 on a sample of approximately 1,900 Texas sex offenders and obtained effect sizes lower than those reported in prior research or meta-analytic reviews. They concluded that “the predictive validity of these measures [actuarial risk assessment instruments] in routine practice in the United States may be poorer than is often assumed” (p. 278). Recently, the Static-99 has undergone modifications, and there currently exist a number of revisions: the Static99R, the Static-2002, and the Static-2002R. The Static99R is identical to the Static-99 with one exception: A heavier weight is given on the Static-99R to age, given that recidivism rates decline as offenders age. Recently, the developers of the Static-99 instruments have proposed using a new set of norms. Rather than using just one set of norms for all sex offenders, the developers recommend deciding which of the following four groups the offender best matches: 1. 2. 3. 4.

Routine Corrections Nonroutine Preselected Treatment Need Preselected High-Risk/Need

This use of four norm groups has become perhaps the most controversial aspect of the Static-99R. The purpose of using an actuarial instrument is to avoid lowering the predictive ability that potentially results when unstructured clinical judgment is included in a risk assessment. Yet, the criteria for assigning individuals to any of these four norm groups are as yet not fully articulated, and no data exist on the reliability with which individuals can be assigned to these norm groups. The Static-2002 (Hanson, Helmus, & Thornton, 2010) is an actuarial tool that has 14 items grouped into five domains: Age, Persistence of Sex Offending, Deviant Sexual Interests, Relationship to Victims, and General

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Criminality. The Static-2002R gives heavier weight than the Static-2002 to age, but is otherwise similar. The MnSOST-R is another actuarial device (Epperson et al., 1998) that focuses primarily on static risk factors, although it does include four variables the developers describe as institutional/dynamic: institutional disciplinary record, substance abuse treatment, sex offender treatment, and age at time of release. Although widely used, some studies have raised questions about the predictive validity of this instrument (Langton, Barbaree, Harkins, Peacock, & Arenovich, 2008). Opinions about the utility of these instruments and the wisdom of using them in clinical settings vary. Some commentators consider them to be only experimental, with such limited reliability and validity data as to meet neither ethical nor legal standards for use in court (Campbell, 2000; Campbell & DeClue, 2010b), whereas others argue that they have the potential to increase the predictive accuracy of professionals’ judgments (Boer et al., 1997; Witt & Conroy, 2009). Surely caution and careful explanation are always the rule of thumb. One important function of the currently available actuarial techniques might be screening offenders into risk groups for further assessment. Most states with active SVP programs are invested in committing only those offenders who present the very highest level of risk to the community. Indeed, as of 1998, no state committed more than 15% of those potentially eligible (Epperson et al., 1998). To accomplish the triaging task, most states use some tiered level of risk rather than identifying specific crimes or types of offenders. Actuarial instruments can provide a scientific foundation to this ranking process, and research indicates they are most accurate at the very highest and lowest levels of risk. For example, developers of the VRAG have demonstrated that scores are linearly related to the likelihood of recidivism (Quinsey, Harris et al., 2006; Rice and Harris, 1997). Physiological Assessment For decades, assessment and treatment professionals working with sex offenders have tried to answer questions such as: How deviant is this offender’s sexual interest or arousal pattern? To what extent is this offender following the treatment and risk management protocol? Because sex offenders have such obvious incentive to minimize the extent to which they report sexual deviation or lack of treatment compliance, professionals have sought other, hopefully more objective, means of answering these questions. This search for objective measures of deviance

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and compliance has led to the use of physiological assessment methods. This section reviews a few of the more common methods and considers the extent to which these methods are successful in achieving their aims. The Penile Plethysmograph The plethysmograph provides a mechanical measurement of penile tumescence in response to sexual stimuli. Proponents of its use as a treatment adjunct believe the therapist needs to know the reality of a sex offender’s deviant thinking, and some objective measure is essential due to the denial and underreporting common among sex offenders (Dutton & Emerick, 1996). Recently, Michaud & Proulx (2009) reported that approximately 60% of child molesters and 60% of sexual aggressors against women showed deviant phallometric profiles in their sample of roughly 400 sex offenders. Clearly, while useful in assessing some offenders, these results indicate that a significant percentage of both child molesters and rapists do not show a deviant phallometric profile. Penile plethysmography may further be useful in monitoring changes in sexual preference over time. Its inclusion in therapy was endorsed by the Association for the Treatment of Sexual Abusers (ATSA), the primary national organization for those engaged in the treatment of sex offenders (ATSA, 1993). In 1995, the guidelines were revised to exclude the use of visual stimuli; however, a more recent revision of the ATSA Practice Standards (2005) indicates that visual stimuli are permitted if applicable legislation in the examiner’s jurisdiction allows this. ATSA does caution, however, that the plethysmograph should not be used in place of other treatment techniques and is not infallible and can be faked (Quinsey & Carrigan, 1978). More recent research indicates greater potential for faking with repeated use (Harris et al., 1998). Data on its actual effectiveness as an adjunct to treatment remains primarily anecdotal. The critics of plethysmography point out the lack of standardization of stimuli and procedures, the lack of uniform training requirements for plethysmographers, the unreliability of data interpretation, and the lack of norms for subgroups of sexual offenders (Prentky & Burgess, 2000). Those working in the SVP specialty area, however, should be aware of the professional literature regarding penile plethysmography, given that a recent survey indicated that programs in 14 states employ this procedure to assess sexual arousal patterns (Deming, 2008). However, the evaluator should be aware of case law in his or her jurisdiction, given that the Ninth Circuit Court of Appeals in U.S. v. Weber (2006) declared the process “Orwellian,”

and indicated that sex offenders could not be forced to participate in penile plethysmography. The Polygraph Commonly known as “the lie detector,” the polygraph is another mechanical device recommended by ATSA (2005) as an adjunct to treatment. The ATSA Practice Standards (2005, p. 43) suggest the following benefits of polygraphy: 1. Generating information beyond what can be obtained from other self-report measures, and 2. Increasing compliance with supervision conditions and treatment procedures.

The polygraph is increasingly recommended to monitor sex offenders in treatment and under probation or parole supervision (Branaman & Gallagher, 2005). In a survey of 732 probation and parole offices in the United States, English (1998) found that approximately 10% require regular polygraphs for sex offenders under their supervision. However, evidence regarding its actual effectiveness in reducing recidivism is primarily anecdotal. With regard to SVP facilities, a recent survey indicates that 13 states use the polygraph, 11 of them assess the index offense and sexual history, as well as additional evaluation of maintenance and treatment compliance (Deming, 2008). If the polygraph is to be used in treatment, some arrangement must be made to safeguard the subject’s Constitutional right to avoid self-incrimination. In some jurisdictions limited immunity agreements are employed. However, prosecutors often oppose this approach due to potential impact on future prosecutions.

Collateral Information Databases Whether the evaluator is relying on a specific instrument or examining individual risk factors, a solid base of collateral information is essential to valid assessment. Offenders in general, and sex offenders in particular (Barbaree, 1991), often deny and minimize their offense history and should not be relied on as the primary or sole source of information and some jurisdictions (e.g., Colorado, Tennessee) have evaluation standards/guidelines that mandate examination of specific types of collateral information. Consequently, collateral information can often be more important in sex offender evaluations than information obtained in an interview of the offender (Conroy & Murrie, 2007). Although in some contexts, such as pre-adjudication or pre-indictment evaluations, collateral information may not be available, in SVP

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commitment cases there typically is an extensive file (Witt & Conroy, 2009). Moreover, the PCL-R manual makes clear that ratings “should not be made in the absence of adequate collateral information” (Hare, 1991, p. 6). Sex offenders constitute a very heterogeneous group. It is not unusual for attorneys, courts, or correctional agencies to misunderstand what collateral information is needed and provide only mental health records. An adequate database is broad in scope and multidisciplinary in nature. It must include general criminal history, in addition to sexual offenses. It should extend to a variety of functional domains including sexual deviance, interpersonal relationships, past treatment, and biological functioning (e.g., the possibility of neurological damage). A starting point for record review is often the correctional records. However, as many familiar with such documents can attest, their quality and accuracy is quite variable. It is also possible that, unless otherwise specified, information provided in a “case management report” or “progress report” is simply derived from an interview with the offender. Pre-incarceration information is also essential. Sources for such data include pre/post sentence investigations (PSIs), police reports, victim statements, and reports from probation/parole officers. Mental health records should include any treatment or evaluation received, whether in an institution or in the community. Given sufficient time and availability, interviews with sources familiar with the offender can also be enlightening. Special Populations The vast majority of the research on sex offender characteristics, discussed previously, has been based on adult male sex offenders, primarily sex offenders who have either had an actual contact victim or at least a real victim (e.g., an exhibitionist or voyeur), as opposed to an Internet victim. It has only been in recent years that professionals have begun collecting data on populations other than adult male contact sex offenders. This section explores the research in four populations, all the focus of relatively recent empirical research: women offenders, juvenile offenders, Internet offenders, and ethnic minority offenders. Women The population that is the focus of sexual predator evaluations is primarily adult males, and research described in this chapter deals almost exclusively with this group of offenders. Studies of female offenders are uncommon for two reasons. First, female offenders are relatively rare,

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constituting perhaps 2% of the sex offender population; second, sexual reoffense rates among female sex offenders are low, resulting in insufficient numbers of recidivists to do adequate comparisons of recidivists with nonrecidivists (Sandler & Freeman, 2007, 2009; Vandiver & Walker, 2002). Vandiver and Walker (2002), studied 471 female sex offenders, and Sandler and Freeman (2009, p. 456) noted: Although a sexual recidivism study could probably be conducted using a sample of 471 male sex offenders, for statistical reasons, the same is not true of female sex offenders. The difference between the two groups lies in their rates of sexual recidivism. Specifically, although male sex offenders are reported to have 5-year sexual recidivism rates of roughly 10% to 15%, female sex offenders have estimated 5-year sexual recidivism rates of roughly 1% to 3%. (Citations omitted)

In a study of 1,466 female sex offenders in New York, Sandler and Freeman (2009) found that rates of reoffense (broadly construed, including both sexual and any felonies, and using rearrests, as opposed to reconvictions) for female sex offenders were lower in all categories than those for male offenders. Consistent with findings from prior studies, even with this large sample, Sandler and Freeman found that only 1.8% of the sample was arrested on a new sex offense charge after 5 years, considerably lower than rates for male sex offenders. Available data do indicate that female perpetrators are more likely than their male counterparts to victimize children with whom they have an ongoing relationship and for whom they are often a primary caregiver (Rudin, Zalewski, & Bodmer-Turner, 1995). Also in contrast to males, female sex offenders generally have an accomplice, most commonly a male (Grayston & DeLuca, 1999; Solomon, 1992). In this relationship, they often take the role of passive partner, observing and failing to intervene, as opposed to actively participating (Green & Kaplan, 1994). To date no instruments have been developed to assess this population and much more research is needed. In fact, findings from the study by Sandler and Freeman (2009) suggest that risk assessment scales developed for and validated on male sex offenders are likely to provide inaccurate estimates of female offenders’ recidivism risk. Sandler and Freeman found that for female offenders, older offenders recidivated at higher levels than younger offenders and a history of violent crime was not associated with higher recidivism rates for female offenders, as it is for male offenders. Sandler and Freeman (2009, p. 467) identified three factors associated with higher

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relative recidivism rates among female sex offenders: (1) more child victim convictions, (2) more prior misdemeanor convictions, and (3) increased offender age. Scales for female sex offenders, then, would need different configurations of risk factors than those for male offenders. Juveniles Juvenile sex offenders constitute a significant population. As Hiscox, Witt, and Haran (2007, p. 504) noted: Some estimates indicate that juveniles commit 20% to 30% of reported rapes and 30% to 60% of child molestation. Retrospective studies have found that many adult sex offenders report an adolescent onset, suggesting that early detection and treatment could result in reducing reoffense in adulthood. (Citations omitted)

Recent studies have demonstrated that juvenile sex offenders differ in significant ways from adults and much of the research on assessment of adults may not apply. It is difficult to predict the potential for recidivism in this group, particularly if one is trying to make a prediction stretching into adulthood. More so than with adults, sexual offending among juveniles may be part of a more pervasive pattern of delinquency. In fact, a factor analysis of New Jersey’s Juvenile Risk Assessment Scale (JRAS; Hiscox, Witt, & Haran, 2007) found that the factor that accounted for the most variance in the scale was a general delinquency factor, not a sexual deviance factor. Juvenile sex offenses may be more predictive of nonsexual reoffending than of future sex crimes (Rasmussen, 1999). Recent years have seen the development of an extensive literature on the etiology, assessment, and treatment of sexual offending among adolescents (Becker & Hunter, 1997; Bourke & Donohue, 1996; Calder, 2007; Marshall, 1996; Pithers & Gray, 1998; Rich, 2009). Over the past decade, a number of sex offender risk assessment scales for juveniles have been developed. The JJPI-Maine Juvenile Sex Offender Assessment Protocol (JSOAP), now in its second iteration, the JSOAP-II (Prentky & Righthand, 2003), is an actuarial instrument designed to assess risk in juvenile sex offenders prior to treatment and at the time of discharge (Prentky, Harris, Frizzell, & Righthand, 2000). More recently, other juvenile sex offender risk assessment instruments have been developed, including a structured professional judgment tool, the Estimate of Risk of Adolescent Sex Offender Recidivism (ERASOR; Worling, 2004; Worling & Curwen, 2001), and an actuarial scale, the Juvenile Risk Assessment Scale (JRAS; Hiscox, Witt, & Haran, 2007). Although research indicates some similarities between

adult and juvenile sex offenders, such as the frequent presence of either antisocial or sexual deviance factors as prime motivators within both groups, there are also important differences. Results from another study indicated that the Static-99 did not predict sex offenses among juvenile sex offenders (Viljoen, Elkovitch, Scalora, & Ullman, 2009). The issues surrounding sexual offending among juveniles are complex and merit discussion well beyond the scope of the present chapter. The national Office of Juvenile Justice and Delinquency Prevention maintains a Web site (www.ojjdp.ncjrs.org) that includes an extensive and frequently updated bibliography of resources in this area. Internet Offenders Two classes of Internet sex offenders exist: those who solicit sexual contact with minors (or ostensible minors; that is, detectives posing as minors) and those who view or trade child pornography. Of course, the two classes are not mutually exclusive. Those who solicit sexual activity from minors or ostensible minors may be no different from contact sex offenders. However, as yet, there are no published studies on this population. Anecdotal evidence indicates that many men caught in stings in which they correspond with or attempt to meet juveniles or detectives posing as juveniles claim that they never believed that they were corresponding with a minor. Rather, they frequently contend that because role plays are so common on the Internet, they believed they were corresponding with or meeting an adult who was simply playing a role. Whether research will reveal that they are similar to men who have actually molested minors remains to be seen. In recent years there has been considerable research interest in men who have viewed or traded child pornography over the Internet. Internet child pornography offense rates have risen dramatically in recent years, in good part due to what Cooper, Delmonico, and Burg (2000) refer to as the three A’s of the Internet: accessibility, affordability, and anonymity. Two types of studies provide information on the risk that Internet child pornography users present: those that examine histories of contact sex offending among child pornography users and those that examine future contact and child pornography offenses among child pornography users. The first type of study is the easiest to conduct, because if one has a population of individuals arrested for child pornography offenses, one can survey them (or examine records) to obtain an estimate of prior contact offenses. The two most widely cited studies in this area

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occurred using samples of federal prison inmates who were serving prison terms for possession of child pornography and were enrolled in treatment programs (Bourke & Hernandez, 2009; Hernandez, 2000). Up to 85% of the subjects incarcerated for child pornography eventually acknowledged during treatment, with their accounts frequently supplemented by polygraphy, having contact sex offense victims. These studies raised concerns regarding the strength of association between child pornography and contact sex offending. However, these studies are controversial, and one court has found the results of these studies to lack sufficient credibility to be admissible, contending that the populations studied were not representative, and that there may well have been coercive elements of the treatment programs that caused the high level of selfreported contact sex offenses (U.S. v. Johnson, 2008). The key question facing all evaluators of individuals who have viewed child pornography is: What is the likelihood that that individual will commit a future sex offense, either contact or child pornography related? Studies examining this question are difficult to construct because they require a large population of child pornography offenders followed for some years. Such studies have just begun to be published over the past few years (reviewed in Witt, 2010). Seto and Eke (2005), using either new arrests or convictions, found recidivism rates of 1.3% for contact offenses and 5.3% for child pornography offenses after 2.5 years. In an extension of their original study with a larger sample of child pornography offenders, Eke and Seto (2008) found that, after approximately six years, 7% had a new contact sex offense arrest or conviction and 8% had a new child pornography offense arrest or conviction. More recently, Endrass and colleagues (2009), using a broad definition of recidivism, reported that in a 6-year follow up, only 0.8% of child pornography offenders were investigated for, arrested for, or convicted of a new contact sex offense and 3.9% a new child pornography offense. The above studies indicate that the best predictor of future sex offending among child pornography offenders is a criminal history, especially a prior contact sex offense. Li, Lee, and Prentky (2010) found that, with child pornography offenders, the best predictor of contact sex offenses is a significant history of what they define as conduct problems—that is, other antisocial behavior. In fact, they reported, as did previous researchers, that the likelihood of a contact sex offense is generally low among child pornography offenders but increases linearly as the nature and extent of the overall antisocial behavior increases. Consequently, evidence to date indicates that sexual deviance as evident in interest in child pornography deviant sexual

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arousal pattern, as found by Seto, Cantor, and Blanchard (2006), is not in itself sufficient to predict contact sex offenses among child pornography offenders; the second factor of broadly antisocial, impulsive behavior is required to raise the likelihood of a contact sex offense in this population. Ethnic Minorities There is always a concern about applying test instruments or predictor variables across cultures without careful validation. In the case of specialty instruments to assess risk among sex offenders, the majority of sex offense-specific instruments (e.g., SORAG, STATIC-99), as well as those developed to assess more general issues but frequently used to assess sex offenders (e.g., PCL-R, VRAG), were originally developed in Canada, using populations primarily white and male (Salekin et al., 1996). The PCL-R is probably the most well-validated of these instruments, with a research base in Europe as well as North America. Yet the database for African American and Hispanic populations remains small. Cross-cultural research has uncovered cultural differences in mean PCL-R scores as well as prevalence rates of psychopathy (Cooke, 1996, 1998). However, on the key variable of prediction of violent recidivism, the instrument appears to predict across cultures, although the magnitude of the prediction may vary (Hemphill et al., 1998, Kosson, Smith, & Newman, 1990). Less research is available on the newer instruments specifically designed for the assessment of sex offenders. Therefore, there is general agreement that clinicians need to carefully access the relevant database before selecting assessment strategies for minority populations.

RISK MANAGEMENT WITH SEX OFFENDERS Managing and reducing risk in any clinical population generally means assessing treatment needs. The lay public and mental health professionals tend to believe that providing some kind of therapy to a sex offender will reduce the risk to the community, a belief shared by many judges (Bumby & Maddox, 1999). Few comprehensive studies have been conducted evaluating the actual impact of sex offender treatment programs on subsequent recidivism. Although the data collected and analyzed over the past two decades supported the premise that treatment had a modest, but positive effect (Hall, 1995), further analyses of these data raise serious questions as to the validity of this conclusion (McConaghy, 1999; Rice & Harris, 1997,

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2003). Some prominent researchers believe that there is no strong evidence that any treatment is effective in reducing overall sex offender recidivism (Barbaree, 1999; Furby et al., 1989; Hanson & Bussiere, 1998; Harris et al., 1998). Perhaps the largest random assignment controlled study yielded disappointing results, with no significant differences between the treated and untreated group (Marques, Wiederanders, Day, Nelson, & van Ommeren, 2005). As Prentky and Burgess (2000) noted early in the previous decade, “At the present time, the most informed and dispassionate conclusion must be that we simply do not know what percentage of the aggregated (highly heterogeneous) population of sex offenders can return to a nonoffending lifestyle through treatment” (p. 217). However, there have been some encouraging results. Two results of meta-analyses indicate a positive effect of treatment and reducing sex offender recidivism (Hanson, Bourgon, Helmus, & Hodgson, 2009; Losel & Schumucker, 2005). In fact, Duwe and Goldman (2009, p. 280) reviewed the meta-analytic findings and concluded: Since the mid-1990s, however, meta-analyses of the treatment literature have, with a few notable exceptions, found lower recidivism rates in treated sex offenders in comparison with untreated offenders. Among the meta-analyses that have found a treatment effect, the rate of sexual reoffense has been between 5 and 10 percentage points less for those who participated in treatment, resulting in a mean effect size (Cohen’s d ) ranging from .12 to .47. The evidence from these studies further indicates that cognitive behavioral techniques with relapse prevention components have, by and large, been found to be the most effective in reducing recidivism. (Citations omitted)

Results from one study conducted in the Minnesota prison system indicated that treatment reduced the hazard ratio for sex offender recidivism by 27% (Duwe & Goldman, 2009). Treatment may have the greatest impact on high- and moderate-risk sex offenders, and less impact on low-risk sex offenders (Hanson et al., 2009). The Hanson et al. (2009) meta-analytic study also indicated that interventions that target what are traditionally referred to as criminogenic needs reduce recidivism, whereas those that do not target such needs do not reduce recidivism.

Methodological Problems in Evaluating Treatment One of the primary problems in demonstrating treatment effectiveness is poor control groups in those studies conducted. It would be ethically questionable to randomly deny potentially effective treatment to sex offenders

who request it and then release them to the community. Therefore, individuals who refuse to participate or drop out of treatment programs are often used as control subjects. However, such studies may do little more than separate the more motivated, prosocial offenders from their less motivated counterparts and say little about the effectiveness of the program being evaluated. A second methodological issue limiting many program evaluations is sample selection. Past research has tended to confirm the risk principle of offender treatment—that is, treatment is much more apt to be effective in reducing recidivism in higher risk offenders (Bonta, Wallace-Capretta, & Rooney, 2000). Among offenders in general, some studies indicate intensive services for those in a low-risk group may actually increase the potential for recidivism (Andrews, Bonta, & Hoge, 1990). However, the public is often hesitant to put high-risk offenders in less restrictive programs (Lieb et al., 1998). Well-funded treatment programs with research components are often very selective, admitting only those who are nonviolent, motivated, and evidencing no additional problems such as mental illness or substance abuse. Another issue to be considered is the criteria used to measure recidivism. The Atascadero study sought to combine actual convictions with carefully defined charges and accusations (Marques, 1999); however, this approach requires very broad record acquisition and review. One criterion clearly demonstrated to be a poor predictor of recidivism is program behavior and the achievement of within-program goals (Barbaree & Marshall, 1998; Rice et al., 1991). In fact, results of several studies suggest that ratings of client success or growth by program clinicians may actually be inversely related to avoidance of reoffending (Quinsey, Khanna, & Malcolm, 1998; Seto & Barbaree, 1999). Perhaps one of the most frustrating aspects of sex offender treatment evaluation is the tendency of researchers to lump all sex offenders together. Perhaps a more appropriate question than “What works?” is “What works with which offenders?” For example, an important personality variable to consider in measuring treatment outcome is psychopathy. To date, no one has demonstrated a treatment modality effective in reducing violence potential in this group. Findings from one study would suggest incorporating them into the traditional therapeutic community may actually exacerbate this potential (Rice, 1997). Yet sex offender programs are only now beginning to analyze outcome data for psychopathic offenders separately. In short, it is essential that anyone planning to testify regarding research on sex offender treatment

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outcome carefully examine the methods used in research that forms the basis for that testimony. Specific Treatment Modalities Currently available research leads one to the inescapable conclusion that there is not sufficient evidence that any particular treatment will reduce the probability of sex offender recidivism. However, given the plethora of methodological difficulties with outcome research on sex offender treatment, it would also be inaccurate to say treatment has been proven ineffective with this population. The field is divided between those who are cautiously pessimistic and those who are cautiously optimistic. Clinicians cannot simply ignore treatment needs until more is known, so it is important for anyone working in the field as evaluator or treatment provider to be familiar with what is known about the various modalities.

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problems (Miller, 1998). Less common, but more serious, side effects reported have been diabetes (Bradford, 1985; Emory, Cole, & Meyer, 1992), infertility, and feminization (Kravitz, Haywood, Kelly, Wahlstrom, Liles, & Cavanaugh, 1995). Effectiveness of treatment can also be reversed by the ingestion of testosterone or anabolic steroids. Some research has focused on the gonadotropinreleasing hormone (GnRH). In rare cases it can induce severe hypogonadism and some reduction in normal sex drive is often noted (Rosler & Witztum, 2000). Finally, selective serotonin reuptake inhibitors (SSRIs) have been used in treating sex offenders. Serotonin, a neurotransmitter, has been associated with depression and obsessive-compulsive thinking, and there is some evidence that SSRIs may function to reduce excessive sexual fantasies, which may lead to reoffending (Federoff, 1993). However, research has been limited and studies to date are primarily retrospective (Greenberg & Bradford, 1997).

Medical Interventions Although psychosurgery and physical castration have been considered to curb sexual reoffending, it is unlikely either will be widely used in our society. Therefore, this discussion will concentrate on medications. Beginning with California in 1997, a number of states have required sex offenders on probation to accept such treatment. As early as the 1940s, researchers experimented with progesteronal hormone compounds to reduce sexual drive. In 1960, experiments began in Europe with cyproterone acetate (CPA) and were followed in the 1970s by studies of medroxyprogesterone (MPA) at Johns Hopkins. MPA has since been approved for use in the United States as an agent for lowering sexual drive. Hormonal treatments for sex offenders are designed to reduce levels of circulating progesterone in order to control serum levels of testosterone, thereby reducing the sexual drive. Such treatment can effectively reduce overall sexual behavior (Bradford, 1990; Marshall, 1993), and some data indicate that it can reduce recidivism among child molesters (Harris et al., 1998). However, hormonal treatment does nothing to change the object of one’s attraction, only the intensity of the drive, and there is little evidence that the majority of sex offenders have greater sexual drive than non-offenders (Rosler & Witztum, 2000). A major problem with hormonal treatments developed thus far is that compliance is relatively uncommon, perhaps in part because the medications have unpleasant side effects, including weight gain, fatigue, headaches, reduction in body hair, depression, and gastrointestinal

Cognitive-Behavioral Therapy Clinicians who treat sexual offenders have generally abandoned the more humanistic, psychodynamic, and insightoriented approaches, and behavioral therapy (classical and operant conditioning techniques) alone has not proven effective, either. In recent years, cognitive-behavioral therapy (CBT) targeting criminogenic needs has become the preferred modality (ATSA, 2005). As early as 1987, Gendreau and Ross reviewed a number of studies and early meta-analyses regarding the effectiveness of specific treatment modalities for offenders generally. With reduction in recidivism as the criterion, they found the largest effect sizes for behavioral and cognitive-behavioral approaches both with juveniles and with adults. The Containment Approach As defined and investigated by English (1998), the containment approach involves using all available resources, both clinical and correctional, to assure the safety of the community and hold the sex offender fully accountable while in the community. It is interdisciplinary and interagency by nature and involves specially trained case managers and treatment providers coordinating myriad conditions placed upon the offender. These may include counseling, approved employment, residency restrictions, curfews, polygraphs, random searches, and electronic monitors. Conditions are enforced by a broad array of short-term and intermediate sanctions, and confidentiality among those enforcing the conditions, including treatment providers, is most commonly waived.

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Advocates of the containment model are generally enthusiastic, and the approach is in wide use among probation and parole departments. Although at least one shortterm study demonstrated some mildly positive results (Stalans, 2004), research has not demonstrated which of the many elements of this approach may be producing an effect (Conroy, 2006). In fact, given the lack of wellcontrolled studies, it is unclear the extent to which sex offending is reduced by the containment approach.

PRESENTING EXPERT OPINION A forensic psychologist might be called to appear in court either because he or she has evaluated a specific sex offender or because the court simply wants to know what scientific findings might be helpful in reaching a decision in some related matter. In either case, the expert is there to provide expertise needed to assist the trier of fact. That assistance should take the form of the most valid and most relevant scientific data or techniques the field has to offer. That is the criterion that should distinguish an expert, professional opinion from the personal opinion of an individual with numerous degrees and licenses. Although some jurisdictions rely on the general acceptance standard developed in Frye v. U.S. (1923), an increasing number of jurisdictions now rely on criteria developed by the Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993) when questions are raised about the admissibility of evidence to be offered by an expert. Under Daubert, evidence should be evaluated with respect to whether (a) the theory or technique on which it is based has been tested; (b) the data have been peer reviewed and published; (c) there is a known or potential error rate; and (d) there is evidence of acceptance in the relevant scientific community. It has become increasingly common for formal Daubert hearings to be conducted before sex offender commitment proceedings to determine which experts will be allowed to testify and what specific data will be admitted into evidence. In the arena of sexual predator assessment, a number of variables have been heavily researched and are consistently predictive across studies. Data have been published and peer reviewed. Actuarial instruments have the advantage of an established error rate. Of course, it is incumbent upon any expert to make certain the variables or instrument selected truly match the individual or situation involved. There is also the ethical obligation to honestly and clearly acknowledge the limits of the data and our expertise. Although research has advanced by leaps and

bounds in recent years and our predictive ability is well beyond chance and better than a simple historical review, we are nowhere near proving risk beyond a reasonable doubt as some jurisdictions (e.g., Texas) now seek. As Witt and Conroy noted (2009), the expert acts very much as an educator in court, not in the sense of condescending to the court, but in the sense of communicating clearly in understandable, jargon-free terms about technical areas outside the court’s experience. The mental health expert should be prepared to explain the procedures used and the rationales for selecting these procedures. The mental health expert should be careful to avoid pejorative, inflammatory language in describing the sex offender. Perhaps one of the most controversial areas is whether the mental health expert should testify regarding the ultimate issue, in this case whether the individual should be civilly committed as a sexually violent predator. This issue is a subject of considerable debate in the field (e.g., Melton et al., 2007). Witt and Bosley (2009) make the following recommendations regarding testimony: 1. Use the best available instruments. 2. Avoid prejudgment, given that credibility is such a critical issue in testimony. 3. Tie testimony closely to the three interrelated psycholegal constructs (mental abnormality, volitional impairment, and risk). 4. Ensure a close fit between the data and inferences.

SPECIAL ETHICAL CONCERNS Any psychologist providing forensic services should be familiar with the general code of ethics established for practice by the American Psychological Association (APA, 2002), as well as the “Specialty Guidelines for Forensic Psychologists” (Committee on Ethical Guidelines for Forensic Psychologists, 2011). However, the area of sexual offenders presents several recurrent dilemmas for the evaluator and for the treating professional. Ethical Issues for the Evaluator Three areas of ethical concern commonly arise in the assessment of risk in the case of a sex offender. The first revolves around records, as an adequate well-verified record is essential to the endeavor. Truly complete, consistent documents are rarely available. It is incumbent upon each evaluator to decide when documentation is inadequate and the task should be declined, absent further

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information. Even when reasonably extensive information is provided, the evaluator must carefully assess its accuracy and reliability and not assume what is contained in an official document is accurate. The evaluator must then decide whether only convictions for sexual offenses will be taken into account in reaching conclusions, or whether arrests, charges later reduced, or accusations will also be weighed in the equation. If uncertain, but very important, information is relied on, the evaluator must make this clear in all reports and testimony. A second critical issue involves adequate notice to the person being evaluated. Unlike many other forensic evaluations, sexual predator assessments are often conducted to assist a facility in the process of deciding whether to file a commitment petition or whether to go forward with some type of conditional release. In such instances where no formal proceedings have been initiated, it is unlikely the offender will be represented by counsel. Nonetheless, ethical guidelines (e.g., “Specialty Guidelines for Forensic Psychologists”; Committee on Ethical Guidelines for Forensic Psychologists, 2011) indicate the forensic psychologist should carefully consider the importance of an individual being represented by counsel prior to the evaluation. Therefore, it is essential the person be notified of the pending evaluation and its potential consequences well in advance. Such notice should be negotiated with the institutional contractor before the clinician agrees to perform the evaluation. A final ethical consideration is disclosure of information. In some circumstances (e.g., court order or statutory requirement) the person being evaluated is not required to consent to the evaluation. However, he or she is nonetheless entitled to full disclosure regarding the purpose of the evaluation, its possible consequences, and what parties will have access to any information gleaned by the evaluator. The individual should also be informed if the assessment is to be completed solely from the record should he or she decline to participate. Ethical Issues for the Treatment Provider If a psychologist is to function as a treatment provider for a sex offender released on some condition, several issues need to be clarified prior to initiating treatment. The first regards the boundaries of confidentiality, if any in fact exists. Under a containment model, the expectation may be that the therapist has complete, open communication with other members of the interdisciplinary team, including probation officers and representatives of the district attorney’s office. Other arrangements may leave intact

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some confidentiality, but require the therapist to report any number of undesirable behaviors ranging from an additional offense to using alcohol in violation of probation or conditional release. Any treatment provider needs to know whether he or she is expected to play a dual role as therapist and ongoing risk assessor. Will the therapist be expected to return to court at some time and report not only whether the individual has attended counseling sessions and completed assignments, but what progress has been made in terms of a reduced level of risk? The latter role is best avoided, not only because of the conflict of interest, but also because appropriate scientific tools to measure change in level of risk, such as the VRS:SO (Olver et al., 2007), are of relatively recent origin, so their results should be reported cautiously. Finally, any treatment provider would want to know whether there is an expectation that therapy will be continued indefinitely, regardless of outcome. If the clinician determines further therapy will be nonproductive or even counterproductive, it is important to know the consequences of terminating it.

FUTURE DIRECTIONS Research in the field needs to investigate the additional dynamic variables that may predict reoffending on a more immediate basis. More longitudinal data need to be gathered on effectiveness of various interventions over the long term and with more clearly defined and circumscribed populations. No treatment approaches have yet been devised to successfully rehabilitate psychopathic offenders. Collaboration among practitioners serving a diversity of populations is critical both for instrument development and program evaluation. To accomplish these tasks requires participation not only of large research institutions but of individual practitioners who are evaluating the work they do. To facilitate productive communication between the legal and mental health communities interdisciplinary training will be essential. Clinicians cannot continue to assume that terms they use with colleagues on a daily basis (e.g., mental illness) carry the same connotation in a court of law. In providing reports and testimony regarding sex offenders, psychologists must become more mindful of their educative function, conveying an understanding of psychology as a science rather than an art form. Forensic psychologists also need to become involved on the policymaking level. Most clinicians with expertise in dealing

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with sex offenders are at least somewhat dismayed by current statutes and recent court decisions. These experts often have knowledge and experience that could contribute to better solutions, if provided early in the policymaking process. For this to happen it will become increasingly important for psychologists engaged in therapeutic jurisprudence to organize and communicate on a local as well as national level, increasing awareness and developing agendas for the 21st century.

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Witt, P. H. (2010). Assessment of risk in Internet child pornography cases. Sex Offender Law Report, 11, 1, 4, 13–15. Witt, P. H., & Bosley, J. T. (2009). Testimony in SVP cases. Sex Offender Law Report, 10,\ 17–18, 26–28. Witt, P. H., & Conroy, M. A. (2009). Evaluation of sexually violent predators. New York, NY: Oxford University Press. Wong, S. C. P., Olver, M. E., & Stockdale, K. C. (2009). The utility of static and dynamic factors in risk assessment, prediction, and treatment. In J. Andrade (Ed.), Handbook of violence risk assessment and treatment (pp. 83–120). New York, NY: Springer. Worling, J. R. (2004). The Estimate of Risk of Adolescent Sex Offense Recidivism (ERASOR): Preliminary psychometric data. Sexual Abuse: a Journal of Research and Treatment, 16, 235–254. Worling, J. R., & Curwen, T. (2001). The Estimate of Risk of Adolescent Sex Offense Recidivism (Version 2). Toronto, Ontario, Canada: Ontario Ministry of Community and Social Services. Zevitz, R. G., Crim, D., & Farkas, M. A. (2000). Sex offender community notification: Managing high risk criminals or exacting further vengeance? Behavioral Sciences and the Law, 18, 375–391. Zgoba, K., Witt, P. H., Dalessandro, M., & Veysey, B. (2008). Megan’s Law: Assessing the practical and monetary efficacy. Washington, DC: National Institute of Justice, Document No. 225370.

PART III

Forensic Evaluations in Delinquency and Criminal Proceedings

CHAPTER 16

Forensic Evaluation in Delinquency Cases THOMAS GRISSO AND CHRISTINA L. RIGGS ROMAINE

ONE HUNDRED YEARS OF PSYCHOLOGICAL EVALUATIONS IN DELINQUENCY CASES 359 CLINICAL AND DISPOSITIONAL ASSESSMENTS IN DELINQUENCY CASES 363 ASSESSMENTS FOR RISK OF REOFFENDING 366

ASSESSMENTS FOR PSYCHOLEGAL CONCEPTS IN DELINQUENCY CASES 369 FUTURE ADVANCES IN FORENSIC ASSESSMENTS IN DELINQUENCY CASES 374 SUMMARY 376 REFERENCES 376

Psychologists have been providing specialized evaluations for the courts in delinquency cases for about 100 years. In contrast, forensic psychologists have routinely performed adult competence to stand trial and criminal responsibility assessments for the courts for only the past 40 years. Yet the specialized knowledge base that serves forensic examiners in delinquency cases has lagged behind other areas of forensic psychology, most of which have seen more significant advances in research and systematic guidance for the practitioner. Advances since the first edition of this volume have been promising in this regard, but the empirical foundation for assessment in delinquency cases is still evolving. This anomaly provides a subtext that guides the present chapter, which focuses on the needs and current opportunities for improving the quality of forensic evaluations in delinquency cases. The chapter begins with a brief history of juvenile courts and evaluations in delinquency cases, showing how the subfield evolved to create some of our more complex forensic questions. The next three sections describe the current status of specific types of evaluations, including limitations and need for research and development. They address evaluation of mental health and dispositional needs of delinquent youths, assessing risk of violence and recidivism, and specific psycholegal questions arising in delinquency cases, including waiver to criminal court, competence to stand trial, and capacities to waive Miranda rights. The final section reviews selected conceptual issues in this area that are in need of research and applied solutions during the next few decades.

ONE HUNDRED YEARS OF PSYCHOLOGICAL EVALUATIONS IN DELINQUENCY CASES The scope of forensic evaluations in delinquency cases has changed dramatically during the history of the juvenile justice system in the United States. This section briefly visits the origins of the juvenile court and its early clinics. Then we examine two reforms in juvenile justice during the past century that raised new legal questions in juvenile courts, as well as the need for forensic evaluations to address them. Finally, we consider this field’s search for identity as a forensic evaluation specialty.

1899–1965: The Early Juvenile Court Late in the 19th century, there were significant changes in Western thought about the nature of children in their teen years (Cicourel, 1968; Scott, 2000). Evidence of this change in the United States was the development of a public education system, child labor laws, and the rise of the new concept of adolescence, advanced by G. Stanley Hall, as a distinct developmental stage. Together with this change in the perception of youths came reform in the way that society responded to their transgressions. Because adolescents were still developing and were not yet adult-like, it was argued that their offenses were signs that they were misguided, not inevitably destined for adult criminal careers. This placed an obligation on society not to punish them, but to redirect their development 359

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in positive ways (Platt, 1977). Rehabilitation was seen as more appropriate than punishment and retribution as a response to youths’ illegal behaviors. This notion of child welfare and rehabilitation became the foundation for a new system of law to be applied to youths before a certain age (often, 16 or 17). This new legal system would not find youths guilty of crimes, but rather delinquent or wayward and not subject to the penalties that would have been associated with their offenses if they were adults. The new juvenile justice system had courts and judges, but instead of deciding guilt and punishment, they were instructed to deal with juvenile cases according to the doctrine of parens patriae, as “a wise, merciful father handles his own child whose errors are not discovered by the authorities” (Mack, 1909). As expressed by Jane Addams (1935), one of the moving forces behind the development of Chicago’s juvenile court, the first in the United States, in 1899: The child was brought before the judge with no one to prosecute him and with no one to defend him—the judge and all concerned were merely trying to find out what could be done on his behalf. The element of conflict was absolutely eliminated and with it, all notion of punishment. (p. 137)

Many of the juvenile court’s evolving features were consistent with this philosophy. The court often functioned as a social service agency that had the authority and structure of a legal institution. The judge was given wide discretion in deciding what was best for the child. Burdens of proof were unnecessary, as were most matters of due process, because the state was intervening in the child’s life not to confine for purposes of punishment but to address the child’s needs. The judge’s primary staff included child welfare specialists (often, social workers); defense attorneys were unnecessary in a system that was intended to be benevolent, not adversarial. Training schools, reformatories, and child community services evolved with the intention of providing the services that would carry out the juvenile court’s rehabilitation philosophy. Judges needed guidance from clinicians in reaching their decisions about the services that wayward children required. In larger communities, they were assisted by psychologists and psychiatrists at court-related evaluation clinics. One of the earliest models for clinical evaluation services for juvenile courts was an institute developed in 1909 by Healy, a neurologist, and Fernald, a psychologist, to serve the Cook County (Chicago) juvenile court (Schetky & Benedek, 1992). Their assessments are said to have been comprehensive, multidisciplinary studies of youths’ life

situations, including developmental histories, diagnostic information, and rehabilitation recommendations. The new juvenile court did not “sentence” youths; their cases were merely “settled” or “disposed.” Thus, the evaluations that assisted the judge in determining the future placement of youths were termed dispositional evaluations. They were virtually the only “forensic” evaluations in the early juvenile courts, and they remain today the most frequent type of clinical evaluation provided by psychologists in delinquency proceedings. The actual functioning of social institutions often is not consistent with their formal philosophy, and the juvenile court of the first half of the 20th century was no exception. As Tanenhaus (2000) has described, early juvenile courts (and their communities) were often in conflict about the new conceptualization of adolescence and delinquency, especially in cases involving serious offenses. Mechanisms soon arose for ensuring that at least some adolescents would be tried not as juveniles but in criminal courts under criminal law as though they were adults. Moreover, even the dispositions of youths who were retained in the juvenile justice system often amounted to little more than punishment, in that the reformatories and training schools that evolved often provided little that could be construed as an effort at treatment or rehabilitation. Confidentiality associated with juvenile court proceedings, intended for the protection of youths, also acted as a curtain that shielded from public view the abuses that sometimes occurred as a result of the broad discretion that was allowed in the courts in their decisions about youths’ confinement. The Rights and Responsibility Reforms: 1965–1995 The failure of the juvenile court to live up to its early promise eventually led to two reforms in juvenile justice during the last half of the 20th century. These reforms brought about the need for different types of forensic evaluations to assist courts in their decisions about youth charged with delinquencies. The Rights Reform The first of these reforms was ushered in by two U.S. Supreme Court cases: Kent v. U.S. (1966), and In re Gault (1967). Kent required the application of certain due process rights in cases in which the juvenile court contemplated waiving its legal jurisdiction over a youth, allowing the youth to be remanded to the adult criminal courts for trial. Gault recognized several constitutional rights of youths throughout the adjudication process in

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all delinquency cases. Whereas those rights had not been considered necessary in a system that was intended to operate solely for the welfare of the child, the U.S. Supreme Court now required them, explaining that the juvenile court had failed to live up to its promise, typically providing custodial care without rehabilitative efforts. The juvenile court was still obligated to provide rehabilitation, the Court said, but to take custody of the youth (that is, to find the youth “delinquent” to then provide a rehabilitative disposition) would require procedures and rights that more closely resembled the protections for adults in criminal court. Among these were adequate notice of charges, representation by legal defense counsel, the privilege against self-incrimination, and the right to confront and cross-examine opposing witnesses. Juvenile justice systems throughout the country gradually adjusted to these requirements. Typically, they developed a system of adjudication for delinquency that provided legal protections for the defense, while retaining significant judicial discretion for the dispositional stage of the process after the youth was found delinquent. The Responsibility Reform The second reform occurred in the late 1980s and early 1990s in response to a sudden increase in the rate of adolescents’ violent offenses, especially homicide (Zimring, 1998). Within a few years, almost all states revised their statutes in ways that deemphasized a rehabilitative response to offenses by juveniles and increased the likelihood that youth would be held responsible for their behaviors in ways that were more like criminal justice for adults (Grisso, 1996). Juvenile courts would mete out justice—and penalties—in ways that were not so clearly driven by the old logic that youth needed rehabilitation rather than punitive sanctions. This took several forms, especially the lowering of ages and expansion of offenses for which youths could be automatically sent to criminal court for trial and sentencing as adults. Moreover, legislatures in many states explicitly changed the mission of juvenile court and the juvenile justice system, making public safety its first priority. In many states, youths who were adjudicated delinquent now faced much harsher consequences, including the possibility of sentences that would begin in juvenile facilities and continue in adult correctional facilities after they had reached the age of majority. The New Field of Juvenile Forensic Evaluation: 2000 These juvenile justice reforms of the late 20th century confronted courts with the need for certain types of forensic

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evaluations that were only infrequently required for most of the juvenile court’s earlier history. Until the recent reforms, clinicians’ evaluations for juvenile courts were basically clinical evaluations, or “child studies,” designed to assist courts in understanding youths’ delinquent behaviors for purposes of dispositional (rehabilitation) recommendations. They were forensic in that they were performed for courts, but they did not require much by way of specialized interpretation to address legal questions. They used the clinician’s knowledge in developmental and child clinical psychology, as well as theories of delinquency and a rather modest literature on the treatment of delinquent youths. The later reforms, however, raised a number of new questions that juvenile court judges and attorneys had to address to apply new laws in delinquency cases. No longer was it sufficient simply to identify a youth’s needs. Now one needed to know whether youths had capacities that were related to the fair application of their rights under a primarily adversarial, due process system of justice: • Could youths understand their Miranda rights (and therefore validly waive their constitutional right to avoid self-incrimination)? • Was there sufficient evidence of a youth’s potential danger to the community to meet legal requirements for deprivation of liberties associated with secure pretrial or post-trial detainment? • What psychological evidence could be offered to determine whether a youth met the new legal criteria for deciding whether he or she was “unamenable to treatment” and therefore could be transferred to adult criminal court for trial? • When was a youth competent to participate in the trial process (“competent to stand trial”) in a way that met a standard of fairness that the new juvenile laws required? Courts’ and attorneys’ requests for forensic evaluations to address these questions gradually began to increase and became quite frequent in many courts in the 1980s and 1990s. As a consequence, many forensic examiners in juvenile courts were suddenly required to perform assessments for questions that were fundamentally outside their experience. Unlike requests for dispositional evaluations, these requests asked whether youths had various behaviors and capacities that were related to specific legal concepts. They required evaluations that were forensic not merely because they were performed for courts, but also because they addressed specific legal standards regarding the protection of youths’ rights.

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Psychologists who provided evaluations for juvenile courts had little to guide them in meeting these requests. Many of the legal standards themselves were ill-defined in the new legislative reforms, creating ambiguity regarding what was to be evaluated and concluded. For most of these new questions in juvenile court, the field had developed neither systematic approaches to assessment nor special assessment methods for use in delinquency cases. In Search of a (Sub)Specialty What is the status of this area of juvenile forensic evaluations in delinquency cases as a subspecialty in forensic psychology? Let us take stock of the subspecialty employing some of the criteria with which one judges the maturity of a professional specialty or subspecialty in psychology: (a) a specialized knowledge base, (b) an organized body of specialists, (c) a training base, and (d) a set of standards to guide the specialty’s applications. Knowledge Base Despite its 100 years of practice, the field of psychological evaluations for juvenile courts in delinquency cases has proceeded primarily on the knowledge base offered by general developmental and child clinical psychology. As described later, a specialized literature on the causes of delinquency and the classification of delinquent youths did arise in the 1950s through the 1970s. But textbooks on the practice of clinicians in juvenile courts dfid not appear until the 1980s (Rosner & Schwartz, 1989; Schetky & Benedek, 1980, 1985, 1992), and these were not by psychologists. Moreover, neither these texts nor psychology’s general forensic texts (e.g., Melton, Petrila, Poythress, & Slobogin, 1986, 1997) provided detailed, systematic guidance for evaluations in delinquency cases. Thus, during most of the history of the juvenile court there has been little evidence that forensic evaluation of delinquent youths involved a body of knowledge that differed from general child clinical psychology. Concerning evaluations for the psycholegal questions recently raised by changes in juvenile law pertaining to delinquency cases, the first text to describe a systematic, conceptual approach to such evaluations did not appear until 1998 (Grisso, 1998a). Moreover, that text was based far less on a sound empirical foundation, and far more on clinical experience, than is desirable for a professional specialty. Those were the conditions of the field’s knowledge base up to 2000. The original version of this chapter (in 2003) ventured that it was virtually certain that

these conditions would soon change. They have changed substantially, as will be seen in reviews provided later in this chapter. For example, prior to the past decade, there was little research to support the validity of forensic examiners’ estimates of youths’ likelihood of future violence, but such evidence is now quite substantial. Similarly, the first comprehensive studies of youths’ capacities related to competence to stand trial have appeared since the 2003 version of this chapter. Advances in these and other areas of juvenile forensic assessment have resulted in a significant number of books in the past decade devoted exclusively to forensic evaluations for juvenile courts, as will be evident in later citations in the present chapter. Evidence of the growing knowledge base can be seen also in professional research conferences in law and psychology. For example, in the 1990s, the annual convention of the American Psychology–Law Society typically offered only a handful of symposia reporting research on juvenile forensic issues. During the most recent decade, however, as many as 20 to 25% of the conventions’ sessions have been devoted to research or practice pertaining to civil or delinquency issues involving children and adolescents. Organizational Identity Forensic psychology became officially organized in the 1970s (e.g., the American Psychology–Law Society, and the American Board of Forensic Psychology; see Grisso, 1991), as did some subspecialty organizations (e.g., the American Association of Correctional Psychologists, now the American Association for Forensic and Correctional Psychology). In contrast, forensic psychologists working in juvenile courts have no national organization representing their special practice in delinquency cases. A recent national survey (Grisso & Quinn, 2005) found that juvenile courts in almost all of the 100 largest communities in the United States have systematic court clinic services for evaluations in delinquency cases. Some of these are court clinics where psychologists are employed full- or part-time within juvenile courts, while others employ various community provider models. However, juvenile court clinicians have no national newsletters and no journal devoted specifically to psychological evaluations in the juvenile justice system. If a specialty requires a national organizational identity, the field of forensic juvenile evaluation does not yet meet that requirement. Training Specialized training programs in forensic psychology arose during the 1980s and have increased in number (DeMatteo et al., 2009; Vant Zelfde & Otto, 1997), but

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few of them currently provide specialized preparation for juvenile forensic evaluations. The majority of psychology graduate schools provide the basic child clinical preparation that continues to be the foundation for juvenile court evaluations. In addition, an increasing number are offering experience in providing evaluations for delinquency cases. However, specialization in such evaluations is still fairly rare in psychology predoctoral internship programs and forensic psychology postdoctoral programs. Professional Standards Standards for the professional and ethical practice of forensic psychology did not appear until 1991 (Committee on Ethical Guidelines for Forensic Psychologists, 1991). Subsequently, the American Psychological Association (1994) developed guidelines for the ethical practice of psychological evaluations in certain types of child forensic cases (e.g., child custody). Currently, there are no separate, specialized standards for professional and ethical practice in performing psychological evaluations in delinquency cases. However, during the past decade, a significant number of texts have been published that define a consensus about “best practices” in a wide range of juvenile forensic evaluations. For example, included in a series by Oxford University Press on “Best Practices in Forensic Mental Health Assessment” are volumes describing consensus about practice for evaluations of juveniles’ competence to stand trial (Kruh & Grisso, 2009) and risk of violence (Hoge & Andrews, 2010), as well as parenting capacity in child protection (Budd, Connell, & Clark, 2010), and child custody (Fuhrmann & Zibbell, in press). Summary of Current Status The 2003 version of this chapter concluded that a specialty or subspecialty in juvenile forensic evaluations for delinquency cases had not yet emerged. Advances in the past decade have changed that conclusion. A solid body of empirical knowledge and literature has begun to develop, and a consensus is clearly emerging regarding best practices in juvenile forensic assessments. This may be enough to begin thinking in terms of a “juvenile forensic subspecialty.” Yet most subspecialties need an organizational structure to support them, as well as specialized training opportunities, and these have not yet developed. The remainder of this chapter provides an overview of the concepts, research, and issues in evaluation practice that have arisen in the recent evolution of this young forensic specialty. We conclude with some observations for the continued development of this field.

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CLINICAL AND DISPOSITIONAL ASSESSMENTS IN DELINQUENCY CASES As noted earlier, psychologists’ most frequent evaluations in delinquency cases have involved describing youths’ psychological needs and rehabilitation potentials. There are two broad contexts in which these evaluations occur in delinquency cases. One is at the pretrial stage to assess the potential need for emergency mental health intervention; this may be in the form of routine psychological screening or clinical evaluation. The second is an assessment to assist the court at the posttrial stage of the delinquency proceeding in arriving at a dispositional decision about appropriate intervention. After reviewing some fundamentals, this section describes methods for performing these evaluations.

Some Fundamentals Grisso (1998a) has outlined four basic questions that dispositional evaluations should answer in delinquency cases: 1. What are the youth’s important characteristics (e.g., personality, family factors, mental or intellectual problems, delinquency history)? 2. What needs to change (e.g., what factors that have contributed to delinquency will need to be modified to reduce the likelihood of recidivism)? 3. What modes of intervention could be applied toward the rehabilitation objective? 4. What is the likelihood of change, given the relevant interventions? Certain factors are fundamental to the practice of evaluating the psychological needs and rehabilitation potentials of delinquent youths to address these questions. Some of them are shared with general child clinical psychology; others are more specific to delinquency cases. Similarly, some of them are shared with other areas of forensic psychology and others are not. Development It is axiomatic that evaluations of youths’ psychological and rehabilitation needs must always be performed with a developmental perspective. Unlike adults, most youths are undergoing constant and relatively rapid change intellectually, emotionally, and behaviorally. The normative nature of those changes, and their implications for future offending, always need to be considered in delinquency cases.

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For example, the normative process of development in adolescence is responsible for the well-documented facts that the majority of adolescent males engage in some types of behaviors that would be misdemeanors or felonies if they were arrested (Elliott, Ageton, Huizinga, Knowles, & Canter, 1983), and the great majority of youths who commit serious violent offenses do not continue their offending into adulthood. It is estimated that 80% of youth who are violent (Borum & Verhaagen, 2006), and between 90 and 95% of all juvenile offenders, do not continue to offend in adulthood (DiCataldo, Zaitchik, & Provencher, 2009; Moffitt, 2003). A developmental perspective is also important when evaluating risk factors. Certain behaviors, such as smoking, could be indicative of risk at younger ages, but not at age 15 when experimentation is a normal part of development (see Mulvey, 2005; Odgers, Vincent & Corrado, 2002). Family Youths typically are dependent on their families. An assessment of a youth’s psychological needs and rehabilitation potential that does not include information about the family will be inadequate for most dispositional evaluation questions in delinquency cases. More than in most other areas of forensic evaluation, assessments in delinquency cases are in part evaluations of youths in various social contexts, including family, school, and peer interactions. Mental Disorder As described later, current evidence indicates that the prevalence of mental disorders among youths in the juvenile justice system is at least two to three times that observed among youths in the general U.S. population (Kazdin, 2000; Shufelt & Cocozza, 2006). The diagnosis of mental disorders among adolescents is considerably more complex and ambiguous than among adults (Grisso, 2004). There are difficulties with our present diagnostic classification system for adolescents. But beyond this, the developmental process that adolescents are undergoing nearly guarantees greater instability, less reliability, and greater apparent comorbidity in mental disorders during adolescence than during adulthood. Race and Gender Our theories of delinquency and our methods for assessing psychological and clinical needs of youths have been developed primarily with a focus on the White male delinquent youth. These guides cannot automatically be applied to girls in the juvenile justice system. The proportion of girls in the juvenile justice system has steadily

increased (American Bar Association and National Bar Association, 2001), and girls in the system exhibit higher rates of mental health disorders than their male counterparts (Wasserman et al., 2005). Moreover, whereas minority youths comprise about one-third of teenagers in the United States, they make up about two-thirds of youths in our juvenile detention and correctional facilities (Sedlak & Bruce, 2010). As will be discussed later, our assessment knowledge base often does not allow us to apply it with confidence to minority youths. The challenges posed by the discontinuity between our knowledge base and the populations of youths actually served in the juvenile justice system have too often been ignored. Systemic Knowledge Psychologists who perform evaluations for dispositional questions in delinquency cases must know as much about the rehabilitation resources of the juvenile justice and correctional system as they do about the needs of youths. Ultimately, the objective of a dispositional evaluation is to match the needs of youths with the services that the system can provide. General Methods for Assessing Personality and Mental Disorder Every dispositional evaluation by psychologists should include an assessment of the youth’s intellectual and social development, personality, and possible mental disorder. In this respect, dispositional evaluations for delinquency cases are most like general child clinical evaluations and may borrow on our general knowledge of child psychopathology and its assessment. Grisso, Vincent, and Seagrave (2005) and Grisso and Underwood (2003) have provided reviews of multidimensional, unidimensional, and comprehensive assessment instruments for use with delinquent youths. Examiners have the benefit of a number of assessment tools for describing youths’ personality, developmental problems, and symptoms of mental disorder. Among them are the Minnesota Multiphasic Personality Inventory–Adolescent (MMPI-A; Butcher et al., 1992) and the Millon Adolescent Clinical Inventory (MACI; Millon, 1993). They have their limitations for use in delinquency cases, however. Neither has yet been used extensively in research in juvenile justice settings, and research has not yet provided a confident view of the application of the instruments to ethnic minority youths. The Achenbach System of Empirically Based Assessment (Achenbach & Rescorla, 2001) provides a better research foundation for application to delinquent youths of various

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ethnic backgrounds, as well as offering parent-response, teacher-response, and youth self-report versions. The Personality Inventory for Children, Second Edition (Lachar & Gruber, 2001) also has parent, teacher, and youth forms to allow for comprehensive assessment. In addition, the less-well-known Basic Personality Inventory (Jackson, 1995) is shorter than the MMPI-A or MACI and offers norms for delinquent samples. Earlier research on the prevalence of mental disorders among youths in the juvenile justice system offered widely varying estimates. Several recent comprehensive studies (Shufelt & Cocozza, 2006; Teplin et al., 2002; Wasserman et al., 2005), however, suggest that about 60 to 70% of youth in juvenile justice settings meet criteria for one or more mental disorders, roughly 3 times the rate observed in youths in the general population. Studies have also observed high rates of psychiatric comorbidity in the juvenile justice population; 60% of youth who met diagnostic criteria for one disorder met criteria for three or more diagnoses (Shufelt & Cocozza, 2006). When conduct disorder was excluded, 66.3% of juvenile justice youth still met diagnostic criteria for one or more mental health disorders (Shufelt & Cocozza, 2006). Conduct disorder, of course, is the most frequent diagnosis among delinquent youths. Its usefulness as a diagnostic classification is limited by the fact that the “disorder” is little more than an identification of the fact that a youth has been habitually delinquent. The distinction in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV ; American Psychiatric Association, 1994) between the onset of conduct disorder prior to adolescence and during adolescence, however, has some value, in that a body of literature indicates that early onset increases the likelihood that a youth will continue to engage in illegal behaviors beyond adolescence (e.g., Loeber & Farrington, 1998; Moffitt, 2003). Frick (1998) has provided a useful set of guidelines for the diagnosis of conduct disorder and its use in dispositional planning. The literature (e.g., Grisso, 2004) makes it clear that special attention should be given in dispositional evaluations of delinquent youths to mood disorders (especially depression), anxiety disorders, and posttraumatic stress disorder. Research suggests these internalizing disorders may be particularly important to assess, as they are observed at higher rates in youth engaged in antisocial behavior (Sheidow et al., 2008). In addition, attentiondeficit/hyperactivity disorder (Barkley, 1990) and substance abuse disorders play a significant role in describing and explaining the delinquent histories of some youths.

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Unfortunately, the diagnosis of mental disorders among juvenile justice youths in clinical evaluations is hampered by controversy regarding theories and taxonomy in child psychopathology (Mash & Barkley, 2003) and issues of comorbidity. Defining psychopathology in adolescence is complicated by issues related to development (i.e., age relativity of various symptoms), the discontinuity of symptoms in adolescence, and the high rates of comorbidity, particularly in juvenile justice youth (see Vincent & Grisso, 2005, for a discussion of these issues). Moreover, structured tools for arriving at DSM-IV diagnoses, like the Diagnostic Interview Schedule for Children (Shaffer, Fisher, Lucas, Dulcan & Schwab-Stone, 2000), are timeconsuming and thus not amenable to many clinical referral situations in delinquency cases. Personality and Problem Scales Specifically for Delinquency Cases A number of typologies for categorizing delinquent youths were developed in the 1960s and 1970s, and they persist today along with assessment methods for classifying youths according to these typologies. For example, classification of youths according to interpersonal maturity level can be based in part on scores on the Jesness Inventory–Revised (Jesness, 2003), developed specifically for use with delinquent youths. Quay (1964, 1966) has long had a useful typology for classifying delinquent youths, objectified in his Revised Behavior Problem Checklist (Quay & Peterson, 1987). More recently, the Youth Level of Service/Case Management Inventory (Hoge & Andrews, 2006) was developed to identify specific problem areas around which to formulate rehabilitation plans for youths in the juvenile justice system, and includes consideration of risk factors that are static (i.e., factors that cannot change, like “age at first arrest”) and dynamic (i.e., factors that can be modified with intervention, like associating with antisocial peers). The Structured Assessment of Violence Risk in Youth (SAVRY; Borum, Bartel, & Forth, 2006) structures clinicians’ assessments of youth’s risk for future violence, identifies areas for treatment planning, and can be used to assess changes in risk over time. For children under 12 years of age, the Early Assessment Risk Lists for Boys (EARL-20B; Augemeri, Koegl, Webster, & Levene, 2001) and for Girls (EARL-21G; Levene et al., 2001) allow evaluators to assess and manage risk for violence and antisocial attitudes in early childhood. Ways to screen youth for mental or behavioral health problems have witnessed significant development in the

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past decade. Among these are the Global Appraisal of Individual Needs–Short Screener (GAIN-SS; Dennis, Feeney, Hanes-Stevens, & Bedoya, 2008) and the Massachusetts Youth Screening Instrument–Second Version (MAYSI-2; Grisso & Barnum, 2006; Grisso, Barnum, Fletcher, Cauffman, & Peuschold, 2001). These tools have had an extraordinary impact in juvenile justice practices in the past decade. For example, since 2000 when it was introduced, the MAYSI-2 has been adopted statewide in over 40 states for use in probation, detention, and/or juvenile corrections. These screening instruments are designed especially for use by nonclinicians, so they are less often used in forensic evaluations. They have the advantage of being amenable to routine administration to all youths entering a juvenile justice facility. Thus they are useful as “triage” instruments and as methods for identifying problem areas that need to be explored in further assessment directed toward intervention planning. The more an instrument is amenable to routine use, however, the greater has been the requirement to keep the instrument brief, to rely on the youth’s own self-report, and to allow that the instrument may be influenced by immediate and potentially transient psychological states rather than primarily characterological traits. These features may decrease the reliability and validity of the instruments for some purposes (e.g., diagnosis), while allowing them to be satisfactory as triage instruments that signal potential needs. Typically, they should not be used in place of clinical expertise or more complete measures when performing comprehensive dispositional evaluations. Assessment of Social Contexts As noted earlier, dispositional evaluations in delinquency cases require an evaluation of potential resources and interventions that may be relevant in developing a rehabilitation plan. A few methods are available for assessing the qualities of youths’ families and their potential as a focus for rehabilitation efforts. Examples include the Family Environment Scale (Moos & Moos, 1986) and the Family Adaptability and Cohesion Evaluation Scales II (Olson et al., 1982). At present, they can be of value descriptively, but there is little research to guide the clinician in using the data for rehabilitation planning. Especially noteworthy is the absence of methods to describe and classify rehabilitation programs in ways that are clinically useful. Recent research has demonstrated the value of some types of rehabilitation programs for delinquent youths in general (e.g., Center for the Study

and Prevention of Violence, 2011; Greenwood, 2006). However, research has provided little guidance for valid matching of types of youths with types of rehabilitation programs. As essential as this information may seem, it is extremely difficult to ascertain. Before even beginning to test the value of specific programs with certain youths, researchers need a reliable way to classify youths and to classify rehabilitation programs according to some theory of rehabilitation. The risk/needs tools, described in a later section for use in assessing risk of reoffending, provide some guidance for the task of classifying youth according to their individual treatment needs (see Vincent, Terry, & Maney, 2009). Classifying rehabilitation programs, however, remains a challenge, and no validated tool or guidance for this task currently exists. Moreover, the application of such a tool would have to presume that local versions of the rehabilitation programs practiced the intervention methods in question reliably and consistently. Dispositions and Public Safety The juvenile justice system has always had two primary objectives: to provide for youths’ positive development, and to protect the community. In recent years, juvenile justice systems increasingly have acknowledged that youths’ rehabilitation in a juvenile correctional system exists primarily to reduce the likelihood of future harm to others, not simply to meet youths’ psychological needs. Public safety is not only a long-range objective, but also a more immediate concern during the process of rehabilitation. Therefore, virtually every evaluation for the needs and rehabilitation potential of a youth in the juvenile justice system requires an assessment of the short-range and long-range risk of future harm to others. Assessment for likelihood of future harm is described in the next section as a separate type of evaluation. However, these assessments have always been a part of disposition evaluations as well. ASSESSMENTS FOR RISK OF REOFFENDING Substantial advances have been made in the past three decades in the assessment of the risk of future violence among adults (see Monahan, this volume). The assessment of risk of violent and nonviolent reoffending in youths has borrowed from that research certain general principles, which are described in the following. Research on methods for risk assessment with youths has developed more slowly than the adult research in identification of specific risk factors and the development of assessment

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instruments. However, as described ahead, the past decade has seen significant progress in this regard. Clinicians are asked to evaluate youths’ risk of future reoffending at a number of points in the adjudicative process in delinquency cases: • Determining the need for secure pretrial detention • Addressing the public safety standard in juvenile court hearings on waiver of a juvenile to criminal court for trial • For youths adjudicated delinquent, to assist the court in determining degree of security needed during rehabilitation • After a period of commitment to a secure rehabilitation program, assessing whether rehabilitative efforts have resulted in reduced risk of future harm (allowing transitional placement in a less secure program) • Assessing the need for extended juvenile court custody in states that allow such extension beyond the usual age jurisdiction for juvenile court The scope and method of risk assessments will differ somewhat for these various purposes, but most of the points raised in what follows are applicable across these various types of risk assessments. Some Fundamentals We have learned a number of lessons from research on adult risk assessment that can be applied to risk assessment with adolescents. These fundamentals are now widely recognized among forensic psychologists who perform risk assessments (e.g., Borum, Swartz, & Swenson, 1996; Fogel, 2009; Grisso, 1998a; Heilbrun, Yasuhara, & Shah, 2009). Use Risk Factors Clinicians should bring to the task a set of factors or variables that, based on research evidence, have known relations to future violent and nonviolent reoffending. Research has identified such factors for use with adolescents (e.g., see Andrews & Bonta, 2006; Borum & Verhaagen, 2006). None of these risk factors is highly correlated with future reoffending of violence, but their modest empirical correlations provide a reasonable, logical foundation for any risk assessment. Those factors are reviewed later in this section. Make Risk Estimates, Not Predictions When clinicians treat risk assessment as a dichotomous question (that is, whether the individual “will or won’t”

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engage in a violent offending behavior in the future), their predictions that a person will engage in a violent behavior are more often wrong than right (Monahan, 1981). Violence in most populations is a low-base-rate behavior, which raises the chances of false-positive predictions. Clinicians, therefore, are urged to see their task not as “predicting violence,” but as estimating the relative likelihood of future violence (e.g., a statistical probability estimate, or a designation of “less likely, as likely, or more likely” than others in a specific population). Use Actuarial Methods and Base Rates Clinicians are encouraged to use any valid methods that research provides for combining risk factors to arrive at probability estimates of future violent or nonviolent reoffending. Actuarial and structured professional judgment tools for use with adolescents have been developed and validated in recent years (these are explained later). Recognize Social Context Acts of violence are only partly a function of personal characteristics. They are also a function of situations and social contexts that increase or decrease the likelihood of an aggressive reaction. A youth with aggressive tendencies may be more likely to be violent in one context than in another (e.g., when not under supervision versus when in custody in a structured delinquency program). Clinicians should recognize, assess, and consider those social situations in which the youth is likely to be functioning in the future. Moreover, risk estimates should be conditional, based on reference to a specific context. Recognize Difficulties in Long-Range Estimates Clinicians sometimes are asked to make estimates of the likelihood that a youth will reoffend several years in the future, or when the youth becomes an adult. The process of ongoing development in adolescence suggests that a youth’s present behavior, though important to consider, is less likely than an adult’s to be a good indicator of future behavior when the future in question is more extended. Moreover, it is well documented that most youths who engage in delinquent behavior as adolescents do not continue to do so as adults (e.g., Borum & Verhagen, 2006; DiCataldo, Zaitchik & Provencher, 2009; Moffitt, 2003). Risk Factors The following factors have been identified as empirically related to future violence or nonviolent reoffending in youths, although none of them is highly predictive (for a

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detailed review of risk factors, see Borum & Verhaagen, 2006). Borum (2000) and Grisso (1998a) have provided commentary on their application in assessment cases, and the following comments on each factor are consistent with those recommendations. • Past behavior. Clinicians should examine the nature and history of youths’ past delinquency. Typically, the mere fact that the youth is charged with a violent offense is less critical for estimates of future violence than whether the youth’s first harmfully aggressive behaviors began to emerge in preadolescence or in adolescence. Earlier onset is more suggestive of continued aggression beyond adolescence (e.g., Elliott, 1994; Moffitt, 2003). • School problems. Truancy, dropout, and other signs of poor attachment to school are related to increased risk of future aggression (Lipsey & Derzon, 1998). This factor is more critical when incidents of school problems (e.g., poor grades, low achievement) began earlier in a youth’s school history (Maguin & Loeber, 1996). • Substance abuse. Research has consistently observed that alcohol and drug use increase the risk of reoffending (e.g., Stoolmiller & Blechman, 2005). The influence of substance abuse may be direct (as a condition during which violence may occur) and/or indirect (as an activity that frequently brings youths into social situations that encourage aggressive behaviors). • Personality traits. Personality characteristics such as anger, impulsiveness, risk-taking (also known as sensation-seeking) and lack of empathy have been related to youth violence and delinquency generally. Ongoing research is currently examining the construct of psychopathy as a personality type in adolescence (e.g., Frick, Bodin, & Barry, 2000) and as a factor in risk assessment (see DeMatteo, Edens, & Hart, 2010). Specifically of interest is how callous-unemotional traits of psychopathy may be related to violent and delinquent behavior (Frick & White, 2008). • Mental disorder. Although not highly predictive, mood disorders, posttraumatic stress disorder, and attention deficit/hyperactivity disorder contribute to the risk of harmful aggression. Certain symptoms of mental health disorders, such as impulsivity, restlessness, and problems with sustained attention, may increase youths’ risk for future offenses (Hawkins et al., 2000). • Family conflict. The modeling of aggression and criminality by parents, as well as youths’ experience as victims of family abuse and neglect (Dembo et al.,

2000; Hawkins et al., 2000), have been shown to be related to an increase in risk of harm to others. • Peers. Social interaction with peer groups that have patterns of aggression increases the risk of violent behavior, as well as proximity to neighborhoods in which the base rate of violence is high. • Opportunity. Risk assessments should attend to external factors that may increase the likelihood that violent acts may occur among youths who are high in other risk factors (e.g., the availability of weapons, accessibility of a specific person with whom a youth may be in conflict).

Methods and Instruments The first edition of this volume noted the need for systematic methods that would allow clinicians to collect reliable information on these factors for a given youth, and then to refer to research-based rates of reoffending for youths who were known to have this same combination of factors. Since the first review, such instruments have been developed and validated for clinical use with adolescents. For example, the Youth Level of Service/Case Management Inventory (Hoge & Andrews, 2006) is an actuarial risk/needs tool that provides score ranges for low-, medium-, high-, and very-high-risk youths, based on a normative sample of Canadian juvenile offenders. The Structured Assessment of Violence Risk in Youth (SAVRY; Borum, Bartel, & Forth, 2006) is a structured professional judgment tool that evaluates the likelihood of future violent acts and classifies youth as low, medium, or high risk. Although both measures are well validated, continued research is needed to examine their utility across gender and ethnic groups. In addition to these tools, several excellent reference texts have been published in recent years that provide significant guidance regarding the evaluation of risk in adolescents (e.g., Andrade, 2009; Grisso, Vincent, & Seagrave, 2005; Otto & Douglas, 2009). Risk of Sex Reoffending The development of assessment methods in this area has focused on identifying types of juvenile sex offenders, discovering their special characteristics to improve treatment efforts, assessing treatment progress, and evaluating risk of future sex reoffending when discharge from treatment programs is being considered. Assessment in this area can employ some of the general risk assessment factors discussed earlier, but it requires additional factors as

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well as special attention to specific diagnostic features of youthful sex offenders (American Academy of Child and Adolescent Psychiatry, 1999). Considerable progress has been made in providing examiners with structured methods for classification of juvenile sex offenders and identifying important factors for guiding their treatment (e.g., American Academy of Child and Adolescent Psychiatry, 1999; Barbaree, Marshall, & Hudson, 1993; Perry & Orchard, 1992). Several methods also have been made available for risk assessment and treatment planning for youthful sex offenders. The Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR; Worling & Curwen, 2001), modeled after the HCR-20 for adults (Webster et al. 1997), is a checklist that estimates the short-term risk of sexual recidivism for youth between the ages of 12 and 18 who have committed a sexual offense. Another available checklist, the Juvenile Sex Offender Assessment Protocol–II (JSOAP-II; Prentky & Righthand, 2003), also includes static and dynamic risk factors and estimates the risk of a contact sexual reoffense in males. Further research on the predictive validity of both these instruments is needed.

ASSESSMENTS FOR PSYCHOLEGAL CONCEPTS IN DELINQUENCY CASES In contrast to dispositional and risk evaluations, some assessments in delinquency cases call for examiners to provide information that assists the courts in addressing youths’ capacities in relation to specific legal criteria. For example, clinicians are sometimes asked to perform evaluations addressing criteria for waiver of juvenile court jurisdiction, allowing youths to be tried in criminal court. Clinicians have provided waiver evaluations for juvenile courts for many decades. Other types of evaluations addressing specific legal criteria have a shorter history because, as noted earlier, they have arisen as a consequence of relatively recent changes in juvenile law. Among these are assessments of youths’ capacities as trial defendants (i.e., their competence to stand trial) and evaluations for youths’ capacities to waive Miranda rights. The field of forensic psychological assessment has developed a consensus about some fundamental principles when performing evaluations to address legal standards related to capacities and characteristics of individuals before the courts. Elaboration on these principles can be found in Grisso (1998a, 2003), Melton et al. (2007),

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and a number of texts that describe basic standards for forensic evaluations (e.g., Heilbrun, 2001; Heilbrun, Grisso, & Goldstein, 2009). Clinicians who assist courts in addressing a person’s capacities in relation to a legal standard should at least: • Know the legal standard and how it has been used in law, and translate it into psychological or psychiatric constructs that bear a conceptual relation to the legal standard as it has been applied by courts. • Perform evaluations using methods that collect information specifically relevant to the psychological constructs derived from the preceding translation. • Interpret and communicate the evaluation’s results in a way that assists the court in understanding their relevance for the legal standard that guides the court’s decision. Waiver to Criminal Court All states provide legal mechanisms whereby a youth who is charged with an offense may be waived (in some states, transferred or certified ) to stand trial in criminal court as an adult (Snyder & Sickmund, 2006). Beginning in the late 1980s, when states were “getting tough” on juvenile crime, many states put in place laws that required that cases involving youths of certain ages and charged with specific offenses must automatically be filed in criminal court. Almost all states, however, have retained laws and procedures that allow juvenile court judges the discretion to waive jurisdiction for other juveniles, following a waiver hearing to determine whether the evidence meets the legal criteria. Examiners often are asked to perform evaluations to assist courts in deciding whether a youth meets criteria for waiver to criminal court. The Legal Standard The criteria for waiver vary somewhat from state to state, but typically they allow waiver only when the youth (a) presents a significant risk of harm to others (a public safety standard), is very unlikely to be rehabilitated if retained in the juvenile justice system (an unamenable to rehabilitation standard), and/or (c) has characteristics suggesting mature criminal characteristics (a sophistication and maturity standard). (Some states require all three while others do not.) The historical vagueness of legal standards for waiver has made it difficult for clinicians to translate the legal standards into psychological constructs for assessment purposes. Criteria offered by the U.S. Supreme Court

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in Kent v. U.S. (1966) often have been used but are inadequate for this purpose. Several of Kent’s eight criteria are not psychological at all (e.g., “seriousness of the offense”), others are psychological but nonspecific (e.g., “sophistication and maturity of the child”), and still others are so vague as to offer virtually no guidance (e.g., “previous history of the child”). Most states’ “public safety” or “danger to others” criteria are similarly vague. This at least allows clinicians to employ factors that have known empirical relations to future violence among youths, as previously discussed. But usually the standards do not describe the context in which estimates of risk for violence are to be made. For example, does the court wish to know whether the youth, if retained in the juvenile justice system, would be a significant risk while being treated, or is the question the risk of violence in adulthood after the youth has been treated? Standards usually are silent on such matters, although attorneys and judges sometimes can offer guidance regarding local interpretations. Likewise, states’ definitions of unamenable to rehabilitation and sophistication and maturity often are nonspecific. Most, however, do not consider merely whether the youth’s condition is modifiable in general. They ask whether it is reasonable to expect the state’s rehabilitation programs for delinquent youths to be able to bring about necessary change with this particular youth. In other words, the question of amenability to rehabilitation requires addressing the match of the youth to rehabilitation options, and the likelihood of reduced recidivism under the best fit of these possible matches. Moreover, courts typically require an estimation of the time that may be needed to achieve the desired low level of recidivism risk, because the juvenile justice system in most states must release a youth at an age specified by law as the extent of the juvenile court’s age jurisdiction. Assessment Concepts and Methods The criteria that guide waiver decisions allow evaluations to be based substantially on methods that were discussed earlier in this chapter for dispositional evaluations (pertaining to rehabilitation potentials and recommendations) and in another section for evaluating risk of future harm to others. Evaluations for waiver cases, however, have many features that require more than simply combining a “risk assessment” with a “rehabilitation assessment” in one package. For example, they require more specific attention than do either of these two evaluations alone to such matters as the youth’s potential responsiveness to intervention, the real or questionable significance of

past unsuccessful interventions with the youth, and the estimated time that will be required for rehabilitation. A small body of literature on transfer evaluation has developed in the past two decades (e.g., Fagan & Zimring, 2000; Grisso 1998a, 2000, 2010; Kruh & Brodsky, 1997), including commentary on the practice of conducting these evaluations and reporting findings to the court (e.g., Loving & Patapis, 2007; Salekin, 2002) and a specialized tool for assessing the three components involved in waiver cases (the Risk-Sophistication-Treatment Inventory; Salekin, 2004). Nonetheless, a consensus regarding the manner in which waiver evaluations should be performed has not yet evolved (Grisso, 2010). Similarly, there have been considerable developments in the field’s understanding of rehabilitation and treatment methods that are effective for delinquent youth, including research on various forms of individual, group, and family-based interventions (Center for the Study and Prevention of Violence, 2011; Greenwood, 2006) and the characteristics of effective programs (Heilbrun et al., 2010; [Lipsey, 2009]). However, clinicians conducting waiver evaluations still face challenges identifying local programs that are effectively implementing evidencebased practices, and matching youth to the right programs for their individual treatment needs. Some instruments are in development to aid clinicians in this process (see Vincent, Terry, & Maney, 2009), but considerably more research is needed before clinicians can speak with confidence about the potential results of interventions with youths having specific clinical and offense characteristics. Adjudicative Competence (Competence to Stand Trial) As noted earlier, the issue of competence to stand trial has only a brief history in the juvenile justice system. It was first raised with any frequency in the late 1990s, in response to changes in juvenile law that increased the penalties associated with delinquency adjudication, and therefore increased the need for attention to due process requirements more like those provided to adults in criminal court. Clinicians who perform evaluations in delinquency cases increasingly are being asked to evaluate youths’ capacities as trial defendants in juvenile court proceedings, and this demand is expected to continue. (See Stafford & Selbom, this volume, for a discussion of trial competence of adults.) The Legal Standard In recent years, a significant majority of the states recognized the right of juveniles to be competent to stand trial

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in delinquency cases in juvenile court. In many states, this has been established by new statutes (Bonnie & Grisso, 2000; Johnson, 2006); in others, it has been recognized as a consequence of litigation (e.g., In the Interest of S.H., 1996). Often, these new laws have not specifically stated the standard for competence to be applied in juvenile court. But in all cases in which the issue has been raised, courts have applied to juvenile cases the modern standard for competence to stand trial as formulated in Dusky v. U.S. (1960) for criminal cases referring to comprehension of the trial and the ability to assist counsel. Three other matters of definition for competence in juvenile court are less certain. First, most states’ laws are unclear as to whether the degree of ability that is required within the Dusky definition is the same for participating in juvenile proceedings as for participating in criminal proceedings (Scott & Grisso, 2005). Second, whereas incompetence to stand trial typically is related to mental disorder or mental retardation in criminal cases, some youths may lack the abilities identified in the Dusky standard not because of disorder or disability, but due to immaturity. Only a minority of states’ statutes explicitly recognize the possibility of incompetence due to immature abilities (e.g., California Welfare and Institutions Code § 709 (b) (West 2011)); most are silent on this matter. Third, the disposition of juveniles found incompetent is still a matter of uncertainty in many states. In criminal court, defendants found incompetent are provided appropriate treatment or habilitation for the mental disorder or developmental disability that is responsible for their functional deficits associated with incompetence. Although many states presume that this applies to juveniles as well, it does not provide a remedy for youths whose deficits are simply a result of their immaturity. Assessment Concepts In the past decade, several references have emerged that provide guidance for conceptualizing and performing evaluations of juveniles’ competence to stand trial (Barnum, 2000; Grisso, 1997, 1998a, 2000, 2005; Kruh & Grisso, 2009; Schwartz & Rosado, 2000). This stillevolving body of literature has begun to define how the evaluation of juveniles’ competence can borrow on the established concepts from adult competence evaluations, but also how it must be somewhat different due to youths’ relative developmental immaturity. Empirical literature has emerged that describes youth typically referred for these evaluations (e.g., McKee & Shea, 1999), clinicians’ practices when they evaluate them (Ryba, Cooper, & Zapf, 2003), and the characteristics associated with

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incompetence (e.g., Grisso et al., 2003). At the same time, a host of questions remain unanswered, specifically regarding how immaturity is considered by the courts. Concerning the functional component of competence to stand trial, several decades of legal and clinical forensic analysis have established a consensus regarding the functional abilities to which the Dusky standard refers (see Stafford & Selbom, this volume). These functional abilities should apply to juvenile proceedings as well as adult criminal proceedings with only a few minor exceptions (e.g., knowledge of the jury process is irrelevant in most states in that they do not provide for jury trials in juvenile court proceedings). Some of the more important functional abilities include (a) an understanding and appreciation of the charges and possible consequences of the trial and appreciation of the role of participants in the trial; (b) the ability to consult with counsel in order to provide meaningful input into the defense process; and (c) the ability to make decisions about the exercise or waiver of important rights, such as may occur when one waives the right to a trial by pleading guilty or waives the right to be represented by legal counsel. Concerning the causal component of competence to stand trial, it is presumed that deficits in these abilities due to mental disorder or mental retardation are as applicable in juvenile cases as in criminal cases. However, as noted earlier, in many states it is not clear whether youths may be found incompetent when their deficits in relevant functional abilities are due merely to immaturity. Research over the past 15 years has provided an understanding of children’s and adolescents’ cognitive and emotional capacities potentially associated with their adjudicative competence (e.g., Grisso, 1997, 1998a, 2000; Grisso et al., 2003; Kruh et al., 2006; Scott, Reppucci, & Woolard, 1995; Steinberg & Cauffman, 1996). Results from the most comprehensive study of juvenile adjudicative competency conducted to date (Grisso et al., 2003) suggest that one third of youth between the ages of 11 and 13, and one fifth of 14- and 15-year-olds, have deficits in their adjudicative competency similar to those seen in adult defendants found incompetent to stand trial, whereas youth ages 16 and 17 show deficits at rates similar to those observed in adults. Across studies, younger youth and those with lower intellectual functioning exhibit more deficits in their understanding and appreciation of legal concepts, as well as their ability to assist counsel and make relevant decisions (for a recent review, see Kruh & Grisso, 2009). Moreover, even “average” adolescents may not yet have achieved their own potential (i.e., the capacities

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they will have when they reach adulthood) for making critical decisions about the exercise of rights in the trial process. Decision making is significantly influenced by a number of factors for which there is evidence of normative differences between adolescents and adults: for example, in risk–benefit analyses (Grisso, 2003; PetersonBadali, Abramovitch, & Duda, 1997), in time perspective and future orientation (e.g., Steinberg et al., 2009), and in risk-taking tendencies (Steinberg, 2008). Theoretical analyses suggest that these developmental factors would impact youths’ legally relevant functional abilities. To date, research on adjudicative competence suggests that younger youth, and in some cases those with lower intelligence, are less able to identify risks associated with legal decisions, and less likely to identify and consider long-term outcomes (Grisso et al., 2003). Concerning the interactive component of competence to stand trial, one might suppose that the demands on youths for participation in their trials would be less than for adults, in that they have the benefit of parents who may assist them in understanding the proceedings and making important decisions. Some observations, however, suggest that too often, parents are not able to provide such assistance (Tobey, Grisso, & Schwartz, 2000; Woolard, 2006). Attorneys can sometimes improve their young clients’ understanding or decision making, but commentators typically have expressed misgivings about their ability to do so routinely (e.g., American Bar Association Juvenile Justice Center, 1995; Katner, 2006). Assessment Methods Early guidelines for evaluating youths’ competence to stand trial (e.g., Barnum, 2000; Grisso, 1998a) generally recommended procedures and methods patterned after those employed with adults. More recently, semistructured interviews have been developed and or validated for use with juveniles. The Juvenile Adjudicative Competence Interview (JACI; Grisso, 2005) is a semistructured interview to guide evaluators in collecting developmentally sensitive information regarding competency-related abilities. The JACI was piloted extensively with youth and includes age-appropriate wording for use with youth, including those with developmental delays or disabilities. However, it provides no scoring method and therefore norms. The Fitness Interview Test–Revised (FIT-R; Roesch, Zapf & Eaves, 2006), a semistructured clinical interview developed for use with adults in Canada, is accumulating validation for use with adolescents (Viljoen et al., 2006; Viljoen & Roesch, 2007). The MacArthur Competence Assessment Tool–Criminal

Adjudication (MacCAT-CA; Poythress et al., 1999) is a highly structured interview that was designed for adults, but has been used extensively in research with adolescents. (For a detailed review of these measures, see Kruh & Grisso, 2009). In addition to these specialized tools, guidelines recommend a clinical and developmental assessment, intelligence testing when necessary, and the collection of relevant historical information (e.g., academic records). Youths’ Capacities to Waive Miranda Rights The issue of youths’ capacities to waive Miranda rights became an issue during the decade following In re Gault (1967), in which the U.S. Supreme Court ruled that youths in delinquency cases had many of the same rights as adults facing criminal charges. Among these were the constitutional rights to avoid self-incrimination and to have counsel present at the time of any police interrogation. The 1970s saw an increase in appellate cases that addressed whether juveniles in delinquency investigations were capable of waiving these rights when they were informed of them by police, and therefore whether their confessions were obtained in a manner that would allow them to be admitted as evidence against them (Feld, 2000). Eventually, clinicians began receiving requests for evaluations of youths’ cognitive and emotional capacities to have understood and waived their rights prior to the confessions they gave to police officers. Requests increased in the 1990s, as new juvenile laws lowered the ages at which youths could be waived to criminal court (where their confessions would have considerably greater consequences). The Legal Standard Any confessions used against criminal or delinquency defendants must be preceded by warnings to them regarding their constitutional rights to legal counsel and to avoid self-incrimination, as required by the Supreme Court’s decision in Miranda v. Arizona (1966). For their confessions to be admissible as evidence, their waiver of the rights must be made “voluntarily, knowingly and intelligently” (Fare v. Michael C., 1979). Whether this standard is met in a particular case is dependent on the court’s weighing of the “totality of circumstances” (Fare v. Michael C., 1979; People v. Lara, 1967). Evaluations typically have focused on the “knowing and intelligent” components in this definition. The U.S. Supreme Court’s decision in Colorado v. Connelly (1986) indicated that confessions typically will be seen as

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“voluntary” as long as they are not the product of obvious police coercion. Courts have not settled the application of this standard to youths, although U.S. Supreme Court commentary in In re Gault (1967) and Fare v. Michael C. (1979) appears to acknowledge that greater protection from coercion may be necessary for youths than for adults because of their psychological immaturity. Some states require that parents be present to advise youths regarding their decision to waive the rights, but parents themselves may not waive their child’s constitutional rights in police investigations that may lead to delinquency charges. Assessment Concepts Concerning the functional component of the question of valid waiver of rights, the Miranda warnings themselves define the specific information that youths must be able to understand. The content and complexity of Miranda warnings vary considerably across jurisdictions (Rogers et al., 2007). Even at their best, however, Miranda warnings may not provide or define all of the information that is relevant. For example, a youth may understand that he or she can have an attorney present at the interrogation (as stated in the third Miranda warning). But the youth is unprepared to use this information if he or she does not understand that an attorney is an advocate who works on his or her behalf (which is not explained in the Miranda warnings). Grisso (1981, 1998a) has outlined the additional types of knowledge that youths should have, beyond “understanding” of the Miranda warnings themselves, to ensure that they “appreciate” the significance of the warnings. Concerning the causal component, possible explanations for youths’ deficits in understanding and appreciation of the Miranda warnings might include any of the clinical and psychological reasons that one might imagine for impairment or immaturity in intellectual functioning, attention, memory, and other cognitive functions. They might also include simple lack of knowledge. In a substantial research project, Grisso (1980, 1981) examined the capacities of youths to understand and appreciate Miranda warnings, using objective assessment methods with large samples of youths (in pretrial detention) and adults (in the criminal justice system). Age and intelligence were the most significant correlates of performance on the measures of understanding and appreciation of Miranda rights. Youths below age 14 generally had significantly poorer performance than did adults, and mid-adolescents with low intelligence performed significantly more poorly than most adults, even those with similarly low intelligence. Contrary to common judicial presumptions, youths

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with more prior experience with the justice system did not perform better than youths with less prior involvement with attorneys and courts. Subsequent studies of youths’ comprehension of Miranda warnings have replicated these findings, all verifying age and intelligence as significant predictors of comprehension of Miranda rights (Colwell et al., 2005; Goldstein, Zelle, & Grisso, 2011; Viljoen & Roesch, 2005). Concerning the interactive component, opinions about a youth’s capacities to have waived Miranda rights at the time of interrogation typically require consideration of not only the youth’s capacities, but also the circumstances of the interrogation itself. For example, a youth with marginal capacities for understanding the warnings at the time of an evaluation may have been far less able to comprehend them at the time of police questioning, depending on how the Miranda warnings were given (e.g., in a cursory fashion, or if a youth with serious reading deficits was expected to read them). Examples of other interrogation circumstances (Grisso, 1998a) that might be relevant because they could influence the youth’s capacities to attend to, understand, and appreciate the significance of the Miranda warnings include, for example: • The length of time the youth was held in isolation prior to questioning • Physical conditions of the holding cell • Whether the youth was provided food and other necessities • Whether parents were present and were capable of offering advice It is important to recognize that an evaluation of a youth’s capacities to comprehend Miranda warnings is, at heart, a retrospective evaluation. It seeks information that will allow the examiner to form an opinion about the youth’s capacities at the time of the Miranda waiver (which was often several weeks or months prior to the evaluation), not merely the youth’s capacities at the time of the evaluation. Nevertheless, evaluating the youth’s present capacities is an important part of the evaluation process, particularly those capacities that might be less likely to change over time. Assessment Methods Current guidelines (Grisso, 1998a, 2009) suggest that evaluations for juveniles’ capacities relevant for questions of valid waiver of Miranda rights should involve extensive investigation of the circumstances of the police

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questioning, including information from police records, from the youth, and from the youth’s parents (even if they were not present, because they often can provide information about the youth’s psychological condition during the days preceding the arrest). Clinical and developmental assessment is needed to describe the youth’s psychological and mental health status in relation to the causal component of the evaluation. Psychological testing, especially intelligence testing, will usually be used to assist in this description. The functional component requires a direct assessment of the youth’s current ability to understand the Miranda warnings and their significance. This will not necessarily describe what the youth knew or was able to understand at the time of police questioning, but knowing the youth’s current ability to understand the warnings is a prerequisite to making such inferences. This part of the assessment can be done by interview. However, specialized tools for this purpose allow for objective scoring and comparison of the youth’s scores to those of a large sample of youths and adults. The Instruments for Assessing Understanding and Appreciation of Miranda Rights (Grisso, 1998b) are the best-known structured method for this purpose (Lally, 2003; Oberlander & Goldstein, 2001; Ryba, Brodsky, & Shlosberg, 2007), and have, since their publication, been validated by use in a number of research studies (Colwell et al., 2005; Cooper & Zapf, 2008; Viljoen & Roesch, 2005). The Miranda Rights Comprehension Instruments (MCRI: Goldstein, Zelle, & Grisso, 2011) is a revision of the earlier instruments by Grisso, updated to reflect the vocabulary currently used in Miranda warnings and the fifth element of the warning added in many jurisdictions (explicitly informing defendants that they can stop questioning at any time to consult with an attorney.) The MCRI also provides 21st-century adolescent norms for the updated instruments. Other tools currently in development (e.g., Miranda Vocabulary Scale; Rogers et al., 2009) may also provide juvenile norms in the future.

FUTURE ADVANCES IN FORENSIC ASSESSMENTS IN DELINQUENCY CASES When this chapter was being revised for the second edition (2011), several new trends in research relevant for forensic evaluations of juveniles were apparent in unpublished works and in conference reports. These are areas of research in which work is in progress. We anticipate substantial contributions on these topics during the decade following publication of this chapter.

Assessment of Psychosocial Maturity Relevant for Forensic Questions Many studies during the past decade provided new information on ways in which adolescents are still developing adult capacities for decision making (see Scott & Steinberg, 2008, for a general review). The evidence centers on studies of brain development related to emotional regulation and executive functions, as well as research on normative psychosocial characteristics of youth, that are still developing during adolescence and that make youths’ decisional judgments different from those of adults. Examples of these psychosocial characteristics are youths’ less-mature manner of assessing risks, their tendencies to think in shortened time perspectives, and susceptibility to peers’ influences, among other factors. Youths’ continuing development in these areas of “judgment” in decision making is relevant for many forensic questions. They come into play when assessing youths’ decisions to waive rights as a defendant, ability to make pleading decisions, and ability to assist counsel in delinquency defenses. Assessment of decision-making capacities also could help to address whether youths would have been able to assess risks and monitor responses when engaging in illegal behaviors of which they are accused. Forensic examiners, therefore, will increasingly be asked to address youths’ competence to stand trial or degree of culpability, as well as questions of rehabilitation needs, with reference to these developmentally related questions about youths’ decisional capacities. Researchers have just begun to examine these characteristics with regard to their relation to forensic questions. Immaturity has been linked to antisocial decision-making in normal and delinquent adolescents, and may predict delinquency beyond factors such as age, socioeconomic status, education level, and other demographic factors (Modecki, 2008). In a sample of juvenile offenders, psychosocial maturity was related to self-reported delinquency, and in boys, the specific factor of temperance (Cauffman & Steinberg, 2000) was negatively associated with delinquency (Cruise et al., 2008). Similarly, psychosocial immaturity was related to future offending and aggression in a sample of high school students (Mordell, Viljoen, & Roesch, 2009). Research is just beginning to examine the relationship between psychosocial maturity and specific legal capacities, such as capacity to waive Miranda rights (Colwell et al., 2005). Studies that have provided information about youths’ psychosocial characteristics related to immature decisions have employed tools to measure those characteristics. The

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tools have been valuable in providing research information (Cauffman & Steinberg, 2000; Grisso et al., 2003), but they are too complex or otherwise poorly suited for routine clinical forensic situations, and none have norms that would be required for use in forensic cases. Some examiners looking for indexes of a youth’s psychosocial development are employing tools that were developed for clinical purposes (e.g., Vineland Social Maturity Scales; Doll, 1965). But we anticipate new tools, with norms on appropriate samples, designed specifically to focus on psychosocial abilities that have been shown to be related to immature decision making in the context of delinquency adjudication. Assessing Trauma-Related Disorders Research has consistently observed high rates of traumarelated disorders in juvenile justice youth. It is estimated that 49% of incarcerated girls and 32% of incarcerated boys meet diagnostic criteria for PTSD (Arroyo, 2001; Cauffman et al., 1998), and rates of exposure to traumatic experiences are much higher; in juvenile detention centers as many as 93% of youth self-report experiences of trauma. Historically, trauma has not been a focus of forensic evaluations, but research suggests that trauma can have an effect on youths’ development in ways that may make it relevant to assess in forensic contexts. Trauma during development can have an influence on brain and personality development, including the ability to self-regulate, respond to stress, and learn from ones’ environment (for a detailed review see Ford, 2009). Experiences of trauma are associated with high rates of internalizing and externalizing problems (e.g., aggression, conduct problems; Caporino, Murray, & Jensen, 2003), and youth who have experienced multiple types of trauma seem to be particularly at risk for depression, other mental health disorders, and delinquency (Ford, Elhai, Connor, & Frueh, 2010). Over the past decade, research has provided a description of the prevalence of trauma in the juvenile justice population and begun to examine the implications for assessment and treatment across the juvenile justice system (see Ford, Chapman, Hawke, & Albert, 2007). Research in this area is just emerging, but has begun to examine whether and how trauma might be relevant in evaluations of amenability for treatment. That research suggests that youth who have experienced traumatic events may have unique treatment needs that will influence their amenability to interventions (Boyer, Hallion, Hammell, & Button, 2009; Connor, Melloni, Miller, &

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Cunningham, 2002; Riggs Romaine, Goldstein, Hunt, & DeMatteo, 2011). Researchers are also examining how to accurately assess and measure trauma in juvenile justice populations, including attempts to use screening instruments already in place in most facilities (Cruise, Barglow, Cruz-Katz, & Ford, 2011). We anticipate continued research in this area that has significant implications not only for the treatment of youth in the custody of juvenile justice agencies, but also for the assessment of court-involved youth. The observed sequelae of trauma may also influence youths’ abilities as defendants and participants in the legal system, including abilities to learn, respond in a stressful environment, and possibly to conform their conduct to the requirements of the law. Matching Criminogenic Needs to Service Options Significant advances have been made in the past decade to improve the assessment of risk of violence and recidivism among delinquent youth (see the section, “Assessment for Risk of Reoffending”). Within this context, researchers have developed ways to assess youths’ needs that are empirically related to increases in risk of recidivism. Those need constructs have been labeled criminogenic needs (Hoge & Andrews, 2010). They are said to have value not only in assessing risk, but also in identifying areas that can be targeted for an individual youth if one wishes to create interventions to address those needs—and theoretically, to thereby reduce recidivism. In this sense, risk assessment has been joined by risk management or risk intervention as purposes for examiners’ dispositional evaluations to guide post-adjudication placements aimed at rehabilitation. Thus, validated risk/needs tools have been developed specifically to serve not only as an estimate of risk, but also to guide rehabilitation planning (e.g., Youth Level of Services/Case Management Inventory, Hoge & Andrews, 2006; and Structured Assessment of Violence Risk for Youth, Borum, Bartel, & Forth, 2006). In the coming decade, we expect to see research that tests the validity of the claim that evaluation of criminogenic needs can reduce risk of reoffending. The first few studies along this line have appeared, offering promising findings that (a) better matches between youths’ individual criminogenic needs with services that target those needs are related to subsequent lower recidivism (Vieira et al., 2009), and (b) the use of risk/needs tools can promote such needs-to-intervention matches (Vincent, Guy, & Cook, 2011). The development of a body of research

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demonstrating these benefits, and demonstrating how to achieve them through better assessment practices, would offer one of the most significant advances for dispositional evaluations in delinquency cases in the modern era of juvenile forensic evaluations.

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Tanenhaus, D. (2000). The evolution of transfer out of the juvenile court. In J. Fagan & F. Zimring (Eds.), The changing borders of juvenile justice: Transfer of adolescents to the criminal court (pp. 13–44). Chicago, IL: University of Chicago Press. Teplin, L., Abran, K., McClelland, G., Dulcan, M., & Mericle A. (2002). Psychiatric disorders in youth in juvenile detention. Archives of General Psychiatry, 59, 1133–1143. Tobey, A., Grisso, T., & Schwartz, R. (2000). Youths’ trial participation as seen by youths and their attorneys: An exploration of competence-based issues. In T. Grisso & R. Schwartz (Eds.), Youth on trial: A developmental perspective on juvenile justice (pp. 225–242). Chicago, IL: University of Chicago Press. Vant Zelfde, G., & Otto, R. (1997). Directory of practicum, internship, and fellowship training opportunities in clinical-forensic psychology. Tampa, FL: University of South Florida. Vieira, T, Skilling, T., & Peterson-Badali, M. (2009). Matching courtordered services withtreatment needs: Predicting treatment success with youth offenders. Criminal Justice and Behavior, 36, 385–401. Viljoen, J. L., & Roesch, R. (2005). Competence to waive interrogation rights and adjudicative competence in adolescent defendants: Cognitive development, attorney contact, and psychological symptoms. Law and Human Behavior, 29, 723–742. Viljoen, J. L., & Roesch, R. (2007). Assessing adolescents’ adjudicative competence. In R. Jackson (Ed.), Learning forensic assessment (pp. 291–312). London, UK: Erlbaum. Viljoen, J. L., Vincent, G. M., & Roesch, R. (2006). Assessing adolescent defendant’s adjudicative competence: Interrater reliability and factor structure of the Fitness Interview Test–Revised. Criminal Justice and Behavior, 33, 467–487.

Vincent, G., & Grisso, T. (2005). A developmental perspective on adolescent personality, psychopathology, and delinquency. In T. Grisso, G. Vincent, & D. Seagrave (Eds.), Mental health screening and assessment for juvenile justice (pp. 22–43). New York, NY: Guilford Press. Vincent, G., Guy, L., & Cook, N. (2011, March 4). The impact of implementing risk/needs assessment on juvenile case processing. Paper presented at the Annual Conference of the American Psychology–Law Society, Miami, FL. Vincent, G., Terry, A., & Maney, S. (2009). Risk/needs tools for antisocial behavior and violence among youthful populations. In J. Andrade (Ed.), Handbook of violence risk assessment and treatment: New approaches for forensic mental health practitioners. (pp. 377–423). New York, NY: Springer. Wasserman, G., McReynolds, L., Ko, S., Katz, L., & Carpenter, J. (2005). Gender differences in psychiatric disorders at juvenile probation intake. American Journal of Public Health, 95, 131–137. Webster, C. D., Douglas, K. S., Eaves, D., & Hart, S. D. (1997). HCR20: Assessing the Risk for Violence–Version 2. Vancouver, Canada: Mental Health, Law, and Policy Institute, Simon Fraser University. Woolard, J. L. (2006, March). Who’s in charge in juvenile court? Family-wide competence, capacity, and authority in juvenile justice decision making. Paper presented at the Conference of the American Psychology–Law Society, St. Petersburg, FL. Worling, I. R., & Curwen, T. (2001). Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR; Version 2.0). In M. C. Calder (Ed.), Juveniles and children who sexually abuse: Frameworks for assessment (pp. 372–397). Dorset, England: Russell House. Zimring, F. (1998). American youth violence. New York, NY: Oxford University Press.

CHAPTER 17

Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion NAOMI E. S. GOLDSTEIN, ALAN M. GOLDSTEIN, HEATHER ZELLE, AND LOIS OBERLANDER CONDIE

EVALUATING THE VALIDITY OF MIRANDA RIGHTS WAIVERS 381 ASSESSMENT OF SUSCEPTIBILITY TO POLICE COERCION 400

CONCLUSION 407 REFERENCES 407

A confession serves as a strong source of evidence against a defendant in a criminal trial. Once admitted into evidence, it is extremely difficult for defense counsel to overcome the impact of a defendant’s inculpatory statements on a judge or jury. If left unchallenged, the defendant’s confession can be highly influential on the trial outcome. In many cases, a confession serves as the single most influential factor in leading the trier of fact to reject the defense’s arguments and render a verdict of guilty. Sometimes, impairments in a defendant’s functioning compromise the defendant’s abilities in the interrogation process. In this chapter, we consider two major psycholegal issues related to the confessions of those arrested for crimes. First, we focus on the origins of the Constitutional right to avoid self-incrimination and subsequent case law. Legal issues related to assessing the ability of individuals to waive their rights, especially those from vulnerable populations, are reviewed. We describe methodological approaches to the assessment of capacity to waive Miranda rights. We review empirical research on the ability of suspects to make knowing, intelligent, and voluntary waivers of their constitutional rights, along with appropriate methodology for forensic psychologists to use in evaluating such cases. Methodology is considered in light of relevant ethical issues and limits of testimony. In the second section, we address issues related to false confessions. That is, we consider inculpatory statements

made by defendants that may not be accurate. We review relevant case law regarding the admissibility of such testimony, and we discuss the strengths and limitations inherent in presenting expert opinions on this topic in a court of law. We describe empirical research on false confessions and assessment methodology for evaluating characteristics that might have contributed to a defendant’s likelihood of having offered a false confession.

EVALUATING THE VALIDITY OF MIRANDA RIGHTS WAIVERS Evaluation of the validity of a Miranda rights waiver is a specific inquiry that can have important implications for a defendant’s case. The Miranda warnings were developed as a protection for the core constitutional right to avoid self-incrimination, an issue that goes “to the roots of our concepts of American criminal jurisprudence” (Miranda v. Arizona, 1966, p. 439). As a result, the evaluation of Miranda rights waiver validity is based on and directed by the warnings’ constitutional nature, which defines their applicability and the relevant legal standards for analyzing waiver validity. This section considers the legal development of the Miranda warnings, legal standards relevant to the analysis of waiver validity, special populations that warrant additional attention, psychological research relevant to waiver capacities, and appropriate 381

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methodology for the forensic assessment of capacity to waive Miranda rights. Constitutional Law and the Miranda Warning Defendants’ confessions often serve as the most persuasive evidence in criminal trials, and they are particularly influential when they are the sole or primary source of evidence offered by the prosecution. When a suspect is placed under arrest or is given the impression that he or she is not free to leave, police officers are required to read the Miranda warning (Miranda v. Arizona, 1966). The constitutional basis for the Miranda warning and the conditions for a valid waiver of the Miranda rights were stated by the U.S. Supreme Court in Miranda v. Arizona (1966) and affirmed in Dickerson v. U.S. (2000). More recent decisions, however, have circumscribed the applicability of the Miranda decision. The Evolution of the Miranda Warning The concept that the courts should play a primary role in ensuring the constitutional rights of defendants in criminal cases evolved gradually. At first, the U.S. Supreme Court ruled that physical brutality could not be used as a means to extract a confession from a suspect. In Brown v. Mississippi (1936), the Court reviewed a trial transcript in which police officers testified “they had seized [the African American suspect], and with participation of the deputy they hanged him by a rope to the limb of a tree, and having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declined to accede to the demands that he confess. . . . [The next day he was] again severely whipped . . . and the defendant then agreed to confess” (p. 281–282). The Court ruled that convictions based solely on confessions demonstrated to be extorted by police officers through “brutality and violence” represented a violation of the due process clause of the Fourteenth Amendment (p. 279). In Spano v. New York (1959), the Supreme Court extended the concept of coercion to include psychological pressure. The Court acknowledged the conflict that exists between society’s need for prompt and effective law enforcement and the violation of all individuals’ rights by “unconstitutional methods of law enforcement” (p. 315). Coercive methods may not only encourage “untrustworthy” confessions, but “in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals

themselves” (p. 320–321). Among the factors the Court cited in overturning the petitioner’s conviction were that his “will was overborne by official pressure, fatigue and sympathy falsely aroused” (p. 323). In 1964, the Court considered Escobedo v. Illinois, in which the defendant had requested to consult his attorney during the course of police interrogation. Despite several such requests, the suspect and his lawyer were not provided with the opportunity to meet until the confession was obtained. The Court opined that the “petitioner had become the accused, and the purpose of the interrogation was to ‘get him’ to confess his guilt despite his constitutional right not to do so,” in violation of the Sixth Amendment (p. 485). Acknowledging that many confessions occur between arrest and indictment, this time period “points up its critical nature as a stage when legal aid and advice are surely needed” (p. 488). In a strongly worded opinion, the Court stated, “The right to counsel would indeed be hollow if it began at a period when few confessions were obtained” (p. 488). Going further, it argued, “No system of criminal justice can, or should, survive if it comes to depend for its continued effectiveness on the citizens’ abdication through unawareness of their constitutional rights” (p. 490). These and other earlier opinions set the stage for the Miranda case that was to follow. Miranda v. Arizona (1966) resolved four separate criminal cases that came before the Supreme Court. All questioned the role of the Fifth Amendment (the right against compelled self-incrimination) to the Constitution in the context of interrogation of a criminal suspect in police custody. Because Miranda was the lead case of the four, the case took on the defendant’s name. Ernesto Miranda, an indigent defendant, had been convicted of kidnapping and rape on the basis of a signed confession provided to Phoenix police officers after being interrogated for two hours without a lawyer present. The other three defendants experienced similar interrogations in New York, California, and Missouri. The conviction of the California murder defendant already had been overturned by the California Supreme Court because there was no evidence that the defendant had been advised of his right to counsel and his right to remain silent. In Miranda v. Arizona (1966), the U.S. Supreme Court affirmed the California Supreme Court’s ruling, and it reversed the convictions of Ernesto Miranda and the other defendants. In his opinion, Chief Justice Warren wrote that the case raised questions “which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the federal Constitution in prosecuting individuals for crimes”

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(p. 439). The Court ruled that any statement by a criminal suspect stemming from a custodial police interrogation would be presumed involuntary and inadmissible unless police detectives provided the suspect with four warnings: (1) the right to remain silent; (2) statements made by the suspect may be used as evidence in court against the suspect; (3) the right to an attorney before, during, and after the interrogation; and (4) the right to a court-appointed attorney, if the suspect cannot afford one. The Court also ruled that a defendant may waive his or her rights, provided the waiver is made knowingly, intelligently, and voluntarily. Concern About Coerced Confessions In the Miranda decision, the Court noted that the advent of modern custodial police interrogations raised increased concern about coerced confessions (no claims of police coercion were made in the four cases before the Warren Court). Custodial police interrogations, by their very nature, isolate and pressure the suspect. Thus, custodial interrogations, even without physical or other coercive strategies, were construed by the Court as “exact[ing] a heavy toll on individual liberty” (Miranda, p. 455). The Court quoted from Criminal Interrogation and Confessions (Inbau & Reid, 1962), a police training manual for eliciting confessions. The manual offered physical and verbal interrogation suggestions for obtaining confessions. Interrogators were advised to dress in civilian clothing, use a small soundproof room removed from familiar sights and sounds, leave the room bare of telephones and d´ecor, furnish the room sparsely with armless straight-backed chairs and a desk, and include a one-way mirror in the room’s design. Officers were advised to periodically invade the suspect’s personal space, adding loss of personal control to the social isolation and sensory deprivation of the room. Other suggested strategies included nonexcessive use of restraint and nonexcessive deprivation of food and sleep. The Court concluded that the coercion inherent in custodial interrogations blurred the line between voluntary and involuntary statements because it heightened the risk of the individual being denied the privilege against self-incrimination (Miranda, as summarized by Chief Justice Rehnquist in Dickerson v. U.S., 2000). Recent Developments in Constitutional Law The Supreme Court has revisited Miranda several times in recent years, clarifying the status and boundaries of

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the decision. The Court upheld the Miranda v. Arizona decision against congressional challenge in Dickerson v. U.S. (2000), but also placed limits on the applicability of the Miranda requirements in subsequent opinions. Its most recent decisions have circumscribed Miranda’s reach and placed more expectations on suspects who wish to invoke their rights. Attempts to Overturn Miranda The U.S. Congress attempted to set aside Miranda in 1968. Congress passed a law, 18 U.S.C. 3501, allowing for a case-by-case “totality of circumstances” test of whether a confession was voluntary. The law essentially returned interrogation procedures to the pre-Miranda era. In the pre-Miranda era, courts often considered elements of what eventually became the Miranda warning, but had the latitude to consider other factors, and their rulings were not bound by the contents of the Miranda warning. Confessions were not presumed involuntary if the Miranda warning was not delivered prior to interrogation. In Dickerson, the Supreme Court noted that Congress may “modify or set aside any judicially created rules of evidence or procedure that are not required by the Constitution;” however, Congress “may not legislatively supersede [the Court’s] decisions interpreting and applying the Constitution” (p. 437). Because of this relationship between Congress and the Supreme Court, the new law, 18 U.S.C. 3501, could be upheld only if successful legal challenges were made to Miranda. Dickerson v. U.S. In U.S. v. Crocker (1975), the U.S. Court of Appeals for the Tenth Circuit held that 18 U.S.C. 3501 governed the admissibility of confessions in federal court. Despite the ruling, 3501 generally was ignored in federal cases until many years later, when it was used as a basis for the Dickerson v. U.S. (2000) challenge to Miranda. The U.S. Supreme Court upheld Miranda in Dickerson on a 7-to-2 vote, stating that Miranda had “become embedded in routine police practice” without causing any measurable difficulty for prosecutors or law enforcement officers (p. 443). The ruling also affirmed that Congress could not pass laws that contravened Supreme Court decisions interpreting and applying the Constitution. The Supreme Court’s decisions in Dickerson v. U.S. (2000) overturned a ruling by the U.S. Court of Appeals for the Fourth Circuit, which had attempted to narrow the relevance of the Miranda warning for federal law enforcement officials. It ruled that confessions obtained voluntarily by federal law enforcement officials could

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not be suppressed simply because a defendant was not given the Miranda warning. The Fourth Circuit found that 18 U.S.C. 3501 was passed by Congress to reinstate a rule that had been in effect for 180 years before Miranda, specifically, that statements by suspects could be used against them, provided they were voluntary. Voluntariness was to be judged on a case-by-case basis. In Dickerson v. U.S., the Supreme Court held that stare decisis (to let stand that which was decided), a doctrine that typically is of limited application to constitutional law, required the Court to defer to the Miranda precedent. The Court argued that Miranda was more straightforward than pre-Miranda procedures. Chief Justice Rehnquist wrote, “Miranda, being a constitutional decision of this court, may not be in effect overruled by an Act of Congress, and we decline to overrule Miranda ourselves” (p. 432). The impact that the Miranda decision has had on law enforcement has been debated since it was issued in 1966. Many predicted that the consequences of reminding suspects about their constitutional rights would significantly reduce the number of confessions and, ultimately, the rate of convictions. Leo (2001a, 2001b) reviewed a series of impact studies assessing the overall effects of the requirement that Miranda rights be provided to suspects in custodial interrogations and concluded that they did not burden police during interrogations and had a very limited impact on waiver and confession rates. Other Relevant U.S. Supreme Court Cases Since Miranda (1966), other U.S. Supreme Court cases have tended to narrow the scope of an involuntary waiver of Miranda rights. For example, in Colorado v. Connelly (1986), the Court held that a waiver was voluntary as long as it was not the product of coercive police activity. Connelly involved a defendant who followed the “voice of God” in confessing to a murder (p. 161). The lower court found the waiver invalid, but the Supreme Court reversed the ruling, stating that a waiver need not be the product of free will to be voluntary. The Court ruled that significant mental health symptoms do not automatically render a waiver and confession invalid; an invalid confession must be the direct result of police conduct. Another decision limited the time period within which an invocation of Miranda rights applies. In Maryland v. Shatzer (2010), the U.S. Supreme Court considered whether an invocation of the right to counsel continues to apply after a break in custody. Shatzer involved an incarcerated defendant who, in 2003, was questioned by police about another crime, at which time he invoked

his right to counsel. The case was closed but reopened in 2006, and Shatzer was questioned a second time. At that time, the investigators read him the Miranda warnings, he waived his rights, and he made inculpatory statements. Previously, in Edwards v. Arizona (1981), the Court extended a suspect’s invocation of his Miranda right to counsel to subsequent interrogations. In Shatzer, the Court limited Edwards’ reach and held that Miranda protections that are invoked do not continue indefinitely after they are exercised. Reasoning that 2 weeks provides sufficient time for the coercive effects of interrogation to dissipate and for an individual to seek advice, the Court held that the automatic extension of rights ends after 14 days. The Supreme Court also increased the threshold for invoking Miranda rights and reduced the threshold for waiving the rights in Berghuis v. Thompkins (2010). The Court held that invocation of the right to silence (as with the right to counsel) must be explicit and that waiver of Miranda rights can be implicit. Thompkins was questioned by police for approximately 3 hours, during which time he was “largely” silent and provided only a few limited responses such as “yeah,” “no,” or “I don’t know” (p. 2256). He also declined the offer of a peppermint and stated that the chair in which he sat was hard. Approximately 2.75 hours into the interrogation, Thompkins made an inculpatory statement in response to religiously oriented questions by an officer. The Court reasoned that there was no reason to apply a different standard to the invocation of the right to silence as was established for the right to counsel in Davis v. United States (1994). Thus, the Court held that, in order to invoke one’s rights, an individual must make unambiguous statements to that effect. In addition, the Court reasoned that the main protection provided by Miranda was the formalized advisement of one’s rights, not a formalized waiver procedure. As a result, the Court held that Miranda rights can be waived implicitly through a course of conduct indicative of a waiver. Totality of Circumstances Approach The totality of the circumstances approach examines all of the circumstances surrounding an alleged Miranda violation; it prohibits either validating or invalidating a waiver based solely on a single factor (e.g., age or intelligence of the defendant). Early cases suggested that the suspect’s background, experience, and conduct (Johnson v. Zerbst, 1938) were factors worthy of consideration. In Coyote v. U.S. (1967), the U.S. Court of Appeals for the

Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion

Tenth Circuit provided an illustrative list of characteristics to be considered in determining the capacities of suspects to waive Miranda rights (i.e., age, intelligence, education, amount of prior contact with police officers, conduct, physical conditions, and background), and courts usually consider factors such as level of education, intellectual functioning, language ability, literacy, age, mental illness, and experience with the police and the court system (Frumkin, 2000; Grisso, 1998b; Oberlander, 1998; Oberlander & Goldstein, 2001). Courts also consider factors such as who was present at the interrogation, the physical arrangements of the interrogation, police strategies for interrogation, the number of times the Miranda warning was provided and how it was delivered (e.g., silently, aloud, from a wall poster, from a piece of paper or small card, read by a law enforcement officer, read by the defendant, read together), the length of time between the warning and the interrogation, and the methods law enforcement officers used to assess the suspect’s comprehension of the warning (e.g., no method, signing an acknowledgment that the warning was given, inquiring whether the suspect waived each element of the warning, waiving each element in writing, paraphrasing each element of the warning; Grisso, 1986; Oberlander, 1998; Oberlander & Goldstein, 2001). When Is Miranda Relevant? Law enforcement officers question suspects in a variety of ways. They might ask casual questions in community settings, they might ask semiformal questions in a suspect’s home or on the way to the police station, or they might record a formal videotaped statement at police headquarters (frequently after a verbal statement has been given by the defendant under conditions in which a formal record is not made). Any of these encounters might lead to a confession, but not all of them require a Miranda warning. The warning is required only when a suspect is questioned while in police custody (Grisso, 1998b; Miranda v. Arizona, 1966). The Supreme Court clarified the appropriate use of Miranda warnings during custodial interrogation in Missouri v. Seibert (2004). In this case police had used the “question-first” interrogation technique, which was growing in popularity across the country and involved interrogating a suspect until a confession was obtained, then reading the Miranda warnings and obtaining a second “admissible” confession based on the leverage of the first, inadmissible confession (p. 611, 612). The Court made it clear that such a practice was contrary to the

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purpose of the Miranda warnings and fully undermined their effectiveness. As a result, the Court held that police must warn a suspect in custody before interrogation and that inculpatory statements obtained using a “questionfirst” approach are categorically inadmissible. Custody and the Reasonable Person Standard Custody typically involves formal arrest, with states defining custody according to the Supreme Court’s decision in Yarborough v. Alvarado (2004), in which it made clear that the custody test in Miranda cases is the objective reasonable person standard. The Court held that the test articulated in Thompson v. Keohane (1995) was to be used when considering whether the Miranda warnings should have been provided and did not require consideration of subjective factors such as age or experience with police. The Keohane Court described the test: “Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave. Once [this is accomplished], the court must apply an objective test to resolve the ultimate inquiry: was there a formal arrest or restraint on freedom or movement of the degree associated with a formal arrest” (p. 116). Factors to be considered when determining whether custodial interrogation took place include the duration of the interrogation, the time elapsed between arrest and confession, whether the confession was made between arrest and arraignment, whether the suspect was questioned in familiar or neutral surroundings or at a police station, the number of law enforcement officers present, the degree of physical restraint placed on the suspect, whether the interview was aggressive or formal, whether the defendant knew he or she was a suspect, whether the defendant knew the nature of the charge(s), and whether the defendant realized that a statement was not required (Grisso, 1981, 1998b). Grisso (1998b) identified other factors that have been referenced in case law (e.g., West v. U.S., 5th Cir. 1968), including the length of time spent in a holding cell prior to interrogation, the physical condition of the holding cell, the presence or absence of other incarcerated persons, whether the suspect was provided food and other necessities, and behaviors of law enforcement officers that might be interpreted as an attempt to instill fear. In New York (People v. Rodney P., 1967) and Texas (Orozco v. Texas, 1969), a person is considered to be in custody if police

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officers offer the impression that the individual they are questioning is not free to leave. Such an impression can be given when police detectives watch the suspect dress before accompanying him or her to the police station (implying that he or she might escape if not observed) or if police officers do not permit the suspect to drive there in his or her own vehicle. The U.S. Supreme Court, in J.D.B. v. North Carolina (2011), ruled that a juvenile suspect’s age is a relevant factor to be considered in determining whether an interrogation was custodial. Although the Court had earlier stated that age introduced subjectivity into the custody analysis (Thompson v. Keohane, 1995), in J.D.B. it concluded that “childhood yields objective conclusions,” such as children’s susceptibility to influence, that are relevant to the Miranda custody analysis (p. 2398). If a suspect confesses prior to being taken into custody, the admissibility of the confession depends on a number of factors including whether the confession was spontaneous (i.e., not elicited by police detectives’ questions), whether questions were directed toward obtaining a confession, whether the suspect subsequently was taken into custody, and whether procedural requirements subsequently were followed (e.g., providing the warning, obtaining a waiver, asking the suspect to repeat the confession; Grisso, 1998b). If a suspect offers a spontaneous confession or volunteers to remain in police custody, then Miranda does not pertain (Oberlander, 1998; Oberlander & Goldstein, 2001). Jurisdictional Versions of the Miranda Warning Although Miranda established and Dickerson affirmed the required content of the warnings, the actual wordings of the Miranda warnings vary widely within and across jurisdictions (Oberlander & Goldstein, 2001; Rogers, Harrison, Shuman, Sewell, & Hazelwood, 2007; Rogers, Hazelwood, Sewell, Harrison, & Shuman, 2008). The complexity of the language differs, with most jurisdictions using simpler language than that used in the 1960s and 1970s. For example, most jurisdictions use the word questioning in place of interrogation, talk instead of consult, and lawyer rather than attorney. Many jurisdictions also use Spanish-language and other versions when necessary. The original Miranda ruling set forth the four components of the warning (see above) yet most jurisdictions have added a fifth component directing that the defendant has the right to stop the police interrogation at any time to ask for an attorney (Oberlander, 1998; Oberlander & Goldstein, 2001; Rogers, Hazelwood, Sewell, Harrison,

& Shuman, 2008). A warning that typifies more modern versions (Oberlander & Goldstein, 2001) is: • You have the right to remain silent. • Anything you say can be used against you in court. • You have the right to talk to a lawyer before we ask you any questions and to have him or her with you during questioning. • If you cannot afford a lawyer, one will be appointed for you before questioning. • If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time until you talk to a lawyer. Little research has been conducted to determine whether the simplified language or the inclusion of the fifth component facilitates comprehension. Findings from one study comparing the comprehensibility of warnings developed for adults with those used with juveniles found that juvenile warnings were, on average, one-half reading grade level more difficult and 60 words longer than standard versions (Rogers, Hazelwood, Sewell, Shuman, & Blackwood, 2008). Another study found that juveniles had similar levels of understanding of simpler and more difficult versions of the warnings and that, when there were differences, juveniles demonstrated better understanding of the more difficult versions (Goldstein, Messenheimer, Riggs Romaine, & Zelle, in press; Messenheimer, 2010). To the best of our knowledge, there have been no legal challenges to the constitutionality of either including or excluding the fifth component (or any other supplementary information, such as a waiver statement).

Case Law Developments for Juveniles Developments in Miranda procedures have focused on special populations including minors and persons with mental health concerns, intellectual limitations, and other impairments, as reflected in People v. Higgins (1993). In this case, the Illinois Appellate Court mandated that police detectives do more than merely a rote reading and explanation of rights in special circumstances. Most empirical research on special populations has focused on juveniles and individuals with cognitive limitations. Extending Miranda Protections to Juveniles Miranda originally applied only to adult defendants, and its protections were extended to adolescents in Kent v. U.S. (1966) and In re Gault (1967). The U.S. Supreme Court did not directly apply the requirements of Miranda

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v. Arizona (1966) to juvenile proceedings, but it assumed their applicability in Fare v. Michael C. (1979). Prior to the 1960s, the only Supreme Court case to consider the due process right of juveniles was Haley v. Ohio (1948), wherein the Court concluded that a coerced juvenile confession was inadmissible. The Kent and Gault cases affirmed that Fifth Amendment (protection against self-incrimination) and Fourteenth Amendment (due process) protections applied to juveniles at all stages of delinquency proceedings. Thereafter, cases soon emerged questioning the capacities of juveniles to comprehend their Miranda rights and waive them voluntarily, knowingly, and intelligently. In People v. Lara (1967), the Supreme Court of California distinguished between knowing and intelligent, explaining that an adolescent defendant might not “fully comprehend the meaning of the effect of the waiver” (p. 215). In Fare v. Michael C. (1979), a 16-year-old defendant offered a confession without a waiver and asked to speak with his probation officer instead of his attorney. In this case, the Supreme Court extended the “totality of circumstances” standard to adolescents. In cases such as People v. Lara (1967), West v. U.S. (5th Cir. 1968), and Fare v. Michael C. (1979), courts, including the Supreme Court, ruled that the age of adolescent suspects did not automatically invalidate waivers of Miranda rights, but the courts recognized that adolescents, as a class, were at greater risk than adults for deficits in intelligence and functioning relevant to the standard for a valid waiver (see Grisso, 1998b; a comprehensive review of legal cases related to juveniles’ waiver of Miranda rights is found in Feld, 2000). Recently, the Ninth Circuit Court of Appeals, in Doody v. Ryan (2011),1 held the administration of the Miranda warnings to a juvenile suspect inadequate because a police officer explained the warnings in an inaccurate, lengthy fashion that “deviated significantly” from a one-page Miranda form designed for use with juveniles (p. 5780). The court also applied the totality of circumstances test and found the juvenile’s confession involuntary, indicating “the fact that Doody was a juvenile is of critical importance in determining the voluntariness of his confession” 1

The procedural history of the case involved several stages. The trial court and court of appeals both held Doody’s waiver valid and his confession admissible. The Ninth Circuit heard the case and reversed the lower courts’ decisions (9th Cir. 2010), after which the U.S. Supreme Court granted certiorari, and, in light of Florida v. Powell (involving the adequacy of Miranda warnings; 2010), the Court vacated the judgment and remanded the case to the Ninth Circuit for further consideration.

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(p. 5814). The Supreme Court, in J.D.B. v. North Carolina (2011), underscored the critical role of a juvenile’s age in determining whether a reasonable person would know that he or she was in custody and, therefore, whether police should be required to provide the Miranda warnings. As Justice Sotomayor wrote in the majority opinion, “In short, officers and judges need no imaginative powers, knowledge of developmental psychology, training in cognitive science, or expertise in social and cultural anthropology to account for a child’s age. They simply need the common sense to know that a 7-year-old is not a 13-year-old and neither is an adult” (p. 2407). The Interested Adult In Gallegos v. Colorado (1962), the Supreme Court ruled that the advice of a lawyer, adult relative, or friend might obviate effects of adolescent immaturity, putting the adolescent “on a less unequal footing” with interrogators (p. 54). In response, many state legislatures and courts (e.g., Commonwealth v. Roane, 1974) added a procedural requirement that provided juveniles with an additional level of protection during interrogation that adult suspects were not afforded. Law enforcement officers were required to provide youths with the opportunity for contact with an adult (a parent, guardian, or other adult) prior to waiving their right to silence. The interested adult was to be responsible for providing the youth with consultation about the desirability of a waiver prior to interrogation (Grisso, 1981, 1998b). The interested adult need not be the youth’s parent and exactly what may or may not suffice has been addressed by a number of courts. For example, the Massachusetts Supreme Judicial Court held in Commonwealth v. MacNeill (1987) that a grandfather was sufficiently interested; in Commonwealth v. Guyton (1989) that a minor, such as an older sibling, could not satisfy the interested adult requirement; and in Commonwealth v. a Juvenile (1989) that an employee of the Department of Youth Services could not serve as an interested adult (Oberlander & Goldstein, 2001). Some states have taken exception to the interested adult requirement, expressing concern that it unnecessarily restricts the prosecution of sophisticated or repeat juvenile offenders (Grisso, 1981). A recent survey of federal and state laws revealed that parent notification statutes exist in 49 states, the District of Columbia, and the federal system (Cruise, Pitchal, & Weiss, 2008). Of the parent notification statutes reviewed, 47 statutes required notification of parents or guardians, with 9 statutes allowing notification of another adult. In addition, 10 states enhanced their juvenile warnings to

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include the minor’s right to parent access. Many states also go beyond notification and require the presence of an interested adult, either in all cases or for those youth who fall below a statutorily defined age threshold. Cruise and his colleagues (2008) reported that five states required parental presence for all juveniles, four states required parental presence for juveniles under age 14, and three states required parental presence for juveniles under age 16. However, courts have not interpreted age cutoffs as implacable. In Commonwealth v. King (1984), a Massachusetts appellate court held that a waiver by a young adolescent was valid, despite a lack of parental consultation, because the adolescent was “mature and capable” and “two weeks before this arrest exercised his right to . . . remain silent” (p. 1305). In most jurisdictions, the interested adult requirement applies only to the rendering of Miranda rights, and officers are not required to provide the adult with an opportunity to be present during the interrogation or confession. Although most states require the opportunity for consultation with an interested adult, the adult is not empowered to make decisions for the adolescent (Grisso, 1998b). Consistent with the Supreme Court’s decisions in Kent and Gault, adolescents have legal autonomy, independent of parents or guardians, for waiving Miranda and making other legal decisions in delinquency proceedings. Attorneys also should not waive Miranda rights for adolescent clients (Grisso, 1998b). However, regardless of adolescents’ autonomous legal role in waiving Miranda rights, courts have been reluctant to invalidate waivers based on the type or content of the adult advice. For example, in Commonwealth v. Philips (1993), the Supreme Judicial Court of Massachusetts rejected the notion that a parent who fails to tell the child not to talk, who advises the child to tell the truth, or who fails to seek immediate legal assistance is a “disinterested parent” (p. 231). Research shows that although the absence of opportunity for consultation with an interested adult sometimes invalidates a youth’s waiver and renders the confession inadmissible, the presence of an interested adult does not guarantee protection of the youth’s rights during interrogation, nor does it necessarily result in more adolescent refusals to waive Miranda (Grisso, 1998b). Parents often assume an authoritative or disciplinary role in the presence of law enforcement officers, not a role of legal advocacy. In doing so, they effectively offer advice, directly or indirectly, to the child or adolescent to waive the right to avoid self-incrimination and submit to an interrogation. Grisso (1981) and Grisso and Ring (1979) found that parents often believe they should pressure their arrested

children to cooperate with law enforcement officers. In many parent–adolescent consultations, parents offered no advice about waiver of Miranda rights (70% failed to do so in one study; Grisso & Ring, 1979). In fact, there was silence between parents and adolescents during most consultations (66% did not exchange words in that same study) and, when advice was provided, it favored waiving rights by a ratio of 3 to 1. More recently, Viljoen, Klaver, and Roesch (2005) reported that 40% of youth that had at least one parent present during interrogation said that they did not know whether their parents wanted them to waive their right to silence and provide a statement. Of those youth who reported knowing what their parents wanted them to do, 56% said they wanted them to “tell the truth,” 11% said they wanted them to deny the offense, and none said that their parents wanted them to remain silent. Case Law Developments Related to Intellectual Disabilities Courts historically have recognized that confessions of individuals with intellectual disabilities might be invalid. In Ford v. State (1897), the Supreme Court of Mississippi ruled invalid the confession of an individual who was “not bright” (see Fulero & Everington, 1995, for a complete description of the case). Similarly, based on the “knowing” component of the Miranda requirement, the U.S. District Court for the Western District of Pennsylvania held that a client with intellectual disabilities was presumed incompetent (U.S. ex rel. Simon v. Maroney, 1964). Waivers made by persons with intellectual disabilities are not presumed invalid, however. In People v. Williams (1984), although the defendant was intellectually and organically impaired, the New York Court of Appeals ruled that a waiver was valid because the detective paraphrased and explained the warning. The court stated that it is the responsibility of neither the police detectives nor the prosecutor to provide a legal education for detainees. Similarly, in Collins v. Hulick (2009), although several experts testified to the defendant’s diagnosis of mental retardation and limited academic abilities, the District Court for the Northern District of Illinois found that the defendant had understood and validly waived his rights. The defendant, ruled the court, did not need to understand the advantages of remaining silent, how statements could be used in court, or the advantages of having an attorney. Simply stated, defendants in states like New York and Illinois must possess only a minimal or concrete understanding of the Miranda warning.

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Researchers have examined the relationship between mental retardation and Miranda comprehension (e.g., Clare & Gudjonsson, 1991; Cloud, Shepherd, Barkoff, & Shur, 2002; Cooke & Philip, 1998; Fulero & Everington, 1995). O’Connell, Garmoe, and Goldstein (2005), for example, found that individuals with mild mental retardation performed poorly on measures of Miranda comprehension. These results were consistent with previous research (Everington & Fulero, 1999) and suggested that even mild limitations in intellectual and adaptive functioning can lead to significant difficulty understanding the Miranda warnings. Methods for Delivering the Miranda Warning and Obtaining Confessions Grisso (1998b) described a wide variety of methods for delivering the warning, including reciting it carefully and slowly, delivering it in a rapid and rote fashion, reciting the warning and then placing a written form in front of the suspect, providing only a written version without a verbal rendering, asking the suspect to read it aloud, reading and explaining the warning, and having the suspect explain what the warning means. The degree of documentation in investigation records of the method used to deliver the Miranda warning, methods of discerning comprehension, and the suspect’s statements relevant to comprehension varies across and within jurisdictions (Oberlander, 1998; Oberlander & Goldstein, 2001), and courts weigh the necessity of careful procedures on a case-by-case basis. In State v. Prater (1970), the Washington Supreme Court ruled that the suspect understood his rights despite a hasty and incomplete reading of them by officers because of his extensive arrest history and repeated exposure to police arrest procedures. Courts have also considered the degree to which law enforcement officers can use ploys to encourage confessions. In Commonwealth v. Meehan (1979) and Commonwealth v. Mandile (1986), the Supreme Judicial Court of Massachusetts addressed whether a confession given subsequent to police inducement was valid, and the rulings remain good law today. In both cases Massachusetts’s Supreme Judicial Court held that promises and other inducements are to be considered under the totality of circumstances. In these cases the court ruled that officers’ suggestions that it would be better for the suspect to tell the truth because it would indicate a degree of cooperation did not invalidate the waiver. The court prohibited, however, expressed or implied assurances that a statement would aid the defense or result in a reduced sentence.

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Rulings on police detectives’ questioning tactics are not consistent, however. In State v. Jackson (1983), the North Carolina Supreme Court ruled that the detainee’s confession was admissible even though the police had misled him by citing nonexistent evidence including that the victim’s blood was on his pants, his shoes matched footprints at the crime scene, his fingerprints were on the murder weapon, and an eyewitness connected him to the offense. The court ruled that, despite this information, Jackson’s confession was valid because he was not physically restrained, offered leniency, or threatened. Similarly, in People v. Farnam (2002), police led the defendant to believe that his fingerprints were on the victim’s wallet, but the defendant’s subsequent confession was held valid because the Supreme Court of California found that the deception was unlikely to produce a false confession, and there was no evidence of a coercive climate, pressure tactics, or promises of leniency. The court noted that lies by police to a suspect can affect the voluntariness of a confession, but held that lies are not per se sufficient to make a confession involuntary. The Seventh Circuit Court of Appeals, in U.S. v. Kontny (2001), held that trickery, deceit, and impersonation do not render a confession inadmissible unless government agents make threats or promises. In contrast, in People v. Higgins (1993), the Illinois Supreme Court ruled that a suspect’s waiver was not knowing, intelligent, and voluntary because the detectives had misrepresented evidence against him (e.g., that his fingerprints were found at the crime scene). Because of concern about the likelihood that particularly suggestible, but innocent, suspects might falsely confess, courts have placed limitations on police methods. Similarly, in State v. Swanigan (2005), the Supreme Court of Kansas noted that police officers may lie to suspects and suggest that it is advantageous to cooperate, but cited, as factors to be considered in the totality of circumstances, concerns about the defendant’s low intellect and susceptibility to being overcome by anxiety; the court ultimately found the defendant’s confession involuntary. The Supreme Judicial Court of Massachusetts, in Commonwealth v. DiGiambattista (2004), noted that false statements by police, minimization of a crime, and mentions of counseling alone do not automatically render a confession involuntary. Nonetheless, in the defendant’s case, the court determined that the combined effect of such tactics implicitly suggested to the defendant that a confession would lead to leniency, thus making the confession involuntary. Use of trickery by police has been limited by some courts such that fabricated, tangible evidence is considered

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unacceptable. For example, in State v. Patton (2003), the Superior Court of New Jersey noted that falsified evidence has the potential of indefinite life (i.e., it could be filed in police paperwork and resurface later), could be presented in the courtroom, or could be disclosed to the media and mar a defendant’s reputation and right to a fair trial. Ultimately, the court held that fabrication of evidence to elicit a confession violates due process, and resulting confessions are per se inadmissible. The U.S. Supreme Court ruled in Culombe v. Connecticut (1961) that, although there is no absolute standard, a court’s finding that a confession was coerced should be based on police misconduct (e.g., the use of physical force or assault, prolonged isolation of the suspect, deprivation of food or sleep, threats of harm or punishment, or promises of immunity or leniency; see also, Kassin, 1997). More recently, the Fifth Circuit Court of Appeals outlined the limits on trickery and deceit in U.S. v. Bell (2004). The court held that the use of “trickery or deceit is only prohibited to the extent that it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them” (p. 461, citing Soffar v. Cockrell, 2002). Police manuals for eliciting confessions describe the use of a broad spectrum of techniques, some of which are similar to those described in Culombe (Aubry & Caputo, 1980; Inbau, Reid, & Buckley, 1986; MacDonald & Michaud, 1987; O’Hara & O’Hara, 1981). Research Relevant to Miranda Comprehension Research on Miranda comprehension has focused on individual factors cited in case law that might affect comprehension, including age, socioeconomic status, experience with the legal system, intelligence, education, and literacy (see Goldstein & Goldstein, 2010 for a thorough review of Miranda comprehension research). There is no single individual factor or circumstance that, per se, obviates comprehension in the eyes of the court; rather, courts decide questions about a suspect’s comprehension of his or her rights on a case-by-case basis. Because of this iterative approach, it is impossible to weigh any one variable as particularly influential on judicial decisions of Miranda comprehension (Grisso, 1981). Research on Miranda comprehension has focused largely on the “knowing” and “intelligent” components of Miranda. According to Goldstein and Goldstein (2010) “Although the ‘knowing’ and ‘intelligent’ requirements were specified in the Miranda decision, the Court did not define these terms” (p. 22). Typically, “knowing” is

reflected in an understanding of the words and phrases of the warning or an ability to read the warning (if administered by police in written form), as well as the suspect’s ability to understand the language, especially if English is not his or her first language. “Intelligent” is interpreted as the defendant’s ability to appreciate and apply the rights to the custodial situation and, in some jurisdictions, to comprehend the inalienable quality of rights (Frumkin, 2000; Oberlander, 1998). In distinguishing a knowing from an intelligent waiver, Grisso (2003) noted that “a suspect may understand that she has a right to speak with an attorney, as the Miranda warnings indicate, but she might not grasp the significance of being able to speak with an attorney (for example, might not know what an attorney is or does) and therefore be unable to ‘intelligently’ decide to claim or waive the right” (p. 152). Frumkin (2008) emphasized that an “intelligent” waiver involves the defendant’s capacity to weigh the advantages and disadvantages of waiving and exercising the rights and consider the consequences of the waiver decision. In the Miranda decision, the Court indicated that evidence “that the accused was threatened, tricked, or cajoled into a waiver, will, of course, show that the defendant did not voluntarily waive his privilege” (p. 476). Melton et al. (2007) explained “voluntariness” by focusing on whether “the situation in its totality—and in its interaction with the defendant’s state of mind—[was] so coercive that the defendant’s will was overborne” (p. 171). Because of the difficulty objectively defining or establishing the use of physical or psychological coercion during an interrogation, little research has examined the “voluntariness” of confessions. In part, the challenge lies in the lack of corroborative evidence of coercion. It is highly unlikely that interrogations involving physical threats or assaults are audiotaped or videotaped. Rather, suspects may claim that they were coerced, and police officers may vehemently deny employing any form of coercion. Forensic psychologists are not in a position to offer opinions about the accuracy of these assertions, but, in many cases, it is possible to examine abilities related to the susceptibility to coercion. There is a relationship between the legal construct of the voluntariness of a confession and the constructs of the susceptibility to police coercion and veracity of a confession (see further on for further information). Children and Adolescents Courts have declined to set age cutoffs for determining which children and adolescents have sufficient Miranda comprehension to make valid waivers. Case law suggests, however, that courts are more likely to find that children

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under age 13 lack comprehension (Grisso, 1981, 1986; for additional information on this topic, see Goldstein & Goldstein, 2010). In his research, Grisso (1981) found that understanding of Miranda was generally inadequate among juveniles age 12 or below and more variable among 13-to-15-year-olds. Even among adolescents 16 and older, Grisso found a high degree of variability. Although preteens had poorer comprehension, there was a plateau at age 14. Above 13 years, age alone ceased to account for individual differences in understanding, and age was a better predictor of understanding when it was combined with level of intelligence. Because of high variability within age groups, Grisso—consistent with the courts’ stance—concluded that one cannot draw firm conclusions about someone’s ability to comprehend the Miranda rights based simply on age. Consistent with Grisso’s findings, more recent research has revealed that younger adolescents have greater difficulty than older adolescents with Miranda-specific abilities, such as paraphrasing and recognizing the meaning of Miranda warnings, and defining critical Miranda vocabulary (e.g., Abramovitch, Peterson-Badali, & Rohan, 1995; Colwell et al., 2005; Goldstein et al., 2003; Otto & Goldstein, 2005; Viljoen & Roesch, 2005). Similarly, compared to adults, youth have demonstrated greater deficits in these areas (Abramovitch et al., 1995; Grisso, 1981). Overall, juveniles as a group cannot adequately paraphrase and recognize critical information contained in the Miranda warnings or apply rights within an interrogation context and appreciate the consequences of waiving those rights (Goldstein et al., 2003; Grisso, 1981). Adult Comprehension of Miranda Rights Grisso (1981) questioned whether the plateau in comprehension scores between ages 14 and 16 continued through adulthood. Using the same Miranda assessment tools referenced above, he examined the abilities of adult offenders and nonoffenders matched for age and IQ. As compared to juveniles (Grisso, 1981), adults more frequently obtained perfect scores on the Miranda instruments and “most of the differences between juveniles and adults occurred on Warning II (use of incriminating information in court) and Warning III (right to counsel before and during interrogation)” (p. 100). Few differences existed between the offender and nonoffender groups, although, when age was controlled for, nonoffenders performed significantly better than offenders on a comprehension measure of Miranda vocabulary (CMV; the measures are described later), suggesting that experience with the criminal justice system did not translate into

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greater understanding of the vocabulary contained in the warnings. Grisso concluded that when other factors were controlled for, “differences among adults in understanding of Miranda warnings are related primarily to differences among them in general intellectual functioning” (p. 101). He reported that “those offenders with a large number of felony arrests (a great deal of police or court experiences) do acquire a greater understanding of the Miranda warnings than do nonoffenders or less experienced offenders” (p. 102). In comparing juveniles to adults, Grisso concluded that comprehension (CMR) scores were higher at all adult ages and at every IQ level. Although the scores of 16-year-olds were not significantly different from those of 17-to-22-year-olds, they were significantly lower than those of individuals 23 years of age and older. In an attempt to investigate the presumption that suspects in criminal cases “already know their rights” (Nguyen, 2000, p. 61), Rogers, Rogstad, and colleagues (2010) investigated whether familiarity with Miranda rights, through the media and other sources, was associated with increased comprehension of these constitutional protections. According to Rogers (2008), most people believe that they know their rights because of frequent exposure to police administering rights to suspects on television programs. In Dickerson v. United States (2000), summarized earlier, the Supreme Court opined that Miranda rights have become so deeply ingrained in our culture that they cannot be overruled. Rogers, Rogstad, and colleagues (2010) found that these assumptions were incorrect. Rights were frequently misunderstood by recently arrested defendants and college undergraduates, and level of understanding was unrelated to self-appraisal of Miranda knowledge. Rogers et al. concluded, “In general, these data provide little evidence that Miranda knowledge and misknowledge is a product of years in the classroom, intelligence, or comprehension of oral or written materials” (p. 313). Intelligence, Academic Achievement, and Reading Ability as Moderators of Comprehension Intelligence is consistently associated with Miranda comprehension abilities (Colwell et al., 2005; Goldstein et al., 2003; Grisso, 1981; Otto & Goldstein, 2005; Viljoen & Roesch, 2005), and verbal intelligence is particularly strongly associated with Miranda comprehension (Colwell et al., 2005; Viljoen & Roesch, 2005). In addition, IQ is associated with the ability to appreciate the consequences of waiving rights, particularly with regard to the rights to silence and counsel, as opposed to the nature of interrogation (Colwell et al., 2005; Grisso, 1981). Grisso (1981) found that almost all cases involving a lack

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of Miranda comprehension involved juveniles with IQ scores below 75. His results also suggested that courts might overestimate the capacities of youth with higher IQ scores, as only approximately 40% to 50% of 14-to16-year-olds with IQ scores between 80 and 100 demonstrated adequate understanding of their right to avoid self-incrimination (Grisso, 1981). It is important to note that the association between IQ and Miranda comprehension appears to vary by age for youthful offenders (Colwell et al., 2005; Grisso, 1981; Viljoen & Roesch, 2005) and the importance of IQ with respect to Miranda comprehension is particularly salient for those with lower IQs. A number of investigators have reported that cognitively impaired individuals often fail to comprehend the warnings (e.g., Clare & Gudjonsson, 1991; Cloud, Shepherd, Barkoff, & Shur, 2002; Cooke & Philip, 1998; Everington & Fulero, 1999; Fulero & Everington, 1995; O’Connell, Garmoe, & Goldstein, 2005). For example, in one study, 50% of participants with mild mental retardation provided inadequate paraphrases of all five Miranda warnings, and only 2% performed better than chance when asked to recognize the meaning of rights in a forced-choice format (O’Connell, Garmoe, & Goldstein, 2005). IQ is also related to Miranda comprehension among defendants with psychosis (Viljoen, Roesch, & Zapf, 2002). However, Rogers, Rogstad et al. (2010) found only a modest correlation (.25) between verbal intelligence, as measured by the Wechsler Abbreviated Scale of Intelligence (WASI; The Psychological Corporation, 1999), and scores on a measure designed to tap misconceptions of Miranda rights (Miranda Quiz). They also found modest correlations between scores on the Miranda Quiz and performance on the Reading Comprehension (.25) and Listening Comprehension (.31) components of the Wechsler Individual Achievement Test–2nd Edition (WIAT-II; The Psychological Corporation, 2002). In another study examining the relationship between academic skills and Miranda comprehension, researchers found that academic achievement was a strong predictor of Miranda comprehension, even when controlling for age and IQ (Zelle et al., 2008). In this study, youth with reading abilities at or below the fourth grade level performed significantly worse on measures of Miranda understanding than did their peers with reading abilities at or above the fifth-grade level. Reading skills and comprehension are especially relevant to Miranda comprehension when the suspect is presented with a written version of the warning. For many persons with intellectual deficits, the vocabulary and syntax of the Miranda warnings are beyond their reading comprehension levels (Fulero & Everington, 1995). A

study of 560 Miranda warnings employed in the United States revealed that the warnings varied in reading comprehension level from grade 2.8 to postgraduate education (Rogers, Harrison, Shuman, Sewell, & Hazelwood, 2007). Individual components of the warnings also varied widely in reading comprehension level required. It appears that if the reading level of a Miranda warning is greater than an individual’s reading level by at least two grades, then the validity of the Miranda waiver may be suspect (Greenfield, Dougherty, Jackson, Podboy, & Zimmerman, 2001). Finally, researchers have examined the relationship between history of special education and Miranda comprehension, but resulted in equivocal findings. One study found that delinquent males with a self-reported history of special education performed more poorly on Miranda comprehension measures than did delinquent males who reported no such history (Goldstein et al., 2003). Yet, in an extension of that study, special education was not related to Miranda understanding or appreciation (Riggs Romaine, Zelle, Wolbransky, Zelechoski, & Goldstein, 2008). Because a wide variety of factors can lead to placement in special education programs, there may be variability in the relationship between special education placement and Miranda comprehension, and specific skills or individual characteristics may serve as better predictors of Miranda-related capacities (Riggs Romaine et al., 2008). Developmental Factors Recently, attention has turned to the role that cognitive, psychosocial, and neurological development may play in age-related Miranda comprehension difficulties. For example, Miranda waivers require suspects to understand abstract concepts, interpret complex consequences of waiving rights, and weigh costs and benefits of their decisions. The abstract and logical thinking abilities necessary for such tasks develop during adolescence (Baird & Fugelsang, 2004). Similarly, sustained attention (McKay, Halperin, Schwartz, & Sharma, 1994), verbal fluency (Levin et al., 1991), reasoning (Klaczynski, 2001), memory and learning (Levin et al., 1991; Ryan, 1990), and executive abilities (Davies & Rose, 1999) develop throughout adolescence. One study specifically examined developmental factors and found that improvements in cognitive functioning partially explained age-related differences in Miranda comprehension, thus supporting the role of development in Miranda comprehension (Viljoen & Roesch, 2005). Research has also identified developmental characteristics associated with psychosocial maturity (i.e., responsibility, perspective, and temperance) that impact legal

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decision making in adolescence (Colwell et al., 2005; Grisso et al., 2003; Scott, Reppucci, & Woolard, 1995; Steinberg & Cauffman, 1996). The relationship between psychosocial maturity and legal decision making, broadly, has been supported by research (e.g., Grisso et al., 2003), as has the more specific relationship between psychosocial maturity and Miranda comprehension (Colwell et al., 2005; Grisso et al., 2003). For example, Grisso and colleagues (2003) found that younger adolescents were less likely to recognize risks and long-term consequences associated with legal decisions and more likely to comply with authority figures than were older adolescents and young adults. Mental Illness Experts recommend examining the presence of mental illness, and particularly psychotic conditions, when assessing a defendant’s capacity to have provided a knowing, intelligent, and voluntary Miranda waiver (Frumkin, 2000; Grisso, 2003). Research supports this practice as adults experiencing psychotic symptoms performed more poorly on measures of Miranda comprehension than those not experiencing such impairment (e.g., Cooper & Zapf, 2008; Olley, 1998), adult psychiatric inpatients exhibited the same types of misunderstanding of rights as did youth and individuals with cognitive deficits (Cooper & Zapf, 2008), and defendants with schizophrenia performed more poorly on measures of understanding than did defendants with other psychotic disorders (Viljoen, Roesch, & Zapf, 2002). In contrast, a relationship between depression and Miranda comprehension, in which symptoms such as cognitive slowing might negatively impact individuals’ abilities to comprehend Miranda, has not been supported by research with juvenile offenders (Olubadewo, 2009) or adult defendants (Viljoen & Roesch, 2005). These two studies also found no significant relationship between anxiety symptoms and Miranda comprehension. Research has revealed that symptoms of attention-deficit/hyperactivity disorder are associated with an increased likelihood of adolescent defendants waiving their right to counsel (Viljoen, Klaver, & Roesch, 2005) and with poorer Miranda comprehension among adult defendants (Viljoen & Roesch, 2005). Alcohol and drug abuse, as either a primary or cooccurring diagnosis, is also relevant to the assessment of Miranda comprehension insofar as many youth report having been under the influence of alcohol or drugs at the time they spoke with police (Ferguson & Douglas, 1970; Viljoen, Klaver, & Roesch, 2005), and confession rates are higher among adult suspects who reported consuming

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illicit drugs within the 24 hours prior to interrogation (Pearse, Gudjonsson, Clare, & Rutter, 1998). It appears that only one study has examined the relationship between more general substance use and Miranda comprehension, however. Olubadewo (2009) found that self-reported alcohol and drug use was significantly related to Miranda understanding deficits in a sample of juvenile offenders. More generally, research has tied intoxication to reduced inhibition, attention, reasoning, and self-monitoring, as well as increased impulsivity and risk-taking (e.g., Fromme, Katz, D’Amico, 1997; Hull & Young, 1983). These skills, if compromised, could interfere with effectively listening to the Miranda warnings, considering their meaning and significance, weighing the costs and benefits of a waiver, and providing a logical statement to police. Finally, little research has been conducted examining the relationship between personality characteristics or disorders and Miranda comprehension. There is some evidence, however, suggesting that anxiety proneness and compliance are related to an internalized pressure to confess and perceptions of police pressure in both juvenile and adult offenders (Gudjonsson & Sigurdsson, 1999; for a thorough review of the relationship between mental illness and capacity to waive Miranda rights, see Goldstein & Goldstein, 2010). Familiarity With the Criminal Justice System as a Moderator of Comprehension The courts have considered a youth’s experience with the juvenile justice system as a factor when considering questions of Miranda comprehension. In some cases, courts have cited the detainee’s extensive experience as negating the importance of carefully reviewing the warning (In re Morgan, 1975; State v. Prater, 1970). Despite these decisions, Grisso (1981) found no simple relationship between indices of experience with the legal system and understanding of Miranda rights. He hypothesized that the emotionally arousing conditions of being arrested might interfere with incidental learning of the warning’s content, and that, although repetition might lead to familiarity, familiarity does not guarantee understanding. More recent research with juveniles (Goldstein et al., 2003) and adults with mental illness (Cooper & Zapf, 2008; Viljoen & Roesch, 2005; Rogers, Rogstad et al., 2010) also indicates there is no clear relationship between experience with the criminal justice system and Miranda comprehension. On the other hand, history of contact with attorneys does appear to be associated with Miranda comprehension, even for younger youth and youth with low IQ scores (Viljoen & Roesch, 2005).

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Race and Socioeconomic Status as Moderators of Comprehension Grisso (1981) reported a relationship between race and poor comprehension at low IQ levels (below approximately 80 to 90), with African American participants obtaining lower understanding scores than Caucasian participants. Racial differences were insignificant at higher IQ levels, however. Grisso also found that impoverished Caucasian participants with felony conviction histories showed better understanding of Miranda rights than did impoverished African American participants with such histories. Despite these findings, understanding the relationship (if any) between race/ethnicity and Miranda comprehension is complicated by a number of covariates (e.g., level of education, quality of education, income). More recent research examining race and ethnicity as moderators of comprehension has revealed that there are no simple relationships between the variables. When controlling for age and IQ, results typically indicate no generalized racial or ethnic differences (Everington & Fulero, 1999; Goldstein et al., 2003). In terms of socioeconomic status (SES), Caucasian participants of lower SES demonstrated poorer understanding of rights than did African American participants of lower SES, even within the same IQ range (Grisso, 1981). In addition, a more recent study found that low-SES juvenile defendants were less likely to assert their rights to silence and counsel than juveniles from higher-SES backgrounds (Viljoen, Klaver, & Roesch, 2005), and they also performed more poorly on measures of Miranda comprehension than did juveniles from higher-SES backgrounds (Viljoen & Roesch, 2005). Forensic Evaluation of Miranda Rights Waivers The following recommendations are based on the recommendations of Grisso (1981, 1998b), Frumkin (2000), Oberlander and Goldstein (2001), Otto and Goldstein (2005), Goldstein and Goldstein (2010), and DeClue (2005). Mental health professionals examining a defendant’s capacity to have understood, appreciated, and exercised his or her Miranda rights should conduct a clinical interview to gather relevant historical data and also focus on the circumstances of the arrest, interrogation, and confession. Psychological testing and associated assessment approaches may be important to the degree that they assist in assessing factors that may have affected comprehension of the Miranda warning, including, but not limited to, assessment of intellectual functioning, academic achievement, and/or personality variables. Specific measures of

Miranda comprehension are often administered, and these should be used within the broader, multimethod approach to assessment and evaluation that is described in the following. Records relevant to the evaluation should be reviewed, and specific attention should be paid to records documenting previous Miranda comprehension. Methodology Decisions about evaluation methodology should be made on a case-by-case basis. Such factors as the facts of the case and the characteristics of the defendant will assist the examiner in deciding how to proceed with the assessment. As is true of all forensic mental health evaluations, assessments of capacity to have waived Miranda rights should involve the consideration of information from multiple sources (e.g., Goldstein & Goldstein, 2010; Heilbrun, Grisso, & Goldstein, 2009; Melton, Petrila, Poythress, & Slobogin, 2007; Shapiro, 1991), and the evaluations should meet the standard of practice in the field (Goldstein, 2007; Heilbrun, DeMatteo, Marczyk & Goldstein, 2008). The first step in the Miranda waiver evaluation process is gathering relevant records. Records should include a copy of the signed Miranda waiver form, if one exists, and any related documentation or descriptive information of how, when, and how many times the Miranda warning was delivered. The actual waiver form signed by the defendant must be reviewed to determine the wording and sentence length used in the relevant jurisdiction. The evaluator also should obtain any existing transcripts or audio/ video recordings of the interrogation (DeClue, 2005; Frumkin, 2000; Grisso, 1998b; Goldstein & Goldstein, 2010; Otto & Goldstein, 2005). Complete records relevant to the Miranda warning process are rare, especially those documenting the first administration of the warning. However, law enforcement officers’ depositions sometimes clarify how many times the warning was provided and under what circumstances (Frumkin, 2000). Arrest reports, records documenting the procedures for delivering the Miranda warnings, and interrogation transcripts also aid in evaluations of Miranda comprehension. Other relevant records include existing psychological assessment data (such as past IQ scores and educational achievement scores), school records relevant to grade level and academic performance, records of criminal justice involvement, court clinic and probation reports relevant to intellect or arrest history, and medical and mental health records. In gathering information about the Miranda warning used in the suspect’s jurisdiction, the evaluator should be aware of the periodic use of non-English versions.

Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion

If Miranda was delivered in a non-English version, the evaluator should be fluent in that language, should refer the retaining attorney to the services of an evaluator who is fluent in that language (and qualified to conduct the evaluation), or should retain the services of a certified court interpreter. The evaluator should determine if the language used in the Miranda warning is consistent with the language or dialect used by the defendant. For example, a Mexican American defendant who speaks Spanish might not understand some of the words used in a Spanish-language warning written for individuals originating from Puerto Rico. In cases of non-English-speaking or bilingual examinees, the evaluator also should clarify in which language the interrogation was conducted, the language in which the confession was recorded and signed, and whether the law enforcement officer interviewing the defendant was fluent and used the relevant language or dialect (for a discussion of issues related to the role of an interpreter in conducting Miranda interviews see Goldstein & Goldstein, 2010). Interviewing the Defendant Informed consent, the step prior to interviewing the defendant, requires a specific description of the nature and purpose of the evaluation and the lack of confidentiality that will apply if the defendant consents to participate. As in all forensic assessments, the informed consent procedure should be carefully documented. However, in cases involving the assessment of Miranda rights waivers, this procedure takes on additional significance (Goldstein & Goldstein, 2010). The forensic psychologist tells the defendant that anything he or she says during the assessment potentially will appear in the report and/or be discussed during testimony. Similarly, the defendant is warned that all notes on this issue might be discoverable and, consequently, opposing counsel would see them. The defendant is told that anything he or she offers will not be confidential. Questions sometimes are raised during direct or cross-examination about the similarity between comprehension of Miranda rights and comprehension of the nature and purpose of the forensic evaluation. The evaluator should be prepared to address the similarities and differences in the content of the information, the requirements of the defendant, the methods in which the information was delivered, and the role of defense counsel. A key difference, for example, is the defendant’s access to consultation with defense counsel prior to agreeing to participate in the forensic evaluation, compared to the frequent lack of legal representation or access to defense counsel prior to waiving Miranda rights.

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After consent is obtained, evaluators usually begin with a clinical interview. The interview should focus on gathering data regarding the defendant’s understanding of the warnings at the time of interrogation and arrest, not at the time of the evaluation interview. Incarcerated defendants often spend a considerable amount of time discussing their cases with other inmates and may have learned about their rights from “jailhouse lawyers.” They may have acquired information from their own attorneys regarding the nature and content of the Miranda warnings. The forensic psychologist must distinguish between preand post-arrest knowledge and understanding, in part by ascertaining whether and what the defendant learned about the warning after the interrogation. Interviewing the defendant serves to (a) obtain relevant background information; (b) locate potential sources of important collateral data (e.g., schools attended, places of employment, medical and mental health records); (c) assess the defendant’s psychological functioning; (d) obtain the defendant’s account of what transpired before and during the interrogation; and (e) assess his or her comprehension of Miranda rights at the time of the interrogation (Frumkin, 2000; Goldstein & Goldstein, 2010; Grisso, 1998b; Oberlander & Goldstein, 2001; Otto & Goldstein, 2005). Relevant background information includes educational, medical, mental health, and legal histories (Grisso, 1981, 1998a, 1998b). A history of substance use and abuse might be relevant if the defendant was intoxicated at the time of interrogation (Frumkin, 2000). Psychological Testing and Assessment Psychological assessment measures usually are chosen on the basis of reasonable hypotheses about specific impairments the defendant might be or have been experiencing at the time of the interrogation that could impact Miranda comprehension. Because they often can provide important information regarding comprehension, most evaluations include assessments of intellectual functioning and academic achievement. In addition, case-specific information may generate further hypotheses to guide the selection of additional psychological assessment instruments. Neuropsychological or neurological evaluations sometimes are appropriate to determine whether organic conditions may have interfered with the defendant’s functioning during the interrogation. Consultation should be sought when indicated with known experts or by consulting such sources as the American Board of Professional Psychology (ABPP) directory of board-certified forensic psychologists (www.abpp.org). The target variables for psychological assessment and specific tests included in

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the assessment battery often depend on the amount of background documentation available and the recency of previous assessments. Also, additional hypotheses may arise during the clinical interview that alter the focus of the assessment phase. Assessment of Response Style A defendant may feign intellectual limitations or symptoms of mental illness in an attempt to convince the examiner and court that, at the time the Miranda warning was given, he was unable to provide a knowing and intelligent waiver. Clinical expertise is needed to formulate all relevant hypotheses (e.g., malingering versus cognitive decline secondary to mental illness). Sometimes a review of the defendant’s presentation in comparison to prior records yields data relevant to the issue of possible malingering. When the data are less clear, evaluators frequently use specific assessment instruments to address the issue of response style. Heilbrun, Grisso, and Goldstein (2009) reported that “there has been substantial progress in developing and validating these specialized measures during the last 7 years” (p. 112). For example, if a defendant is suspected of feigning intellectual limitations, it may be helpful to administer a cognitively focused response style tool, such as the Validity Indicator Profile (Frederick, 1997). In addition, scores on standardized intelligence tests obtained during the evaluation may be compared to school achievement or reading test scores administered prior to the crime to assess consistency. To assess the possibility that the defendant might be feigning symptoms of mental illness, it is useful to observe the pattern of symptoms or reported symptoms in terms of their diagnostic integrity, to inquire about rare or nonsensical symptoms (as an initial clinical screening), and to see whether the defendant is willing to endorse symptoms that have no relationship to the mental illness(es) of concern. The defendant’s reported pattern of symptoms should be compared to records and other historical data documenting his or her mental health history. It often is helpful to refer to validity indices on symptom checklists or personality inventories and to examine the pattern of clinical scores to determine whether they support the defendant’s presentation. Specific response style measures, such as the Structured Interview of Reported Symptoms–2nd Edition (SIRS-2), are widely used to assess feigned symptoms of schizophrenia (Rogers, Sewell, & Gillard, 2010). If it is determined that the defendant is malingering some type of impairment, the examiner should not terminate the evaluation. Resnick (1997) and Rogers, Sewell, and Goldstein (1994) emphasized that malingering falls on

a continuum. That is, while some individuals may totally fabricate symptoms of mental retardation or mental illness, others may attempt to falsely attribute a claim of a lack of understanding of Miranda rights to symptoms that may be present, but at a level insufficient to account for the claimed deficits. Malingering and exaggeration in a forensic context may represent an attempt to cope or make the best out of a threatening, negative situation and not necessarily reflect antisocial personality traits (Rogers, Salekin, Sewell, Goldstein, & Leonard, 1998; Rogers, Sewell, & Goldstein, 1994). Braginsky and Braginaski (1970) and Resnick (1993) reported that individuals with mental retardation are capable of feigning more severe impairment if such impairment would enhance their chances of obtaining desirable goals. As such, evidence of malingering does not in itself preclude the possibility of the existence of genuine symptoms of mental defects or deficits (Otto, 2001). Measures and Procedures Specific to Miranda Comprehension Grisso’s original research (1981) focused on the ability of juveniles to make knowing, intelligent waivers of their Miranda rights. Grisso designed four instruments to evaluate juveniles’ comprehension of the Miranda warnings, instruments that also were used to assess adults’ comprehension of the warnings. Use of these instruments is considered by many to be an integral part of evaluations of juvenile and adult defendants. In the manual of the Instruments for Assessing Understanding and Appreciation of Miranda Rights, Grisso (1998a) provided guidelines for administration and scoring, presented psychometric data, and discussed issues of internal and external validity. He described the intended uses of the instruments, with recommendations for data interpretation. The four instruments are: 1. Comprehension of Miranda Rights (CMR) requires the defendant to paraphrase each element of the Miranda warning, assessing general comprehension. 2. Comprehension of Miranda Rights–Recognition (CMR-R; also referred to in Grisso’s 1981 publication as Comprehension of Miranda –True-False), asks the defendant to identify statements that mean the same as or something different from each element of the warning. This instrument provides information about whether defendants can recognize the meaning of their rights and does not rely on verbal expressive abilities. 3. Comprehension of Miranda –Vocabulary (CMV) asks the defendant to define six words used in the warning to assess, in part, where confusion about rights may have originated.

Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion

4. Function of Rights in Interrogation (FRI) uses hypothetical police interrogation vignettes, accompanied by pictures, to determine whether the defendant understands the adversarial nature of interrogation and the function of the rights to silence and counsel in the context of interrogation and arrest. Grisso conducted his research on specific population samples in St. Louis County, Missouri. The version of the Miranda warning used in his instruments is based on the wording used in that jurisdiction. Across jurisdictions, however, the warnings administered by police vary tremendously in terms of vocabulary, sentence length, and reading level (Rogers, Harrison, Shuman, Sewell, & Hazelwood, 2007; Rogers, Hazelwood, Sewell, Harrison, & Shuman, 2008). Grisso (1998a) described methods to accommodate the administration of the measures to integrate the actual Miranda wording administered to the defendant at the time of interrogation. The instruments serve as a useful tool to compare a defendant’s comprehension of rights to those of normative samples. At the time this chapter was written, the revised version of the instruments was just published (Goldstein, Zelle, & Grisso, 2012). Grisso developed the original instruments and established norms as part of a research project in the 1970s on juveniles’ Miranda comprehension (Grisso, 1981, 1998a). The revised assessment tool, the Miranda Rights Comprehension Instruments (MRCI), were developed in order to update the normative data and revise some elements of the instruments. The MRCI represent revised versions of each of the original four measures. In addition to providing updated normative data, the MRCI include simplified wordings of the warnings and additional items to cover the now-common fifth warning informing suspects of the ability to assert one’s rights throughout the interrogation, as well as 10 additional Miranda-related vocabulary terms and scoring criteria clarifications. A separate set of Miranda measures is currently being developed by Rogers and colleagues (e.g., Rogers, 2005, 2006a, 2006b; Rogers et al., 2009). The measures include the Miranda Statements Scale (MSS), which assesses understanding of components of the Miranda warnings at different reading levels, the Miranda Vocabulary Scale (MVS), which assesses understanding of Mirandarelevant words, and the Miranda Rights Scale (MRS), which assesses an individual’s reasoning about Mirandarelated issues, such as the advantages and disadvantages of exercising the right to silence. If records indicate that the defendant was asked to read the Miranda warning silently or aloud, and sometimes

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even when the defendant was not asked to do so, the evaluator might also wish to ask the defendant to read and explain his or her understanding of the warning. The evaluator should record how long it takes the defendant to read the warning, whether the defendant reads the warnings poorly or not at all, and whether poor reading skills might have altered the meaning of the warning by an omission or changing of words (Frumkin, 2000; Grisso, 1998b; Oberlander & Goldstein, 2001; Goldstein & Goldstein, 2010). The defendant’s reading level should also be assessed in order to examine consistency of reading ability on an objective measure with the defendant’s reading performance in the context of the Miranda warning. For juvenile defendants that waived Miranda in consultation with an interested adult, the evaluation usually should include an interview of the adult. This interview should focus on the adult’s account of the consultation and the Miranda warning process (if the adult was present during the juvenile’s warning). Additionally, to aid in determining whether the interested adult had the capacity to play the intended role as a protector of rights, the evaluator may question the adult about his or her understanding of the Miranda warnings. If an appropriate referral is made, a more complete assessment of the adult might be indicated if there is concern about whether symptoms of mental retardation, symptoms of mental illness, or other problems may have impaired the adult’s ability to provide effective consultation to the juvenile (Grisso, 1981, 1998b; Oberlander & Goldstein, 2001). Establishing a Causal Link Between Impairments and Miranda Comprehension “A forensic opinion on this or on any psycholegal question is only as good as the data upon which it is based” (Goldstein & Goldstein, 2010, p. 149). Data interpretation is the phase in which the evaluator considers whether the full range of evaluation data support a connection between impairments in the defendant’s functioning and deficits in Miranda comprehension. First, let us consider cases in which deficits seem causally linked to a legally relevant factor. If the interview and Miranda comprehension assessment data are consistent with what might be expected from school and other relevant records, and if symptom feigning and exaggeration are ruled out, it is helpful to the court to offer a descriptive explanation of the poor performance. Interview data, data from records or collateral contacts, and psychological assessment data usually help establish reasons for the defendant’s limited Miranda comprehension. The deficits in Miranda

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comprehension should be described with clarity and specificity. A defendant might have comprehended some of the rights in the warning, but not others. The nature and extent of poor or partial comprehension should be described based on data. It is usually helpful to specify why feigning and exaggeration were ruled out, and why a clinical (and legally relevant) explanation seems more compelling as a causal link. Providing data-based information in a scientifically sound but descriptive format enhances the likelihood that the fact finder will find the report data useful, necessary, and relevant to a legal determination about the validity of the waiver. In cases in which the evaluator writes a report that is not favorable to a potential legal determination of the invalidity of the Miranda waiver, the evaluator should be equally careful to provide descriptive data supporting the conclusions, explaining why legally relevant causal links do not appear to be clinically compelling (Heilbrun, Grisso, & Goldstein, 2009; Goldstein & Goldstein, 2010). Expert Testimony and Ethical Issues Testimony should describe how informed consent was obtained and any difficulties in obtaining it. The sources of data relied on, the methods used, and an explanation of the link between data and conclusions should be included in the testimony. An unbiased summary of relevant records should be presented along with descriptions of interviews conducted with third parties. Results specific to Miranda comprehension should be presented as they relate to the ability of the defendant to comprehend each right contained in the warning. Results of psychological assessment data (if relevant) and information from records and collateral contacts should be described in enough detail to illustrate the link (if any) between these data and the defendant’s comprehension. The data should be described in a manner that is readily understandable to the trier of fact and all parties to the proceedings. The court makes the legal determination of whether rights were waived knowingly, intelligently, and voluntarily. Consequently, the expert should describe the defendant’s comprehension of each Miranda right, possibly offering opinions about the degree of understanding (e.g., accurately understood, partially understood, or misunderstood). The capacity of the defendant to grasp the import of each right and apply it in the interrogation situation, to weigh the advantages and disadvantages of waiving or exercising each right, and to make a reasoned decision about waiving or exercising each right are factors about which an expert can reasonably opine and offer

testimony. The degree to which the evaluator’s opinion approaches the ultimate issue is a question of professional judgment and sometimes is influenced by judicial expectations favoring or overruling such testimony (for more detailed information about expert testimony in Miranda cases, see Goldstein & Goldstein, 2010). An Illustrative Case Aaron Wilson, a 19-year-old African American man, was arrested approximately 1 month before the evaluation (all identifying information has been altered). He was charged with first-degree robbery and criminal possession of a weapon. According to his attorney, Mr. Wilson was in special education classes throughout his school career. It was reported that he was unable to read and write, and he had a longstanding diagnosis of fetal alcohol syndrome. Because of his background and his difficulty communicating with his attorney, it was requested that the examiner (A. M. Goldstein) evaluate his ability to make a knowing and intelligent waiver of his Miranda rights. Mr. Wilson was seen for two sessions at the county jail over a period of approximately 8 hours. In addition to interviews focusing on his background and history, the circumstances under which the statement was obtained, and his understanding of his constitutional rights as expressed in the Miranda waiver used in his jurisdiction, a battery of tests was administered: the Wechsler Adult Intelligence Scale III (WAIS-III); Wide Range Achievement Test 3 (WRAT-3); Symbol Digit Modalities Test; Bender Visual Motor Gestalt Test; and the Instruments for Assessing Understanding and Appreciation of Miranda Rights. Copies of the following documents were reviewed: the indictment, the defendant’s record of arrests and convictions, the defendant’s statement to police, school records, records from the Office of Family and Children’s Services, mental health crisis team intervention records, and two prior trial competency evaluations. Mr. Wilson’s father was interviewed as well. Records consistently indicated a longstanding history of “learning disability and intellectual impairment.” In the first grade, Mr. Wilson was diagnosed with mild mental retardation and placed in a special education class, and he repeated the second and fifth grades. Teacher notes frequently referred to his inability to follow simple instructions, his problems focusing attention, his distractibility, and his difficulty recalling what he had been told. Psychological testing at age 14 with the Stanford Binet Intelligence Scale found an IQ of 57, and his Vineland Adaptive Behavioral Scale scores ranged from 46 to 54. Records

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indicated that educational evaluations resulted in reading, spelling, and math scores significantly below grade level. Psychological assessment records reflected his “lack of critical thinking skills” at age 17 and a need for continued special educational services to improve his receptive language abilities. Fetal alcohol syndrome was included in the diagnoses. Records from the Office of Family and Children’s Services reflected that both parents were substance abusers and his mother “ingested alcohol throughout her pregnancy.” When evaluated by the mental health crisis team 2 weeks before his arrest, it was reported that “Aaron was noncommunicative and did not appear to understand the questions posed to him. To those questions that he was able to give answers, Aaron responded with simple “yes” or “no.” He was described as highly anxious, agitated, and confused. Two psychiatrists who had evaluated his fitness for trial reported that he appeared to be “borderline retarded.” His father revealed that Mr. Wilson’s mother used heroin throughout her pregnancy with their son. In addition, he recalled that Mr. Wilson’s mother had constantly abused alcohol before, during, and immediately after her pregnancy. He confirmed that his son had been diagnosed with the symptoms of fetal alcohol syndrome and “brain problems” and that he had been placed in special education classes throughout his school career. In addition, Mr. Wilson’s father explained that his son had been placed on Ritalin at the age of 11 “to make him calm down.” He recalled that, although the prescription had run out 2 weeks before his son’s arrest, it had not been renewed because of difficulty with the family’s health insurance. According to the father, his son had become hyperactive, anxious, and unable to concentrate in response. Mr. Wilson was unable to provide informed consent to participate in this assessment. Although several attempts were made to explain to him the purpose of this assessment and limits of confidentiality (using simple language), Mr. Wilson could not meaningfully paraphrase the information. The assessment continued with authorization from his attorney. Mr. Wilson was frequently distracted by outside noise and movements and appeared highly agitated and anxious. During the interview, he had difficulty providing a meaningful, logical, and temporally organized history. He reported attending “private schools” for his earliest grades, but was unable to recall the names of these schools. He explained that he left school in the eighth grade because “I was roaming the streets too much.” He reported that he never worked because “I can’t fill out an application. I never picked up a book to read.”

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When asked what rights the police had read to him, Mr. Wilson stated, “They didn’t give me none.” When asked what rights he should have been provided, he stated, “the lineup.” He was again questioned about which rights he was aware of, and he responded, “I’m trying to think. It means to stay out of trouble?” When asked what the police officers on television say to someone they are arresting, he stated, “You’re going to jail.” He could not spontaneously offer any of the Miranda rights. Mr. Wilson was read the waiver document on which he had printed his name. He explained that the right to remain silent means, “The police don’t want you to ask them no questions and they want you to be quiet and say nothing and to just sit down until they’re ready for you.” When asked to explain the phrase indicating that what he stated could be used in court, he responded, “Anything that you say, your lawyer writes down and he’ll tell the judge.” Regarding the right to an attorney during interrogation, he first indicated, “I don’t know what that means,” then added, “It means you talk to your lawyer and tell him what happened or you tell the police what happened. Then my lawyer goes to court and he tells the judge what I said or when he calls him on the phone.” Several times during both evaluation sessions he expressed his belief that “The police will help you by putting you back on the right track.” With regard to being assigned an attorney if he could not afford one, he explained, “If I can’t pay for one, somebody will be your lawyer to help you with your case and help you out.” Later, when asked if he could have had a lawyer present during interrogation, he stated, “No, I don’t have that kind of money. I get one in court.” On the WAIS-III, Mr. Wilson obtained Verbal and Performance IQ scores of 63 and 59, respectively. His Full Scale IQ was 58. Similar scores were obtained on the indices that comprise this instrument (Verbal Comprehension was 68; Perceptual Organization was 64; Working Memory was 57; and Processing Speed was 68). His scores on the Vocabulary, Comprehension, Digit Span, and Information subtests fell between the first and second percentiles. He experienced difficulty defining relatively simple words, such as “penny” (“It’s brown”). His scores on the WRAT-3 were consistent with those obtained on the WAIS-III. Reading, Spelling, and Arithmetic grade equivalent scores fell within the first grade level and below the first percentile. On the Bender-Gestalt, he made nine errors using the Hutt and Briskin scoring system (five errors or more generally is accepted as suggesting the possibility of organic impairment). On the Symbol Digit Modalities Test, he completed 22 items (the completion of 38 items or fewer for a person his age suggests the

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presence of neurological impairment). His performance on all of these measures was highly consistent with testing data contained in his school records. Because the past diagnosis of fetal alcohol syndrome and its effects on his functioning were well documented, no further neuropsychological testing was administered. On the Grisso (1981) Instruments for Assessing Understanding and Appreciation of Miranda Rights, Mr. Wilson’s performance was consistent with scores obtained by those with similar levels of intellectual functioning. On the CMR instrument, requiring him to paraphrase the St. Louis County version of the Miranda warnings, he obtained a score of 1 out of a possible 8. On the CMV, the measure requiring him to define six Miranda-related vocabulary words (four words are included in the waiver he signed), his score was 2 out of a possible 12. On the CMR-R, which evaluated his ability to recognize the similarity between each right and three related sentences, his score was 8 out of a possible 12. On the FRI, the instrument in which he was shown a series of drawings and asked questions designed to elicit his appreciation of legal situations and the consequences of waiving his rights, his score fell significantly below the mean. The level of comprehension Mr. Wilson demonstrated of each right and the types of comprehension errors were highly consistent across the four instruments. In addition, when questioned using the waiver he had been given by police, his comprehension (or lack thereof) of each right was highly consistent with his performance on the Grisso instruments. This assessment revealed that he did not understand the right to remain silent, nor did he comprehend that anything he told the police detectives might be used as evidence against him in court. He did not comprehend the confidential nature that existed between him and his attorney. Although he initially understood that if he could not afford a lawyer, one would be assigned by the court, he later stated, “I don’t have that kind of money [to get an attorney during interrogation].” In sum, Mr. Wilson believed that a lawyer would be appointed only after his case was placed on the court docket. Based on the multiple sources of data, it is clear that Mr. Wilson suffers from mild mental retardation. Impairments were found in his vocabulary, in his ability to express himself, and in his overall judgment and reasoning. He had difficulty concentrating and paying attention, and his thinking was overly concrete and simplistic. His responses to questions were poor regarding his comprehension of the specific Miranda warnings that police read to him at the time of interrogation. His scores on tests that objectively evaluated his understanding and

appreciation of these rights were low. There was a link between his poor comprehension of the Miranda warnings and his cognitive limitations. Based on the correspondence between past records of his functioning and his current functioning, malingering was ruled out as an explanation for his deficits in Miranda comprehension. The assessment raised questions about the impact of his poor understanding of these rights on his ability to have made a knowing and intelligent waiver of his constitutional rights at the time of arrest, interrogation, and confession.

ASSESSMENT OF SUSCEPTIBILITY TO POLICE COERCION Do innocent suspects sometimes offer false confessions? Wigmore (1923, cited by Garrett, 2010) wrote that false confessions occurred only on the rarest of occasions and that no verifiable instances of untrue confessions had been documented. This was a commonly held belief until the past decade when DNA evidence exonerated numerous convicted felons, many of whom had confessed to crimes that they could not have committed. Garrett (2010) reported that “postconviction DNA testing has exonerated 252 convicts, 42 of whom falsely confessed to rapes and murders” (p. 1052). As such, lawyers, judges, law enforcement agencies and forensic mental health experts recognize that such confessions could occur as the result of “psychological pressure placed upon [suspects] during police interrogations” (p. 1053). This section considers the significance of confessions in a criminal trial, the reported frequency of false confessions, why suspects may confess to crimes they did not commit, and models for the assessment of those issues related to confessions that may be credible. Crane v. Kentucky The U.S. Supreme Court ruled in Crane v. Kentucky (1986) that jurors are entitled to hear any evidence regarding the possible lack of truthfulness of a confession. The Court stated that such evidence might assist the trier of fact in deciding how much weight to give the confession in its deliberations. It ruled that “evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility” (p. 691). In Crane, a 16-year-old defendant had been convicted of a murder committed during the course of a robbery. The defendant had given an inculpatory statement to police detectives and, prior to trial, his attorney moved to suppress the

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confession. However, following a pretrial hearing in which the validity of the Miranda waiver was considered, the judge ruled that the confession was voluntarily obtained and the motion was denied. During trial, testimony that might have indicated that the interrogation methods and length encouraged a false confession was proffered, but the court ruled it inadmissible. Among the claims made by the defendant were that he was badgered into making a false confession and his requests to telephone his mother were denied. It was also claimed that he was surrounded by as many as six police officers at a time and that the interrogation continued in a windowless room for a protracted period of time. The trial court ruled that this issue was related solely to the question of voluntariness, previously decided by the court, and was, therefore, inadmissible. The Kentucky Supreme Court upheld this decision. In considering this case, the U.S. Supreme Court ruled, “The physical and psychological environment that yielded [a] confession [is not only relevant to the legal question of voluntariness, but] can also be of substantial relevance to the ultimate factual issue of the defendant’s guilt or innocence” (p. 689). Consequently, the court drew a clear distinction between the determination of the voluntariness of a confession and whether that confession is a truthful one. The defendant, therefore, is entitled to offer evidence that goes to the veracity of a confession. The Significance of Confessions When introduced at trial, a confession tends to be evaluated by a jury as providing the clearest sign of a defendant’s guilt. Confessions have been described as valuable legal and psychological commodities (Driver, 1968) that, once offered, make it difficult for a defendant to purge himself or herself of guilt. Kassin (1997, p. 221) described a confession as “a prosecutor’s most potent weapon” and cited McCormick (1972, p. 316), who contended that when a confession is introduced into evidence, “[it] makes the other aspects of a trial superfluous.” In their research, Kassin and Neumann (1997, p. 481) found support for the belief that “confessions are devastating to a defendant.” Similarly, Kassin and Sukel (1997, p. 42) found that “confession evidence is inherently prejudicial.” Garrett (2010, p. 1054) studied the characteristics of false confessions provided by DNA-exonerated inmates and concluded that such confessions were “surprisingly rich, detailed, and [contained] accurate information.” It is no wonder that false confessions, like those that are valid, have such a powerful impact on juries’ verdicts. Malloy and Lamb

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(2010), emphasizing the significance of all confessions, wrote: “Cases with confession evidence often move forward to conviction despite inconsistencies, retractions, and possibly exculpatory evidence, perhaps because fact finders are seldom as attentive to the ways in which suspects are questioned, with vast portions of the interviews left unrecorded, literally, or proverbially” (p. 47). According to Wrightsman and Kassin (1993), confessions are provided by suspects in approximately 50% of criminal cases, and 20% of these are eventually challenged in court. Similarly, Gudjonsson (1992) indicated that retractions of confessions are relatively common occurrences. Reported Frequency of False Confessions For several reasons, it is difficult to reliably measure the rate of false confessions. The mere fact that a defendant recants a confession or challenges its veracity does not necessarily make the confession false (Wrightsman, 2001). Defendants may claim to have falsely confessed to avoid responsibility for their criminal acts. The “proof” of a false confession is typically established by physical evidence of innocence (e.g., DNA testing) in the presence of a confession or by the subsequent arrest of another person who admits committing the same crime (with accompanying physical evidence to support the new confession). However, as Garrett (2010) pointed out, “false confessions uncovered by DNA testing are not representative of other false confessions, much less confessions more generally” (p.1054). The lack of a “clearinghouse” for gathering such information makes accurate data impossible. Estimates of false confessions range from fewer than 35 per year (Cassell, 1996a, 1996b) to as many as 600 per year in the United States (Huff, Rattner, & Sagarin, 1986), with Kassin and McNall (1991) estimating a rate between fewer than 30 to 60 per year. Borchard (1932) identified “several cases” involving false confessions among 64 defendants found innocent by irrefutable evidence. Of 205 other cases involving wrongful imprisonment, 8% involved false confessions (Rattner, 1988). Garrett (2008) estimated that false confessions are present in 15% to 20% of DNA-exonerated cases. From an international perspective, 12% of offenders surveyed in Iceland claimed to have provided false confessions (Gudjonsson & Sigurdsson, 1994). Of 70 British cases involving wrongful imprisonment, the most common factor related to their release was false confessions (Brandon & Davies, 1973). Drizin and Leo (2004) found that, of the 125 U.S. cases of false confessions they reviewed, 81% involved charges of murder. In 30% of these cases, the initial confession

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was used to obtain false admissions from additional suspects. In a review of 350 death penalty convictions involving miscarriages of justice, 49 cases involved false confessions (Bedau & Radelet, 1987). A number of writings by confession experts (Gudjonsson, 1992; Lassiter, 2004; Leo, 1992; Ofshe, 1989; Ofshe & Watters, 1994; Scheck, Neufeld, & Dwyer, 2000; Wrightsman & Kassin, 1993) provide case examples of false confessions by innocent individuals, some of which resulted in executions for crimes they did not commit. (See Garrett, 2010; Talmadge, 2001; and Wells & Leo, 2008 for detailed case histories involving false confessions.) Types of False Confessions Three types of false confessions have been identified (Kassin & Wrightsman, 1985; Kassin et al., 2010; Wrightsman & Kassin, 1993). These three types are based largely on theories of attitude change, as well as on anecdotal cases. Others working in this area, including Gudjonsson (1992) and Shuy (1998), have cited these models in their work. Although these models of false confessions imply three distinct categories, for an individual defendant they sometimes overlap (Gudjonsson, 1992). Voluntary False Confessions Voluntary false confessions are offered willingly, free from external pressure from interrogators. Often, such individuals have seen a crime on television or read about it in the newspaper and voluntarily go to the police station to confess. For example, Kassin and colleagues (2010) reported that 200 people voluntarily confessed to the kidnapping of the Lindbergh baby in 1932. Frequently, these false confessions are motivated by a desire for publicity or may represent a need to reduce guilt from other real or imagined prior transgressions. A confession may be symptomatic of an underlying mental disorder, and at times the person confessing may be truly convinced of his or her guilt. Some individuals may offer voluntary false confessions to protect others from being blamed for the crime. It is unclear how readily police detectives can recognize a voluntary false confession (Gudjonsson, 1992). Compliant False Confessions Compliant confessions are provided by suspects who are aware of their innocence but, for a number of reasons, are unable to withstand the pressure of interrogation. As described by Wrightsman (2001), confessions may be given “to escape further interrogation, to gain a promised

benefit, or to avoid threatened punishment” (p. 144). The suspect is aware that he or she did not commit the crime for which the confession is provided. Compliant behavior is “a means of coping with the demand characteristics including the perceived pressure of the situation” (Gudjonsson, 1992, p. 228). Such individuals may have partial or full recognition of the consequences of their confessions. However, frequently, they may believe “that somehow the truth will come out later or that the solicitor will be able to rectify their false confession” (Gudjonsson, 1992, p. 228). One of the authors of this chapter (A. Goldstein) had a case in which a woman found to be both highly suggestible and very na¨ıve may have provided a false confession based on police pressure. After several hours of interrogation, during which time she denied involvement in a conspiracy to commit murder, she “confessed” so that she could return home to care for her young child and avoid incarceration “with tough ladies who will definitely enjoy a new piece of meat.” Her concern for the wellbeing of her child, her fear of being brutalized by other inmates, and the promises she said that detectives made that they would quickly get things straightened out and allow her to return home all contributed to her suspension of judgment and decision to confess to a crime that she later claimed that she did not commit. Another defendant, who was found to have mild mental retardation, confessed to two murders, having been convinced of the futility of his protestations of innocence. He claimed that he had purposely provided inaccurate details regarding the crimes, believing that he would later sue the police for “entrapment” and brutality. In this case, there was no physical evidence tying the defendant to the crime and he believed that his attorney would “straighten things out later.” (See Johnson & Hunt, 2000, for a description of a case of a 13-year-old involving his ability to waive Miranda rights, as well as the likelihood that he gave a false confession.) Internalized False Confessions With prolonged interrogation and pressure, some innocent suspects gradually begin to adopt the fact pattern presented by interrogating officers. They do so despite a lack of memory regarding details of the offense. They begin to question their judgment and may adopt suggestions that they have “repressed” details of the crime, allowing them to endorse those details provided by interrogators. As described by Gudjonsson and MacKeith (1982), such confessions tend to come from passivity, self-doubt, and distrust of their memories.

Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion

Why Defendants May Provide a False Confession M¨unsterberg (1908), frequently credited with founding the field of forensic psychology, wrote that it is a misconception to believe that false confessions do not occur. He acknowledged the commonsense belief that “It would be inconceivable that any man who was innocent . . . should claim the infamy of guilt” (p. 142), but proposed a wide range of reasons why people might confess to crimes they did not commit. M¨unsterberg cited as reasons for false confessions such factors as “a weak mind” (p. 143), threats, promises, social motives, fatigue, “passive yielding” (p. 147), fear, dissociation, depression, and suggestibility. Much of the research conducted since M¨unsterberg’s original thesis tends to confirm the influence of these hypothesized factors, as well as others. Factors associated with false confessions may be divided into three major categories: situational (i.e., related to the demands of the interrogation process itself and the difficulty defendants may have in coping with the pressures of interrogation); intellectual (i.e., related to the defendant’s cognitive abilities, including judgment, suggestibility, and na¨ıvet´e); and personality (i.e., related to such traits and characteristics as acquiescence to authority). Situational Factors Contributing to False Confessions Inbau et al. (2004), in their interrogation text for law enforcement officers, suggested a nine-step strategy: (1) confront the suspect with his or her guilty actions; (2) develop psychological “themes” that help the suspect justify or excuse the crime; (3) interrupt all statements of denial by the suspect; (4) overcome the suspect’s factual, moral, or emotional objections to the charges (e.g., reframe the crime so that the suspect will find it more acceptable to admit guilt); (5) ensure that passive suspects pay attention; (6) express sympathy and understanding when urging the suspect to tell the truth; (7) offer face-saving alternative explanations for the suspect’s actions; (8) encourage the suspect to give a detailed account of the crime; and (9) convert the suspect’s account to a full written confession (which has been interpreted as convincing a reluctant suspect to sign a written confession). According to Kassin and his colleagues (2010), the use of physical violence by interrogators to extract confessions—the “third-degree”—has “long since . . . been replaced by interrogation techniques that are more professional and psychologically oriented” (p. 6). Kassin (1997) summarized the specific interrogation strategies described by Inbau and colleagues (1986) in more psychologically oriented terms and methodology: maximization,

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minimization, communicating implied threats or promises, and using negative and positive incentives. Maximization involves overstating the seriousness of the offense or charge to the suspect, confronting the suspect with exaggerated or false evidence, and blaming the suspect for all troubles in life. Minimization involves understating the magnitude of the offense or charge, offering a face-saving story reconstruction, and offering statements of tolerance for the suspect’s actions. Communicating implied threats or promises involves implying leniency or immunity and using scare tactics to intimidate a suspect. Negative incentives involves telling the suspect that the longer he or she denies committing the crime, the longer the interrogation will continue; yelling at the suspect whenever a denial is expressed; and blaming the suspect for destroying family or religion by lying about a crime. Positive incentives involves offers of sympathy or friendship, offering praise for the suspect’s incriminating statements, and offering tangible rewards (e.g., food, soda, cigarettes) for discussing the crime (Kassin, 1997). Kassin and his colleagues (2010) also described the ways in which interrogators may obtain confessions through the presentation of false evidence that is designed to manipulate and break down a suspect’s denial of guilt and exploit feelings of despair. Such manipulation may increase the likelihood of obtaining a confession that is untrue. Kassin and colleagues also described the use of physical custody and isolation as a strategy during interrogation. By holding suspects incommunicado, police control of the suspect can be increased, along with the suspect’s overall level of stress: “It is not particularly surprising that false confessions tend to occur after long periods of time—which indicates a dogged persistence in the face of denial” (p. 16). Smith, Stinson, and Patry (2010) described a relatively new method employed by Canadian interrogators, the “Mr. Big Technique.” With this noncustodial method, an undercover operative establishes a relationship with the unknowing suspect. The suspect is introduced to “gang” members, working for the police, who pay the suspect large sums of money to perform simple jobs, such as counting money or serving as a lookout. The suspect is later told that a “promotion” is being considered and he must meet with the head of the criminal organization, “Mr. Big.” To advance in the organization, the suspect is asked to confess, in detail, to a crime he is suspected of having committed (i.e., to provide “dirt” for potential future use; so that the gang can dispose of evidence; in order for someone else to confess to the crime). If the suspect does not confess, there is a threat of the loss of the high-paying

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job, the likelihood of a beating (having witnessed someone else “beaten” for not confessing), or threats to the friend who invited him or her into the organization. The confession is oral and written, and it is surreptitiously recorded by police. Smith and colleagues wrote that “the Mr. Big Technique creates fertile ground for suspects to provide false confessions” (p. 40). (Descriptions of other strategies used by interrogators can be found in Klare, 2004, and Leo, 2004.) Such strategies and methods are designed to take advantage of the vulnerabilities and weaknesses of defendants and break down their resistance. As noted by Kassin and colleagues (2010), “[T]he goal of interrogation is to alter a suspect’s decision making by increasing the anxiety associated with denial and reducing the anxiety associated with confession” (p. 15). In some cases, the strategies might lead to false confessions. In fact, in Miranda v. Arizona (1966), the Supreme Court opined that these and similar methods advocated by Inbau and Reid (1962) could result in involuntary confessions that might raise questions regarding their “inherent trustworthiness.” Inbau et al. (1986) contended that this is a valid approach to interrogation because it is possible to distinguish between true and false denials using verbal and nonverbal cues. Despite this assertion, empirical evidence suggests that people are poor judges of truth and deception (Ekman & O’Sullivan, 1991; Kassin, 1997). In fact, those who underwent training to distinguish between true and false confessions were less able to do so than those without such training, despite expressing greater confidence in the ability to do so (Kassin & Fong, 1999). Many interrogation techniques are designed to frighten suspects, and their effects are not limited solely to those who are guilty. The nature of the interrogation process is such that police pressure, persuasiveness, overzealous questioning, browbeating, ignoring contradictory evidence, and fear of confinement may serve to encourage false confessions (Gudjonsson, 1992). The source of a false confession may be related to the defendant’s “perceived inability to cope with the police interrogation” (p. 78). Gudjonsson wrote, “Confessing behavior [is linked] primarily with the suspect’s ability to cope with pressure, rather than their tendency to give in to leading questions per se” (p. 157). Similarly, Wrightsman and Kassin (1993) emphasized the inability of suspects to cope with interrogation as a factor contributing to false confessions. Grisso (1981, 1986) indicated that those who have a poor capacity to resist police pressure during interrogation may comply with demands for a confession to avoid jail. Despite the significance of the demands of

the interrogation process, “false confessions can occur, even in the absence of any obvious interrogation pressure” (Gudjonsson, 1992, p. xi). Garrett (2010), in discussing the accuracy of details in confessions offered by DNA-exonerated felons, noted that “inside information,” details only a guilty suspect would know, may be communicated by interrogators unintentionally or recklessly. “Police may have been convinced the suspect was guilty and may not have realized that the interrogation had been mishandled” (p. 1054). Because confessions are typically obtained “behind closed doors,” a number of interrogation and confession experts recommend that the recording of entire interrogations be mandatory (Garrett, 2010; Kassin et al., 2010; Leo, 2001a, 2001b). By memorializing the interrogation, questions regarding suggestions, pressure, and subtle promises and threats might be more validly addressed. Intellectual Factors Contributing to False Confessions According to Shaw and Budd (1982), individuals with mental retardation have a stronger need to please others, especially those they identify as authority figures, and they are more likely to demonstrate acquiescent behavior by providing socially desirable responses to comply with the demands of others. Parry (1987) discussed mental impairments as factors contributing to involuntary confessions, and Gudjonsson (1992) found low intelligence to be associated with increased suggestibility, a factor he cited as contributing to false confessions. Similarly, Wrightsman and Kassin (1993) reported that low intelligence is a factor related to untruthful confessions, and Everington and Fulero (1999) found increased levels of suggestibility among persons with mental retardation. They were more likely to respond to suggestive questions and were likely to modify their answers when requested to do so. O’Connell, Garmoe, and Goldstein (2005) found that individuals with mild mental retardation demonstrated poorer comprehension of Miranda rights and a greater likelihood of changing their answers when presented with friendly feedback that they had provided incorrect answers on a task. Individuals with intellectual disabilities (e.g., mental retardation) are more likely to respond to leading questions containing false or misleading information (Fulero & Everington, 2004; Perlman, Ericson, Esses, & Isaacs, 1994). Yes/no questions raise the likelihood of response biases in individuals with mental retardation (Sigelman, Budd, Winer, Shoenrock, & Martin, 1982), and the tendency to acquiesce is so powerful that even absurd questions can yield affirmative answers (Sigelman, Budd, Spanhel, & Shoenrock, 1981).

Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion

The relationship between intelligence and suggestibility is a critical one in evaluating the validity of a confession. Gudjonsson (1984, 1989, 1991) found significant differences in IQ and suggestibility between alleged false confessors and resisters in criminal trials. Alleged false confessors had lower IQ scores and were more suggestible than were resisters, with a greater magnitude of difference in suggestibility scores than IQ scores. Clare and Gudjonsson (1993) found that individuals with a Full Scale IQ in the range of 57 to 75 were more suggestible than individuals with an average IQ because they were much more susceptible to leading questions. In addition, they confabulated more and were more acquiescent. Individuals with low IQ scores may be more likely to offer confessions, regardless of their truth. Psychopathology and Personality Factors Contributing to False Confessions The presence of psychopathology increases the risk of false confessions. Of those offenders with a history of mental illness, 22% reported that they had provided a false confession at some time in their lives (Redlich, 2007). Self-reports of false confessions made by offenders with mental disorders, gathered at six sites, ranged from 9% to 28% (Redlich, Summers, & Hoover, 2010). “Psychological disorder is often accompanied by faulty reality monitoring, distorted perception, impaired judgment, anxiety, mood disturbance, poor self-control, and feelings of guilt” (Kassin et al., 2010, p. 21). False confessions have been associated with depressed mood (Gudjonsson, Sigurdsson, Asgeirsdottir, & Sigfusdottir, 2006) and multiple exposures to traumatic or unpleasant experiences (Gudjonsson, Sigurdsson, Asgeirsdottir, & Sigfusdottir, 2007). A suspect’s personality traits and characteristics also may increase risk for a false confession. However, whether these traits prompt an untrue confession depends greatly on the demands of the interrogation situation itself. Typically, personality factors cannot be considered in isolation from the interrogation process. Gudjonsson (1992) hypothesized that unresolved childhood conflicts (related to such factors as self-image, the need to please, and poor coping skills) might lay the foundation for personality characteristics likely to produce a false confession. He described a number of personality traits associated with false confessions, including the need for approval, the need to please, and the need to avoid unpleasant conflicts. Wrightsman and Kassin (1993) described similar factors, including the need to avoid controversy, suggestibility, and acquiescence. Also associated with the likelihood of

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conforming to the demands of the interrogator are low self-esteem, anxiety proneness, feelings of powerlessness, need to fulfill role expectations, fear of negative evaluations and social disapproval, uncritical obedience to authority, and lack of assertiveness (Gudjonsson, 1992). Leo and Ofshe (1998) wrote that the anxiety associated with interrogation may serve to increase the likelihood of an invalid confession. Shuy (1998) argued that the need for self-aggrandizement may contribute to a false confession. Ofshe (2000) suggested that suspects confess as a means of coping with a threatening situation, seeing the confession as the best option available. Other Factors Associated With False Confessions Recent bereavement, language difficulties, age, lack of experience with the police, memory impairments, locus of control, and tendencies to confabulate may negatively affect suspects’ abilities to cope with interrogation pressures, as well (Gudjonsson, 1992). Other reasons for providing a false confession may include the need to protect another individual from being accused of the crime (Gudjonsson & Sigurdsson, 1994), the desire to leave the interrogation and return home (Kassin & Fong, 1999), a seeking of publicity (Wrightsman, 2001), the desire to impress someone (Bedau & Radelet, 1987), and an attempt to hide another behavior (e.g., an affair; Bedau & Radelet, 1987). Some false confessions may also be driven by general feelings of guilt (Wrightsman, 2001). (A summary of police interrogation methods and strategies that may contribute to false confessions can be found in Leo, 2001b. See DeClue, 2005, for a thorough review of interrogation tactics and models that have been proposed by researchers to explain why people confess.) Implications for Forensic Assessment and Testimony Regarding False Confessions Forensic psychologists may be asked to evaluate a defendant’s allegedly false confessions. This represents a different referral question, both legally and psychologically, from assessing the validity of a defendant’s Miranda waiver. Although Miranda rights may have been validly waived, questions may remain regarding the veracity of the confession. Referrals cover a broad spectrum of concerns about the defendant’s functioning and the relevance of these concerns to the likelihood that he or she might have given a false confession. Experts are not in a position to offer an opinion on whether a defendant’s confession is indeed a false one; clearly, such opinions should be left to the trier of

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fact to determine. However, forensic psychologists can evaluate factors associated with providing false confessions: intellectual functioning, judgment, tendencies to suspend critical thinking, decision-making abilities under stress, the capacity to cope with pressure (especially that associated with interrogation), tendencies to acquiesce to the demands of those identified as authority figures, and the need to please others and avoid criticism and conflict. A common focus for this type of assessment is the role psychotic symptoms (including delusions) and underlying feelings of guilt might have played in affecting cognitive skills and judgment. Forensic psychologists might evaluate suggestibility (as a personality construct and as an interactive process), a major factor hypothesized to contribute to false confessions. Based on the evaluation, “Experts can present information to the court about how these factors might have contributed to a coerced confession” (Goldstein & Goldstein, 2010, p. 14). As expressed by DeClue (2005, p. 154), “[P]sychologists can provide useful information about the person, the situation, and the person-situation interaction.” Interview of Defendant All evaluations on issues related to false confessions should include interviews of the defendant. A detailed history provides a sense of the defendant’s overall mental state and reveals sources of corroborating records that can be later reviewed in order to establish the accuracy of information provided by the defendant. In addition, instances of marked suggestibility and/or acquiescence to authority figures that predate the confession may serve as real-life validation of traits or characteristics that would contribute to a false confession. For example, in one case, a defendant stated that she had been coerced by the police into signing a statement admitting to a serious felony that she later claimed she did not commit. A review of her background revealed that, on a number of occasions, she had been “talked into” making decisions not in her best interests or contrary to her intended plans. She had gone to a physician for birth control pills, but was talked into a tubal ligation and, on another occasion, she closed a successful business for fear of offending a close friend she respected. In reviewing the assessment data, the evaluator must consider the defendant’s rendition of the reasons a confession was provided and is being challenged as false. DeClue (2005) listed 51 interrogation procedures that might, for some people, increase the likelihood of a false confession. During the interview, the defendant should be questioned about what took place before and during

questioning (e.g., What did the police say? How many interrogators were in the room? What was the defendant’s physical and mental state at the time of questioning? What promises were made or inferred?). This report may not necessarily be an objective, accurate, or honest rendition. Nonetheless, this information should be considered by the examiner in terms of the likely responses the defendant might have had to interrogators’ strategies, threats, promises, and manipulations, if the defendant’s claims about police behaviors are accurate. Third-Party Sources School, employment, medical, and mental health records, along with interviews of others familiar with the defendant, are frequently a valuable source of collateral information. A review of the video- or audiotape of the interrogation (if one exists) may serve as an essential source for both framing questions to ask the defendant and determining the source of some details in the confession. Of course, the defendant may have first given a statement off-camera and this recording may not accurately reflect the initial questioning and confession. Instances of the defendant giving in to the demands of others, na¨ıvet´e, suggestibility, and examples of a need to please others or avoid criticism represent relevant data to consider in conducting such examinations; descriptions of the defendant as headstrong, stubborn, a leader, and self-assertive are of equal relevance. Psychological Assessment If cognitive limitations are suggested, a full intellectual assessment is indicated. In addition, neuropsychological testing focusing on executive decision making may be relevant if there are questions related to neuropsychological impairments. The specific tests and forensic assessment instruments must be determined on a case-by-case basis. There is no established battery for conducting such assessments; Goldstein and Goldstein (2010) wrote: “Evaluation of factors that could have affected the veracity of confessions is a field of study for which ‘best practice’ standards do not exist” (p.14). As such, when selecting tests and other assessment methods, the expert should anticipate having to explain to the trier of fact, during testimony, why those specific instruments were selected. Personality testing, especially with well-validated instruments (e.g., Minnesota Multiphasic Personality Inventory–2, Personality Assessment Inventory), may contribute to an understanding of the defendant’s traits, characteristics, self-image, and coping skills. These factors may be relevant in considering those characteristics

Capacity to Waive Miranda Rights and the Assessment of Susceptibility to Police Coercion

unique to the defendant that may have contributed to a false confession. Administration of a suggestibility measure, such as the Gudjonsson Suggestibility Scale (GSS), may be of value (Gudjonsson, 1984, 1987). In the GSS, defendants are read a narrative paragraph describing a fictitious crime and are asked to recall as much as they can about the story, both immediately and after approximately 50 minutes. Questions are then asked of the defendant, most of which are “subtly misleading.” Even if questions are answered correctly, the defendant is informed that he or she made a number of errors, that the questions must be asked again, and the defendant should try to answer them more accurately. Changes in answers are recorded (i.e., Shift scores) along with the degree to which defendants give in to the misleading questions (i.e., Yield scores). A Total Suggestibility score is obtained. The results of this measure, in the context of a multimodal assessment, sometimes provide useful data regarding the existence of suggestibility as a longstanding characteristic of the defendant. The relevance of psychological assessment measures depends on their relationships to hypothesized characteristics of the defendant that might be related to a tendency to offer a false confession. Reasonable hypotheses are formed by reviewing records, interviewing relevant collateral contacts, consulting with defense counsel and other individuals knowledgeable about the defendant’s functioning in legal settings, and observational and interview data (see Goldstein & Goldstein, 2010 for a discussion on hypothesis testing in the forensic evaluation context). Psychological testing tends to be standard practice in evaluating characteristics that may have increased a defendant’s likelihood of having provided a false confession. Sometimes, however, relevant variables of concern are sufficiently documented in records or are sufficiently apparent in observational and interview data. Even in those cases, though, assessment data might be used to bolster conclusions or to ensure sufficient reliance on multiple sources of data. Relevant variables should be described in reports and linked (either clinically or in response to hypothetical questions) to the defendant’s functioning at the time the confession took place. Summary Although forensic psychologists, like those in other professions, are not in a position to offer an opinion on the accuracy of a specific confession, they can evaluate situational, intellectual, and personality characteristics

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that might have increased the likelihood of a suspect providing a false confession. It clearly is up to the trier of fact to determine if the expert’s findings and testimony are credible and relevant when determining how much weight to give the defendant’s inculpatory statement. The Supreme Court’s decision in Crane v. Kentucky (1986) permits testimony bearing on the credibility of the defendant’s confession. In conducting these assessments and in the provision of testimony, theoretical and empirical knowledge of why people provide false confessions, knowledge of models of false confessions, and familiarization with appropriate assessment methodology are required.

CONCLUSION The validity of Miranda rights waivers carries legal significance because a confession typically is viewed as highly persuasive evidence. The validity of the waiver is especially legally relevant when the prosecution expects to offer the confession as a primary or sole source of evidence to convict the defendant. Convictions can result from illegally obtained confessions and from confessions that are unreliable. Both Miranda comprehension and susceptibility to coercion are significant forensic assessment issues. The behavioral sciences offer theories, assessment tools, and methods for analyzing the significance of individual variables in assessing abilities related to Miranda comprehension, the validity of waivers, and the trustworthiness of confessions. Forensic psychologists who conduct assessments of the validity of Miranda waivers and factors that may have contributed to false confessions should familiarize themselves with jurisdictional concerns. These include factors such as the nature of the Miranda warning used in local jurisdictions, common interrogation practices in local jurisdictions, and idiosyncratic rulings in binding case law in specific regions.

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MacDonald, J. M., & Michaud, D. L. (1987). The confession: Interrogation and criminal profiles for police officers. Denver, CO: Apache. Malloy, L. C., & Lamb, M. E. (2010). Biases in judging victims and suspects whose statements are inconsistent. Law and Human Behavior, 34, 46–48. Maryland v. Shatzer, 130 S.Ct. 1213 (2010). McCormick, C. T. (1972). Handbook of the law of evidence (2nd ed.). St. Paul, MN: West. McKay, K. E., Halperin, J. M., Schwartz, S. T., & Sharma, V. (1994). Developmental analysis of three aspects of information processing: Sustained attention, selective attention, and response organization. Developmental Neuropsychology, 10, 121–132. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press. Messenheimer, S. (2010). Impact of Miranda warning wording complexity on delinquent youths’ understanding and appreciation of rights (Unpublished master’s thesis). Drexel University, Philadelphia, PA. Miranda v. Arizona, 384 U.S. 436 (1966). Missouri v. Seibert, 542 U.S. 600 (2004). M¨unsterberg, H. (1908). On the witness stand: Essays on psychology and crime. New York, NY: Doubleday. Nguyen, A. (2000). The assault on Miranda. The American Prospect, 13, 58–62. Oberlander, L. B. (1998). Miranda comprehension and confessional competence. Expert Opinion, 2, 11–12. Oberlander, L. B., & Goldstein, N. E. (2001). A review and update on the practice of evaluating Miranda comprehension. Behavioral Sciences and the Law, 19, 453–471. O’Connell, M. J., Garmoe, W., & Goldstein, N. E. (2005). Miranda comprehension in adults with mental retardation and the effects of feedback style on suggestibility. Law and Human Behavior, 29, 359–369. Ofshe, R. (1989). Coerced confessions: The logic of seemingly irrational action. Cultic Studies Journal, 6, 1–5. Ofshe, R. (2000, March). The decision to confess: The process of eliciting true and false confessions. Paper presented at biennial meeting of the American Psychology–Law Society, New Orleans, LA. Ofshe, R., & Watters, E. (1994). Making monsters: False memories, psychotherapy, and sexual hysteria. New York, NY: Scribner’s. O’Hara, C. E., & O’Hara, G. L. (1981). Fundamentals of criminal investigation. Springfield, IL: Charles C. Thomas. Olley, M. C. (1998). The utility of the test of charter comprehension for ensuring the protection of accuseds’ rights at the time of arrest (Unpublished doctoral dissertation). Simon Fraser University, Burnaby, British Columbia, Canada. Olubadewo, O. (2009). The relationship between mental health symptoms and comprehension of Miranda rights in male juvenile offenders. Dissertation Abstracts International, 69, 57–88. Orozco v. Texas, 394 U.S. 324 (1969). Otto, R. K. (2001, February). Assessing malingering and deception. Seminar presented at American Academy of Forensic Psychology Workshop, San Antonio, TX. Otto, R. K., & Goldstein, A. M. (2005). Juveniles’ competence to confess and competency to participate in the juvenile justice process. In K. Heilbrun, N. E. S. Goldstein, & R. E. Redding (Eds.), Juvenile delinquency: Prevention, assessment, and intervention (pp. 179–208). Parry, J. (1987). Involuntary confessions based on mental impairments. Mental and Physical Disabilities Law Reporter, 11, 2–4. Pearse, J., Gudjonsson, G. H., Clare, I. C. H., & Rutter, S. (1998). Police interviewing and psychological vulnerabilities: Predicting the likelihood of a confession. Journal of Community and Applied Social Psychology, 8, 1–21.

People v. Farnam, 47 P.3d 988 (Cal. 2002). People v. Higgins, 607 N.E.2d 337 (Ill. App. Ct. 1993). People v. Lara, 432 P.2d 202 (Cal. 1967). People v. Rodney P., 233 N.E.2d 255 (N.Y. 1967). People v. Williams, 465 N.E.2d 327 (N.Y. 1984). Perlman, N. B., Ericson, K. L., Esses, V. M., & Isaacs, B. J. (1994). The developmentally handicapped witness: Competence as a function of question format. Law and Human Behavior, 18, 171–187. The Psychological Corporation. (1999). Wechsler Abbreviated Scale of Intelligence. San Antonio, TX: Author. The Psychological Corporation. (2002). Wechsler Individual Achievement Test (2nd ed.). San Antonio, TX: Author. Rattner, A. (1988). Convicted but innocent: Wrongful conviction and the criminal justice system. Law and Human Behavior, 12, 283–293. Redlich, A. D. (2007). Double jeopardy in the interrogation room: Young age and mental illness. American Psychologist, 62, 609–611. Redlich, A. D., Summers, A., & Hoover, S. (2010). Self-reported false confessions and false guilty pleas among offenders with mental illness. Law and Human Behavior, 34, 79–90. Resnick, P. J. (1993). Defrocking the fraud: The detection of malingering. Israel Journal of Psychiatry and Related Sciences, 30, 93–101. Resnick, P. J. (1997). Malingering of posttraumatic disorders. In R. Rogers (Ed.), Clinical assessment of malingering and deception. New York, NY: Guilford Press. Riggs Romaine, C. L., Zelle, H., Wolbransky, M., Zelechoski, A. D., & Goldstein, N. E. S. (2008, August). Juveniles’ Miranda rights comprehension: Comparing understanding in two states. Poster presented at the annual convention of the American Psychological Association, Boston, MA. Rogers, R. (2005). Miranda Statements Scale (Unpublished measure). University of North Texas, Denton. Rogers, R. (2006a). Miranda Rights Scale (Unpublished measure). University of North Texas, Denton. Rogers, R. (2006b). Miranda Vocabulary Scale (Unpublished measure). University of North Texas, Denton. Rogers, R. (2008). A little knowledge is a dangerous thing: Emerging Miranda research and professional roles for psychologists. American Psychologist, 63, 776–787. Rogers, R., Harrison, K. S., Shuman, D. W., Sewell, K. W., & Hazelwood, L. L. (2007). An analysis of Miranda warnings and waivers: Comprehension and coverage. Law and Human Behavior, 31, 177–192. Rogers, R., Hazelwood, L. L., Sewell, K. W., Blackwood, H. L., Rogstad, J. E., & Harrison, K. S. (2009). Development and initial validation of the Miranda Vocabulary Scale. Law and Human Behavior, 33, 381–392. Rogers, R., Hazelwood, L. L., Sewell, K. W., Harrison, K. S., & Shuman, D. W. (2008). The language of Miranda warnings in American jurisdictions: A replication and further analysis. Law and Human Behavior, 32, 124–136. Rogers, R., Hazelwood, L. L., Sewell, K. W., Shuman, D. W., & Blackwood, H. L. (2008). The comprehensibility and content of juvenile Miranda warnings. Psychology, Public Policy, and Law, 14, 63–87. Rogers, R., Rogstad, J. E., Gillard, N. D., Drogin, E. Y., Blackwood, H. L., & Shuman, D. W. (2010) “Everyone knows their Miranda rights”: Implicit assumptions and countervailing evidence. Psychology, Public Policy, and Law, 16, 300–318. Rogers, R., Salekin, R. T., Sewell, K. W., Goldstein, A. M., & Leonard, K. (1998). A comparison of forensic and nonforensic malingerers: A

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CHAPTER 18

Assessment of Competence to Stand Trial KATHLEEN POWERS STAFFORD AND MARTIN O. SELLBOM

INTRODUCTION 412 THE CONCEPTUALIZATION OF COMPETENCE TO STAND TRIAL 418 EMPIRICAL LITERATURE 419 EVALUATION OF TRIAL COMPETENCE 421

TRIAL COMPETENCE IN SPECIAL POPULATIONS 430 CONCLUSION 435 REFERENCES 435

INTRODUCTION

of incompetence recommendations vary as a function of examiner, evaluation setting (i.e., inpatient versus outpatient), and the level of impairment of defendants referred. Cooper and Grisso (1997) noted that referrals for inpatient competence evaluations—as well as incompetence adjudications—may have become a mechanism for hospitalizing persons with mental illness who could not otherwise access inpatient care. This observation is supported by research indicating that defendants who are charged with misdemeanors and are referred for evaluation are more likely to be adjudicated incompetent to proceed than are defendants charged with felonies (e.g., Warren et al., 2006). Similarly, Stafford and Wygant (2005) reported that 78% of defendants referred for competency evaluation by a misdemeanor mental health court were found incompetent and hospitalized for competency restoration—a rate considerably higher than general rates of incompetence adjudication (see immediately above). The growing movement toward specialty courts, including mental health courts (Redlich, Steadman, Griffin, Petrila, & Monahan, 2005), may contribute to an increased number of competence evaluation referrals of defendants who have been identified as having mental disorders, but who lack the capacity to agree to, or to comply with, alternative court proceedings and directives. This chapter begins with a discussion of the legal framework of competence to stand trial, followed by consideration of the conceptual formulations of the legal standards that guide psychological assessments of trial competence. After the empirical literature on variables relevant to trial competence is reviewed, evaluation issues,

Competence to stand trial has long been considered “the most significant mental health inquiry pursued in the system of criminal law” (Stone, 1975, p. 200). Hoge, Bonnie, Poythress, and Monahan (1992) estimated that pretrial competence evaluations are sought in 2% to 8% of all felony cases. LaFortune and Nicholson (1995) reported that judges and attorneys estimate that competency is a legitimate issue in approximately 5% of criminal cases, although only two thirds of these defendants whose competency is questionable are actually referred for competency evaluations. The frequency of trial competency evaluations in the United States has steadily increased, from the 1978 estimate of 25,000 annually (Steadman, Monahan, Hartstone, Davis, and Robbins, 1982) to more recent estimates of 50,000 to 60,000 defendants evaluated for trial competency (Bonnie & Grisso, 2000; Skeem & Golding, 1998). Approximately 20% to 30% of defendants referred for competency evaluation are adjudicated incompetent to stand trial. Representative studies include the 30% rate of findings of incompetence over a 25-year period reported for the meta-analysis by Nicholson and Kugler (1991); the 18% rate for federal defendants (Cochrane, Grisso, & Frederick, 2001); rates of 13%, 18%, and 29% for defendants evaluated in Virginia, Michigan, and Ohio, respectively (Warren, Rosenfeld, Fitch, & Hawk, 1997); and the overall rate of 19% for statewide samples in Virginia and Alabama (Murrie, Boccaccini, Zapf, Warren, & Henderson, 2008). These findings also indicate that rates 412

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including clinical assessment approaches, use of competence assessment instruments and other assessment tools, and report writing issues are discussed. Issues posed by special populations are reviewed as well. Finally, dispositional issues, such as competency assistance, treatment of incompetent defendants, prediction of restorability, and dispositions in cases of permanently incompetent defendants, are summarized. Legal Framework Competency to stand trial is a legal concept rooted in the common law prohibition against trials in absentia. It has evolved over centuries, primarily through case law grounded in values, such as the fairness, accuracy, and dignity of court proceedings. To evaluate a defendant’s competency, the psychologist must be guided by the statute in the jurisdiction where the case is being tried. However, understanding case law that considers specific issues that may affect trial competency is also critical. This section summarizes the legal framework of competency to stand trial, including case law. Issues such as amnesia for the alleged offense, waiver of constitutional rights, decisional capacity, and mandated treatment of conditions that impair the defendant’s capacity to proceed with the criminal case against him or her are discussed. Early History Trial competency is a legal construct rooted in English common law. Wulach (1980) identified four legal rationales for trying only competent defendants. First, the accuracy of the proceedings demands the assistance of the defendant in acquiring the facts of the case. Second, due process depends on defendants’ ability to exercise their rights, including the rights to choose and assist legal counsel, confront their accusers, and testify. Third, the integrity and dignity of the process is undermined by the trial of an incompetent defendant, both in terms of inherent morality and outward appearance. Finally, the goal of punishment is not served by sentencing a defendant who fails to comprehend the sanction and reasons for imposing it. Similarly, Bonnie (1992) noted that concerns about the dignity, reliability, and autonomy of the legal process preclude adjudication of incompetent defendants. The earliest foundation of the legal construct of competence to stand trial may be the Common Law prohibition against trials in absentia. Just as a criminal defendant has the right to be physically present to confront his or her accusers, a defendant must be mentally present, or

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sufficiently aware of the legal situation to meaningfully confront his or her accusers. In tracing the legal roots of trial competency, Melton, Petrila, Poythress, and Slobogin (2007) discussed the practice of 17th-century English courts in determining whether defendants who stood mute and did not enter a plea at trial were “mute of malice” or “mute by visitation of God” (p. 126). The former were subjected to placement of increasingly heavy weights on their chests to force a plea, whereas those considered mute by visitation of God (the deaf, the mute, and later, “lunatics”) were not expected to enter a plea. This thinking evolved in the 18th century, as reflected by Frith’s Case (1790), in which the court delayed trial until the defendant, “by collecting together his intellects, and having them entire, . . . he shall be able so to model his defense and to ward off the punishment of the law” (p. 127). English Common Law has influenced the development of American criminal law, including the construct of competency. Federal case law linking trial competency to the U.S. Constitution began with the 1899 case of Youtsey v. United States. Youtsey had been tried in absentia— due to problems resulting from a seizure disorder—and convicted of embezzlement. The trial court denied his lawyer’s motion for a continuance, which was based on expert testimony that his seizure disorder resulted in severe memory impairment that prevented him from providing counsel with information about “many of the vital transactions covered by said indictment which ought to be personally within his knowledge” (p. 939). The Sixth Circuit Court of Appeals overturned the conviction and remanded the case for retrial and a competency hearing, based on evidence that Youtsey’s memory and mind were impaired before and during the trial, and that it was “doubtful whether the accused was capable of appreciating his situation, and of intelligently advising his counsel as to his defense, if he had any” (p. 947). Competence Defined The U.S. Supreme Court, in Dusky v. United States (1960), established what the Constitution minimally requires in order for a prosecution to move forward. In order to be tried, a defendant must have “sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding—and a rational as well as factual understanding of the proceedings against him” (p. 789). The federal court for the Western District of Missouri attempted to operationalize the Dusky standard in applying the standard to a mentally ill defendant in the 1961 case of Wieter v. Settle. This court reasoned that factors

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to be considered in finding a defendant competent under the Dusky standard would include (1) that he has mental capacity to appreciate his presence in relation to time, place and things; (2) that his elementary mental processes be such that he apprehends (i.e., seizes and grasps with what mind he has) that he is in a Court of Justice, charged with a criminal offense; (3) that there is a Judge on the Bench; (4) a Prosecutor present who will try to convict him of a criminal charge; (5) that he has a lawyer (self-employed or Court appointed) who will undertake to defend him against that charge; (6) that he will be expected to tell his lawyer the circumstances, to the best of his mental ability (whether colored or not by mental aberration) the facts surrounding him at the time and place where the law violation is alleged to have been committed; (7) that there is, or will be, a jury present to pass upon evidence adduced as to his guilt or innocence of such charge; and (8) he has memory sufficient to relate those things in his own personal manner. (pp. 321–322)

The U.S. District Court for the Western District of Louisiana articulated its reasoning in applying the Dusky standard to a defendant with mental retardation in United States v. Duhon (2000). Although the defendant had a factual understanding of the proceedings (based on rote memorization), the Court ruled that his inability to consult with counsel, otherwise assist in his defense, and rationally understand the proceedings rendered him incompetent to stand trial.

Basis for Raising the Issue of Competence In Pate v. Robinson (1966), the U.S. Supreme Court held that a trial judge must raise the issue of competency if either the court’s own evidence or that presented by the prosecution or defense raises a “bona fide doubt” about the defendant’s competency. In Drope v. Missouri (1975), the Court clarified that evidence of the defendant’s irrational behavior, demeanor at trial, and any prior medical opinion on competence to stand trial are relevant to determining whether further inquiry is required.

of head injuries he sustained in an accident that occurred during a high-speed chase. However, the court remanded the case for more extensive post-trial findings on the issue of whether the appellant’s loss of memory deprived him of a fair trial and effective assistance of counsel. The Court of Appeals articulated six factors that the trial court was to consider before making a judgment whether, under applicable principles of due process, the conviction should stand: 1. The extent to which the amnesia affected the defendant’s ability to consult with and assist his lawyer, 2. The extent to which the amnesia affected the defendant’s ability to testify in his own behalf, 3. The extent to which the evidence in suit could be extrinsically reconstructed in view of the defendant’s amnesia. Such evidence would include evidence relating to the crime itself as well as any reasonably possible alibi, 4. The extent to which the Government assisted the defendant and his counsel in that reconstruction, 5. The strength of the prosecution’s case. Most important here will be whether the Government’s case is such as to negate all reasonable hypotheses of innocence. If there is any substantial possibility that the accused could, but for his amnesia, establish an alibi or other defense, it should be presumed that he would have been able to do so, and 6. Any other facts and circumstances which would indicate whether or not the defendant had a fair trial. (pp. 463–464)

In addition to illustrating the functional, situationspecific analysis demanded for determinations of competency, the Wilson court’s reasoning makes clear that adjudication is a legal decision designed to ensure the fairness and accuracy of court proceedings. Competence to Waive Rights Implicit in the competency of a defendant to participate in proceedings to resolve criminal charges is the capacity to waive certain rights. Case law makes clear that trial competency includes the capacity to make a number of decisions inherent to resolving a criminal case in a fair, accurate, and just manner. Competence to Plead Guilty

Amnesia and Competence The tendency of federal courts to articulate functional criteria pertaining to competence to stand trial continued in the case of Wilson v. United States (1968). The U.S. Court of Appeals for the District of Columbia upheld the conviction of a man who had no memory of his behavior at and around the time of the alleged offenses as a result

Over 90% of criminal cases in the United States are resolved by a plea of guilty (Whitebread & Slobogin, 2000), which involves waiver of a number of important rights, including the rights to a jury trial, confront one’s accusers, and avoid self-incrimination. In Sieling v. Eyman (1973) the U.S. Court of Appeals for the Ninth Circuit held that competency to stand

Assessment of Competence to Stand Trial

trial and competency to plead guilty are not necessarily identical and adopted the following standard: “A defendant is not competent to plead guilty if mental illness has substantially impaired his ability to make a reasoned choice among alternatives presented to him and to understand the nature of the consequences of his plea” (p. 215). In Allard v. Hedgemoe (1978), the U.S. Court of Appeals for the First Circuit ruled that the waiver of rights and the plea of guilty need to be closely examined, but suggested that the capacity to make such decisions be considered part of the Dusky standard. In an earlier decision (North Carolina v. Alford , 1970), the U.S. Supreme Court had ruled that defendants may waive their right to trial and plead guilty even if they deny their guilt. The court focused on the logic of Mr. Alford’s reasoning in choosing to enter a guilty plea to a murder he stated he did not commit. This issue, among others, is further addressed in the case of Godinez v. Moran (1993), reviewed further on. Competence to Waive Counsel The Supreme Court ruled in Westbrook v. Arizona (1966) that a competency-to-stand-trial hearing was not sufficient to determine a defendant’s competence to waive his or her constitutional right to the assistance of counsel and to conduct his or her own defense. In Faretta v. California (1975), the Supreme Court noted that waiver of counsel must be “knowing and intelligent,” but that a defendant’s ability to represent himself or herself has no bearing on his or her competence to choose self-representation. In Godinez v. Moran (1993), the Supreme Court considered the issue of waiver of rights in the context of trial competency. The facts of the case are important to consider in view of the significance of this landmark decision. Moran killed two people in a bar and removed the cash register. Several days later, he killed his former wife, shot himself in the abdomen, and attempted to cut his wrists. Two days after the latter incident, Moran summoned police to his hospital bed and confessed to the killings. He was charged with capital murder and adjudicated competent to stand trial. Nearly three months later, Moran appeared in court and stated that he wanted to discharge his attorneys and plead guilty, primarily to prevent the presentation of mitigating evidence at sentencing. Based on the prior competency evaluations and its inquiry of the defendant on the record, the trial court ruled that Moran understood the consequences of entering a guilty plea and could intelligently and knowingly waive his right to counsel. The competency examiners had noted that Moran’s depression affected his motivation to work

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with defense counsel. Although the court record noted that Moran was taking medication, there was no inquiry regarding the type, dosage, or effects of the medication on the defendant. Moran, who was sentenced to death, later sought postconviction relief based on the claim that he had been incompetent to represent himself. In response, the trial court held an evidentiary hearing, at which testimony indicated that he had been prescribed a number of psychoactive medications at the time of his trial (i.e., phenobarbitol, Inderal, Vistaril, and Dilantin), which had a “numbing” effect on him. The trial court rejected his claim that he lacked the capacity to represent himself. The Ninth District Court of Appeals reversed the lower court ruling on the grounds that due process required the trial court to determine Moran’s competency before granting his request to waive counsel and plead guilty. The court also held that the standards for competency to waive counsel and plead guilty were not the same as the standard for competency to stand trial, but that competency to make these decisions required the capacity for reasoned choice among the available alternatives. On appeal, the Supreme Court held that the standard for pleading guilty or waiving the right to counsel is the same as the Dusky standard for competency to stand trial. The Court reasoned that the defendant has to make a number of complicated decisions during a trial and that a separate, more demanding standard is not necessary as a result. The Court acknowledged: “In addition to determining that a defendant who seeks to plead guilty or waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. . . . In this sense there is a heightened standard for pleading guilty and for waiving the right to counsel, but it is not a heightened standard of competence” (p. 2687). The concurring opinion suggests that the Dusky competence standard should not be viewed too narrowly, as a defendant must be competent throughout the proceedings, from arraignment to pleading, trial, conviction, and sentencing, and whenever the defendant must make a variety of decisions during the course of the proceedings. Although the court did not articulate a separate standard for competence to waive counsel or plead guilty, Justice Thomas, writing for the majority, acknowledged that “psychiatrists and scholars may find it useful to classify the various kinds and degrees of competence.” Felthous (1994) noted that the Court “did not forbid legislatures, courts, attorneys, and mental health witnesses from addressing de facto those abilities that are embodied in decisions about competency to waive counsel and to make one’s own defense” (p. 110). Melton et al. (2007)

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wrote that Godinez v. Moran “should increase the level of competency associated with competency to stand trial, now that judges and evaluators know that the latter finding will also mean a defendant is competent to waive the right to counsel” (p. 177). In Indiana v. Edwards (2008) the U.S. Supreme Court considered the issue of competence to waive counsel. Edwards was a mentally ill defendant who had fired three shots at a department store security guard who observed him shoplifting. Edwards was tried 5 years after the offense, after being adjudicated incompetent to stand trial and hospitalized for treatment designed to restore his competence. Edwards’ request to represent himself, on the grounds that he disagreed with his attorney’s trial strategy, was denied. He was convicted of criminal recklessness and theft, but the jury could not reach a verdict on the charges of battery with a deadly weapon and attempted murder. When retried on these latter charges, Edwards’ request to represent himself was again denied. Although the court considered Edwards to be competent to stand trial, it ruled that he was not competent to defend himself, and appointed counsel to represent him. Edwards was subsequently convicted on these latter charges and sentenced to 30 years in prison. On appeal, the U.S. Supreme Court ruled that the Constitution does not preclude states from adopting a higher standard for competency to waive counsel than competency to stand trial, nor does it prohibit states from insisting on representation by counsel for defendants who, despite being competent to stand trial, are nonetheless impaired to the extent that they are not competent to conduct trial proceedings by themselves. The Court ruled that to allow such a defendant to represent himself would not affirm the dignity of the defendant and could undermine his right to a fair trial. Morris and Frierson (2008) noted rational reasons, and potential advantages, for defendants to represent themselves. These include sparing the expense of an attorney (if the defendant does not qualify for court-appointed counsel), the opportunity to present an agenda or unique theory of the case, the belief that one can present one’s case better than an attorney, the ability to speak to the jury without undergoing cross-examination and to develop rapport with jurors, and the opportunity to confront and cross-examine accusers directly, and receive potentially greater latitude in behavior and questioning than would a defense attorney. In support of their argument, they cited Miller and Kaplan’s (1992) study of 100 defendants consecutively admitted to a Wisconsin forensic hospital for competence evaluation or competence restoration

treatment. Twenty-four of these 100 defendants sought to discharge their attorneys; 11 wished to represent themselves, and 13 sought representation by a different attorney. The evaluators considered all 11 of the defendants who wished to discharge their attorneys and represent themselves to be incompetent to stand trial, based on multiple competency-related deficits. However, the 13 defendants who sought to fire their attorneys and have new counsel appointed were largely considered competent to stand trial and as citing rational and self-protective reasons for their requests (e.g., the attorney did not spend enough time with the defendant, the attorney would not listen or verify the defendant’s story, the attorney wanted the defendant to plead guilty or not guilty by reason of insanity). Hashimoto (2007) reported that case outcomes for 208 defendants who represented themselves in state courts were at least as good as those represented by counsel: 50% of pro se defendants were convicted of at least one charge, compared to 75% of the represented defendants (descriptions of the weight of the evidence in these cases were not presented). Moreover, felony convictions for pro se defendants were less frequent (26%) than for the represented defendants (63%) in state courts. In federal proceedings, acquittal rates for pro se and represented defendants were similar: 64% and 61%, respectively. Federal dockets reflected that only 20% of pro se defendants were ordered to undergo competency evaluation. More than half of the pro se federal defendants had requested new counsel before invoking their rights to self-representation, suggesting that some sought to represent themselves as a result of dissatisfaction with court-appointed counsel. These data indicate that some pro se defendants seek to represent themselves for legitimate reasons and may have as good or better case outcomes than represented defendants. This body of case law implies that the capacity to waive counsel, as well as the capacity to make decisions about trial strategy, must be considered when conducting competency evaluations in cases where waiver of counsel is an issue. Input from defense counsel, always important in conducting competency evaluations, is critical in considering whether the pro se defendant’s preference for a defense strategy is informed and rational. The Standard of Proof In 1996 (Cooper v. Oklahoma), the U.S. Supreme Court ruled that Oklahoma’s requirement that a defendant prove incompetence by clear and convincing evidence violated due process by allowing “the State to put to trial a

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defendant who is more likely than not incompetent” (p. 1382). The Court termed the consequences of an erroneous competency determination in Cooper’s case “dire” (p. 1382) and as impinging on his right to a fair trial, whereas the consequence to the state of an erroneous finding of incompetence when a defendant is malingering was “modest” (p. 1382) since it was considered unlikely that even an accomplished malingerer could “feign incompetence successfully for a period of time while under professional care” (p. 1382). The Court affirmed the importance of competence to stand trial, as “the defendant’s fundamental right to be tried only while competent outweighs the State’s interest in the efficient operation of its criminal justice system” (p. 1383). Competency to Refuse the Insanity Defense Federal courts have considered the issue of a defendant’s competency to refuse an insanity plea separately from the issue of competency to stand trial. The prevailing view is articulated in Frendak v. United States (1979). The federal District Court for the District of Columbia held that a trial judge may not impose a defense of insanity over the defendant’s objections if he or she intelligently and voluntarily decides to forgo a defense of insanity. In contrast, in an earlier case, Whalem v. United States (1965), the federal Court of Appeals for the District of Columbia Circuit ruled that a trial judge may impose an insanity defense when the defense would be likely to succeed, but this decision was overturned by the case of United States v. Marble (1991) and is not followed in most jurisdictions. If it appears that competency to waive an insanity defense may be an issue in a given case, it is prudent for the evaluator to address it during the trial competency evaluation. Treatment of Incompetent Defendants The law regarding treatment of incompetent defendants attempts to balance the liberty interests and due process concerns of a defendant who has not been convicted of a crime with the state’s interest in a fair and accurate adjudication of criminal cases. Involuntary treatment of incompetent defendants is permissible as long as treatment is likely to restore the defendant to competence and there is no less intrusive means to do so. Length of Commitment In Jackson v. Indiana (1972), the U.S. Supreme Court reviewed the commitment of a mentally retarded deaf-mute

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ordered hospitalized until he became competent, even though the hospital did not believe he would ever be able to understand and participate in the legal process. The Court held that “a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal” (p. 1858). The Jackson decision has led many states to limit the length of time defendants can be involuntarily hospitalized for purposes of treating them to restore their competence. However, these limits tend to be arbitrary or are linked to the sentence that could have been imposed had the defendant been convicted as charged. Moreover, most states do not require facilities that treat incompetent defendants provide periodic reports to the court, or that courts hold hearings on the status or progress of defendants committed for competency restoration (Melton et al., 2007). This lack of periodic review of progress toward competency restoration is likely to result in some defendants being hospitalized longer than necessary to restore competency. Involuntary Medication The issue of involuntary medication of defendants during trial was addressed by the U.S. Second District Court of Appeals in a case heard twice, United States v. Charters. In 1987, the court held that forced administration of psychotropic medication to an incompetent defendant requires a separate judicial decision, using the substituted judgment/best interest standard. In 1988, the U.S. Second District Court of Appeals, sitting en banc, endorsed a reasonable professional judgment standard, with the availability of judicial review. The Charters case was not appealed to the U.S. Supreme Court in light of its decision in Washington v. Harper (1990), in which the Court held that the reasonable professional judgment review of involuntary medication of prison inmates was constitutional. The U.S. Supreme Court was asked to consider the issue of involuntary administration of psychotropic medication of pretrial detainees in the case of Riggins v. Nevada (1992). Riggins had argued to the trial court that continued administration of medication was

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an infringement on his freedom, and that the effects of medication during trial would deny him due process by preventing him from showing the jurors his mental state at the time of the offense, in support of his insanity defense. After the trial court found Riggins competent and denied his motion to suspend administration of psychotropic medication during his murder trial, he was convicted and sentenced to death. The U.S. Supreme Court reversed Riggins’ conviction and extended the Washington v. Harper (1990) ruling on the right of prisoners to refuse medication to pretrial detainees, absent an “overriding justification and a determination of medical appropriateness” (p. 1815). The Court ruled that, once Riggins requested that his medication be discontinued, the state had to establish the “medical appropriateness of the drug” by showing that the medication was essential for the defendant’s safety or the safety of others, or that the state could not obtain an adjudication of “guilt or innocence with less intrusive means” (p. 1815). In Sell v. United States (2003), the U.S. Supreme Court addressed whether psychotropic medication can be forced on a defendant who is not considered dangerous while institutionalized, for the sole purpose of rendering him competent to stand trial. Sell, a dentist, was charged in 1997 with submitting false insurance claims. After being adjudicated incompetent to stand trial and committed for treatment, he refused psychotropic medication and appealed orders for forced medication. Although the Eighth District United States Court of Appeals affirmed the district court’s order authorizing forced medication, it also ruled that Sell was not dangerous while institutionalized. On appeal, the Supreme Court ruled that, before ordering forced medication to restore a criminal defendant to competence, trial courts should consider other grounds for ordering involuntary medication, such as medical need, prevention of dangerous behavior, or avoidance of serious harm to the person himself or herself. The Court articulated a standard permitting involuntary administration of drugs solely for trial competence purposes in certain instances, based on consideration of whether: 1. the government has an interest in prosecuting the defendant by addressing: the seriousness of the charges; how long the defendant has been confined relative to the potential sentence; and whether the defendant, if not treated, might be committed to a psychiatric hospital for a lengthy period that “would diminish the risks that ordinarily attach to freeing without punishment one who has committed a serious crime”; 2. the proposed medication would be “substantially likely” to render the defendant competent without causing side

effects that would interfere with his ability to work with his attorney; 3. there is less intrusive treatment that would restore the defendant’s competence; and 4. the proposed involuntary medication would be “medically appropriate, i.e., in the patient’s best medical interest in light of his medical condition.” (p. 182)

The Court ruled that the orders for forced medication of Sell could not stand because lower courts had not adequately considered trial-related side effects, the impact on the sentence of Sell’s pretrial confinement, and any potential future confinement that might lessen the importance of prosecuting him. The case was remanded for further proceedings in accordance with the Court’s decision.

THE CONCEPTUALIZATION OF COMPETENCE TO STAND TRIAL The legal doctrine of competence to stand trial has been the subject of conceptual analysis regarding its meaning and its application to psychological assessment and legal decision making. For example, Roesch and Golding (1980), in discussing the assessment of competence to stand trial, structured the inquiry as “whether or not this defendant, facing these charges, in light of the existing evidence, will be able to assist his attorney in a rational manner” (pp. 18–19). They further noted: “Testimony about mental and physical illnesses is relevant, but only insofar as it speaks to the functional ability of a defendant to reasonably understand and assist in his/her own defense. Defendants are not expected to be amateur lawyers, nor paragons of mental health, nor admirers of and true believers in the criminal justice system” (p. 23). Grisso (2003) reiterated that a defendant’s competence depends on the seriousness and complexity of the charges, what is expected of the defendant in the given case, the defendant’s relationship with his or her attorney, the attorney’s skill, and other interactive factors. This focus on the functional, individual, and situation-specific nature of competence to stand trial is a natural extension of the case law. Bonnie (1992) proposed a two-pronged model of competence to stand trial. The first dimension, foundational competence, or competence to assist counsel, consists of the capacity to (a) understand the charges, the purpose of the criminal process, and the adversary system, particularly the role of the defense attorney; (b) appreciate one’s situation as a defendant in a criminal prosecution; and (c) recognize and relate pertinent information to counsel

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concerning the facts of the case. This dimension meets the societal need to maintain the dignity of the proceedings and the reliability of the outcome. The second component proposed by Bonnie is decisional competence, the capacity to make whatever decisions a defendant is required to make to defend himself or herself, and/or resolve the case without a trial. These decisions may include waiver of constitutional rights, such as the right to confront one’s accusers at trial, the right to counsel, and the right to a trial by jury. Bonnie noted that the capacity to make decisions may require reassessment at decision points throughout the proceedings, and that assessment of competence at any one point is in this respect provisional. Bonnie also referred to the literature on competencies in other legal contexts as relevant to assessing decisional competence. For example, Grisso and Appelbaum (1995) identified four components of competency to consent to treatment: the abilities to (1) communicate a preference, (2) understand relevant information about a particular decision, (3) appreciate the significance of that information to one’s own case, and (4) rationally manipulate or weigh information in reaching a decision. Understanding information does not necessarily enable individuals to apply that information to their situations in a rational manner to make intelligent decisions.

EMPIRICAL LITERATURE Research has explored attorneys’ views of competence and their practices in representing defendants when they have doubts about their competence to proceed. There is also a body of research describing demographic, legal, and clinical variables associated with examiner opinions of competence or incompetence to stand trial. Surveys of system differences in the prevalence of findings of incompetence have shed light on the impact of variables such as jurisdiction, and the setting in which the evaluation takes place (e.g., inpatient versus outpatient), on examiners’ opinions. Finally, the possible role of arrest and subsequent competency evaluation as a means of securing emergency mental health treatment or psychiatric hospitalization of mentally disordered individuals has been investigated. Attorney Opinions and Decision Making Because competency to stand trial is a legal concept, it is useful to start with the literature on attorneys’ views and

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practices regarding potentially incompetent defendants. For example, Berman and Osborne (1987), in a survey of 20 attorneys who had concerns about their clients’ competence, found that attorneys reported a broader range of problematic behaviors in terms of competence than did the clinicians conducting the competency evaluations. Hoge, Bonnie, Poythress, and Monahan (1992) interviewed public defenders regarding 122 randomly selected felony cases resolved during a 6-month period. Whereas the attorneys reported that they had doubts about their clients’ competence in 15% of these cases, they indicated that they requested competence evaluations only half the time. The attorneys identified three basic reasons why they did not refer for evaluation clients whose competence they doubted: (1) The client was unlikely to be considered incompetent due to the low threshold for competency findings; (2) there were limited resources for such evaluations; or (3) a finding of incompetence might not be in the client’s best interests. Attorneys also reported that they were more likely to doubt their clients’ competence when they rejected their advice or were unusually passive in making decisions about their defense. In a series of three studies, Poythress, Bonnie, Hoge, Monahan, and Oberlander (1994) reviewed 200 felony and misdemeanor cases, 92.5% of which were resolved by plea, and 200 felony and misdemeanor cases resolved by trial, and then interviewed attorneys and clients in 35 recently closed felony cases. Although attorneys reported doubting the competence of 8% to 15% of their clients charged with felonies and 3% to 8% of their clients facing misdemeanors, they referred only between 20% and 45% of these defendants for evaluation. Attorneys’ doubts about their clients’ competence were based on the degree of the client’s helpfulness in developing the facts of the case, particularly when lack of helpfulness was perceived to be due to impaired ability rather than intentional unwillingness. Attorneys also reported being more likely to express doubts about the competence of clients who faced serious charges, who were unusually passive, or who rejected their advice. Attorneys reported spending significantly more time on the case in total, and directly with the client, when they had concerns about the client’s competence. They also tended to consult with other attorneys and with clients’ relatives or significant others in cases of doubted competence. These studies highlight the interactive, situation-specific nature of competence to stand trial, and the importance of involving attorneys in the process of competency assessment.

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Clinician Opinions and Decision Making A number of investigators have examined variables that differentiate defendants who have been recommended by examiners as competent from those recommended as incompetent. Nicholson and Kugler (1991) conducted a meta-analysis of studies of competent and incompetent criminal defendants published between 1967 and 1989. Incompetent defendants were more likely to be diagnosed with a psychotic disorder, although only half of the defendants with such diagnoses were recommended as incompetent. Symptoms of severe psychopathology, including delusions, hallucinations, impaired memory, impaired thought or communication, and disturbed behavior, significantly differentiated defendants recommended as incompetent from competent defendants. Older defendants, those with a history of psychiatric hospitalization, and defendants without an arrest history were more apt to be considered incompetent by the examiners, as well. The severity of the offense was more strongly related to the decision to refer defendants for competency evaluations, than to the clinician’s opinion of incompetence. Pirelli, Gottdiener, and Zapf (2011) conducted an updated meta-analysis based on 68 studies published between 1967 and 2008 that compared competent and incompetent defendants on demographic, psychiatric, and criminological variables. They found the base rate of recommended incompetency across 59 nonmatched samples to be 27.5%. The most robust findings were: (1) Defendants diagnosed with a psychotic disorder were 8 times more likely to be recommended by examiners as incompetent to stand trial than those who were not; (2) unemployed defendants were twice as likely to be recommended by examiners as incompetent as employed defendants; and (3) defendants with a history of psychiatric hospitalizations were twice as likely to be recommended as incompetent by examiners as those without such histories. With respect to demographic variables, non-White defendants who were evaluated were approximately one-and-a-half times more likely to be recommended as incompetent than Whites. Cochrane, Grisso, and Frederick (2001) reported that, in a sample of 1,436 defendants referred for competency evaluation to a federal medical center, forensic examiners considered 19% to be incompetent to stand trial. When diagnosis was controlled, there was no significant difference in rates of recommended incompetence adjudications among categories of offense. Consistent with the existing literature, diagnoses of psychotic disorders, affective disorders, and mental retardation were most closely

associated with the examiners’ opinions of incompetence to stand trial. Similarly, Hubbard, Zapf, and Ronan (2003) found that 19% of 468 defendants evaluated in Alabama were recommended by examiners as incompetent to stand trial. These defendants were more likely to be male, single, and African American, and to receive disability benefits. They were less likely to be charged with a violent offense and less likely to be diagnosed with substance abuse disorders, but more likely to be diagnosed with major mental disorder.

Competence Evaluation Systems Grisso, Cocozza, Steadman, Fisher, and Greer (1994) surveyed the 50 states and the District of Columbia regarding systems of service delivery for pretrial forensic evaluations and developed a typology. Ten states were classified as having in place a traditional model whereby pretrial evaluations were primarily conducted in inpatient settings, using public mental health funds and multidisciplinary staff, with secondary reliance on outpatient evaluations. Nine states utilized a private practitioner model in which outpatient evaluations were conducted by community practitioners on a case-by-case basis, and were financed by court or criminal justice funds. Eleven states used a community-based system of local outpatient mental health facilities or court clinics funded primarily by public mental health funds. In five states, classified as modified traditional, most evaluations were conducted at centralized mental health facilities, but on an outpatient basis, and eight states employed a mixed model, with a balance of outpatient evaluations funded by either court or public mental health funds, and inpatient evaluations funded by public mental health funds. Nicholson and Kugler (1991), in their review, found a slightly greater rate of clinician opinions of incompetence for evaluations conducted in inpatient (32.2%) versus outpatient (25.8%) settings. Correlations between clinician competency opinions and defendant characteristics were similar across both settings, suggesting that the larger proportion of incompetence opinions in inpatient settings may reflect greater psychopathology in defendants who are hospitalized for competency evaluation. However, Warren, Rosenfeld, Fitch, and Hawk (1997) reported contrary findings, based on data from Virginia. It is likely that defendants evaluated as inpatients in Virginia also received treatment while hospitalized, so that their mental conditions may have improved over the course of the

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evaluation period, resulting in a lower rate of incompetence opinions in the inpatient setting. Warren et al. (1997) reported rates of clinician recommendations of incompetence of 29%, 18%, and 13%, for competency evaluations conducted in Ohio, Michigan, and Virginia, respectively. They attributed the greater rate of incompetence opinions in Ohio to the regional, outpatient system of providing competence evaluations, leading to a greater percentage of defendants charged with minor misdemeanor offenses, such as disorderly conduct, and/or diagnosed with schizophrenia, referred for competency evaluations. In fact, in all three states defendants charged with misdemeanor offenses and defendants diagnosed with major mental disorders (psychotic, organic, and affective disorders) were more likely to be considered incompetent to stand trial by forensic examiners. These findings were subsequently cited in the 5-year review of research by Mumley, Tillbrook, and Grisso (2003) as support for the possibility of competence evaluation as the “back door” to the hospital for mentally ill persons who were not being involuntarily hospitalized as the result of strict interpretation of the dangerousness criterion for civil commitment. This back-door possibility was supported by findings from a study of 363 defendants evaluated at a five-county court clinic in Ohio (Rohrer, Stafford, & Ben-Porath, 2002). Although the overall rate of clinician opinions of incompetence in this sample was 23%, the rate varied, based on severity of offense. Of the 79 misdemeanor defendants, forensic clinicians opined that 53% were incompetent to stand trial, whereas only 14% of the 284 felony defendants were recommended as incompetent to stand trial. Defendants considered incompetent were less likely to have antisocial traits and substance abuse histories than were defendants evaluated as competent. Defendants opined to be incompetent were significantly more likely to have delusional thinking or impaired thought processes, to be diagnosed with schizophrenia, and to have been prescribed antipsychotic medication at the time of the evaluation than were defendants recommend as competent. Incompetent defendants were less likely to have ever been prescribed antidepressants or to have been employed at the time of the offense. The defendants opined to be incompetent were significantly older, and had significantly lower intellectual functioning than defendants opined to be competent. The two groups did not differ on demographic variables, such as gender, race, marital status, or education. In the same Ohio jurisdiction, a study of competency evaluations conducted for a misdemeanor mental health

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court found an even greater rate of recommended incompetence: 77.5% of the 80 defendants referred for competency evaluation (Stafford & Wygant, 2005). Defendants recommended as incompetent to proceed were significantly more likely to be diagnosed with a psychotic disorder, and less likely to be diagnosed with a personality disorder, than were defendants opined to be competent. They did not significantly differ on rate of substance abuse diagnosis, or on a number of variables related to history of major mental disorder (e.g., number of hospitalizations, prescribed psychotropic medications, suicide attempts). However, the incompetent defendants had significantly fewer indicators of antisocial behavior, such as history of juvenile court referrals and number of felony convictions, than did the competent defendants. Both competent and incompetent defendants had a high prevalence of prior violent behavior, 89% and 79%, respectively, and 58% were facing charges indicative of recent harm to others (domestic violence, menacing, or assault). These data suggest that the incompetent defendants, in addition to having acute symptoms of major mental illness, were likely to have met the civil commitment criterion for dangerousness. In fact, over the 6 months preceding arrest, 6 of the 18 competent defendants, and 13 of the 62 incompetent defendants, had undergone screening for emergency psychiatric hospitalization. However, only 6 of the 19 defendants who had been screened were transferred to community hospitals, and none had been transferred to the state hospital for extended treatment. In contrast, the 62 defendants subsequently found incompetent were committed for competency restoration and remained in the hospital, on average, 49 days. After 60 days, over half of these defendants remained incompetent, and their charges were dismissed. Nearly all of the unrestored defendants then remained in the hospital for further treatment as civil patients.

EVALUATION OF TRIAL COMPETENCE Grisso (1988) published a practice manual outlining five objectives for competence evaluations. On a functional level, the defendant’s strengths and weaknesses in terms of specific legal abilities should be assessed. A causal analysis focuses on the most plausible explanation for any observed deficits, based on clinical observations and data. The interactive objective of a competency evaluation is concerned with assessment of the significance of deficits in light of the case-specific demands. The opinion about the ultimate legal issue of competency to stand trial is

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the conclusory objective, although Grisso acknowledged that jurisdictions vary on whether opinions on the issue of competency are permitted or required. For the defendant who is likely to be found incompetent, assessment of the potential for remediation of deficits and recommendations for treatment constitutes the prescriptive objective of the evaluation. Although apparent deficits in knowledge and reasoning about one’s legal situation trigger concerns about competence, the issue of competence is not only a functional, but also a capacity issue. Therefore, evaluation of competence to stand trial requires two levels of assessment. First, the psychologist assesses the defendant’s understanding of his or her legal situation and appraisal of his options through interview, use of competency assessment instruments, review of prosecutor’s information, and input from defense counsel about doubts regarding competence. Second, the psychologist assesses for the presence or absence of symptoms of mental disorder, and for signs of cognitive impairment and malingering, to evaluate whether apparent difficulties are due to impaired capacity to proceed with the case. More recent guides to trial competence evaluation (Stafford & Sadoff, 2011; Zapf & Roesch, 2009) provide updated, specific recommendations regarding legal, empirical, clinical, ethical, and communication issues in the evaluation of trial competence. Zapf and Roesch included forms developed for structuring the evaluation, and for eliciting input from the defense attorney, particularly regarding the defendant’s ability to assist counsel. Forensic Assessment Instruments (FAIs) for Competence to Stand Trial Nicholson and Kugler (1991) concluded that use of structured interviews or standardized competence assessment instruments increase the reliability of examiners’ judgments of defendants’ abilities to understand and participate in the legal process. Their meta-analysis included validation studies of competence assessment instruments, in which examiners had reached opinions of defendants’ competency without access to the results of the FAIs. They found that defendants evaluated as incompetent to stand trial had been rated as having significantly more limited abilities using FAIs than those who had been recommended as competent. The magnitude of the relationship between the ratings on FAIs and clinician opinions of competence far exceeded the correlations found between traditional psychological tests and clinician opinions of competence. The following correlations between

clinicians’ opinions of recommendations of incompetence, and defendants’ performance on FAI’s, were reported: Competency Screening Test (Lipsitt, Lelos, & McGarry, 1971), –.37, Georgia Court Competency Test (Wildman et al., 1978), –.42, Competency Assessment Instrument (Laboratory of Community Psychiatry, 1974), –.52, and Interdisciplinary Fitness Interview (Golding, Roesch, & Schreiber, 1984), –42. Of the studies reviewed, only two incorporated criteria in addition to clinician opinions: Lipsitt et al., who used court decisions and attorney ratings, in addition to forensic staff decisions, for the Competency Screening Test, and Schreiber et al., who used findings from a blue-ribbon panel of experts and court decision criteria, in addition to forensic staff, for the Interdisciplinary Fitness Interview. Pirelli, Gottdiener, and Zapf (2011) conducted a metaanalysis of trial competence research, including eight studies from which sufficient data comparing performance of competent and incompetent defendants on FAIs were available. These included the Competency Screening Test, Fitness Interview Test (Roesch, Webster, & Eaves, 1984), Georgia Court Competency Test–Mississippi State Hospital (Wildman, White, & Brandenburg, 1990), Metropolitan Toronto Forensic Service Fitness Questionnaire (Nussbaum, Mamak, Tremblay, Wright, & Callaghan, 1998), and the Mosley Forensic Competency Scale (Mosley, Thyer, & Larrison, 2001). They found a relatively large combined effect size associated with the pooled data for competency assessment instruments overall. They noted that data on FAIs are limited, and that additional research is required before empirically supported conclusions can be made. Commonly used FAIs for the evaluation of competency to stand trial are reviewed in the following. Competency to Stand Trial Assessment Instrument and Competency Screening Test Lipsitt, Lelos, and McGarry (1971; Laboratory of Community Psychiatry, 1974) developed the Competency to Stand Trial Assessment Instrument, a semistructured interview for considering 13 functions related to the ability of a criminal defendant to proceed. The functions were derived from review of appellate cases and the legal literature, and the clinical and courtroom experience of the multidisciplinary team that developed the instrument. The handbook provides illustrative questions and examples to use in rating the degree of incapacity on functions such as appraisal of legal defenses and quality of relating to attorney. However, there is no standardized administration, or well-defined rules for translating ratings to an overall judgment of the defendant’s competence. Two

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studies included in the meta-analysis by Nicholson and Kugler (1991) reported high levels of interrater reliability for clinician ratings (.87 to .90) on the CAI, and significant correlations between competence opinions of mental health professionals and overall CAI ratings. In practice, the CAI has been used as an interview guide or structured professional judgment tool, rather than as a test (Schreiber, 1978). The major contribution of the CAI was probably its early impact on educating clinicians about the concept of competence to stand trial and guiding assessments along legally relevant lines. The Competency Screening Test (CST) is a sentencecompletion screening tool involving case scenarios. The defendant’s written responses are rated on a 0–2 scale, based on defined criteria. However, the cutoff score was not derived empirically, but rather set arbitrarily, based on qualitative impressions by the research staff as an indicator of the need for further evaluation with a more specific measure. Interscorer reliability ranging from .88 to .95 and classification accuracy rates of 71% to 84% have been reported (Nicholson, Robertson, Johnson, & Jensen, 1988). These same investigators found a high falsepositive rate (76%), but a low (3.5%) false-negative rate using this cutoff. Therefore, in this sample, with the relatively low base rate of 10% incompetent, the CST appeared to function well in its intended role as screening measure in that few defendants who were actually incompetent were screened out from a full competence assessment. Nicholson and Kugler (1991) reviewed 11 studies of the CST and reported a significant mean weighted correlation (–.37) between CST scores and examiner opinions of competence. However, Bagby, Nicholson, Rogers, and Nussbaum (1992) found there was little stability in factor structure across studies for the CST, making it difficult to determine just what aspects of competency this instrument measures. Moreover, Grisso (2003) noted high interscorer reliability for total CST scores, but no studies of interscorer reliability for individual items, and factor analyses that vary across samples studied. He raised concerns about the utility of the CST as a screening measure and noted that, in jurisdictions where greater than 20% of defendants are adjudicated incompetent, 10% of the defendants who met the CST cutoff score of 20 or above would be wrongly found competent and tried. In jurisdictions with very low base rates of pretrial incompetence (less than 15%), the CST as a screening device would have a lower hit rate than simply concluding that all defendants are competent. Pirelli et al. (2011) reported that competent defendants scored approximately 10 points higher on the

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CST than incompetent defendants in the two studies that presented data sufficient to calculate effect sizes in their meta-analysis. The Interdisciplinary Fitness Interview Golding, Roesch, and Schreiber (1984) developed the Interdisciplinary Fitness Interview (IFI) to assess symptoms of psychopathology and to assess understanding of legal concepts and functions through a joint interview by a psychologist and a lawyer. Each legal item is rated in terms of the defendant’s capacity, and for relevance or importance. Symptoms of psychopathology are rated as present or absent, and for significance. Overall ratings of fit or unfit, and of confidence in that judgment, are made. The potential strength of the instrument lies in its attempt to structure the examiner’s assessment of the defendant’s functioning in the context of the anticipated demands of his or her legal situation, determined in part through attorney input. The authors reported 95% agreement among the IFI interviewers on opinions regarding competence, substantial interrater reliability on most of the psychopathology items, and correlation of .41 between performance on the IFI and competency opinions of mental health professionals. Golding (1993) developed the Interdisciplinary Fitness Interview–Revised (IFI-R) in the context of a large-scale study of competency reports (Skeem, Golding, Cohn, & Berge, 1998), but empirical studies of the instrument itself have not been published. The IFI-R may be a promising interview guide or structured professional judgment tool that tailors the assessment to the individual case, ensures lawyer input, and highlights the connection between psychopathology and psycholegal impairment. The MacArthur Competence Assessment Tool–Criminal Adjudication Otto and colleagues (1998) developed this CAI from a more extensive research instrument, the MacArthur Structured Assessment of the Competencies of Criminal Defendants (MacSAC-CD). The MacSAC-CD was designed to investigate Bonnie’s (1992) two-factor theory of competence, consisting of competence to assist counsel, and decisional competence; to assess capacity rather than merely current knowledge; and to provide quantitative measures of distinct competence-related abilities, such as reasoning (Hoge et al., 1997). The MacSAC-CD distinguished between competent and incompetent defendants and reflected changes in competence status. It correlated positively with clinical judgments of competence abilities, and negatively with measures of psychopathology

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and impaired cognitive functioning. On the MacSAC-CD, significant impairments in competence-related abilities were found in about half of defendants with schizophrenia, but there was substantial overlap in scores obtained by defendants with schizophrenia and those without mental illness. Hallucinations and delusions were associated with impairment in defendants with affective disorders. Conceptual disorganization was associated with competency impairment both in defendants with affective disorders and in those with schizophrenia. The MacArthur Competence Assessment Tool– Criminal Adjudication (MacCAT-CA) is an abbreviated clinical version of the MacSAC-CD that assesses the defendant’s ability to understand information related to law and adjudicatory proceedings, and reason about specific choices that defendants must make. The Understanding and the Reasoning scales are based on a hypothetical legal scenario, whereas the Appreciation scale taps the ability to appreciate the meaning and consequences of the proceedings in the defendant’s own case, through items that refer to the defendant’s specific legal situation. The initial validation study of the MacCAT-CA (Otto et al., 1998) was based on the responses of 729 felony defendants between 18 and 65 years of age in eight states, who spoke English and had a prorated WAIS-R IQ of at least 60. Three groups were tested: untreated defendants in jail, defendants in jail receiving mental health treatment but not referred for competency evaluations, and defendants admitted to forensic psychiatric units after having been adjudicated incompetent to stand trial. Otto et al. reported good internal consistency for the three measures, and very good–to–excellent interrater reliability. The MacCAT-CA correlated negatively with measures of psychopathology, including the Brief Psychiatric Rating Scale and the MMPI-2 Psychoticism scale, and correlated positively with the measure of cognitive functioning, the WAIS-R prorated IQ. Differences between competent and incompetent defendants on the MacCAT-CA were comparable to those obtained on the CST and the GCCT-MSH. The effect sizes for the Reasoning and Appreciation scales were more robust than those for the Understanding scale. The strength of the Reasoning and Appreciation scales lies in the assessment of different aspects of competence, relevant to decisional competence, that are not tapped by the Understanding scale or by most other competency assessment instruments. However, the unique contribution of the Reasoning Scale may be somewhat limited by the hypothetical rather than case-specific nature of the items on which it is based. The authors noted that the MacCATCA does not include measures of response style, and that

the possibility of feigning needs to be assessed through other methods. They advocate for the clinical use of the MacCAT-CA in the context of a comprehensive competency evaluation. Zapf, Skeem, and Golding (2005) conducted a confirmatory factor analysis of the MacCAT-CA that yielded a modified, three-factor model representing both method and construct variance. They found moderate correlations for the MacCAT-CA with intelligence (r = .42), and psychopathology (r = –.36). They noted that the MacCAT-CA contributes to the assessment of competence by providing normative data, but that the assessment of competency also requires an idiographic, case-specific approach. Fitness Interview Test Roesch, Webster, and Eaves (1984) developed the Fitness Interview Test (FIT), a Canadian interview schedule similar to the CAI and the IFI. It contains items focused on legal issues and on assessment of psychopathology. McDonald, Nussbaum, and Bagby (1991) reported a high degree of correspondence between FIT ratings and legal decisions about competence, but the legal decisions were not independent of the FIT ratings. Bagby et al. (1992) found that factor analyses of the FIT legal items failed to yield a stable factor structure across samples, most likely due to the uniformity of item content. The FIT legal items appear to be fairly one-dimensional and may not assess multiple aspects of competence. Moreover, the lack of concrete definitions for rating the items may lead to generalization of ratings across items. The revised version of this instrument, the FIT-R (Roesch, Zapf, & Eaves, 2006; Zapf & Roesch, 1997), reportedly demonstrated perfect sensitivity and negative predictive power as a screening instrument in a study of 57 male defendants. Based on the FIT-R, 82% of the defendants who were clearly fit to stand trial would have been screened out before being remanded for a lengthy inpatient competence evaluation. Whittemore, Ogloff, and Roesch (1997) analyzed responses of a similar sample to the FIT-R, and to FIT-R items that address ability to make a guilty plea. They suggested the need for a stagespecific approach to forensic competency assessment, with specialized instruments designed to assess the legal issues of competency at various stages of the proceedings. Zapf (1999) reported a common underlying construct, termed cognitive organization, measured by the FIT-R, the MacArthur Competency Assessment Tool–Criminal Adjudication (MacCAT-CA), and the MacArthur Competency Assessment Tool–Treatment. Zapf and Roesch

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(2001) found reasonably high agreement between the FIT-R and MacCAT-CA scores. Viljoen, Roesch, and Zapf (2002) compared FIT-R measures of legal abilities of defendants with psychotic disorders, affective disorders, substance abuse disorders, and no major mental illness. They found that 60% of psychotic defendants were not rated as impaired on the sections of the FIT-R. However, defendants with schizophrenia demonstrated considerably more impairment on legal abilities than did those with delusions. IQ scores significantly predicted understanding of the nature and objective of the proceedings, but not of the possible consequences of the proceedings or ability to consult with counsel. Depression appeared to have a relatively weak relationship with legal impairment, in contrast to bipolar disorder, which was more highly correlated. The authors reported that average interrater reliability for overall determination of fitness on the FIT-R is .98, although reliability for individual sections ranged from .54 to .70. Computer-Assisted Determination of Competency to Proceed The CADCOMP is a computer-administered interview, with over 200 questions pertaining to history, demographics, the day of the crime, behavior since arrest, psycholegal ability, and psychopathology (Barnard et al., 1991, 1992). The initial study found a correlation of .55 between competency judgments based on the CADCOMP and competency judgments based on interview by a forensic examiner. This is consistent with the level of predictive validity reported for other competency assessment instruments in the literature. The second study analyzed 18 conceptually developed scales from the CADCOMP using the data obtained from incompetent defendants treated in the same inpatient setting who were either restored to competency or remained incompetent. The scales most predictive of competency opinions reflect lack of knowledge of the adversarial process, lack of appreciation of appropriate courtroom behavior, prominent psychotic features, and cognitive impairment. The two scales developed to measure the defendant’s relationship with counsel did not significantly correlate with examiners’ competency opinions, perhaps because the defendants in this hospitalized sample did not have active relationships with their attorneys. Examiners’ opinions of incompetence were negatively correlated with criminal history and positively correlated with history of childhood/educational problems. The defendants restored to competency endorsed more items related to substance abuse and antisocial features, whereas defendants who

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remained incompetent were more likely to have a history of educational problems and/or persisting impairment in thinking, perception, and legal ability. Although the CADCOMP provides a standardized database for assessing competence, there is insufficient data on competent defendants to calculate effect sizes. Further research would be required to demonstrate utility for clinical/forensic use. Georgia Court Competency Test The Georgia Court Competency Test (GCCT; Wildman, Batchelor, Thompson, Nelson, Moore, & Patterson, 1978) uses a courtroom drawing as a reference point for questions about the physical positions and functional roles of court participants in a trial. Additional questions about the defendant’s charge(s) and defense are included. Initial findings indicated reliability of .79 across two examiners and scorers on two different administrations, and classification accuracy of 68% to 78%. Nicholson, Robertson, Johnson, and Jensen (1988) revised the GCCT to create the Mississippi State Hospital version (GCCT-MSH). They added four questions about the defendant’s knowledge of courtroom proceedings, changed the weights of some items, and clarified scoring, but they did not change the total or cutoff score. Nicholson et al. reported excellent interscorer reliability (r = –.95). Classification accuracy, based on the criterion of independent opinions by experienced forensic clinicians, was 81.8%, with a false-positive rate of 67.7% but a false-negative rate of only 3.8%. Classification and falsepositive rates improved when the interval between testing and examiner assessment was less than the average time of 2 weeks. This initial study found that the GCCT-MSH compared favorably to the Competency Screening Test in this setting, even though the base rate of incompetence findings was only 10%. Nicholson and Johnson (1991) found that the GCCT or GCCT-MSH was the strongest predictor of competency decisions on an inpatient unit, and that the GCCT did not correlate highly with diagnosis. However, all of the variables combined accounted for a relatively small proportion of the variance in competency findings. A factor-analytic study of the CST, the FIT, and the GCCT-MSH found that only the GCCT-MSH yielded stable, independent factors: general legal knowledge, courtroom layout, and specific legal knowledge (Bagby, Nicholson, Rogers, & Bussbaum, 1992). The investigators noted, however, that the GCCT-MSH does not appear to address ability to consult counsel and assist in one’s defense in a comprehensive or conceptually reliable way.

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Competency assessment instruments have not been designed to measure response set and generally possess face validity, making them vulnerable to malingering. In an attempt to overcome this problem, Gothard, Rogers, and Sewell (1995) developed the Atypical Presentation Scale (APS): eight yes/no questions related to general courtroom process that varied in terms of bizarre quality, to screen for feigned incompetency on the GCCT-MSH. The initial study produced a 90% classification rate among five groups administered the GCCT-MSH with the APS. These included pretrial defendants identified as suspected malingerers, as competent, or as incompetent, and individuals from a detention center, either instructed to malinger or given standard instructions. The simulators and suspected malingerers scored significantly below the control, competent, and incompetent groups on the GCCT, and significantly above these groups on the Atypical Presentation Scale. Classification accuracy for the Atypical Presentation Scale was 90% overall and 82.6% in distinguishing malingerers from the incompetent group, but this result requires cross-validation.

considered incompetent (mean IQ 57). The “competent” defendants scored significantly higher on all CAST-MR scales than the “incompetent” defendants. All CAST-MR scores were significantly correlated with IQ, but the discriminant function yielded a stepwise function for IQ, and for the case-specific, open-ended scale, Understanding Case Events, suggesting that this section of the test contributes to assessment of competence, independent of intelligence. Everington, Notario-Smull, and Horton (2007) found that adjudicated criminal defendants with mental retardation, instructed to pretend that they did not know the answers to the CAST-MR, scored significantly lower than individuals with mental retardation who completed the examination under standard instructions. These results demonstrate that persons with mental retardation can lower their scores on the CAST-MR when instructed to do so. However, the authors cautioned that individuals with mental retardation are generally acquiescent, and that these results do not establish that they would malinger under standard test instructions.

The Competence Assessment for Standing Trial for Defendants With Mental Retardation

The Evaluation of Competency to Stand Trial–Revised

The CAST-MR (Everington & Luckasson, 1992) consists of three scales developed to assist in evaluation of competency to stand trial of mentally retarded defendants. Two are comprised of multiple-choice items—Basic Legal Concepts, and Skills to Assist Defense—based on hypothetical situations the defendant may face in working with his or her attorney. The third scale, Understanding Case Events, consists of open-ended questions tapping understanding of aspects of case events in the defendant’s own court case. Initial studies of reliability and validity were conducted on group home residents with mental retardation; “normal” defendants; defendants with mental retardation who were not referred for competence evaluation; defendants with mental retardation evaluated as competent to stand trial; and defendants with mental retardation evaluated as incompetent to stand trial. These initial studies produced high levels of internal consistency for the three sections of the test, comparable to those obtained with the CST and the GCCT-MSH (Everington, 1990). Everington and Dunn (1995) found a 70% to 80% agreement rate between examiners’ opinions regarding trial competency and scores from blind administration of the CAST-MR. The defendants considered competent had significantly higher scores on the Wechsler Adult Intelligence Scale–Revised (WAIS-R) (mean IQ 66) than those

Rogers, Tillbrook, and Sewell (2004) developed the Evaluation of Competency to Stand Trial–Revised (ECST-R) to assess aspects of the Dusky standard in the defendant’s own case, and to screen for feigned incompetency in a standardized manner. The ECST-R contains scales tapping Factual Understanding of the Courtroom Proceedings, and Overall Rational Ability (combined measures of Rational Understanding of the Courtroom Proceedings, and Consult with Counsel). Rogers, Jackson, Sewell, Tillbrook, and Martin (2003) presented evidence of this discrete abilities model of competency to stand trial, based on combined data from six forensic and correctional samples, indicating that assessment of competency to stand trial should consider separately each defendant’s factual understanding of the proceedings, rational understanding of the proceedings, and ability to consult with counsel. This study reported evidence of high internal consistency (alphas of .83 to .89) and interrater reliabilities (.97 to .98). The Atypical Presentation scales of the ECST are comprised of atypical items with obvious psychotic content, atypical items with an affective component, and items tapping realistic, common concerns facing criminal defendants. These items yield scores on five scales. The scales are reported to have high internal consistency and interrater reliability. Most subsequent research on the ECST-R has evaluated feigning on the instrument and the utility

Assessment of Competence to Stand Trial

of the Atypical Presentation Scale (discussed ahead in the section on malingering) in detecting such feigning (Rogers, Jackson, Sewell, & Harrison, 2004; Vitacco, Rogers, Gabel, & Munizza, 2007). Summary In general, the interview-based instruments, such as the CAI, the IFI and IFI-R, and the FIT and FIT-R, appear to be useful in structuring competence evaluations to include assessment of specific aspects of knowledge-based competence. The IFI/ IFI-R introduce lawyer input and emphasize the relationship between psychopathology and psycholegal impairment. Other instruments, such as the CST, the GCCT-MSH, the CAST-MR, and the MacCATCA, yield scores with norms and psychometric properties important for research and for more standardized assessment. The MacCAT-CA shows some promise in contributing incremental validity to a competency evaluation by measuring the understanding and reasoning underlying decisional capacity, an aspect of competence not comprehensively tapped by instruments that assess primarily knowledge-based competence. The ECST-R attempts to differentiate factual and rational aspects of competency, in addition to introducing scales to assess feigning of incompetence. All of these instruments are designed to be used as part of a comprehensive competence assessment that considers multiple sources of data.

Value of Psychological Testing Although competency assessment instruments focus on functional aspects of competency to stand trial, they do not measure capacity, or whether there is an underlying condition that contributes to a defendant’s poor functioning in resolving a criminal case. Psychological testing is particularly helpful in objectively assessing whether displayed deficits are genuine or malingered; the product of mental retardation; associated with cognitive deficits due to traumatic brain injury, brain disease, or dementia; or caused by mood or psychotic disorders. Whereas competency assessment instruments identify possible impairments in competency-related functions, traditional psychological tests may clarify the cause of these potential impairments. Malingering Malingering, the exaggeration or fabrication of deficits or symptoms in the context of an external incentive, is typically reflected in three broad domains: psychopathology, cognitive impairment, and physical or medical illness

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(Rogers, 2008). The differential manifestation of malingering across these three domains has required the development of a variety of techniques for detecting it. Wygant, Sellbom, Ben-Porath, Stafford, Freeman, and Heilbronner (2007) found that individuals’ particular response styles are likely dictated by the type of forensic setting in which they are evaluated, in that those in criminal settings tend to present with a more broad-based exaggeration or fabrication of psychological problems, whereas those in civil forensic settings tend to more specifically portray themselves as physically injured or cognitively impaired. Psychological testing can objectively evaluate the probability of malingering of cognitive deficits motivated by the goal of being found incompetent to avoid prosecution. A number of measures have been developed to assess the malingering of cognitive difficulties, including the Validity Indicator Profile (Frederick, 1997), Word Memory Test (Green, 2003), and the Computerized Assessment of Response Bias. The Test of Memory Malingering has reported levels of sensitivity of 96% to 98% and specificity of 100% (Rees, Tombaugh, Gansler, & Moczynski, 1998). However, others have questioned this sensitivity statistic for the TOMM and recommend other measures, such as the Word Memory Test, in civil forensic settings (e.g., Gervais, Rohling, Green, & Ford, 2004). In terms of evaluating malingered psychopathology in competency evaluations, a number of omnibus measures are available. The Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby, & Dickens, 1992), now with a revised scoring algorithm (SIRS-2; Rogers, Sewell, & Gillard, 2010), performs quite well in differentiating malingerers from non-malingerers in criminal forensic settings, but not with the extremely low false-positive error rate the manual professes (Green & Rosenfeld, 2011). Personality inventories, such as the Minnesota Multiphasic Personality Inventory–2 (MMPI-2; Butcher, Graham, Ben-Porath, Tellegen, Dahlstrom, & Kaemmer, 2001), and the more recent alternative, the MMPI-2 Restructured Form (MMPI-2-RF; Ben-Porath & Tellegen, 2008), as well as the Personality Assessment Inventory (PAI; Morey, 1991, 2007) and the Millon Clinical Multiaxial Inventory–III (MCMI-III; Millon, Davis, & Millon, 1997), have validity scales designed to measure response bias. These scales tend to work quite well in detecting overreported psychopathology in criminal forensic settings (e.g., Hawes & Boccaccini, 2009; Rogers et al., 2003; Sellbom & Bagby, 2008; Sellbom et al., 2010), with the possible exception of the MCMI-III validity scales (see Sellbom & Bagby, 2008, for a review). Most of this research has only examined the utility of the

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malingering measures in the context of pretrial forensic evaluations, such as evaluations of competency to stand trial. However, Miller (2004) examined 50 patients found incompetent to stand trial due to mental illness. Results indicated that the MMPI-2 validity scales were strongly correlated with SIRS scores, lending good convergent evidence for the two instruments in this setting. Instruments designed to assess competency have generally not been designed to measure response bias and possess face validity, making them vulnerable to dissimulation. In an attempt to overcome this problem, Gothard, Rogers, and Sewell (1995) developed an Atypical Presentation Scale for the GCCT, consisting of eight questions varying in level of bizarreness. Pretrial defendants evaluated as competent, incompetent, or suspected malingerers were administered the test. A control group of sentenced inmates and a group of sentenced inmates instructed to feign incompetence, both without histories of psychiatric treatment or findings of incompetence, were also tested. The simulators and suspected malingerers scored significantly below the control, competent, and incompetent groups on the GCCT, and significantly above these groups on the Atypical Presentation Scale. These results confirm that individuals with experience in the criminal justice system can modify their responses to a face-valid competency assessment instrument such as the GCCT. However, the specificity and sensitivity of cutoff scores in differentiating malingerers from incompetent defendants on the GCCT was low. Classification accuracy for the Atypical Presentation Scale was 90% overall and 82.6% in distinguishing malingerers from the incompetent group, but this result requires cross-validation. Gothard, Viglione, Meloy, and Sherman (1995) elaborated on these results using the SIRS as a criterion for malingering. The investigators suggested that a total GCCT score of less than 60, endorsement of items on the Atypical Presentation Scale (ATP), and an unexpected pattern of correct and incorrect responses based on item difficulty are promising approaches to assessment of malingering of incompetence. However, they cautioned that the assessment of malingering requires a comprehensive, multimethod assessment, including the SIRS, the MMPI-2, and measures of malingering of cognitive deficits when appropriate. Rogers, Grandjean, Tillbrook, Vitacco, and Sewell (2001) recommend the clinical use of the GCCT, without cut scores, as a screening instrument to identify potential competency deficits and potential feigning for further evaluation. Rogers and his colleagues have since extended the use of the ATP to the Evaluation of Competency to

Stand Trial–Revised (ECST-R), a standardized interview designed to assess dimensions of CST and to screen for feigned CST. The ATP was expanded into three subscales: ATP-Psychotic, ATP-Nonpsychotic, and ATPRealistic, as well as an ATP-Impairment index that focuses on the overall ATP-P and ATP-N score. Rogers et al. (2004) examined the effectiveness of the ATP scales in detecting feigned incompetency. Comparisons of ATP scales yielded very large effect sizes when differentiating patients asked to feign incompetency from jail inmate controls (mean d = 2.50), and from defendants found incompetent to stand trial and hospitalized for competency restoration treatment (mean d = 1.83). Vitacco, Rogers, Gable, and Munizza (2007) also reported promising results for the ATP scales. However, the Miller Forensic Assessment of Symptoms Test (M-FAST; Miller, 2001), a general malingering screen, performed better as a screen for malingering with 100 forensic defendants involved in competency evaluations who had been divided into malingering and non-malingering groups based on the SIRS. Finally, the Inventory of Legal Knowledge (ILK; Otto, Musick, & Sherrod, 2010) is a 61-item, true–false measure that was designed to measure dissimulation associated with deficits in specific legal knowledge. Guenther and Otto (2010) found that the ILK demonstrated promising utility in differentiating 76 college students asked to feign legal deficits in the context of a competency evaluation from 100 genuine psychiatric patients. Otto, Musick, and Sherrod (2011) found that the ILK exhibited moderate correlations with other response bias measures in a sample of criminal defendants. Cognitive Functioning Two meta-analyses have examined the associations between intelligence and competency. Nicholson and Kugler (1991) reported a small, but statistically significant, negative relationship between findings of incompetency and intelligence test scores (–0.16). Two decades later, Pirelli et al. (2011) extended these analyses with three studies of Full Scale IQ score differences between competent and incompetent defendants that produced a small-to-medium effect size of approximately six Full Scale IQ points. They found similar results in studies using Performance IQ or Verbal IQ on Wechsler measures, and for Verbal Cognitive Functioning (Vocabulary, Similarities, and Digit Span from the WAIS-R) with medium effect sizes (r = 0.32–0.38). One study (Otto et al., 1998) examined the associations between the MacCAT-CA and Full Scale IQ

Assessment of Competence to Stand Trial

scores derived from the Wechsler Adult Intelligence Scale–Revised. The results indicated that intelligence was moderately correlated with the MacCAT-CA Reasoning and Understanding scores, but uncorrelated with the Appreciation score. A second study (Nestor, Daggett, Haycock, & Price, 1999) was based on the WAIS-R administered as part of a comprehensive neuropsychological battery to defendants being evaluated for trial competency. The authors found significant differences on tests of verbal reasoning, episodic memory, and social judgment between competent and incompetent defendants. Grandjean (2004) reported that competent defendants differed from incompetent defendants on measures of verbal memory, verbal comprehension, social judgment, and executive functioning, but not on visual memory or skills, nor attention. In a sample of mentally retarded defendants, Everington and Dunn (1995) found a high correlation between WAIS-R IQ and performance on the knowledgebased scales of the CAST-MR. Most recently, Ryba and Zapf (2011) examined the association between cognitive functioning and competency-related abilities in a sample of 77 male forensic patients who had been administered the MacCAT-CA. Cognitive abilities accounted for a substantial amount of variance in all three competency abilities (Understanding, Reasoning, and Appreciation), even more so than did psychopathology factors. Psychosis moderated the association between cognition and reasoning abilities in that this relationship was stronger when a patient was also psychotic. Such data establish a causal link between observed deficits in competence functions and underlying cognitive disorders. Personality/Psychopathology Functioning Personality assessment instruments can aid in assessing psychopathology and/or personality functioning potentially relevant to evaluation of competency to stand trial. In particular, symptoms of disordered thinking may impact reasoning ability, including the capacity to understand the criminal proceedings and to plan a rational defense strategy in consultation with counsel. Beyond the validity scales studies cited earlier, neither the PAI nor the MCMI-III has been directly examined within the context of competency-to-stand-trial evaluations. The MMPI-2 is the psychological test most widely used in forensic cases as a measure of symptoms and traits associated with psychopathology and other behavioral and/or personality factors that may relate to trial competency (Archer, Buffington-Vollum, Stredney, & Handel, 2006; Lally, 2003; Pope, Butcher, & Seelen, 2000). The

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MMPI-2 and the most recent version, the MMPI-2-RF, have sets of scales that are designed to assess response set to the evaluation, as well as aspects of personality and psychopathology potentially relevant to competency to stand trial. In addition to measures of lack of cooperation, symptom exaggeration, and defensiveness, these instruments provide considerable information about psychotic and manic symptoms that might impair a defendant’s capacity for rational reasoning about his or her case (Sellbom & Ben-Porath, 2006), and various antisocial and psychopathic personality proclivities that might increase the risk for malingering of psychotic symptomatology (Sellbom, Ben-Porath, & Stafford, 2007). The MMPI-2 has been specifically examined with individuals adjudicated competent or incompetent to stand trial, though the literature has been somewhat sparse in this regard. An early study by Cooke (1969) found that 93 individuals adjudicated incompetent scored significantly higher on the F validity scale as well as Clinical Scales 2, 3, 4, 6, 7, and 8, relative to 122 patients who had been found competent to stand trial. Maxson and Neuringer (1970) replicated these findings in a larger sample (n = 594) but found only differences on the F scale and Clinical Scale 6. In a similar design at a Canadian inpatient unit, Rogers et al. (1988) found negligible differences only on Clinical Scale 9. Most recently, Otto et al. (1998) reported moderate negative correlations between the MMPI-2 Psychoticism scale and the Reasoning and Understanding domains of the MacCAT-CA in a large sample of individuals evaluated for competency. These results have been summarized in two metaanalyses. Nicholson and Kugler (1991) found small but significant correlations for scales F, 6, and 8 of the MMPI/ MMPI-2 with findings of incompetence. Pirelli et al. (2011), using many of the same studies, reported that the effect sizes for MMPI scales F, 6, and 8 were in the small-to-moderate range (0.33, 0.39, and 0.33, respectively), as incompetent defendants produced higher-thanaverage scores on these scales that assess symptoms of psychopathology. They noted that traditional assessment instruments can be useful in competency evaluations for specific reasons. Many of these studies have significant limitations, particularly in terms of criterion contamination, in that the MMPI/MMPI-2 results were most likely considered in reaching the opinion about trial competency. Future research with meaningful external criterion measures would be helpful in evaluating the role of the MMPI2, PAI, and other traditional assessment instruments in competency evaluations.

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Competence Evaluation Reports There are a number of published studies on competence evaluation reports. The authors of many of these studies report a high level of agreement between clinician opinions of individual defendants’ competence to stand trial. For example, Poythress and Stock (1980) found 100% agreement between pairs of clinical psychologists who interviewed 44 defendants and then independently reached opinions regarding competence. Other investigators have focused on the statistical relationship between opinions regarding competence and variables rationally expected to be associated with findings of competence or incompetence (e.g., Nicholson & Kugler, 1991, and Pirelli et al., 2011). Skeem, Golding, Cohn, and Berge (1998) analyzed 100 competence reports completed on 50 defendants, each evaluated independently by two examiners. The reports were coded for documentation of statutory criteria, the demands of the defendant’s specific legal situation, substantiation of diagnosis, medication issues, possible malingering, use of psychological testing, and disclosure regarding the purpose and confidentiality of the evaluation. In 53% of the reports, the examiners had opined that the defendant was incompetent to stand trial. Most reports addressed the defendant’s appreciation of the charges and proceedings, but decisional abilities were addressed relatively infrequently. For example, only 12% of reports addressed the implications of a guilty plea, even though all of the defendants who returned to court engaged in plea bargaining. Most reports provided data supporting clinical opinions, but only 10% provided data or reasoning regarding the relationship between symptoms of psychopathology and psycholegal deficits. Although examiners agreed in 82% of the cases on the defendant’s global competence, they agreed only 25% of the time about the particular psycholegal impairments on which their opinions were based. Competency assessment instruments were rarely used, and the results of psychological testing were linked to opinions about competence in fewer than half of the cases in which testing was employed. Few examiners contacted the defendant’s attorney or reviewed treatment records for the evaluation. Based on their research, the authors recommended that examiners address key psycholegal abilities and consider the demands of the case, particularly in terms of the decisions the defendant would be expected to make. These decisions include choosing a plea, and waiver of constitutional rights, such as the right to counsel, the right to trial, the right to a jury trial, and the right to testify.

The authors further recommended gathering data from a variety of sources. These include third-party information from legal and mental health records; input from defense counsel regarding concerns about the defendant’s competence, the likely demands of the case and defense strategy, and the attorney–client relationship; competency assessment instruments; and targeted psychological testing. Skeem et al. (1998) further recommended that competence reports include reasoning to support conclusions about the defendant’s psychopathology, specific psycholegal abilities and impairments, and the relationship, if any, between psychopathology and deficits in competence. They recommended explaining the results of psychological testing by addressing their relevance to any psychological conditions that could account for observed impairments in the defendant’s psycholegal functioning. For defendants on psychotropic medication at the time of the evaluation, they recommended explaining the effect of the medication on the defendant’s current mental state, and explaining possible changes in mental state since the time of the offense attributable to current medication. Zapf and Roesch (2009), in their volume on evaluation of competence to stand trial, provide a comprehensive guide to conducting competence evaluations and communicating the results through reports and testimony. There are other sources of specific information regarding the process of competence evaluation and communication of results (e.g., Melton, Petrila, Poythress, & Slobogin, 2007; Stafford & Sadoff, 2011.) TRIAL COMPETENCE IN SPECIAL POPULATIONS Potential causes of impairment severe enough to potentially affect a defendant’s competency to stand trial are considered in this section. Psychotic disorders, mental retardation, and speech and hearing impairments each present challenges to the adjudication of criminal cases. Psychosis Nicholson and Kugler (1991) reported significant correlations between symptoms of psychosis and findings of incompetence as a result of their meta-analysis. The correlations between incompetence and factors related to mental illness, such as psychosis, delusions, hallucinations, and disturbed behavior, ranged from 0.25 to 0.45. In a more recent meta-analysis, Pirelli et al. (2011) reported that defendants diagnosed with a psychotic

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disorder were 8 times more likely to be found incompetent than defendants without such a diagnosis. The likelihood of being found incompetent was also double for individuals with a previous psychiatric hospitalization, compared to those never hospitalized. The third most robust finding, a rate of unemployment twice as high for incompetent than competent defendants, is likely to reflect the higher rate of unemployment among the severely mentally ill. Goldstein and Burd (1990) published a review of the case law on the role of delusions in trial competency and the clinical implications of this body of law for competency evaluation. They reported that delusional defendants may appear to have a rational and factual understanding of the proceedings against them, and they may appear to demonstrate the ability to consult rationally with their attorneys, during a cursory, structured interview. However, a thorough assessment is often required before delusional thinking surfaces, and the impact of such thinking on trial competency needs to be explored fully. Delusions may directly interfere with the defendant’s perception of the nature and objectives of the proceedings and with the ability to assist in his or her own defense. For example, the New Hampshire Supreme Court in State v. Champagne (1985) noted that the defendant could accurately answer simple yes/no questions about the proceedings, but if “the questioning proceeded at any length . . . the defendant’s delusions and loosening of association took over, so that his first answer would not be a reliable indicator of his thinking” (p. 1247). The court ruled that, although the defendant understood the roles of various court personnel, the role of the jury in determining guilt or innocence, and the charges against him, he was incompetent to stand trial. His paranoid delusions impaired his “ability to communicate meaningfully with his lawyer so as to make informed choices regarding trial strategy” (p. 1245) and “so imbued the defendant’s thought processes that he could not rationally understand the nature of the proceedings against him” (p. 1246). This case and others emphasize the importance of a comprehensive evaluation to assess the impact of delusions on trial competency, competency to waive counsel, and competency to waive the insanity defense. Goldstein and Burd (1990) further noted that competency assessment of psychotic defendants requires consideration of the likelihood of deterioration in the defendant’s mental state prior to the resolution of the case, factors likely to precipitate deterioration, and possible signs of such deterioration. Other cases cited by the authors (e.g., State v. Hahn, 1985; Pride v. Estelle, 1981) have reinforced the need for inquiry into the defendant’s education, literacy, background, prior court experience, and psychiatric

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treatment history, and for the use of psychological testing, in competency assessment. Psychotic symptoms, although not synonymous with incompetence, contribute significantly to consideration of the capacity of the defendant to proceed to trial. They also have implications for recommendations for competency restoration, including psychiatric hospitalization, treatment with psychotropic medications, and potential need to explore involuntary administration of medication (Brinkley & DeMier, 2009). Mental Retardation The development of the CAST-MR by Everington and Luckasson (1992) illustrates the particular challenge of determining whether defendants with mental retardation are competent to proceed with their criminal cases. Bonnie (1990) reported that mentally retarded defendants constitute 2% to 7% of competence evaluation referrals, but that as many as half of mentally retarded defendants are not referred for competence evaluation. Everington and Dunn (1995) found that 57% of 35 mentally retarded defendants referred for competency evaluations to outpatient forensic centers in Ohio were considered incompetent to stand trial. Cochrane, Grisso, and Frederick (2001) reviewed literature reporting a 12% to 36% rate of incompetence among mentally retarded defendants referred for competency evaluation. Their own study of 1,436 defendants referred for competency evaluation to a federal medical center found that of the 33 mentally retarded defendants evaluated, 30% were considered incompetent, comparable to the rate of mentally ill defendants evaluated as incompetent to stand trial. In a Canadian study, Ericson and Perlman (2001) compared adults with IQ scores in the borderline-tomentally retarded range (50–75) with adults of average intelligence on knowledge of 34 legal terms. The mentally retarded adults scored significantly lower on conceptual understanding of almost all the terms, and 45% did not understand the concept of guilty. Only 8 of the 34 terms were reasonably understood by at least 75% of the mentally retarded adults. In addition, there were discrepancies of approximately 20% between subjects’ report of familiarity with concepts and their actual understanding of the concepts. Mentally retarded subjects frequently reported familiarity with a term when they clearly did not understand what it meant. The investigators noted that this result is consistent with other findings indicating that mentally retarded individuals are likely to acquiesce rather

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than report they do not know information, particularly to authority figures. The authors recommend the use of openended rather than yes/no questions, in assessing the competency of defendants with below-average intelligence, and the use of language appropriate to their level of understanding, to facilitate participation in court proceedings.

understand criminal proceedings, with a particular emphasis on sign language interpreting, and including a model statute. The National Center for Law and Deafness (1992) has published a guide to legal rights for deaf and hard-ofhearing people. Interventions for Competence Deficits

Speech and Hearing Impairment The special case of the deaf defendant is epitomized by Theon Jackson, the defendant in Jackson v. Indiana (1972), who was indefinitely committed as incompetent to stand trial with virtually no likelihood of becoming competent. Vernon, Steinberg, and Montoya (1999) presented data on 28 deaf defendants charged with murder and referred for evaluations to assist in trial or treatment planning. Twenty-eight percent had been psychiatrically hospitalized in the past, and an additional 32% had been treated as outpatients. Fifty percent of the defendants were diagnosed with antisocial personality disorder and had criminal histories, and 64% had a history of substance abuse. The mean IQ of the group was 100, but more than half had indications of neurological impairment associated with the underlying etiology of deafness and of violent behavior. Fewer than half were proficient in American Sign Language (ASL). Of these 28 defendants, 18 pled guilty or were convicted; three were found incompetent to stand trial due to mental illness. Five of these defendants were released because of linguistic incompetence or because they had not been administered the Miranda warning in a manner that they could comprehend. The evaluators reported that 13 of the defendants were sufficiently limited linguistically that a strong case could have been made for their incompetence. The authors discussed particular conceptual difficulties with trial competence for deaf defendants, who may be illiterate, have a poor understanding of sign language, have considerable information gaps, or may never have developed a formal language system. They recommended that practitioners not competent in sign language use interpreters, preferably those with legal interpreting certificates, in conducting competency evaluations of deaf defendants. They noted that there are few formal signs for most legal concepts and terms used in court proceedings. Therefore, a team of interpreters is often necessary in court, so that one interpreter can translate from English to ASL, and a second from ASL to the defendant’s own idiosyncratic “language” of gestures, signs, and mime. Wood (1984) reviewed case law relevant to the efforts of courts to protect the rights of deaf suspects to

After a defendant is found incompetent to stand trial, the next step varies. Depending on the extent and likely cause of the difficulties, and the demands of the case, the defendant may be provided special assistance, or the proceedings themselves may be modified, to allow for resolution of the case. If the defendant is considered unlikely to become competent, criminal proceedings may be dismissed and civil commitment could be considered. If the defendant is predicted to be likely to become competent with treatment, he or she may be committed to a hospital or ordered to comply with recommended treatment in another setting. Further discussion of these options follows. Competency Assistance The concept of competency assistance (Keilitz, Monahan, Keilitz, & Dillon, 1987) is based on alternatives that are used to enhance defendants’ ability to understand the proceedings and to assist in their defense. For example, interpreters for defendants who are deaf or hearing impaired or not facile in English are broadly mandated. Psychotropic medication to establish or maintain competence is allowed by law, with some safeguards (e.g., Sell v. United States, 2003). Keilitz et al. (1987) reported that some courts permit counsel to proceed with defenses that do not require the assistance of incompetent defendants, such as insufficiency of the indictment, statute of limitations, and double jeopardy. In some states, defense counsel may request “innocence-only trials,” in which the court hears evidence. Keilitz et al. reported, based on the results of their mail survey of trial judges, that most of the judges estimated that fewer than 10% of criminal defendants in their courts presented with suspected “trial disabilities” (sensory and communication problems, mental illness, mental retardation, learning disabilities, or epilepsy). The judges reported making a number of accommodations to assist such defendants. They might appoint defense lawyers with experience working with trial-disabled defendants and/or a guardian ad litem. A “support person” might be permitted to sit at the defense table. Judges were willing to schedule hearings at less hectic times of the day, to take a more tolerant approach to aberrant behavior in the courtroom, and to conduct the

Assessment of Competence to Stand Trial

proceedings with simpler language and at a slower pace. Judges also reported that they would allow testimony about the defendant’s difficulties at trial, if relevant. This notion of competency assistance is also consistent with the recommendations of the court in Wilson v. United States (1968). For amnestic defendants, the court suggested that providing additional discovery information to the defense might assist in the reconstruction of events at the time of the offense and increase the likelihood that the defendant could proceed with the case. Research by Poythress et al. (1994) indicates that attorneys who doubt their clients’ competence but do not seek competency evaluations use compensatory strategies to facilitate their clients’ participation in the proceedings. These accommodations include spending more time with the client, involving family members in decision making, modifying their approaches to consulting with clients to minimize impairments, and consulting other attorneys for advice. Similarly, if defendants referred for competency evaluation appear marginal in their capacity to proceed with the case, the evaluator can recommend specific accommodations to assist them in moving forward with the case. For example, when defendants with paranoia have difficulty working with a particular attorney, the possibility of a change in court-appointed counsel could be raised. A recommendation for supportive counseling for an overly anxious defendant awaiting trial would be likely to improve his or her ability to work actively with counsel. The competency report could include the option of referral for an updated competency evaluation if a defendant with a history of deteriorating under stress or discontinuing treatment appears to deteriorate before the case is resolved, or if there is an unforeseen complication in the proceedings (such as a defendant’s attempt to waive the right to counsel, a supplementary indictment, or a more serious or complex charge). This is consistent with the notion raised by Whittemore et al. (1997) about a “stagespecific” approach to competency assessment. Predicting Competency Restoration In some jurisdictions, the prediction of a defendant’s restorability to competence is mandated at the time of evaluation; other jurisdictions allow for a trial of treatment to determine whether the defendant is likely to become competent to stand trial. As described earlier, in Jackson v. Indiana (1972), the U.S. Supreme Court ruled that an incompetent defendant cannot be committed longer than “a reasonable period of time necessary to determine

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whether there is a substantial probability that he will attain the capacity in the foreseeable future” (pp. 737–738). The literature on competency restoration indicates that most defendants are restored to competency. Cuneo and Brejle (1984) reported a restoration rate of 74% within 1 year. Restoration rates of 95% after an average of 2 months were reported by Nicholson and McNulty (1992), and of 90% after a mean hospital stay of over 280 days (Nicholson, Barnard, Robbins, & Hankins, 1994). Carbonell, Heilbrun, and Friedman (1992) reported that approximately two thirds of incompetent inpatients were restored after 3 months of treatment. None of these investigators were able to develop prediction models that improved on predictions that all incompetent defendants would be restored to competence. Other research suggests that the use of medications to treat psychotic symptoms is the only reliable correlate of competence restoration (Carbonell et al., 1992). Golding (1992) noted that, because psychosis correlates highly with findings of incompetence, examiners do not carefully distinguish between psychotic symptoms and psycholegal impairments, and competency treatment programs rely primarily on treatment with psychotropic medication. As a result, predicting restorability often becomes a matter of predicting response to antipsychotic medication. Studies examining the variables associated with successful restoration have yielded mixed findings. Some studies have suggested that factors associated with failure of efforts at competence restoration and greater lengths of hospital stay include severe impairment in psycholegal ability, aggression toward others after arrest, and more severe psychopathology. A history of criminality and substance abuse at the time of the offense are associated with successful restoration (Cuneo & Brejle, 1984; Nicholson et al., 1994; Scott, 2003). Anderson and Hewitt (2002) reported rates of competency restoration for defendants with mental retardation of 22% to 33%. Wall, Krupp, and Guilmette (2003) noted that this rate also applies to restoration programs specifically designed for defendants with mental retardation. Warren et al. (2006) reviewed 8,416 competency evaluations conducted in Virginia over a 12-year period. They reported that 19% of the defendants were considered incompetent to stand trial by the examiners. Of these incompetent defendants, the examiners predicted that 51.5% were likely to be restored to competency, and that 23.0% were not likely to become competent. Examiners were uncertain about the restorability of the remaining 25.5% of the incompetent defendants. Defendants considered likely to become competent were more likely to have

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had prior convictions and to be diagnosed with psychotic or affective disorders, and less likely to be diagnosed with organic or intellectual/learning deficit disorders. However, outcome data regarding actual restoration were not reported. Mossman (2007) analyzed data from records of all 351 defendants treated for competency restoration at a state psychiatric hospital between 1995 and 1999. Most defendants were either committed for competency restoration with an order for involuntary medication, or such an order was readily obtained if the defendant refused prescribed psychotropic medications. Defendants who were identified as not restorable were more likely to be older, to be facing misdemeanor charges, to have longer hospital stays, and/or to be diagnosed with mental retardation, schizophrenia, or schizoaffective disorder. Although the overall rate of restoration for felony defendants was 75%, logistic equations allowed selection of subgroups with high (>90%) and low ( T70 43% reported depression, 30% reported anxiety 5% psychotic 56% psychosis with hallucinations 81% severe depression

Psychological symptoms

89% school difficulties 70% cognitive/academic problems

49% neurological impair.

75% traumatic brain injury 75% devel. or cog. impaired 19% fetal etoh syn./effects

46% neurological insults

24% LOC head injury Half had abnormal EEG, MRI, neurological exam

Neurological findings

89% verbally abused 83% witnessed violence 100% neglected

59% sexually abused 95% physically abused

94% institutional failure 78% substance abusers

94% wit. family violence

88% abused phys/sex

81% polysub abusers

73% sub. abuse/depend.

57% sub. abusing parent

78% sub. abuse disorder Half intoxicated at offense

History

Source: Adapted and updated from Cunningham, M. D., & Vigen, M. P. (2002). Death row inmate characteristics, adjustment, and confinement: A critical review of the literature. Behavioral Sciences & the Law, 20 (1–2), 191–210. doi:10.1002/bsl.473

TX

CA

Freedman and Hemenway (2000)

Cunningham et al. (2011a)

MS

Cunningham and Vigen (1999)

Various

SC

Frierson et al. (1998)

Lisak and Beszterczey (2007)

State

(continued )

Study

TABLE 20.4

Sentencing Determinations in Death Penalty Cases

expressed. This creates a context of ambiguity for forensic psychologists undertaking these examinations. Some additional guidance, though, is provided by the majority opinion in Ford, which identified a number of miscarriages of justice that are triggered when a prisoner is unaware of the nature of or reason for a pending execution. These include an absence of retribution value, an inability of the inmate to prepare for death in coming to terms with conscience or deity, the experience of fear and pain without understanding, and the diminished dignity of society. The underlying rationales provided by the majority point to “awareness” being more than rote assent, and instead extending to the ability to act on that understanding. An aspect of this ability to act arguably involves a capacity to assist appellate counsel, to “recognize or understand any fact which might exist which would make the punishment unjust or unlawful, . . . [and] the ability to convey such information to counsel or the court” (American Bar Association, 1986, p. 290). Heilbrun (1987) summarized these competency prongs as understand, assist, and prepare. Subsequently, three tasks have been proposed as components of competency for execution: “(1) understanding the nature of capital punishment and the reasons for its imposition, (2) assisting counsel in ongoing collateral appeals, and (3) spiritually and psychologically preparing for death” (Heilbrun, Radelet, & Dvoskin, 1992, p. 599). Heilbrun (1987) and others (Heilbrun & McClaren, 1988; Small & Otto, 1991; Winick, 1992; Zapf, 2009) have proposed essential components of competency-to-beexecuted evaluations. These include (a) disclosure of the purpose of the evaluation; (b) multiple evaluation contacts with the inmate; (c) specific inquiry regarding the pending execution, including any preparations made by the inmate; (d) comprehensive assessment of psychopathology, cognitive functioning, personality, and symptom exaggeration/minimization; (e) third-party interviews to obtain historical and descriptive information; and (f) an assessment context that provides appropriate interview/testing conditions. SUMMARY Forensic psychologists can contribute at many junctures to a higher degree of reliability than currently is being realized in capital litigation. This aspiration, however, is dependent on experts bringing the highest standards of professionalism to bear in this complex and demanding arena of practice. In practical terms, professionalism in

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capital evaluations involves the same four components that are present in any forensic psychology consultation. However, they take on a special imperative when death is at stake: 1. Clear recognition of the relevant psycholegal issues, including the implications of the evaluation methods and findings 2. Unwavering adherence to ethical standards, including informed consent, objectivity, and advocating for the data 3. Assessment methods that are both relevant to the issue in question and comprehensive in application 4. Familiarity and reliance on the best empirical data and research perspectives This chapter has attempted to provide both a broad orientation and specific direction to more expert, more ethical, and more scientifically informed practice in forensic psychology contributions to death penalty litigation. REFERENCES Akman, D. D. (1966). Homicides and assaults in Canadian penitentiaries. Canadian Journal of Corrections, 8, 284–299. Alexander, J., & Austin, J. (1992). Handbook for evaluating objective prison classification systems. San Francisco, CA: National Council on Crime and Delinquency. American Bar Association. (1986). ABA criminal justice mental health standards (Standard 7–5.6). ABA Criminal Justice Standards Committee. Chicago, IL: Author. American Bar Association. (1989). ABA criminal justice mental health standards). Chicago, IL: Author. American Bar Association. (1989). ABA guidelines for the appointment and performance of defense counsel in death penalty cases. Retrieved from www.abanet.org/deathpenalty/resources/ docs/1989Guidelines.pdf American Bar Association (2003, February 10). ABA guidelines for the appointment and performance of defense counsel in death penalty cases: Revised edition. Retrieved from www.abanet.org/ deathpenalty/resources/docs/2003Guidelines.pdf American Bar Association. (2006, August 8). Resolution 122A on mental disorder or disability and the death penalty. Retrieved from www.abanet.org/leadership/2006/annual/dailyjournal/ hundredtwentytwoa.doc-2006-08-16 American Bar Association. (2008). Supplementary guidelines for the mitigation function of defense teams in death penalty cases. Hofstra Law Review, 36, 639–1093. Retrieved from http:// law.hofstra.edu/Academics/Journals/LawReview/lrv_ issues_v36n03.html American Bar Association, American Psychological Association, & American Psychiatric Association. (2005). Report of the task force on mental disability and the death penalty. Retrieved December 24, 2009, from www.apa.org/pubs/info/reports/mental-disabilityand-death-penalty.pdf American Law Institute. (1962). Model Penal Code § 210.6.(4) sentence of death for murder; further proceedings to determine sentence: Mitigating circumstances. Philadelphia, PA: Author.

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PART IV

Special Assessment Issues

CHAPTER 21

Evaluation of Malingering and Related Response Styles RICHARD ROGERS AND SCOTT D. BENDER

CONCEPTUAL ISSUES 517 EMPIRICAL ISSUES 520 CLASSIFICATION ISSUES 521 MALINGERING OF MENTAL DISORDERS

FEIGNED COGNITIVE IMPAIRMENT SUMMARY 536 REFERENCES 537

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disclosures may be covered by attorney–client privilege. Disclosures from the forensic psychologist about the purpose of the evaluation and his or her role may allay some of the examinee’s concerns about partisanship (e.g., being “hired gun” for the insurance company). Especially in civil cases, an unhurried and respectful discussion of the evaluation, its purpose, and parameters is often needed to address strong negative reactions regarding perceived coercion (e.g., “I had to come”) or questioned credibility (e.g., “You wouldn’t keep probing, unless you think I am lying”). Tests of cognitive abilities and achievement are premised on optimal effort by examinees. Less than optimal effort may vitiate the accuracy of test results and lead to concerns about deliberate underperformance. An important consideration is the effect of comorbid disorders on test performance. For example, major depression comorbid with pain and traumatic brain injury may reduce performance on cognitive tasks that require concentration and processing speed more than any single disorder. As subsequently addressed, psychologists are cautioned against facile and unwarranted assumptions that suboptimal efforts should ever be equated with malingering. This section provides an overview of response styles with a summary of accepted terminology. Three general perspectives of malingering are explicated. Explanatory models are reviewed with a discussion of inferred motivations for why persons engage in malingering. In addition, misassumptions about response styles are examined in the context of forensic evaluations.

Clinical and forensic assessments are highly dependent on openness and accuracy of examinees’ responding. For many psychological tests, the validity of test findings is predicated on sincere and sustained efforts. As a result, clinical conclusions are vulnerable to response styles, including both intentional and unintentional distortions. External influences on self-reporting and effort may include the adversarial effects of litigation and pressures exerted by interested others, such as attorneys and family members. Internal influences may include: (a) reactions to questioned credibility, (b) stigmatization of mental disorders or disability status, (c) effects of a genuine disorder, or (d) purposeful efforts to obtain undeserved benefits. Psychologists tend to focus on (d) as it relates to external goals that can be achieved through malingering, defensiveness, and denial. In contrast, they deemphasize other internal and external influences. For example, we are unable to find any empirical studies on how questioned credibility in disability cases may affect the overstating or understating of psychological impairment (Rogers & Payne, 2006; see also Weissman, 1990). Psychologists may wish to openly address internal and external influences that potentially arise from their evaluations. As part of the informed consent process, they may choose to ask examinees about their understanding of the purposes of the evaluation and what they have been told about the evaluation by others, recognizing that some 517

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Definitions of Response Styles Rogers (2008) summarized the basic terminology used to describe response styles. Basic terms used in forensic evaluations are summarized: 1. Malingering (American Psychiatric Association, 2000) is the deliberate fabrication or gross exaggeration of psychological or physical symptoms for the fulfillment of an external goal. 2. Defensiveness is the polar opposite of malingering; it is the deliberate denial or gross minimization of symptoms in the service of an external goal. Defensiveness is distinguished from social desirability and impression management because it focuses on hiding symptoms and simulating adjustment. 3. Irrelevant responding is a disengagement from the assessment process typically reflected in inconsistent responding that is unrelated to the specific content (e.g., not reading test items) or providing uninformative responses (e.g., answers like “whatever”). Types of irrelevant responding include random responding and certain types of content-irrelevant patterned responses (e.g., T, T, F, F, T, T). 4. Feigning is the deliberate fabrication or gross exaggeration of psychological or physical symptoms (Rogers & Vitacco, 2002) without any assumptions about its goals. Importantly, tests are feigning measures and not malingering measures. As currently developed and validated, they can evaluate grossly exaggerated presentations but not examinees’ multifaceted motivations. 5. Dissimulation is a general term to describe an inaccurate portrayal of symptoms and associated features. It is typically used when more precise terms (e.g., malingering and defensiveness) are inapplicable. 6. Hybrid response style refers to some combination of specific response styles. Two terms for response styles should be avoided in forensic assessments because imprecise and potentially misleading: 1. Secondary gain is an imprecise clinical term that is often confused with feigning (Rogers & Reinhardt, 1998). In nonforensic settings, the term is used to describe the perpetuation and possible augmentation of symptoms based on unintentional responses to internal (i.e., psychodynamic models) or external (i.e., behavioral-medicine models) forces. 2. Suboptimal effort (also called “incomplete effort”) is a descriptive inference that best performance was

not achieved. Suboptimal effort may be the result of internal states (e.g., fatigue or frustration), situational factors (e.g., poor rapport), or comorbidity (e.g., depression subsequent to a head injury). No inferences should be made that suboptimal effort signifies feigning. Explanatory Models of Malingering Psychologists are likely to be influenced while both conducting evaluations and rendering conclusions by explanatory models of malingering. Explanatory models attempt to explicate why individuals are motivated to malinger psychological and physical impairment. Rogers (1990) outlined three explanatory models of malingering: pathogenic, criminological, and adaptational. Several prototypical analyses (Rogers, Salekin, Sewell, Goldstein, & Leonard, 1998; Rogers, Sewell, & Goldstein, 1994) provide general support for these explanatory models as distinct motivations for malingering. A synopsis is provided: The pathogenic model assumes that the underlying motivation is an ineffective attempt to control the symptoms and clinical presentation of a chronic and progressive mental disorder. With increased impairment, intentionally produced symptoms become gradually less deliberate until they are involuntary and unintended. The pathogenic model predicts further deterioration; however, research evidence to support this prediction is lacking (Rogers, 2008). The criminological model is championed by the American Psychiatric Association (2000) via the DSM-IV-TR; it assumes that the primary motivation is characterological. Namely, antisocial persons faced with legal difficulties will attempt to garner unwarranted advantages in circumstances (e.g., a hospital rather than a prison) and material gain (e.g., financial settlement). Antisocial persons are presumed to be generally deceptive. With malingering viewed as a variant of deception, the criminological model predicts a repeated use of malingering whenever opportunities arise. The adaptational model assumes that the person perceives the circumstances as adversarial and considers malingering to be a viable alternative. This model avoids the monistic notions of mad (pathogenic) or bad (criminological) and views malingering in terms of a cost-benefit analysis. The adaptational model views malingering as a situational response based on an appraisal of alternatives. Rogers et al. (1998) found that the pathogenic model was low in prototypicality for both males and females in forensic evaluations. In contrast, both the adaptational and

Evaluation of Malingering and Related Response Styles

criminological models achieved moderately high prototypical ratings for forensic cases. A potential danger of the criminological model is that psychologists may attempt to use this explanatory model as a detection model. Misassumptions About Malingering and Dissimulation Psychologists are not immune to common misassumptions about malingering and other response styles. Moreover, psychologists must be prepared to address erroneous assumptions made by others in the legal system. Four key misassumptions involve the prevalence and presentation of malingering: 1. Malingering is very rare. Equating infrequency with inconsequentiality, some clinicians neglect the evaluation of malingering except in very obvious cases. Estimates (Rogers et al., 1994, 1998) based on more than 500 forensic experts suggest that malingering is not rare but likely occurs in 15% to 17% of forensic cases. As discussed later, feigned cognitive impairment produces even higher percentages but includes a broad category with suspected malingering and symptom exaggeration. 2. Malingering is very common. This misbelief has two sources. First, fueled by fears of fraud and injustice, certain attorneys (e.g., defense counsel in civil litigation and prosecutors in criminal matters) suspect that malingering and dissimulation are very prevalent. Second, overly broad applications of the malingered neurocognitive dysfunction (MND) model have led some neuropsychologists to posit that the majority of forensic referrals are likely to be feigning (e.g., Ardolf, Denney, & Houston, 2007). 3. Malingering occurs at a predictable rate. If base rates were stable within or across settings, then the classification of malingering and other response styles could be improved. However, clinicians often ignore the fact that malingering does not occur at predictable rates. The best available data (Rogers et al., 1998) found highly variable rates (SD = 14.4%) in forensic practices. Even within the same setting, rates are likely to vary markedly based on referral issues (see Rogers & Salekin, 1998); for example, efforts to malinger are likely to vary with the criminal charges and possible legal outcomes. 4. Malingering is a static response style. Many practitioners inaccurately assume that evidence of malingering at one period of time is indicative of malingering at a different period. Using Walters’ work (1988) as an illustration, inmates may feign for a better living situation

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(e.g., a single cell), but will almost never do so when parole is being considered. Five critical misassumptions involve the determination of malingering and feigning: 1. Laser accuracy of cut scores. Practitioners frequently employ this misassumption when they apply specific cut scores without taking into account the standard error of measurement (SEM). When a specific score is within 1 SEM of the cut score, the likelihood of error is multiplied. Rogers and Gillard (2011) argue that such marginal cases should be categorized as indeterminate (i.e., unclassified cases). As exemplified by the SIRS-2, another approach is to set multiple cut scores to minimize misclassifications. 2. Antisocial personality disorder (APD) is evidence of malingering. While psychopaths and persons with APD likely engage in deception (Rogers & Cruise, 2000), data do not generally suggest an increased likelihood for malingering in forensic settings. This unsupported assumption of malingering with APD stems from (a) DSM-IV-TR indices and (b) a methodological artifact. Because most forensic research is conducted in criminal settings, practitioners may confuse a common feature (i.e., APD) with a distinguishing criterion (Rogers, 2008). 3. Deception is evidence of malingering. Rogers (2008) observed the fundamentally flawed logic underlying this misassumption: “Malingerers lie, therefore, liars malinger.” We have observed many instances in which manipulativeness or general deception is misused as evidence of malingering (see Rogers & Granacher, 2011). For example, borderline inpatients can be highly manipulative without exhibiting any evidence of malingering. 4. The DSM-IV-TR provides a diagnosis for malingering. First, the DSM-IV-TR relegates malingering to a “V code” referring to “other conditions or problems that may be a focus of clinical attention” (APA, 2000, p. 731, emphasis added). Like academic (V62.3) and acculturation (V62.4) problems, malingering (V65.2) is simply a condition or problem. Any attempt to equate DSM-IV-TR with a “diagnosis” of malingering is an egregious error. 5. The DSM-IV-TR provides an effective screen for malingering. Although the DSM-IV-TR includes four items for when malingering should be suspected, they falter on conceptual and empirical grounds (Rogers & Shuman, 2005). Conceptually, two of the four items (APD and forensic context) confuse common with

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distinguishing characteristics. For example, all forensic evaluations include a forensic context; therefore, this item cannot distinguish between forensic examinees with genuine versus feigned disorders. Empirically, the available data indicate that the DSM-IV-TR screen is wrong 4 out of 5 times for identifying potential malingerers (Rogers, 1990). Berry and Nelson (2010) described these flaws in depth and have proposed that major revisions be considered in the next version of the DSM. Applications to Forensic Practice Determinations of malingering often supersede all other clinical issues in importance. When a forensic psychologist concludes an individual is malingering, this opinion is likely to invalidate all claims by that person while simultaneously undercutting his or her credibility. We propose that the classification of malingering should never rely on a single indicator or measure. Rogers and Shuman (2005) recommend the following standard for the determination of malingering: “When feasible, standardized methods for the assessment of malingering should always be used in forensic evaluations” (p. 42, italics in the original). The lack of feasibility is very infrequent (e.g., language or severely impaired status). As part of this process, psychologists should systematically exclude alternative explanations (e.g., factitious disorders or irrelevant responding) in their determinations of malingering. The classification of malingering often appears dispositive of the verdict. Given this observation, what are the responsibilities of a psychologist who believes that another expert has erred in concluding that an examinee is malingering? That psychologist must comprehensively evaluate the issue of malingering. If the data continue to support his or her conclusion (e.g., the absence of malingering), then great care must be taken to marshal this evidence in a manner to convince the trier of fact. In general, psychologists should assume an uneven playing field; it has been our forensic experience that a small amount of feigning evidence is given greater weight than a greater amount of evidence for genuine responding. EMPIRICAL ISSUES The clinical assessment of response styles rests solidly on their validation. As demonstrated in this section, no single research design is sufficient to validate measures of a response style. With respect to preparing for expert testimony, Rogers (2008) provided a thorough review of

these research designs. The purpose of this section is to supply psychologists with a brief summary of research designs and their relevance to the assessment of response styles. Useful Research Designs We have identified three useful designs for the validation of detection strategies. One strategy maximizes internal validity (i.e., simulation design), whereas two others focus on external validity (i.e., known-groups comparisons and bootstrapping comparisons). They are contrasted with two deficient designs that are discussed in the next section. Simulation Design Simulation studies utilize an analogue design in which participants are randomly assigned to simulation (e.g., feigning) and control (i.e., honest) conditions. For feigning studies, the addition of a clinical comparison sample is essential; otherwise, researchers cannot ascertain whether differences are attributable to feigning or genuine disorders. Basic requirements for simulation designs (see Rogers & Gillard, 2011) include (a) use of incentives, (b) provision of a realistic scenario, and (c) manipulation checks. With these elements, the simulation design excels at internal validity but has limited external validity. Known-Groups Comparisons Known-groups studies are conducted with independently classified malingerers that are compared with genuine patients. This design is completely dependent on the care and rigor used to establish the independent classification of known-groups (e.g., malingerers and patients with genuine disorders only). Therefore, it should be limited to the best-validated methods that have empirically tested classification rates; use of unvalidated methods is addressed later with partial-criterion comparisons. The known-groups comparisons excel at external validity but have limited internal validity. Bootstrapping Comparisons Bootstrapping comparisons use well-validated indicators to identify a group with a strong likelihood of having a specific response style. For example, persons identified by deviant scores on multiple measures of feigning are compared to those without these deviant scores. The key issue with bootstrapping comparisons is the selection of measures with nearly perfect specificity so that the “feigning” group does not contain genuine patients. Experimental rigor can be increased through the classification based on

Evaluation of Malingering and Related Response Styles

several measures representing different detection strategies. As noted by Rogers (2008), bootstrapping comparisons can be used to test general effectiveness of a measure (e.g., effect sizes) but lack the rigor to be used for individual classifications (i.e., utility estimates). Put simply, utility estimates (e.g., sensitivity and specificity) should not be applied to bootstrapping comparisons. Deficient Research Designs The use of two research designs is discouraged on empirical grounds: partial-criterion comparisons and differential prevalence design. Because the accuracy of the group determination (e.g., feigning vs. genuine) is unknown, clear conclusions cannot be drawn from their findings. Partial-Criterion Comparisons This design uses a very limited or partial criterion in classifying the clinically relevant group. For example, Edens, Poythress, and Watkins-Clay (2007) used routine assessments by prison psychiatrists as the sole method of classifying feigned and genuine response style; this approach exemplifies the partial-criterion comparison. Unfortunately, this deficient design continues to be used and is sometimes seriously misconstrued as a known-groups design (see, for example, Green, Rosenfeld, Belfi, & Rohlehr, 2011). The partial-criterion design is sometimes observed in studies of feigned cognitive impairment in which most criteria of the MND model are typically omitted (Rogers, Bender, & Johnson, 2011). Differential-Prevalence Comparisons Differential-prevalence studies assume that certain groups will have a high prevalence of a specific response style (e.g., forensic patients for feigning and job applicants for defensiveness). Group differences have little practical significance without knowing: (a) what is the proportion of dissimulation in different groups, or (b) whether deviant scores represent dissimulation. Given this, it is conceivable that every “deviant” score represents a genuine response. Therefore, differential-prevalence comparisons represent a fundamentally flawed design (Rogers & Gillard, 2011). The best validation for measures of response styles is a combination of studies representing simulation design and known-groups comparisons. This combination maximizes both internal (simulation design) and external (knowngroups comparison) validity. Psychologists should take particular care to select measures with known-group

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comparisons, because these studies are frequently omitted from the test validation.

CLASSIFICATION ISSUES This section examines two core issues regarding the classification of feigning. Psychologists must wrestle with how many measures to administer and how to address discordant findings. In addition, they must consider the accuracy of measures for individual classifications. Incremental Validity Psychologists often believe that a convergence of findings across different measures contributes to incremental validity. As a counterposition, Sechrest (1963) demonstrated in his seminal article that the single best measure is often not improved by adding supplementary measures. As a forensic example, Kurtz and Meyer (1994) found that the SIRS alone was more accurate for the classification of feigning than either the MMPI-2 or the combined SIRS/MMPI-2. Psychologists must decide whether to use the single best measure or utilize a convergence of measures in establishing accuracy of classification for response styles. We recommend that psychologists employ multiple indices from different measures when malingering is suspected. The results should be analyzed on two parameters: domain and detection strategies. Feigning can be conceptualized with three broad domains (i.e., mental disorders, cognitive impairment, and medical complaints) that differ substantially in clinical presentation. For each domain, detection strategies can be identified for the clinical classification of malingering; however, these detection strategies vary in the extent of their validation and accuracy of classification. To facilitate this analysis, subsequent sections of this chapter address domains and their respective detection strategies. Clinicians must be ready to grapple with both convergent and divergent results. What about consistent results? With consistent results from well-validated strategies derived from different measures, psychologists should have increased confidence in their conclusions about response styles. Such confidence should not be confused with increased accuracy (i.e., incremental validity); unless empirically demonstrated, psychologists cannot conclude that multiple indicators have a higher level of accuracy. What about generally consistent results? The most common finding in forensic evaluations is that most of the indicators agree. However, one or more indices of

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response styles do not fit with the other indicators. One temptation is to ignore or explain away the discrepant findings. A more prudent course is to evaluate the results, taking into account (a) the accuracy of the measures and (b) the validity of the detection strategies. For example, a “genuine” classification on the SIRS-2 decision model, because of its accuracy, is likely to outweigh a lessinterpretable elevation on an MMPI-2 validity scale. In addition, some detection strategies (e.g., symptom validity testing) are much more robust than others (e.g., forced choice testing); their comparative effectiveness should be taken into account in making determinations. What about inconsistent findings? The first possibility is that the results are domain specific. For example, an examinee with a genuine major depression (i.e., mental disorder domain) may feign problems with attention, concentration, and immediate memory (i.e., cognitiveimpairment domain) within the context of a disability evaluation. Sometimes these cases can be resolved based on the accuracy of measures and relative validity of detection strategies. In other cases, the only logical determination is that the results are inconclusive.

As noted subsequently with the SIRS-2, the implementation of an indeterminate category is critical to the accuracy of classification, especially when addressing atypical responses. Because the indeterminate group remains unclassified, they should not be included in the utility estimates. Although Rubenzer (2010, p. 281) refers to these as hard cases, a more precise description might be too-closeto-classify without substantial errors. The latter description focuses on the imprecision of scores without making attributes about the case under consideration. Clearly, unclassified cases should not be treated as misclassifications since such inappropriately penalizes examiners for engaging in a prudent practice of minimizing errors.

Individual Classifications

Detection Strategies

Genuine responders often are not perfect in their presentations. This was nicely illustrated by Victor et al. (2009), who found that 41% of genuine responders failed at least one embedded effort measure in a neuropsychological battery of tests. Yet some practitioners adopt a “fall-throughthe-ice” mentality. Any failure (e.g., possible indicator of feigning) is viewed as definitive evidence of a pervasive response style. Like falling through the ice, the results are immediately catastrophic. This mentality is empirically unwarranted and is probably more illuminating about the response bias of the clinician than the response style of the examinee. Individual classifications are the sine qua non for the determination of response styles (Rogers, 2008). Utility estimates are essential in ascertaining the accuracy of these classifications. In line with Rogers, Sewell, and Gillard (2010), we believe that an important advance in clinical assessment would be to (a) classify the majority of cases with excellent accuracy rather than (b) classify all cases knowing that many errors will occur with marginal scores. Stated concisely, the following should be implemented with feigning and other measures: The best way to avoid the laser-accuracy myth is to create an indeterminate or unclassified category that is not computed in utility estimates.

Rogers (2008) provided extensive descriptions of detection strategies for feigned mental disorders. Practitioners must be sufficiently informed about how detection strategies are utilized with scales and specific indicators in the assessment of malingering and other response styles. Because detection strategies combine theory and empiricism, their use in testimony offers judges and juries more than simply numbers and cut scores. Instead, they provide the underlying logic and rationale for using particular scales and reaching a well-founded and rigorously tested conclusion. Effective detection strategies are categorized as either unlikely (i.e., their presence is indicative of feigning) or amplified (i.e., their magnitude is indicative of feigning).

MALINGERING OF MENTAL DISORDERS Psychologists should have a solid understanding of detection strategies as a conceptual foundation for their subsequent assessments of malingering and feigning. With this foundation, featured measures are introduced and discussed.

Unlikely Detection Strategies 1. Rare symptoms. This strategy uses symptoms and other clinical characteristics infrequently reported by clinical populations. Because malingerers are unaware of their infrequencies, they often over-endorse items addressing uncommon symptoms and other clinical characteristics. Rare symptoms represent one of the most robust detection strategies and are used by the majority of measures designed to identify persons with feigned mental disorders.

Evaluation of Malingering and Related Response Styles

2. Improbable symptoms. A minority of malingerers report or endorse symptoms that have a fantastic or preposterous quality. When a pattern of improbable symptoms is endorsed, the likelihood of a genuine presentation is very small. 3. Symptom combinations. Many symptoms commonly occur, but are rarely paired with certain other symptoms (e.g., hypomanic mood and increased sleep). Unless malingerers have a sophisticated understanding of psychopathology, they are unlikely to recognize these implausible symptom pairs. 4. Erroneous stereotypes. Many persons have misconceptions about symptoms associated with mental disorders. By utilizing erroneous stereotypes, persons feigning mental disorders can sometimes be detected. 5. Reported versus observed symptoms. Marked discrepancies between the examinee’s own account and clinical observations appear useful in the detection of malingerers when standardized measures are used. The key issue is the systematic direction of the discrepancies: the examinee’s overly pathologized reports in comparison to detailed observations. Care must be taken because many persons with genuine disorders lack insight about their psychopathology. 6. Spurious patterns of psychopathology. As an extension of symptom combinations, it examines patterns of scales that are rarely observed for persons with genuine disorders. It requires very large samples to test the complex patterns of scales (Rogers, 2008). Ideally, spurious patterns should be conceptually grounded. As an example from the Personality Assessment Inventory (PAI; Morey, 2007), hypervigilance is typically elevated if persecutory beliefs are elevated. Amplified Detection Strategies 1. Symptom severity. Even persons with severe impairments experience only a relatively small number of symptoms as “unbearable” in intensity. Malingerers are often unable to determine which symptoms and how many symptoms should have extreme severity. 2. Indiscriminant symptom endorsement. When asked about a broad array of psychological symptoms, some malingerers do not respond selectively but endorse a large proportion of symptoms, apparently adopting a more-is-better approach. 3. Obvious versus subtle symptoms. Malingerers tend to endorse a high proportion of obvious symptoms that are commonly known as indicative of mental disorders. Obvious symptoms are either considered alone or in relationship to subtle symptoms (i.e., “everyday”

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problems; not necessarily indicative of a mental disorder). When compared to genuinely impaired persons, malingerers often report a greater-than-expected proportion of obvious symptoms. An important distinction must be made between rare symptoms (e.g., MMPI-2 Infrequency Psychopathology [Fp]) and quasi-rare symptoms (MMPI-2 Infrequency [F] and Infrequency Back [Fb]). Unlike rare symptoms, quasirare symptoms are clinical characteristics rarely found in the general population. The conceptual inadequacy of quasi-rare symptoms becomes immediately apparent. To illustrate this point, auditory hallucinations are rare in community samples but quite common in certain clinical populations. However, psychologists should not equate auditory hallucinations (rare in general populations) with malingering. This conceptual inadequacy explains why patients with genuine disorders are often markedly elevated on scales using quasi-rare symptoms. Featured Measures A single chapter cannot comprehensively review the broad array of psychological measures adapted or developed for the assessment of feigned mental disorders. Therefore, this section addresses three featured measures that have been extensively validated. They include two multiscale inventories (i.e., MMPI-2 and PAI) and one structured interview (i.e., SIRS-2). As a general caution, psychologists should closely inspect test manuals and validation studies prior to using any measure for feigned mental disorders. For example, should the Millon Clinical Multiaxial Inventory–III (MCMI-III; Millon, 1994; Millon, Davis, & Millon, 1997) be used to assess feigning? Close inspection of test manuals reveals the following for its debasement index: (a) both the 1994 and 1997 manuals neglected the validation of the MCMI-III debasement index; (b) the MCMI-III debasement index appears confounded by psychopathology (i.e., nine clinical scales correlate ≥0.75 in the normative sample); and (c) extrapolations from MCMI-II research would be inappropriate because only 19 of 46 (41.3%) MCMI-II items were retained on the MCMI-III debasement index. More than a decade later, psychologists should be concerned about the lack of research data and the substantial error rates (e.g., false alarms [1-PPP] > 25%; see Schoenberg, Dorr, & Morgan, 2006) in existing research. Importantly, problems with validity and clinical utility are not limited to the MCMI-III; psychologists are urged to closely scrutinize the validation of all response-style measures.

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MMPI-2 and MMPI-2-RF Psychologists are faced with the immediate decision regarding whether to use the traditional MMPI-2 or recently published MMPI-2 Restructured Form (MMPI-2RF; Tellegen & Ben-Porath, 2008). The MMPI-2 has been extensively researched (see Greene, 2008). Moreover, Rogers, Sewell, Martin, and Vitacco (2003) conducted an extensive meta-analysis of the MMPI-2 and feigned mental disorders. They combined 65 feigning studies with 11 diagnostic studies in systematically evaluating the effectiveness of feigning scales when considering specific disorders and referral issues. The key findings from this meta-analysis are summarized: 1. F and Fb, representing quasi-rare symptom strategies, have marked elevations for patients with certain genuine disorders (e.g., Ms > 85T for PTSD). These scales also have a wide range in cut scores. For example, the cut scores for F range remarkably from 65T to 120T. 2. Fp, a true rare symptom strategy, is less affected by potentially problematic diagnoses (i.e., Ms < 70T). In addition, it also has a narrower range of cut scores than F and Fb (77T to 99T). 3. The Dissimulation Scale [Ds], using erroneous stereotypes as a detection strategy, proved to be an effective approach that was not unduly affected (i.e., Ms < 70T) by diagnoses such as PTSD that produce marked elevations on certain feigning scales. Besides using an entirely different detection strategy, a second advantage of Ds is that studies used the same cut score (feigning > 35 raw) thereby facilitating interpretation. 4. Within the domain of feigned mental disorders, the Fake Bad Scale (FBS) provided similar scores for feigners (M = 80.71) and patients with genuine disorders (M = 74.96).1 Two major investigations have examined the usefulness of the MMPI-2-RF for the evaluation of feigned mental disorders in criminal (Sellbom, Toomey, Wygant, Kurcharski, & Duncan, 2010) and civil (Rogers, Gillard, Berry, & Granacher, 2011) forensic samples. The major findings are summarized: 1. F-r scales have similarly high elevations for examinees with genuine disorders in both criminal (M = 79.10) and civil (M = 78.78) samples. For specific disorders, Rogers, Gillard, et al. (2011) found marked elevations 1 The

Fake Bad Scale was recently changed to Symptom Validity Scale, due to criticisms that the term fake bad may be pejorative.

2.

3.

4.

5.

for major depression (M = 83.23). Examinees with genuine disorders can easily have elevations in the 100T to 110T range (i.e., M + 1 SD). Fp-r scales performed remarkably well (Ms < 55T) for specific genuine disorders in the civil sample; however, a moderate elevation (M = 66.37) was observed in the criminal sample. Infrequent Somatic Responses Scale (Fs), as a new scale in the domain of feigned medical complaints, was understandably less effective than F and Fp in identifying persons feigning mental disorders. Cut scores for F-r varied between the two studies. Sellbom et al. (2010) found 120T was the best cut score for feigning; however, it still produced a substantial rate of false alarms (1-PPP) at base rates of .15 (i.e., 36%) and .30 (i.e., 19%). In contrast, Rogers, Gillard, et al. (2011) found F-r ≥ 130T produced the best classification with a low false alarm rate of 12% as a base rate of .20. Marked discrepancies were found in the Fp cut scores. For Sellbom et al. (2010), a cut score > 110T was the most effective with somewhat better false alarms: 22% at .15 and 10% at .30 base rates. In stark contrast, no feigners in the study conducted by Rogers, Gillard, et al. (2011) had this very extreme elevation (i.e., sensitivity = 0.0%). Instead, a cut score of ≥90T was the most useful with a false alarm rate of 15%.

An important consideration, currently unaddressed by the MMPI-2 and MMPI-2-RF, is the use of an unclassified group so that psychologists avoid the laser-accuracy myth of cut scores. For feigning scales, standard errors of measurement (SEMs) must be evaluated as part of the unclassified group. For the MMPI-2-RF, the SEMs are substantial (see Tellegen & Ben-Porath, 2008): • SEM for F-r = 10T; 95% confidence level = 19.6 • SEM for Fp-r = 10T; 95% confidence level = 19.6 • SEM for Fs = 12T; 95% confidence level = 23.5 Psychologists must decide how rigorously they apply SEMs to their classifications. Rigor for the unclassified category can vary from a comparatively lax +1 SEM (15.9% false positives) to more rigorous +1.5 SEMs (6.9% false positives), and +2 SEMs (2.3% false positives). For F-r > 90T at 1.5 SEMs, the unclassified group would range from 75T to 105T. Beyond SEMs, additional rules may need to be instituted for cut scores to minimize misclassifications. Researchers have also tested the usefulness of the MMPI-2-RF in identifying persons feigning cognitive

Evaluation of Malingering and Related Response Styles

impairment or somatic complaints. When used with persons simulating head injuries, Wygant, Ben-Porath, Arbisi, Berry, Freeman, and Heilbronner (2009) found the effect sizes for MMPI-2-RF validity scales were comparatively low (Cohen’s d s from .42 to .90), although the Fp-r evidenced some discriminability in the very high range (see their Table 3). When used with persons directed to feign a service-related physical injury, very large effect sizes (d s > 1.50) were found for all the scales. Two issues deserve a brief comment. First, Fs (d = 1.97) does not appear to be any more effective than F-r (d = 2.03) or FBS (d = 2.31), thereby raising questions about the usefulness of Fs with persons feigning medical problems. Second, the simulation instructions have limited relevance for most feigned medical problems; feigners are more likely to fake pain and associated symptoms rather than an injury itself, for which there is often physical evidence (e.g., current X-rays) and treatment records can be easily checked. Beyond the Wygant et al. (2009) study, psychologists are likely to have concerns regarding the discriminability of the Fs scale. It correlates greater than .90 with F-r and Fp-r for those feigning mental disorders (Tellegen & BenPorath, 2008), indicating that its elevations are not specific to feigned medical complaints. Ben-Porath and Tellegen’s (2008) interpretative guidelines for the MMPI-2-RF scales utilize normative data rather than empirically derived cut scores. Analogous to quasi-rare symptoms, norms are based on unimpaired populations in the general public. Therefore, norm-based cut scores are unlikely to optimize discriminability. PAI The PAI (Morey, 1991, 2007) rivals the MMPI-2 as a multiscale inventory for the evaluation of feigning and other response styles. The PAI has two important advantages over the MMPI-2 and MMPI-2-RF. First, the PAI validity scales are non-overlapping. In contrast, MMPI-2 validity scales overlap with each other and with clinical scales, thereby confounding their interpretation and classificatory utility. Interestingly, the MMPI-2-RF validity scales do not overlap with each other but with clinical scales. Second, the PAI validity scales typically apply uniform cut scores for feigning in contrast to the more variable cut scores of the MMPI-2 and MMPI-2-RF. The PAI utilizes three empirically based indicators to identify persons feigning psychopathology: 1. The Negative Impression Management (NIM) scale is based on rare symptom strategy, using empirically derived items infrequently endorsed by normative and patient samples.

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2. The Malingering Index (MAL index; Morey, 1996) is based on spurious patterns of psychopathology and is composed of eight configural rules utilizing PAI scales and subscales. 3. Finally, Rogers Discriminant Function (RDF) is a statistically derived approach, which uses 20 loadings on PAI scales and subscales. As such, the RDF lacks a conceptual basis. Hawes and Boccaccini (2009) performed a metaanalysis of 26 investigations that examined feigning of the PAI validity scales. They found that simulation studies produced very large effects (overall M d = 1.55) that outstripped the known-groups comparisons (overall M d = .77). However, the latter results were somewhat attenuated by the inclusion of a partial-criterion study (Edens et al., 2007). Sellbom and Bagby (2008), who excluded this study, reported very large effect sizes for NIM and the MAL index. Nonetheless, the effect sizes for RDF remain very low. In summary, the RDF appears to lack discriminant validity in known-groups comparisons and should not be used by itself, especially in forensic settings. Sellbom and Bagby (2008) provided an in-depth analysis of cut scores for the PAI based on both simulation and known-group designs. Because most feigners achieve some NIM elevation, scores in the average range could be used to rule out feigning. In contrast, extreme scores on NIM (≥110T) have a very high specificity, indicating that very few examinees with genuine disorders are likely to produce such elevated scores. Before evaluating the possibility of feigning, response consistency should be checked because random profiles can produce extreme elevations. Although results vary by sample, we propose the following guidelines based on the work of Hawes and Boccaccini (2009, p. 120): 1. Screen for feigning: a. Elevations on NIM from 77T to 109T (about of examinees with genuine disorders will be classified) b. Elevations on the MAL index of 3 or 4 (about of examinees with genuine disorders will be classified)

20% mis14% mis-

2. Determinations of feigning: a. Extreme elevations on NIM > 110 (about 2% of examinees with genuine disorders will be misclassified) b. Elevations on the MAL index > 4 (about 1% of examinees with genuine disorders will be misclassified)

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Special Assessment Issues

Rogers, Gillard, Wooley, and Ross (2011) evaluated the accuracy of NIM cut scores indeterminate group (i.e., a narrow band of ± 5T [± 1 SEM]). Based on classification errors only, over 50% of too-close-to-call cases were either false positives or false negatives. When measurement errors were also considered, more than three fourths of the classifications were wrong. To avoid the laser-accuracy myth, an unclassified group should be created with a minimum of ±1 SEM. Like the SIRS-2 decision rules, additional modifications would need to be made for the MAL index. SIRS and SIRS-2 The Structured Interview of Reported Symptoms (SIRS; Rogers, Bagby, & Dickens, (1992) is a fully structured interview for the systematic assessment of feigned mental disorders. It utilizes four unlikely and four amplified detection strategies. The SIRS has excellent interrater reliability and discriminant validity (see Rogers, 2008). Examinees are typically classified as feigning mental disorder if they elevate three or more scales in the probable feigning range. Less frequently, feigners will have extreme elevations (i.e., definite feigning range) on one or more primary scales. Psychologists classify SIRS profiles into one of three general categories: feigning, indeterminate, and genuine (non-feigning). Rogers and his colleagues (2010) tackled the major revision of the SIRS, resulting in the SIRS–Second Edition (SIRS-2). A major consideration was an expansion of the clinical database from 100 patients in the original SIRS. For the SIRS-2, data were available on 193 ClinicalGeneral, 1,232 Clinical-Forensic, and 589 Correctional examinees who were compared to 167 feigners. A further concern was to ensure that the SIRS-2 would remain effective with very impaired inpatients. To address this concern, a Clinical-General sample was recruited from the Trauma Unit at the Timberlawn Mental Health System in Dallas. These patients were severely impaired (M GAF = 36.12) and manifested on the SADS-C very substantial levels of depression (22.3% moderate, 64.9% severe), suicidal ideation (80.0% for the current episode), psychotic symptoms (22.9% moderate, 12.0% severe), and dissociative symptoms (18.7% moderate, 32.0% severe). Most patients disclosed severe childhood and adult traumas and reported a very high level (M = 13.2) of PTSD symptoms when interviewed using the Structured Clinical Interview for DSM-IV Disorders (SCID-I; First, Spitzer, Williams, & Gibbon, 1997). The addition of these severely impaired inpatients raised questions regarding the original SIRS classification

and the increased likelihood of false-positives (1specificity) and false-alarms (1-PPP). Although the original plan had been to revise and update the SIRS manual, these new findings clearly indicated the need for more fundamental changes. Each SIRS-2 change was tested and cross-validated via a random jackknife procedure. Three major improvements are outlined: 1. The RS-Total scale utilizes rare symptom strategy on non-primary-scale items for differentiating feigners from patients with genuine but atypical presentations. 2. The Modified Total (MT) Index is used for SIRS-2 protocols with one or more scales in the probable or definite range. It is based on the sum of four primary scales and used to differentiate both classified (i.e., feigning and genuine responding) and indeterminate groups. 3. The SIRS-2 research uncovered a small number of feigners who remained completely disengaged during the SIRS-2 administration, declining to report virtually any common symptoms found in clinical populations. The Supplementary Scale (SS) Index discriminates these disengaged persons from other feigners (d = 3.99) and genuine responders (d = 3.11). They are placed in the indeterminate-evaluate category so that the feigning can be evaluated by other measures. Other important modifications to the SIRS-2 include (a) the multistep decision model, (b) removal of the Sudden Onset (SO) scale, (c) addition of the Improbable Failure (IF) scale for examinees missing very simple cognitive items, and (d) refined interpretation of the DS scale. The SIRS-2 interrater reliability, like the SIRS, is excellent with weighted averages for eight samples of .98 for the primary scales. For accuracy of interpretation, the 95% confidence interval has a mean of 1.00 (range from 0.00 to 1.45) for the primary scales and the RS-Total. This result indicates that psychologists can be highly confident in most cases that the true SIRS-2 score is within 1 point of the observed score. The SIRS-2 evidences excellent convergent and discriminant validity. With the MMPI/MMPI-2, for example, convergent correlations average .58 with feigning scales. The primary focus is discriminant validity in differentiating feigned from genuine responding. On average, the effect sizes are large to very large for simulation studies, known-groups comparisons, and bootstrapping comparisons. The SIRS-2 uses a multistep decision model for the explicit classification of feigned and genuine responding. It contains two unclassified groups: indeterminateevaluate (i.e., likely to be feigning but the data are

Evaluation of Malingering and Related Response Styles

inconclusive) and indeterminate-general (i.e., likely to be genuine responding but the data are inconclusive). When the utility estimates are applied to the 77% of the examinees explicitly categorized as feigners and genuine responders, the following rates were obtained: Sensitivity = .80; Specificity = .975; Positive Predictive Power (PPP) = .91; Negative Predictive Power (NPP) = .91; Overall Correct Classification (OCC) = .91; False-Positives = 2.5%. In summary, these classification rates, coupled with very small 95% confidence intervals, demonstrate the clinical utility of the SIRS-2. Beyond formal utility estimates, the categorization of indeterminate-evaluate signals the strong need for further assessment with feigning occurring in the clear majority of cases. Rubenzer’s (2010) concern that only definite classifications (i.e., feigning and genuine responding) were used for the utility estimates raises an interesting question regarding how indeterminate groups should be treated.2 From our perspective, a highly accurate classification of 77.0% of SIRS-2 protocols with minimal false-positives is far superior to classifying all protocols at the expense of a much higher false-positive rate. Of course, this fundamental issue must be considered with all feigning measures. To avoid the laser-accuracy myth in cut scores, we maintain that (a) indeterminate or unclassified groups should be required for all feigning measures, and (b) unclassified groups are not errors (i.e., they should be excluded for utility estimates), but examples of prudent test development. In summary, the SIRS-2 is a rigorously validated measure for the assessment of feigned mental disorders. When malingering is suspected, the SIRS should be considered a standard component of most feigning assessments. Given the accuracy of its individual classifications and reliability of individual scores (very small 95% confidence intervals), results of the SIRS should be heavily weighted if discrepancies occur with other measures in the assessment of feigned mental disorders. FEIGNED COGNITIVE IMPAIRMENT Since the first edition of this volume, 340 articles were published on feigned cognitive impairment in neurology 2 As

evidence of the SIRS-2 discriminability, inclusion of the indeterminate groups into possible fake (feigned and indeterminate-evaluate) and possible genuine (genuine and indeterminategeneral) still produces an excellent overall classification rate (OCC = 0.88). However, it violates the SIRS-2 primary objective of classifying both feigners and genuine responders with a high level of accuracy.

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or neuropsychology. Consensus statements from the National Academy of Neuropsychology (NAN; Bush et al., 2005) and the American Academy of Clinical Neuropsychology (AACN; Heilbronner et al., 2009) demonstrate its importance. This section reviews continuing and recently emerged issues. Assessment of potentially feigned cognitive impairment differs fundamentally from feigned mental disorders in two crucial ways: (1) tasks required of the feigner and (2) detection strategies employed by assessment measures. As observed by Rogers and Vitacco (2002), the principal task for feigned cognitive impairment is effortful failure. In other words, would-be malingerers must convince the examiner that their efforts are sincere and their ostensible impairments are genuine. Effortful failure is strikingly different from fabrication of symptoms and associated features typically required for feigned mental disorders. Because of these differences, psychologists must utilize detection strategies that focus specifically on cognitive feigning. As a concrete example, strategies such as “rare symptoms ” make little conceptual sense for the detection of purported deficits on the WAIS-IV. Therefore, detection strategies specific to feigned cognitive impairment must be considered. In some cases, a malingerer may feign both cognitive dysfunction and psychopathology but this does not alter the need to use independent strategies validated in each domain. The definition of malingering does not change, despite differences in presentation and detection strategies: Malingered cognitive impairment must involve the intentional gross exaggeration or fabrication of intellectual or neuropsychological deficits for an external goal. For a person with superior abilities (e.g., IQ of 130), this definition would be altered slightly by substituting the word decrements for deficits because the grossly exaggerated impairment might still fall in the average range (e.g., IQ of 95). This point must be emphasized. Many studies try to substitute other terms, such as incomplete effort, suboptimal effort, and poor motivation. These terms cannot be equated with either feigning or malingering. Most persons are required to participate in forensic evaluations. The level of perceived coercion is likely to vary widely by circumstances of the evaluation and the individual characteristics of the examinees. The farreaching implications of these evaluations should not be overlooked. While generally adequate, forensic evaluations do not represent the optimal conditions for the assessment of cognitive functioning. To expect examinees to put forth optimal efforts under suboptimal conditions appears naive. As subsequently discussed, legal cases may have jurisogenic (i.e., the legal equivalent of iatrogenic;

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Special Assessment Issues

see Weissman, 1990) effects that are underappreciated by neuropsychologists. The concept of inadequate motivations is both imprecise and inferential. What are the standards for judging certain motivation as “poor,” “adequate,” or “good”? The simple designation of “poor motivation” may have devastating consequences for an examinee. Psychologists will likely want to avoid this level of imprecision and the potential ethical concerns of drawing unwarranted conclusions. Psychologists certainly encounter clients who put forth incomplete or suboptimal effort. The reasons may include: (a) decreased interest and effort as a result of genuine cognitive impairment; (b) decreased interest and effort as a result of a comorbid condition (e.g., pain or depression secondary to head injury); (c) expectations of failure based on recent performance; (d) stress and preoccupation with the potential consequences of the evaluation (e.g., loss of disability income); (e) reaction to inferences from the examiner’s questions that the impairment is trivial; and (f) attempts to feign cognitive impairment. Psychologists must address these six reasons for suboptimal effort. In a minority of cases, psychologists may feel confident that they are able to address effectively each of these reasons for suboptimal effort. Occasionally, they may have sufficient data to conclude that the suboptimal effort resulted in feigning with other explanations being systematically ruled out. In most cases, psychologists lack the data to address systematically the various reasons for suboptimal effort. How should psychologists describe suboptimal effort in the great majority of cases in which feigning cannot be isolated as the predominant reason? To avoid any serious misunderstandings, we recommend that psychologists employ two safeguards: (1) address the possible reasons for suboptimal effort, and (2) proactively clarify the lack of known relationship between this diminished effort and feigning. The following example from a case from the second author (SDB) concerning an examinee involved in a motor vehicle collision demonstrates this approach: The examinee did not appear to put forth her best possible effort during several tests of cognitive ability. Reasons for this include cognitive and emotional impairment as a result of the car accident, pain, expectations of failure, stresses related to the evaluation, or deliberate attempts to appear more impaired. These test findings cannot be used to establish feigning or any other reason for suboptimal effort.

Evaluations of feigned cognitive deficits pose several important ethical issues for psychologists. Because many

specialized measures only evaluate feigning, what type of informed consent is ethically required? Youngjohn, LeesHaley, and Binder (1999) and Boone (2007) have argued that informing clients about cognitive-feigning measures may reduce their effectiveness; instead, they advocate instructing clients to put forth maximum effort. While maintaining the effectiveness of cognitive-feigning measures is a laudable goal, it should not be achieved via the neglect of informed consent. In describing the nature of psychological services (American Psychological Association, 2002, Ethical Standard 9.03), a basic obligation occurs to describe their broad objectives. This obligation can be satisfied by a general statement at the outset of the evaluation (Slick et al., 1999), which may also serve a beneficial purpose in diminishing the likelihood of malingering (Johnson & Lesniak-Karpiak, 1997). While coaching examinees may decrease the effectiveness of feigning measures, a general caution does not provide any useful details about how to avoid detection. A second ethical issue is posed by deliberate misrepresentations to the examinee. For example, the Rey 15-Item Test is sometimes intentionally misdescribed as a “difficult” memory task, when this is known to be inaccurate. Psychologists should categorically avoid any misrepresentations to persons being evaluated. Base Rates of Neurocognitive Malingering Two highly-cited articles are often used as conclusive evidence of high base rates of malingered mild traumatic brain injury (mTBI): 38.5% from Mittenberg, Patton, Canyock, and Condit (2002) and 40% from Larrabee (2003). Although these estimates might possibly be accurate, forensic examiners should be aware of their methodological and conceptual limitations. For example, Mittenberg et al.’s (2002) survey asked ABCN diplomates to estimate the percentage of their annual cases that involved “probable symptom exaggeration or malingering” (p. 1101), which incorrectly suggests that the two are interchangeable, thereby inflating the estimate of true malingering. Other surveys provide data that are markedly discrepant with the 38.5% estimate reported by Mittenberg and his colleagues. For example, Sharland and Gfeller’s (2007) survey of 188 members of the National Academy of Neuropsychology (NAN) yielded highly variable rates for probable malingering and definite malingering that depended on the particular wording chosen in the question. While the median estimate of deliberate exaggeration of “cognitive impairment” was 20% in litigating cases, the median for “definite malingering” was merely

Evaluation of Malingering and Related Response Styles

1% (Sharland & Gfeller, 2007; see Table 3, p. 216). The survey did not specify the condition being malingered. In yet another survey, Slick, Tan, Strauss, and Hultsch (2004) asked 39 experts (defined as psychologists who have published two or more papers on malingering in the past 5 years) to rate the prevalence of malingering on a Likert scale (30%). Only 12.5% thought that the prevalence of “definite malingering” exceeded 30%. In stark contrast to Mittenberg et al., two-thirds reported that “definite malingering” occurs in less than 20% of cases. In light of these data, there is no evidence that the Mittenberg estimate of malingering prevalence should be singled out as accurate. Larrabee’s (2003) 40% base rate estimate is simply an aggregation of 11 past studies that ranged dramatically from 15% to 64%. Although Larrabee’s pooled estimate has an element of empiricism that the surveys do not, it included studies utilizing the deficient differentialprevalence design (i.e., simple presence of litigation) to designate “motivated performance deficit suggestive of malingering” (p. 411, emphasis added). As we have discussed, equating mere presence of litigation with malingering leads to inflated base-rate estimates. Interestingly, Larrabee’s 11-study review was not the topic of the paper; rather it was only briefly mentioned in the literature review of earlier research, which may explain the absence of discussion of other possible sources of low scores on effort tests. Larrabee and others should be commended for working toward a better appreciation of base rates, despite their methodological limitations. The breadth of the estimates in published research—from 4% to 64%—speaks volumes about their imprecision. As Victor et al. (2009) observed, many examinees score below recommended cut scores (i.e., “fail”) on at least one effort test in a battery of tests. We reiterate our caution against the fall-throughthe-ice mentality. Methodologically, researchers should be applauded for testing cognitive feigning measures with different criterion groups (e.g., TOMM with depression, TBI, etc.). For realworld applicability, the effects of comorbid conditions (e.g., mTBI and depression) are essential. Without such studies, the probability of false-positive errors and inflated base rates reduces the accuracy and credibility of these estimates. Detection Strategies Detection strategies for cognitive feigning can be embedded within preexisting measures of neurocognitive dysfunction or can be freestanding specialized scales. This

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section outlines these detection strategies, summarizing the recent literature on their effectiveness. Rogers, Harrell, and Liff (1993) identified six basic detection strategies used to identify persons feigning cognitive impairment, which have been supplemented by additional strategies in the past 25 years (Rogers, 2008). In general, detection strategies can be grouped into two domains: excessive impairment and unlikely presentations (Rogers, 2008). Examples of excessive impairment are failures on very easy items (i.e., floor effect) and failures substantially below chance on measures employing forced-choice formats (i.e., symptom validity testing or SVT). Examples of unlikely presentations include similar performance on easy and difficult items (i.e., performance curve) and unexpected answers on items employing forced-choice formats (i.e., magnitude of error). In general, detection strategies utilizing unexpected patterns are less transparent than excessive impairment and are likely to be more robust indicators of feigning as a result. Three common detection strategies are subsumed within the excessive impairment domain with feigned performance overreaching the level of impairment typically found in brain-injured patients. These strategies include (a) floor effect, (b) SVT, and (c) forced-choice testing (FCT). Though less common, reaction times have been examined as well with mixed results. Table 21.1 summarizes these detection strategies and provides representative examples of the sample cognitive measures. Floor effect strategy is based on the notion that malingerers have difficulty distinguishing which cognitive abilities are unlikely to be compromised in patients with genuine neuropsychological impairment. This strategy was first promulgated by Andre Rey in the 1940s (see Lezak, Howieson, & Loring, 2004) in devising a cognitive task (i.e., Rey 15-item) that appears moderately complex (recall of 15 separate items) but is actually simple (items are organized into easy-to-remember categories). As operationalized, the floor effect strategy typically uses very simple tasks that can be successfully completed by most (e.g., ≥90%) cognitively impaired persons. For example, most patients with genuine cognitive impairment are able to achieve at least 90% accuracy on the second trial of the Test of Memory Malingering (TOMM; Tombaugh, 1996). This approach, of course, works only if the examinee does not recognize the simplicity of the memory task or know of the nature and purpose of the test that is employed. The floor effect strategy has become a popular detection method for cognitive feigning (see Table 21.1). Despite its intuitive appeal, psychologists should be cautious in applying the floor effect strategy for at least two

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Special Assessment Issues

TABLE 21.1

Detection Strategies on Feigned Cognitive Impairment: Measures and Validation

Strategy

Measure

Clinical Relevance

Floor effect

Rey 15-item

Many studies found good specificity but modest sensitivity; it is limited by varying cut scores and possible false positives with specific conditions. Boone et al. (2002) developed a recognition trial that improved accuracy.

Floor effect

TOMM

Several studies found high classification rates but sensitivity is low in some samples.

Floor effect

RDS

Two studies found cut score < 7 had good specificity but modest sensitivity; research used the deficient differential-prevalence design.

Floor effect

LMT

Inman et al. (1998) reported three studies supporting the use of the LMT as a screen. Several studies since have yielded generally good classifications in neurologic samples (e.g., Vagnini et al., 2006).

Floor effect

RMI

Killgore and DellaPietra (2000) found that these six items yielded 98% specificity and 100% specificity and 97% sensitivity among simulators and a mixed neurologic sample; it needs replication.

Performance curve

VIP

Frederick, Crosby, and Wynkoop (2000) found very positive results when restricted to higher scores; it is limited by the small number of memory-impaired patients and needs replication.

Performance curve

DCT

Several studies yield moderately high classifications, but studies use different cut scores.

Performance curve

LNNB-S

McKinzey et al. (1997) found high rates on cross-validation; it appears clinically useful for LNNB administrations.

MOE

WMS-R-S

Martin et al. (1998) found moderately high classification; it needs replication.

Atypical

DS-Vocab

Mittenberg et al. (1995) found moderate classification but substantial false-positive rate on the WAISR-S. Iverson and Tulsky (2003) found acceptable specificity but low sensitivity on the WAIS-III.

Atypical

WMS-R-S

Mittenberg et al. (1993) found high classification; it has been replicated (Iverson, Slick, & Franzen, 2000).

Sequelae

NSI

Ridenour et al. (1996) provided promising data on the overall level of reported symptoms to identify simulators but cross-validation yielded 27% false-positive rate (Ridenour, McCoy, & Dean, 1998).

SVT

PDRT

Several studies found superb specificity but poor sensitivity.

SVT

HDMT

Several studies found superb specificity but poor sensitivity.

SVT

TOMM

Several studies found superb specificity but poor sensitivity

FCT

CVLT-II

Root et al. (2006) reported sensitivities ranging from .04 to .60 and specificities ranging from .81 to 1.00.

FCT

PDRT

Moderate classification; research is limited by differential prevalence design and lack of studies on comorbidity.

FCT

HDMT

Guilmette et al. (1993) used performance below 75% correct to achieve a high classification; it has been replicated in mixed samples (e.g., Prigatano et al., 1997; Woods et al., 2003).

FCT

21-Item Memory

Highly variable classification rates were found across studies.

FCT

“b” Test

Boone et al. (2000) found promising data; initial validation in Spanish-speaking sample as well (VilarLopez et al., 2007) but both forms need replication and it may lack sensitivity in dementia (Dean et al., 2009).

FCT

WMT

Cross-validated in multiple samples and appears effective; see Bowden, Shores, and Matthias (2006) for a possible exception.

Time

CPT-II

Ord, Boettcher, Greve, and Bianchini (2010) found that the standard error of Hit RT yielded sensitivity = .41 and specificity >.95.

Time

TOMM

Rees et al. (1998) found longer response times for simulators than brain-injured patients; it needs replication.

Note: TOMM = Test of Memory Malingering; HDMT = Hiscock Digit Memory Test; LMT = learning memory test; RDS = reliable digit span, or the sum of raw scores for highest number forward (correct on both trials) plus highest number backward (correct on both trials); TONI-S = specially scored Test of Nonverbal Intelligence; Ravens-S = specially scored Ravens Standard Matrices; DCT = dot-counting test; LNNB-S = specially scored Luria Nebraska Neuropsychological Battery; MOE = magnitude of error; WMS-R-S = specially scored Wechsler Memory Scales-Revised subtests; Atypical = atypical presentation; WAIS-R-S = specially scored Wechsler Adult Intelligence Scale–Revised; CVLT-S = specially scored California Verbal Learning Test; sequelae = psychological sequelae; NSI = Neuropsychological Symptom Inventory (Dean, 1982); RMI = Rarely Missed Index of the WMS-III; SVT = symptom validity testing; PDRT = Portland digit recognition test; consistency = consistency across parallel items; WMT = word memory test; Time = response time.

Evaluation of Malingering and Related Response Styles

reasons. First, the range of genuine cognitive impairments militates against items that work equally well for all cognitive deficits. For example, the second trial of the TOMM appears to be highly effective with brain-injury cases (false positives = 2.2%) but not with dementia (false positives = 27%). Second, examinees can be easily coached to foil the floor effect. Its utility may be further compromised by test information on the Internet (Bauer & McCaffrey, 2006; see also Ruiz et al., 2002). Symptom validity testing (SVT) examines an improbable failure rate based on statistical probability. First championed by Brady and Lind (1961), most SVT methods utilize a two-choice format; even persons with total incapacity should not score significantly below chance. The SVT strategy has been utilized by numerous cognitive measures, typically in combination with other strategies. Because the SVT takes into account total incapacity, this strategy tends to be effective only with extreme forms of feigning. While generally successful in less than one third of simulating cases, the SVT is unique among detection strategies in ruling out many other reasons for poor performance. Psychologists can be very confident in their conclusions about cognitive feigning when performance on SVT is significantly below chance. However, two important cautions are warranted. First, unless the alternatives are empirically demonstrated to be equiprobable in clinical populations, SVT cannot be used. Second, failed SVT is not always intentional. For example, patterned responding (e.g., mostly selecting the first choice) can produce below-chance performance. Even when it is intentional, failed SVT may reflect genuine conditions such as somatoform or factitious disorders instead of malingering (Boone, 2007). The bottom line is that whereas many tests can assess effort, no test assesses the underlying reasons for suboptimal effort or intentionally poor performance. Memory complaints in forensic cases are sometimes focused on personal recollections (e.g., amnesia for the offense). Frederick, Carter, and Powel (1995) proposed that SVT could be utilized to address purported amnesia by constructing two-choice alternatives for the events in question. Care must be taken to develop equally plausible alternatives (Denney, 1996; Frederick & Denney, 1998) and to test these alternatives on naive persons to ensure that they have an equal likelihood of being selected. For example, a question about the victim’s hair color may elicit “brown” more often than “blond” responses based on reasonable inferences about the prevalence of different hair colors (see Rogers & Shuman, 2000). Forced-choice testing (FCT) is simply lower-thanexpected performance based on normative data. The

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limited data from FCT applications in traditional neuropsychological tests suggest generally acceptable utility (e.g., CVLT-II; Root et al., 2006; Rarely Missed Index of the WMS-III; Axelrod, Barlow, & Paradee, 2010), though typically less so than that seen in freestanding effort tests. Unlike other detection strategies, FCT is not typically theory-driven or a mathematical probability. It simply evaluates group differences and attempts to establish an optimum cut score. FCT appears to have been introduced because SVT yielded only modest sensitivity rates (Binder & Willis, 1991). Most FCT measures are severely limited by a lack of cross-validation. Without extensive samples of cognitively impaired individuals including those with comorbid medical conditions and mental disorders (e.g., major depression or substance abuse), the false-positive rates of FCT cannot be established. Psychologists must be careful to distinguish between FCT (questionable specificity) and SVT (very high specificity) in drawing their conclusions. The second domain for cognitive feigning is unlikely presentations that capitalize on unusual responses to specific items or sets of items. Detection strategies include magnitude of error (MOE) and performance curve. Methods utilizing these strategies are summarized in Table 21.1. Magnitude of error (MOE) evaluates cognitive feigning based on unlikely errors that are uncommon among examinees with genuine cognitive disorders. Especially in multiple-choice formats, unlikely errors can be identified by inspecting the types of wrong responses (e.g., gross mistakes or near misses). A reasonable assumption is that most malingerers are not concerned with how to answer items incorrectly. Martin, Franzen, and Orey (1998) designed a multiple-choice format for Visual Reproduction and Logical Memory subtests of the WMS-R (Wechsler, 1987). They found MOE was highly effective at identifying simulators who endorsed a high proportion of unexpected (i.e., statistically improbable) errors. Bender and Rogers (2004) found the MOE to be the most effective strategy for identifying simulators, even when simulators were warned about MOE. Performance curve is based on the thesis that malingerers do not take into account item difficulty in choosing which items to fail. First identified by Goldstein (1945), performance curve compares the proportion of correct items across different gradations of item difficulty. When plotted on a graph, genuine patients and controls typically evidence a negative curve with worse performance on more difficult items. In contrast, some malingerers exhibit flat or even positive curves. This strategy appears to be

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Special Assessment Issues

moderately effective across different measures, including Raven standard progressive matrices (Gudjonsson & Shackleton, 1986; McKinzey, Podd, Krehbiel, & Raven, 1999), the Dot Counting Test (DCT; Binks, Gouvier, & Waters, 1997) and the Luria Nebraska Neuropsychological Battery (LNNB; McKinzey, Podd, Krehbiel, Mensch, & Trombka, 1997). In addition, several versions of the performance curve are central to the Validity Indicator Profile (VIP; Frederick, 2003; Frederick, Crosby, & Wynkoop, 2000). In summary, performance curve strategy is robust with consistently positive findings across different measures. Unfortunately, very little research has been conducted on the performance curve since 2000. Atypical presentation was traditionally considered to be the unstructured, clinical judgment of the examiner as to the presence of symptoms that did not make “neuropsychological sense” (Rogers et al., 1993). However, this approach was refined to include the presence of disparate findings that research has indicated rarely occur in patients with genuine cognitive impairment. For example, research has indicated that genuinely impaired persons generally score higher on the WMS-R Attention/Concentration Index than the General Memory Index, while simulators tend to manifest the opposite pattern (Iverson, Slick, &, Franzen, 2000; Mittenberg, Azrin, Millsaps, & Heilbronner, 1993). Similarly, atypical presentation was applied to the WAIS-R Vocabulary–Digit Span difference. Mittenberg, Theroux-Fichera, Zielinski, and Heilbronner’s (1995) discriminant function yielded a modest hit rate of 70.5% plus an unacceptably high (36.8%) false-positive rate. Iverson and Tulsky (2003) found that the WAIS-III Vocabulary–Digit Span split had good specificity but low sensitivity. Descriptive data from disability evaluations cast further doubt on the Vocabulary–Digit Span difference. Contrary to predictions, Williams and Carlin (1999) found that claimants with atypical presentations had significantly higher IQ scores than those with expected presentations. Finally, research on the California Verbal Learning Test (CVLT; Delis, Kramer, Kaplan, & Ober, 1987) indicated that simulators evidence atypical performance on both recognition and recall (Trueblood & Schmidt, 1993; Sweet et al., 2000). Root et al. (2006) applied atypical presentation in an FCT format on the CVLT-II with similar results. Psychological sequelae is a variation of atypical performance for which feigners claim bogus psychological symptoms as a result of their cognitive abilities (Rogers et al., 1993). A major concern about this strategy is that it could fall victim to the fallacy of a global response style bridging across domains (e.g., using feigned mental disorders to evaluate feigned cognitive impairment). To

avoid this methodological flaw, inquiries must focus on the specific effects of a cognitive injury (e.g., postconcussion syndrome; Mittenberg, D’Attilio, Gage, & Bass, 1990). Promising work by Ridenour, McCoy, and Dean (1996) suggested that examinees can be presented with a wide array of neuropsychological symptoms, with simulators potentially identifiable by the range and severity of reported symptoms. Ridenour, McCoy, and Dean (1998) attempted to cross-validate this strategy but obtained too many false-positive errors (27%). Response time measures the average time to complete test items, which is typically limited to computer administrations for practical reasons. Research is mixed as to whether simulators take more (Rees, Tombaugh, Gansler, & Moczynski, 1998) or less (Rose, Hall, & Szalda-Petree, 1995) time than persons with compromised cognitive functioning. Kim et al. (2010) recently found that a loweffort group performed slower than genuine patients on an experimental recognition portion of the Digit Symbol subtest of the WAIS-III. However, reaction time was of limited value due to very poor sensitivity. As a result, response time should not be used as a detection strategy. Guidelines for the Classification of Feigned Cognitive Impairment Psychologists involved in neuropsychological cases are faced with several daunting tasks. The first task is a thorough understanding of detection strategies for feigned cognitive impairment and the available measures employing these strategies. While not exhaustive, Table 21.1 summarizes representative cognitive-feigning measures from the clinical literature. In cases in which feigning is suspected, psychologists must have detailed knowledge of their detection strategies, and their general utility and limitations. The second task for psychologists is the selection of detection strategies and cognitive-feigning measures. Psychologists should consider the clinical presentation in their selection of strategies and methods. Two issues must be considered: 1. Purported deficit: Does the measure address the supposed impairment? Reported problems with analytical thinking are unlikely to be addressed by simple tests of memory recognition. Importantly, Boone (2009) has noted that sampling the validity of a single purported deficit lacks utility due to poor sensitivity. 2. Detection strategy: Do the selected measures represent different detection strategies? As a general rule, detection strategies should represent both the excessiveimpairment (floor effect and SVT) and the unlikely presentation (MOE and performance curve) categories.

Evaluation of Malingering and Related Response Styles

Although other criteria have been proposed previously (e.g., Greiffenstein, Baker, & Gola, 1994), the Malingered Neurocognitive Dysfunction (MND) model (Slick, Sherman, & Iverson, 1999) is the first to gain wide acceptance within clinical neuropsychology.3 However, the MND model has significant conceptual and empirical limitations (Rogers, Bender, & Johnson, 2011): First, on a conceptual level, it mistakenly equates potential incentives with established motivation. Second, on an empirical level, the majority of the MND criteria have not been rigorously tested. The MND criteria use definite, probable, and possible categories of feigned cognitive impairment. Based on Slick et al. (1999), these three categories are outlined: 1. Definite malingering utilizing below-chance performance on SVT accompanied by external incentives would meet criteria. 2. Probable malingering requires that at least two of the following neuropsychological testing factors be present to meet criteria: (a) indicators of feigning on one or more well-validated measures of feigned cognitive impairment, (b) discrepancies between test data and known patterns of brain functioning, (c) discrepancy between test data and observed behavior within a specific domain on two or more neuropsychological tests, (d) discrepancy between test data and reliable collateral reports, and (e) discrepancy between test data and documented background history. Alternatively, this category can be met with one of the above (a through e) criteria plus discrepancies in self-reported symptoms or history. 3. Possible malingering includes any major discrepancy between self-reported symptoms and other data (history, patterns of brain functioning, behavioral observations, or collateral information) or exaggerated/ fabricated responses on tests of psychological impairment, such as the MMPI-2. The MND classification has substantial limitations. Three major constraints are outlined: 1. Definite malingering is too narrowly construed. Exclusive reliance on SVT would exclude the great majority of malingerers who are not feigning extreme impairment. We propose that definite malingering include either SVT or multiple indicators of feigning (including 3

Interested readers are encouraged to read Delis and Wetter (2007) and the subsequent commentaries regarding an alternative model.

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detection strategies from the unlikely presentation category). 2. Probable malingering is too broadly construed. Psychologists should be aware that judges and juries will not likely distinguish between probable and definite malingering. Therefore, great care must be exercised in determining probable malingering in forensic cases. A major difficulty with the MND model is that the determination of probable malingering can be rendered without the objective application of systematic decision rules. Discrepancies in self-reporting and collateral sources can often be explained without invoking the concept of malingering. We propose that “probable malingering” be invoked only when multiple indices of feigned cognitive impairment are found, and where the motivation is carefully evaluated and not extrapolated from the context of the assessment. 3. Possible malingering should not be used in forensic cases. Most complex forensic cases have some discrepancies in test data and subsequent reports. As an analogue, neuropsychologists often reach different conclusions about complex cases based largely on the same data. Test and collateral findings might be viewed as discrepant based on the propensities of a particular neuropsychologist rather than the response style of the examinee. Terms such as inconsistent presentation can be utilized without the pejorative effects intrinsic with the term malingering. For the MND model, the intent of the behavior in question is largely assumed. Neuropsychologists are reminded that without evidence of deliberate intents and external incentives, malingering cannot be assumed simply based on evidence of feigned impairment. Moreover, to classify behavior as malingered, these two factors (intent and incentive) must be causally related. Unfortunately, these three requirements (i.e., the deliberateness of the intent, the locus of incentive, and the causal connection) have yet to be researched and identified (see Berry & Nelson, 2010; Drob, Meehan, & Waxman, 2009). The MND model is no exception; it has not yet tackled the deliberateness of the intent and its connection to incentives. Until science provides a means to do so, validation studies that systematically rule out all alternative explanations for poor performance on effort tests will remain paramount.

Jurisogenic Symptoms Somewhat akin to the “nocebo effect,” which refers to negative expectations about poor health that cause more

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poor health (Bellamy, 1997; Iverson, 2010), Weissman (1990) coined the term jurisogenic (also called lexogenic) to describe symptoms that would not exist if not for the adverse effects of litigation, especially in protracted cases. Both nocebo and jurisogenic factors loom large in forensic neuropsychology and yet have not been studied beyond conceptual papers. The concepts are similar to accident neurosis (Miller, 1961) but lack the pejorative implications of the latter term. In a recent case, one author (SDB) evaluated an mTBI case with no evidence of feigning on the first two evaluations. Unlike most mTBI cases, the examinee’s scores did not suggest improvement in performance and several measures, including the TOMM, suggested a decline. After 5 years, his performance now exceeded the cut score on the TOMM. Is this malingering, and if not, what is it? We agree with Weissman (1990) that such a finding may reflect jurisogenic effects of protracted litigation. Lengthy cases involve frequent repetition and reexperiencing of injuries, symptoms, and emotional trauma that may also be affected by a worsening of vulnerable personality factors and other conscious and unconscious influences. Even if this examinee began to malinger by the third evaluation, how do we adequately address the possibility that it was iatrogenically induced? Moreover, does current malingering retroactively nullify the genuine impairment documented during the earlier years post-injury?

Featured Measures Four measures of feigned cognitive impairment from a broad array of potential measures are summarized: VIP, TOMM, and the FBS/SVS and RBS scales of the MMPI-2. They were selected based on their availability and substantial validation. Validity Indicator Profile (VIP) The VIP (Frederick, 1997, 2003) employs a two-choice format for the assessment of suboptimal effort on two subtests addressing verbal and nonverbal abilities. The VIP is distinguished from other cognitive measures by its use of multiple strategies focused predominantly on unlikely presentations. Its strategies include multiple measures of response consistency and performance curve. Because of the high intercorrelations for response consistency, psychologists may be concerned as to whether they are discrete or largely redundant scales. Estimates of SVT are also possible, although not employed as a primary strategy.

The VIP classifies profiles as either valid or invalid rather than feigning per se. Invalid profiles were originally sorted into three categories: careless, irrelevant, and malingered (Frederick, 1997, p. 2). However, Frederick (2003, p. 3) changed the names and descriptions of classification categories, which now include: (a) inconsistent (“incomplete, intermittent, or minimal effort” due to disenchantment, stress, impairment, or environmental conditions), (b) irrelevant (responding that does not correspond to the content that is either intentional or unintentional, such as language/reading problems, unfamiliarity with multiple-choice tests, or severe impairment), and (c) suppressed (deliberate efforts to respond incorrectly). The VIP is best conceptualized as a measure of effort rather than feigning. Specific estimates of malingering classifications are provided: 1. Nonverbal subtest: 33 of 52 (63.5%) simulators and 17 of 49 (34.7%) suspected malingerers were classified correctly in the suppressed (malingering) category (Frederick, 2003, p. 35, Table 9). The combined accuracy is 50/101 or 49.5%. 2. Verbal subtest: 34 of 52 (65.4%) simulators and 5 of 48 (10.4%) suspected malingerers were classified correctly in the suppressed (malingering) category (Frederick, 2003, p. 36, Table 10). The combined accuracy is 39/101 or 38.6%. For the VIP, as with all feigning measures, utility estimates should not include normal nonclinical controls. Instead, the real task is differentiating between genuine and feigned disorders. A consistent theme of this chapter is the avoidance of the laser-accuracy myth by the creation of an indeterminate or unclassified group. Based on the 2003 test manual, reliability of the VIP has not been examined in clinical or feigning populations. Although nonclinical controls are classified similarly, clinical samples (e.g., cognitively impaired and mentally disordered) have yet to be investigated. Data are needed on the SEMs and 95% confidence intervals. The VIP should not be used clinically with two groups manifesting cognitive impairment. First, as noted by Frederick (2003), the VIP should not be used to evaluate persons with mental retardation (i.e., operationalized as Shipley IQs ≤75). Most participants produced invalid profiles. Psychologists are cautioned not to use educational attainment as an indirect measure of mental retardation; approximately 2/3 (67.5%) had at least a high school education. Second, persons with learning disabilities were

Evaluation of Malingering and Related Response Styles

systematically excluded from the cross-validation phase and are not included in the classification tables. Therefore, its accuracy with learning disabilities is unknown. In summary, the VIP is an ambitious effort to evaluate response styles through the use of multiple detection strategies that evaluate both nonverbal and verbal abilities. The most judicious use of the VIP is the assessment of effort. Psychologists should be careful not to equate effort with deception or fraud. Depending on base rates and SEMs, invalid VIPs may be just as likely to represent genuine impairment as any form of dissimulation. Test of Memory Malingering (TOMM) The TOMM (Tombaugh, 1996, 1997) is a two-alternative memory recognition task, composed of 50 line drawings. Its floor effect strategy uses ≥90% correct on Trial 2. Its manual reported high sensitivity and specificity rates. However, a small number of patients in a differentialprevalence design had average scores substantially below the cut score (M = 32.8). Besides the floor effect, the TOMM also uses SVT, which apparently has a low detection rate for feigners (Rees, Tombaugh, Gansler, & Moczynski, 1998). Greve and Bianchini (2006) found that hit rates (including specificity) improved in a sample of chronic pain patients when the recognition trial was included, regardless of the score on Trial 2. They proposed the use of recognition trials to improve the TOMM’s sensitivity. Boone (2009) raised the concern that the TOMM may lack sensitivity even when not relying on SVT, which has obvious implications in forensic assessment. This concern is not limited to the TOMM; most measures of cognitive effort do not produce sensitivities above 70% to 80%. Many studies evaluating the utility of the TOMM relied on partial-criterion designs (MND). While limited by the methodology, their findings suggest some potential utility in samples of pain patients (Etherton et al., 2005; Greve & Bianchini, 2006), ADHD (Sollman, Ranseen, & Berry, 2010), TBI (Greve, Ord, Curtis, Bianchini, & Brennan, 2008),4 memory loss (Teichner & Wagner, 2004), and depression (Yanez, Fremouw, Tennant, Strunk, & Coker, 2006). In contrast, it has been less effective differentiating epilepsy from nonepileptic seizures (Cragar, 4

Greve et al. (2008) excluded participants whose scores fell into an indeterminate group. Such an approach avoids the laseraccuracy myth and provides a more accurate picture of a measure’s utility. However, it has rarely been employed (see Farkas, Rosenfeld, Robbins, & van Gorp, 2006 as an additional example).

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Berry, Fakhoury, Cibula, & Schmitt, 2006) and diagnosing feigned dementia (Teichner & Wagner, 2004). The TOMM manual neglects to report reliability data on clinical populations, although presumably split-half reliability would be excellent for most patients, given the consistency of responding via the floor effect. In addressing the laser accuracy myth, SEMs should be calculated. A prudent precaution would be to treat scores within 1 SEM of the cut score as indeterminate. Since the Atkins v. Virginia ruling in 2002, the importance of obtaining valid data regarding claims of mental retardation has become even more critical. Many researchers have found that current measures of effort lack efficacy in feigned mental retardation. As a possible exception, Shandera et al., (2010) used alternate cut scores to validate the TOMM in patients with mild mental retardation. They found good specificity (.90) for the retention trial. Replication is needed before it is applied to Atkins cases carrying life-and-death consequences. Several cautions apply to the use of the TOMM in forensic practice. First, the fact that TOMM scores are much lower in patients in litigation or those seeking disability (Tombaugh, 1996) should not be interpreted as evidence of malingering; differential-prevalence designs preclude such an inference. Also, as noted by Smith (1998), the directions for the cognitively impaired group differed substantially from the standard TOMM instructions. In its validation, cognitively impaired participants were (a) verbally redirected to the task, (b) focused on both alternatives with expanded instructions, and (c) selectively reinstructed about the task (patients with dementia). This focusing and prompting may have artificially inflated TOMM scores for those with genuine cognitive impairment. The real danger is that the standard instructions may substantially increase false positives, wrongly classifying genuine patients as feigners. The MMPI-2 Symptom Validity Scale (SVS) and Response Bias Scale (RBS) Recently, investigators have examined the MMPI-2’s capacity to distinguish genuine cases of cognitive dysfunction from feigned cases. Two scales (SVS and RBS) have been of particular interest to neuropsychologists. Developed as the Fake Bad Scale, the Symptom Validity Scale (SVS) of the MMPI-2 is a 43-item, rationally derived scale that has undergone extensive study and has been shown to be differentially sensitive to exaggerated somatic and cognitive complaints, especially among disability and personal injury claimants (Greiffenstein,

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Baker, Axelrod, Peck, & Gervais, 2004; Lees-Haley, English, & Glenn, 1991; Nelson, Hoelzle, Sweet, Arbisi, & Demakis, 2010). Butcher and colleagues have criticized the SVS on several methodological and conceptual grounds (Butcher, Arbisi, Atlis, & McNulty, 2003; Butcher, Gass, Cumella, Kally, & Williams, 2008). We briefly review two criticisms. First, the original methodology (see Lees-Haley, English, & Glenn, 1991) was inadequately described, leading Butcher and his colleagues to question how “non-credible” participants were classified. Subsequent research, however, provides support for the ability of SVS to distinguish individuals feigning neuropsychological deficits from genuine patients (Dionysus, Denney, & Halfaker, 2011; Nelson, Sweet, & Demakis, 2006). Second, Butcher and his colleagues suggested that SVS is prone to false-positive errors, especially in women. For instance, Butcher et al. (2008) reported that 44% of 2,054 eating-disordered women (“more likely to be characterized as denying their problems,” p. 203) were feigning based on the recommended SVS cut score of 23. Several papers have been published subsequently in defense of the SVS, but it appears that this and other issues are not fully resolved. A lengthy discussion of these criticisms is well beyond the scope of this chapter but this discussion is a generally constructive process. The Response Bias Scale (RBS) was developed by Gervais, Ben-Porath, Wygant, and Green (2007) to differentiate individuals classified as feigning from others on the Word Memory Test (Green, Allen, & Astner, 1995, 1996). Its development on the basis of cognitive effort test scores made it uniquely situated to assess for feigned cognitive impairment on the MMPI-2. Nelson, Sweet, and Heilbronner (2007) examined the utility of the RBS in differentiating a group of personal injury and disability claimants from those without potential for gain. Despite a moderate effect size (Cohen’s d = .65) the authors correctly cautioned against establishing optimal cut scores due to the differential-prevalence design. Using a hierarchical classification tree, Smart et al. (2008) found that the RBS classified poor cognitive effort quite well. Unfortunately, data from 122 participants were also included in the Nelson et al. (2007) study; again, its design was deficient (i.e., differential prevalence). Wygant et al. (2010) recently validated the RBS using separate forensic samples of criminal defendants and personal injury litigants. Participants were separated into nonfeigned (good effort on both the TOMM and WMT) and likely feigned (poor effort on at least one measure) groups. Sensitivity was poor at most cut scores in both samples

but specificity was generally above 90%. While RBS and SVS yielded similar effect sizes in the disability group (d = 1.24 vs. d = 1.18), RBS appeared to be more effective in criminal defendants (d = 1.48 vs. d = .97). In short, the study is a good example of a bootstrapping design, which is easier to interpret than differentialprevalence designs. Nevertheless, both SVS and RBS need careful investigations of how SEMs affect the accuracy of cut scores (i.e., addressing the laser-accuracy myth). Given that both scales come from a single inventory designed for feigned mental disorders, additional caution is warranted for both.

SUMMARY Psychologists are faced with formidable challenges in the assessment of malingering. Like most human behavior, malingering appears to be a dimensional construct (Walters et al., 2009), yet current nosology treats malingering categorically. Research is needed on the applicability of severity ratings (e.g., mild, moderate, and severe) that acknowledge the presence of a continuum from honest to feigning to malingering. Establishing degrees of classificatory certainty (e.g., probable and definite) appears conceptually sound as well (Berry & Nelson, 2010). As Harris et al. (2008) and others (e.g., Weissman, 1990) have pointed out, the protracted process of seeking compensation by itself may be harmful to litigants. Adversarial proceedings, bureaucratic complexities, and a near-constant focus on symptoms can cause cognitive bias. Whereas the predictors of cognitive bias have been described for decades (Schacter, 1999), aside from the potential for malingering, no research has evaluated the neuropsychological effects of litigation and/or compensation seeking. Simply comparing rates of neuropsychological outcome and malingering in long versus short legal proceedings could be quite informative in this regard (Harris et al., 2005). As described in this chapter, many practitioners and attorneys have fundamental misunderstandings and misassumptions about response styles. Psychologists must be able to address these inaccuracies, including the myth of laser-accuracy cut scores and misuses of DSM-IV indices. Clinically, psychologists develop expertise through the knowledge of detection strategies and their application to psychological measures. Although faced with a great number of response-style measures, they select empirically validated scales that are domain specific (e.g., feigned psychopathology versus feigned cognitive impairment) and

Evaluation of Malingering and Related Response Styles

relevant to the immediate case. Psychologists carefully integrate multiple sources of data, consistent with established detection strategies, in rendering their opinions on response styles to the courts. Major conceptual gaps in our understanding of malingering and methodological challenges remain for forensic research on response styles. The 21st century should bring additional detection strategies that are rigorously tested by both simulation designs and known-group comparisons. For cognitive assessment in particular, detection strategies need to be expanded to cover diverse neurocognitive abilities and improve clinical classification. Large-scale validation studies in comorbid conditions are still sorely needed for most measures. From a forensic-psychological perspective, the standardized assessment of feigned medical conditions remains a vast territory that requires both sophisticated conceptualization and sound empiricism.

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Harris, I. A., Young, J. M., Rae, H., Jalaludin, B., & Solomon, M. J. (2008). Predictors of general health after major trauma. Journal of Trauma, Injury, Infection, and Critical Care, 64 (4), 969–974. Hawes, S., & Boccaccini, M. (2009). Detection of overreporting of psychopathology on the Personality Assessment Inventory: A meta-analytic review. Psychological Assessment, 21 (1), 112–124. doi:10.1037/a0015036 Heilbronner, R., Sweet, J. J., Morgan, J. E., Larrabee, G. J., & Millis, S. R. (2009). American Academy of Clinical Neuropsychology Consensus Conference statement on the neuropsychological assessment of effort, response bias, and malingering. Clinical Neuropsychologist, 23 (7), 1093–1129. Inman, T., Vickery, C., Berry, D., Lamb, D., & Edwards, C. (1998). Development and initial validation of a new procedure for evaluating adequacy of effort given during neuropsychological testing: The Letter Memory Test. Psychological Assessment, 10, 128–139. Iverson, G. L. (2010). Detecting exaggeration, poor effort, and malingering in neuropsychology. In A. M. Horton & L. C. Hartlage (Eds.), The handbook of forensic neuropsychology (2nd ed., pp. 91–136). New York, NY: Springer. Iverson, G. L., Slick, D. J., & Franzen, M. D. (2000). Evaluation of a WMS-R Malingering Index in a non-litigating Clinical Sample. Journal of Clinical and Experimental Neuropsychology, 22 (2), 191–197. Iverson, G. L., & Tulsky, D. S. (2003). Detecting malingering on the WAIS-III: Unusual Digit Span performance patterns in the normal population and in clinical groups. Archives of Clinical Neuropsychology, 18, 1–9. Killgore, W. D. S., & DellaPietra, L. (2000). Item response biases on the logical memory delayed recognition subtest of the Wechsler Memory Scale-III. Psychological Reports, 86 (3), 851–857. Kim, N., Boone, K. B., Victor, T., Lu, P., Keatinge, C., & Mitchell, C. (2010). Expand+Sensitivity and specificity of a Digit Symbol recognition trial in the identification of response bias. Archives of Clinical Neuropsychology, 25 (5), 420–428. Kurtz, R., & Meyer, R. G. (1994, March). Vulnerability of the MMPI2, M Test, and SIRS to different strategies of malingering psychosis. Paper presented at the American Psychology–Law Society, Santa Fe, New Mexico. Larrabee, G. L., (2003). Detection of malingering using atypical performance patterns on standard neuropsychological tests. Clinical Neuropsychologist, 17 (3), 410–425. Lees-Haley, P. R., English, L. T., & Glenn, W. J. (1991). A Fake Bad Scale on the MMPI-2 for personal injury claimants. Psychological Reports, 68, 203–210. Johnson, J. L., & Lesniak-Karpiak, K. (1997). The effect of warning on malingering on memory and motor tasks in college samples. Archives of Clinical Neuropsychology, 12, 231–238. Lezak, M. D., Howieson, D. B., & Loring, D. W. (2004). Neuropsychological assessment (4th ed.). New York, NY: Oxford University Press. Martin, R. C., Franzen, M. D., & Orey, S. (1998). Magnitude of error as a strategy to detect feigned memory impairment. Clinical Neuropsychologist, 12, 84–91. McKinzey R. K., Podd, M. H., Krehbiel, M. A., Mensch, A. J., & Trombka, C. C. (1997). Detection of malingering on the Luria-Nebraska Neuropsychological Battery: An initial and cross-validation. Archives of Clinical Neuropsychology. 12, 505–12. McKinzey, R. K., Podd, M. H., Krehbiel, M. A., & Raven, J. (1999). Detection of malingering on Raven’s Standard Progressive Matrices: A cross-validation. British Journal of Clinical Psychology, 38, 435–439. Miller, H. (1961). Accident neurosis. British Medical Journal, 1, 919, 992. Millon, T. (1994). The Millon Clinical Multiaxial Inventory–III manual . Minneapolis, MN: National Computer Systems.

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CHAPTER 22

Violence Risk Assessment JOHN MONAHAN

VIOLENCE RISK ASSESSMENT: LAW AND POLICY 541 THE PROCESS OF CLINICAL RISK ASSESSMENT 544 THE OUTCOMES OF CLINICAL RISK ASSESSMENT 545

ACTUARIAL RISK ASSESSMENT 545 THE CLINICAL ADJUSTMENT OF ACTUARIAL ESTIMATES 548 RISK COMMUNICATION 551 CONCLUSION 553 REFERENCES 553

VIOLENCE RISK ASSESSMENT: LAW AND POLICY

It is urged that psychiatrists, individually and as a group, are incompetent to predict with an acceptable degree of reliability that a particular criminal will commit other crimes in the future and so represent a danger to the community . . . . The suggestion that no psychiatrist’s testimony may be presented with respect to a defendant’s future dangerousness is somewhat like asking us to disinvent the wheel. In the first place, it is contrary to our cases . . . and if it is not impossible for even a lay person sensibly to arrive at that conclusion, it makes little sense, if any, to submit that psychiatrists, out of the entire universe of persons who might have an opinion on the issue, would know so little about the subject that they should not be permitted to testify. (pp. 896–897)

Concerns about whether violence risk assessments offered by psychologists and other mental health professionals were “good enough” to incorporate into mental health law and policy, once a staple of commentary in the field (e.g., Ennis & Litwack, 1974), now seem quaintly dated. Courts across the country and, in particular, the U.S. Supreme Court answered with a resounding no the question: “Does a reliance on clinical predictions of violence invalidate an otherwise valid law?” Consider just two of the many cases relevant to this point. In 1978, Thomas Barefoot was convicted of the capital murder of a police officer. At a separate sentencing hearing, the same jury considered the two questions put to it under the Texas death penalty statute, namely: (1) whether the conduct causing the death was “committed deliberately and with reasonable expectation that the death of the deceased or another would result” and (2) whether “there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society” (Texas Code of Criminal Procedure Annotated, Article 37.071(b)(1) and (b)(2)). The jury’s affirmative answer to both questions required the imposition of the death penalty. In Barefoot v. Estelle (1983), the Supreme Court considered the constitutionality of using clinical predictions of violence for the purpose of determining whom to execute. In an opinion upholding the Texas statute, Justice White wrote:

The next year, in Schall v. Martin (1984), the Supreme Court upheld a New York statute that authorized pretrial detention, without probable cause, of an accused juvenile delinquent based on a finding that there was a “serious risk” that the juvenile “may before the return date commit an act which if committed by an adult would constitute a crime.” The district court had invalidated the statute after reviewing the research literature and concluded that “no diagnostic tools have as yet been devised which enable even the most highly trained criminologists to predict reliably which juveniles will engage in violent crime,” and the Second Circuit had affirmed. In reversing the Second Circuit, Justice Rehnquist, writing for six members of the Court, stated: Appellees claim, and the district court agreed, that it is virtually impossible to predict future criminal conduct with any degree of accuracy. . . . The procedural protections are thus, 541

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in their view, unavailing because the ultimate decision is intrinsically arbitrary and uncontrolled. Our cases indicate, however, that from a legal point of view there is nothing inherently unattainable about a prediction of future criminal conduct. Such a judgment forms an important element in many decisions, and we have specifically rejected the contention, based on the same sort of sociological data relied upon by appellees and the district court, “that it is impossible to predict future behavior and that the question is so vague as to be meaningless.” (pp. 278–279)

Little has changed since Barefoot and Schall. In Kansas v. Hendricks (1997; see Carlsmith, Monahan, & Evans, 2007) the Supreme Court upheld a civil means of lengthening the detention of certain criminal offenders scheduled for release from prison. Kansas’s Sexually Violent Predator Act established procedures for the civil commitment to mental hospitals of persons who may not have a major mental disorder, but who have a “mental abnormality or personality disorder” (in Hendricks’s case, pedophilia) that makes them “likely to engage in predatory acts of sexual violence” (p. 350). A mental abnormality was defined in the Act as a “congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others” (p. 352). The language of the Act implies the need for a violence risk assessment to determine which individuals meet the defined standards. In upholding Hendricks’s civil commitment under the Act, the Supreme Court emphasized two specific facts of the case: Hendricks’s own admission of his uncontrollable urges and a risk assessment predicting high risk. The Court noted: Hendricks even conceded that, when he becomes “stressed out,” he cannot “control the urge” to molest children. This admitted lack of volitional control, coupled with a prediction of future dangerousness, adequately distinguishes Hendricks from other dangerous persons who are perhaps more properly dealt with exclusively through criminal proceedings. (p. 360)

On the risk of violence issue, note that some states now not only affirmatively require the use of named statistical prediction instruments in sexually violent predator evaluations, but also specify the exact cutoff score necessary to proceed in the evaluation process. The Virginia Sexually Violent Predator Act (2006), for example, reads as follows: [E]ach month, the Director [of the Department of Corrections] shall review the database [of prisoners incarcerated for

sexually violent offenses] and identify all [p]risoners who are scheduled for release from prison within 10 months from the date of such review who receive a score of five or more on the Static-991 or a similar score on a comparable, scientifically validated instrument as designated by the Commissioner [of the Department of Mental Health, Mental Retardation and Substance Abuse Services], or a score of 4 on the Static-99 or a like score on a comparable, scientifically validated instrument if the sexually violent offense [was one in which] the victim was under the age of 13 and suffered physical bodily injury. [U]pon the identification of such prisoners, the Director shall forward their names [t]o the Commitment Review Committee for [a clinical risk] assessment.

Not only courts, but professional organizations have concluded that predictions of violence are here to stay. For example, the American Bar Association’s Criminal Justice Mental Health Standards (1989) recommended that a person acquitted of a violent crime by reason of insanity be committed to a mental hospital if found to be currently mentally ill and to present “a substantial risk of serious bodily harm to others” (Standard 7-7.4). The American Psychiatric Association’s (1983) model state law on civil commitment included the involuntary hospitalization of persons with mental disorder who are “likely to cause harm to others” (p. 672). Likewise, the guidelines for involuntary civil commitment of the National Center for State Courts (1986) urged that particularly close attention be paid to predictions of future behavior, especially predictions of violence and assessments of dangerousness. Such predictions have been the bane of clinicians who admit limited competence to offer estimates of the future yet are mandated legally to do so. [However,] such predictions will continue to provide a basis for involuntary civil commitment, even amid controversy about the scientific and technological shortcomings and the ethical dilemmas that surround them. (p. 493)

Now that the Supreme Court clearly has rejected constitutional challenges to risk assessment, tort law often frames the legal questions asked of violence prediction (Monahan, 1993, 2006a; Monahan & Walker, 2010).

1

The Static-99 is an actuarial risk assessment instrument consisting of 10 empirically derived risk factors: (1) Young (less than 25 years old), (2) Ever lived with a lover for at least 2 years, (3) Index nonsexual violence, (4) Prior nonsexual violence, (5) Prior sex offenses, (6) Prior sentencing dates, (7) Any convictions for noncontact sex offense, (8) Any unrelated victims, (9) Any stranger victims, and (10) Any male victims (Anderson & Hanson, 2010).

Violence Risk Assessment

Tarasoff v. Regents of the University of California (1976) is the landmark case in this area. Initially the subject of vilification by mental health professionals, the California Supreme Court’s holding in Tarasoff, that psychotherapists who know or should know of their patient’s likelihood of inflicting injury on identifiable third parties have an obligation to take reasonable steps to protect the potential victim, has become a familiar part of the clinical landscape. Although a few state courts have rejected Tarasoff (Boynton v. Burglass, 1991) and others have limited its scope (Adams v. Elgart, 1995), most courts addressing the issue have accepted the essence of the “duty to protect,” and several have expanded that duty to include nonidentifiable victims (Appelbaum, 1988). The duty to protect, in short, is now a fact of professional life for nearly all American clinicians and, potentially, for clinical researchers as well (Appelbaum & Rosenbaum, 1989; Monahan, Appelbaum, Mulvey, Robbins, & Lidz, 1994).

Evidentiary Issues The evidentiary test for the admissibility at trial of expert psychological testimony on violence risk assessment was provided by the U.S. Supreme Court in Daubert v. Merrell Dow Pharmaceuticals (1993). Many American state courts, where the vast majority of psychological and psychiatric testimony is offered, have adopted the Daubert standard (although not all state courts have done so, California, Florida, and New York being notable exceptions). For illustrative purposes, I rely on one representative case from a state that has adopted the Daubert standard, E.I. du Pont de Nemours & Co. v. Robinson (Tex. 1995) to frame the discussion. In Robinson, the Supreme Court of Texas specified six factors “that a trial court may consider in making the threshold determination of admissibility” (p. 557). My evaluation of the points at issue with respect to violence risk assessment follows these six factors (see also Faigman & Monahan, 2009; Monahan, 2000).

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toward others within closed institutions (e.g., McNiel, Sandberg, & Binder, 1998). Reliance on the Subjective Interpretation of the Expert The American Bar Association published the National Benchbook on Psychiatric and Psychological Evidence and Testimony (1998). The Benchbook is directed to state and federal judges and explicitly “designed to aid decision making . . . regarding admissibility of evidence” (p. iii). While acknowledging that subjective clinical interpretations often play a role in predictions of violence, the Benchbook concludes: Despite recent commentary indicating that clinicians are better at addressing possible risk factors and probabilities than providing definitive predictions of dangerousness, courts have remained reluctant to totally exclude such [clinical] evidence, in part, perhaps, because courts are ultimately responsible for making these decisions and though the information may remain open to challenge, it is the best information available. The alternative is to deprive fact finders, judges, and jurors of the guidance and understanding that psychiatrists and psychologists can provide. (p. 49)

Subject to Peer Review and Publication All seven empirical tests of the ability of psychologists and psychiatrists to clinically assess risk of violence in the community have been published. Five have been published in peer-reviewed scientific journals rather than in books or student-edited law reviews, including the most methodologically sophisticated study (Lidz, Mulvey, & Gardner, 1993), which was published in the Journal of the American Medical Association. Potential Rate of Error No one questions that the state of the science is such that the prediction of violence is subject to a considerable margin of error. But in acknowledging this error rate, the American Bar Association’s National Benchbook on Psychiatric and Psychological Evidence and Testimony (1998) nonetheless stated:

The Extent to Which the Theory Has Been Tested As described ahead, at least seven empirical studies conducted since the 1970s have tested the proposition that psychologists and psychiatrists have greater-than-chance accuracy at predicting violent behavior toward others in the open community. Many additional studies have tested the proposition that psychologists and psychiatrists have greater-than-chance accuracy at predicting violence

While the frustration with psychiatry and psychology from a legal standpoint centers on the certainty or lack thereof with which mental health experts speak to the ultimate issues in a case (for example, dangerousness . . .), this frustration should not lead courts to reject all such input, but rather should encourage courts to recognize the proper role and limitations of expert evidence and testimony in the courtroom. (pp. 47–48)

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General Acceptance in the Relevant Scientific Community The best-known study of the validity of clinical predictions of violence, Lidz et al. (1993), concluded: “What this study [shows] is that clinical judgment has been undervalued in previous research. Not only did the clinicians pick out a statistically more violent group, but the violence that the predicted group committed was more serious than the acts of the comparison group” (p. 1010). Likewise, a critical analysis of existing risk assessment research (Mossman, 1994) reached this measured judgment: “This article’s reevaluation of representative data from the past 2 decades suggests that clinicians are able to distinguish violent from nonviolent patients with a modest, betterthan-chance level of accuracy” (p. 790). Nonjudicial Uses of the Theory or Technique Violence risk assessment not only permeates the legal system but is a significant component of general clinical practice in the mental health fields. As McNiel (1998) stated, “Clinical assessment of violence potential and management of aggressive behavior are routine components of contemporary practice in psychiatric emergency rooms and inpatient units” (p. 95). There are no post-Daubert U.S. Supreme Court cases on the admissibility of clinical violence risk assessment (Faigman, Kaye, Saks, & Sanders, 2010). There has, however, been much post-Daubert commentary on this issue in the legal and scientific literatures. Virtually all of this commentary suggests that testimony by a qualified expert regarding a properly conducted clinical violence risk assessment will remain admissible as evidence. For example, the American Bar Association’s National Benchbook on Psychiatric and Psychological Evidence and Testimony (1998) concluded: Even given the underlying uncertainties and discrepancies within the psychiatric and psychological communities, psychiatrists and psychologists—through their education and experiences—acquire special information and skills that are beyond that of the lay community to better understand and interpret human behavior (normal and abnormal). Thus, in many instances the knowledge of psychiatrists and psychologists can assist fact finders in understanding and interpreting human behavior within a legal context. (p. 47)

Likewise, a leading professional work in this area (Melton, Petrila, Poythress, & Slobogin, 2007) stated: Some critics might argue that much of the empirical and clinical analysis [of violence prediction] relies on “face

valid” factors that lay decisionmakers, applying common sense, could use to reach the same judgments. We disagree. Although the implications of some factors are evident on their face . . . laypersons will not be as familiar with or be able to interpret as well other types of factors. . . . Such informed testimony can help prevent the courts from reaching inappropriate conclusions based on stereotypical views of “psychopaths” or “schizophrenics” and may thus facilitate more disciplined and humane dispositions by judges and juries. (p. 321)

THE PROCESS OF CLINICAL RISK ASSESSMENT Mulvey and Lidz (1985) have argued that to study the outcome of clinical prediction before studying the process of clinical prediction is to “put the cart before the horse” (p. 213). They stated: It is only by knowing “how” the process occurs that we can determine . . . the strategy for improvement in the prediction of dangerousness. Addressing this question requires systematic investigation of the possible facets of the judgement process that could be contributing to the observed low predictive accuracy. (p. 215)

Along these lines, Segal, Watson, Goldfinger, and Averbuck (1988a, 1988b) observed clinicians evaluating over 200 cases at several psychiatric emergency rooms. Observers coded each case on an 88-item index referred to as Three Ratings of Involuntary Admissibility (TRIAD). Global ratings of patient “dangerousness” were completed by each clinician. TRIAD scores correlated highly with overall clinical ratings of dangerousness: Symptoms most strongly related to [clinical judgments of] danger to others in our sample were irritability and impulsivity, but there were also consistent moderate associations with formal thought disorder, thought content disorder, and expansiveness as well as weaker but consistent significant correlations with impaired judgment and behavior and inappropriate affect. (1988b, p. 757)

Similarly, Menzies and Webster (1995) studied mental health professionals’ clinical decision making when assessing risk among a large group of Canadian mentally disordered offenders. They concluded that “previous violence, alcohol use, presentation of anger and rage, lack of agreeability, and tension during the interviews were the main contributors to the resulting decisions” (p. 775; see also Lidz, Mulvey, Apperson, Evanczuk, & Shea, 1992; Monahan & Appelbaum, 2000).

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THE OUTCOMES OF CLINICAL RISK ASSESSMENT Early research on the accuracy of clinicians at predicting violent behavior toward others was reviewed by Monahan (1981, 2007). Five studies (Cocozza & Steadman, 1976; Kozol, Boucher, & Garofalo, 1972; Steadman, 1977; Steadman & Cocozza, 1974; Thornberry & Jacoby, 1979) were available as of the late 1970s. The conclusion of that review was: Psychiatrists and psychologists are accurate in no more than one out of three predictions of violent behavior over a several-year period among institutionalized populations that had both committed violence in the past (and thus had high base rates for it) and who were diagnosed as mentally ill. (pp. 47–49)

Only two studies of the validity of clinicians’ unstructured predictions of violence in the community have been published since that time (for reviews, see Blumenthal & Lavender, 2000; Monahan, 2007). Sepejak, Menzies, Webster, and Jensen (1983) studied court-ordered pretrial risk assessments and found that 39% of the defendants rated by clinicians as having a medium or high likelihood of being violent to others were reported to have committed a violent act during a 2-year follow-up, compared to 26% of the defendants predicted to have a low likelihood of violence (p. 181, note 12), a statistically significant difference, but not a large one in absolute terms. Lidz et al. (1993), in what is surely the most sophisticated study published on the clinical prediction of violence, took as their subjects male and female patients being examined in the acute psychiatric emergency room of a large civil hospital. Psychiatrists and nurses were asked to assess potential patient violence toward others over the next 6-month period. Violence was measured by official records, patient self-report, and the report of a collateral informant in the community (e.g., a family member). Patients who elicited professional concern regarding future violence were found to be significantly more likely to be violent after release (53%) than were patients who had not elicited such concern (36%). The accuracy of clinical prediction did not vary as a function of the patient’s age or race. The accuracy of clinicians’ predictions of male violence substantially exceeded chance levels, for patients both with and without a prior history of violent behavior. In contrast, the accuracy of clinicians’ predictions of female violence did not differ from chance. Although the actual rate of violent incidents among discharged female patients (46%) was higher than the rate

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among discharged male patients (42%), the clinicians had predicted that only 22% of the women would be violent, compared with predicting that 45% of the men would commit a violent act. The inaccuracy of clinicians at predicting violence among women appeared to be a function of the clinicians’ serious underestimation of the base rate of violence among mentally disordered women (perhaps due to an inappropriate extrapolation from the great sex differences in rates of violence among persons without mental disorder).

ACTUARIAL RISK ASSESSMENT The general superiority of statistical over clinical risk assessment in the behavioral sciences has been known for over half a century (Grove, Zald, Lebow, Snitz, & Nelson, 2000; Meehl, 1954; Swets, Dawes, & Monahan, 2000). Despite this, and despite a long and successful history of actuarial risk assessment in bail and parole decision making in criminology (Champion, 1994), there have until recently been only a few attempts to develop actuarial tools for the specific task of assessing risk of violence to others among people with mental disorder (for reviews, see Borum, 1996; Douglas & Webster, 1999; Monahan & Steadman, 1994). For example, Steadman and Cocozza (1974), in an early study of mentally disordered offenders, developed a Legal Dangerousness Scale based on the presence or absence of a juvenile record and a conviction for a violent crime, the number of previous incarcerations, and the severity of the current offense. This scale, along with the patient’s age, was significantly associated with subsequent violent behavior. Likewise, Klassen and O’Connor (1988) found that the combination of a diagnosis of substance abuse, prior arrests for violent crime, and young age were significantly associated with arrests for violent crime among male civil patients discharged into the community. (A discussion of risk assessment of sexually violent “predators” can be found in Chapter 15 in this volume.) The Violence Risk Appraisal Guide More recently, the Violence Risk Appraisal Guide (VRAG; Harris, Rice, & Quinsey, 1993; Quinsey, Harris, Rice, & Cormier, 1998; Rice & Harris, 1995) was developed on a sample of over 600 men from a maximumsecurity hospital in Canada, all charged with a serious criminal offense. Approximately 50 predictor variables were coded from institutional files. The criterion was

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any new criminal charge for a violent offense, or return to the institution for a similar act, over a time at risk in the community that averaged approximately seven years after discharge. A series of regression models identified 12 variables for inclusion in the VRAG. When the scores on this actuarial instrument were dichotomized into high and low, the results were that 55% of the group obtaining high VRAG scores committed a new violent offense, compared to 19% of the group with low scores. The HCR-20 Douglas and Webster (1999) reviewed ongoing research on a structured clinical guide that for research purposes can be scored in an actuarial manner to assess violence risk, the HCR-20, which consists of 20 items addressing historical, clinical, and risk management variables (Webster, Douglas, Eaves, & Hart, 1995). Douglas and Webster also reported data from a retrospective study with prison inmates, finding that scores above the median on the HCR-20 increased the odds of past violence and antisocial behavior by an average of 4 times. In another study with civilly committed patients, Douglas, Ogloff, Nicholls, and Grant (1999) found that during a follow-up of approximately 2 years after discharge into the community, patients scoring above the HCR-20 median were 6 to 13 times more likely to be violent than those scoring below the median. The MacArthur Violence Risk Assessment Study As a final illustration of the use of actuarial approaches to improve the prediction of violence, the MacArthur Violence Risk Assessment Study (Monahan et al., 2001)2 studied a large group of patients from acute civil inpatient facilities at three U.S. sites. English-speaking patients between the ages of 18 and 40, who were of White, African American, or Hispanic ethnicity, and who had a chart diagnosis of thought or affective disorder, substance abuse, or personality disorder were eligible for the study. Patients were interviewed in the hospital by both a research interviewer and a research clinician in order to assess a number of putative risk factors for violence to others. The risk factors that were assessed fell into four domains. Dispositional variables refer to the demographic

2 It

should be noted that the author has an ownership interest in the Classification of Violence Research (COVR).

factors of age, sex, and social class, as well as personality variables (e.g., impulsivity and anger control) and neurological factors (e.g., head injury). Historical variables include significant events experienced by subjects in the past, such as family history, work history, mental hospitalization history, history of violence, and criminal and juvenile justice history. Contextual variables refer to indices of current social supports, social networks, and stress, as well as physical aspects of the subject’s environment, such as the presence of weapons. The final domain, clinical variables, includes types and symptoms of mental disorder, personality disorder, drug and alcohol abuse, and level of functioning. Three sources of information were used to ascertain the occurrence of violent incidents in the community postdischarge. Interviews with patients, interviews with collateral individuals (i.e., persons named by the patient as someone who would know what was going on in his or her life), and official sources of information (arrest and hospital records) were all coded and compared. Violence to others was defined to include acts of battery that resulted in physical injury, sexual assaults, assaultive acts that involved the use of a weapon, or threats made with a weapon in hand. Because this is the largest study of the risk assessment of community violence yet undertaken, I consider its findings in some detail (Monahan, 2010). First, I address a number of risk factors for violence (Kraemer et al., 1997) taken individually, and then consider the risk factors in combination. Sex Findings from the MacArthur research that men were no more likely to be violent than women over the course of the 1 year follow-up differed dramatically from results generally found in the criminological literature, but not from findings of other studies of men and women with a mental disorder. Although the overall prevalence rates were similar for women and men, there were some substantial sex differences in the quality and context of the violence committed. Men were more likely to have been drinking or using street drugs and less likely to have been adhering to prescribed psychotropic medication prior to committing violence. Women were more likely to target family members and to be violent in the home. The violence committed by men was more likely to result in serious injury (requiring treatment by a physician) than the violence committed by women.

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Prior Violence and Criminality The MacArthur data suggested quite clearly that, regardless of how the measures were obtained, prior violence and criminality were strongly associated with the postdischarge violent behavior of psychiatric patients. Childhood Experiences and Violence Although physical abuse as a child was associated with postdischarge violence, sexual abuse was not. Patients’ reports of deviant behaviors by fathers and mothers, such as excessive alcohol and drug use, were associated with increased rates of postdischarge violence; having lived with either the father or the mother prior to age 15 was associated with a decreased rate of violence.

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violence (Link & Stueve, 1994) were not confirmed in the MacArthur study. On the other hand, nondelusional suspiciousness—perhaps involving a tendency toward misperception of others’ behavior as indicating hostile intent—did appear to be linked with subsequent violence and may account for the findings of previous studies. Hallucinations Although command hallucinations per se did not elevate violence risk, if the voices commanded violent acts, the likelihood of their occurrence over the subsequent year was significantly increased. These results should reinforce the tendency toward caution that clinicians have always had when dealing with patients who report voices commanding them to be violent.

Diagnosis The presence of substance abuse or dependence disorder that co-occurred with some mental disorders was a key factor in the occurrence of violence. A diagnosis of a major mental disorder was associated with a lower rate of violence than a diagnosis of an “other” mental disorder, primarily a personality or adjustment disorder. Further, within the major mental disorders, a diagnosis of schizophrenia was associated with lower rates of violence than a diagnosis of depression or of bipolar disorder, as several other studies have found (e.g., Gardner, Lidz, Mulvey, & Shaw, 1996; Quinsey et al., 1998). Psychopathy Despite the low base rate of psychopathy, as measured by scores on the Hare Psychopathy Checklist: Screening Version (PCL-SV; Hart, Cox, & Hare, 1995) among the civil psychiatric patients studied, limited traits of psychopathy and antisocial behavior were predictive of future violence. The PCL-SV added incremental validity to a host of covariates in predicting violence, including recent violence, criminal history, substance abuse, and other personality disorders. However, most of the PCLSV’s basic and unique predictive power was based on its “antisocial behavior” factor, rather than the “emotional detachment” factor. Delusions The MacArthur data suggested that the presence of delusions did not predict higher rates of violence among recently discharged psychiatric patients. This conclusion remains accurate even when the type of delusions and their content (including violent content) were taken into account. In particular, the much-discussed findings of a relationship between threat/control override delusions and

Violent Thoughts The MacArthur results indicated that when patients reported violent thoughts during hospitalization, there was indeed a greater likelihood that they would engage in violent acts during the first 20 weeks and during the year following discharge. It was especially increased for patients who continued to report imagined violence after discharge. Anger Patients with high scores on the Novaco Anger Scale (Novaco, 1994) when they entered the hospital were twice as likely as those with low anger scores to engage in violent acts after discharge. The effect, although neither highly predictive nor large in absolute terms, was statistically significant. Summary A few of the variables from the MacArthur Study examined here were quite predictive of violence, as expected (e.g., prior violence). Contrary to expectations, other variables were not risk factors for violence at all in our sample (e.g., delusions, schizophrenia). Most criminological and clinical variables we examined, however, had a complex relationship to violence. The complexity of the findings reported here underscored the difficulty of identifying main effect or univariate predictors of violence: variables that are across-the-board risk factors for violence in all populations. This complexity is no doubt one of the principal reasons why clinicians, relying on a fixed set of individual risk factors, have had such difficulty making accurate risk assessments. It suggested the need to take an interactional approach to violence risk assessment, such that the same variable could be a positive risk

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factor for violence in one group, unrelated to violence in another group, and a protective factor against violence in a third group. Such an interactional strategy for violence risk assessment was the one adopted in the MacArthur Study, and described in the following section. Risk Factors in Combination The MacArthur Study group developed an iterative classification tree (ICT). A classification tree approach to violence risk assessment was predicated on an interactive and contingent model of violence that allowed for consideration of many different combinations of risk factors to classify a person’s risk for violence. Whether a particular question was asked of any examinee depended on the answers provided by the examinee to preceding questions. Based on a sequence established by the classification tree, a first question was asked of all persons being assessed. Contingent on the answer to that question, one or another second question was posed, and so on, until each person was classified into a category on the basis of violence risk. This contrasted with the usual approach to actuarial risk assessment, in which a common set of questions was asked of everyone being assessed (or the person is scored or rated on a common set of items) and every item was weighted and summed to produce a score that can be used for purposes of categorization. The first test of the ICT approach (Steadman et al., 2000) focused on how well the method performed in making violence risk assessments under ideal conditions (i.e., with few constraints on the time or resources necessary to gather risk factors). For example, the risk factor that most clearly differentiated high-risk from low-risk groups was the PCL-SV (Hart, Cox, & Hare, 1995). Given that the full Hare PCL-R requires several hours for data gathering and administration (the PCL-SV alone takes over 1 hour to administer), resource constraints in many nonforensic clinical settings will preclude its use. Monahan et al. (2001) sought to increase the utility of this actuarial method for real-world clinical decision making by applying the method to a set of violence risk factors commonly available in clinical records or capable of being routinely assessed in clinical practice. Finally, rather than pitting different risk assessment models against one another and choosing the one model that appears “best,” Monahan et al. (2001) adopted an approach that integrated the predictions of many different risk assessment models, each of which may capture a different but important facet of the interactive relationship between the measured risk factors and violence. Using

this multiple models approach, the researchers ultimately combined the results of five prediction models generated by the ICT methodology. By combining the predictions of several risk assessment models, the multiple models approach minimized the problem of data overfitting that can result when a single “best” prediction model is used. As important, this combination of models produced results not only superior to those of any of its constituent models, but superior to any other actuarial violence risk assessment procedure reported in the literature to date. Monahan et al. (2001) were able to place all patients into one of five risk classes for which the prevalence of violence during the first 20 weeks following discharge into the community varied between 1% and 76%, with an area under the Receiver Operating Characteristic curve (Swets et al., 2000) of .88. Subsequent research validated a computer software version of the ICT methodology—called the Classification of Violence Risk (COVR)—on new and independent samples of patients (Monahan et al., 2005). Based on the findings of the original MacArthur study from which the COVR software has been developed, the rate of violence expected was 1.2% in the low-risk group and 63.6% in the high-risk group. The observed rates of violence that were obtained in this prospective sample of 9% and 49% for the low- and (recoded) high-risk groups, respectively, may reflect the shrinkage that can be expected whenever any actuarial instrument moves from construction to validation samples. It also could simply reflect different base rates of violence in the development and validation samples (for a Swedish validation study of the COVR, see Sturup, Kristiansson, & Lindqvist, in press).

THE CLINICAL ADJUSTMENT OF ACTUARIAL ESTIMATES Should the kinds of actuarial risk assessment previously described supplant clinical judgment of violence risk? Or is actuarial risk assessment best considered a very powerful tool to inform the exercise of clinical judgment regarding violence risk? The question is not easily or unambiguously answered. Developers of the VRAG addressed the issue of whether, and to what extent, the results produced by such an instrument should be subject to “adjustment” by clinicians. Interestingly, their answer has evolved over time. In 1994, Webster, Harris, Rice, Cormier, and Quinsey stated: If adjustments are made conservatively and only when a clinician believes, on good evidence, that a factor is related

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to the likelihood of violent recidivism in an individual case, predictive accuracy may be improved.

Four years later, however, Quinsey et al. (1998) had a change of heart: What we are advising is not the addition of actuarial methods to existing practice, but rather the complete replacement of existing practice with actuarial methods. This is a different view than we expressed in Webster et al. (1994), where we advised the practice of adjusting actuarial estimates of risk by up to 10% when there were compelling circumstances to do so. . . . We no longer think this practice is justifiable. Actuarial methods are too good and clinical judgment too poor to risk contaminating the former with the latter. (p. 171)

Others in this field, although strongly approving of the use of actuarial instruments in violence risk assessment, have taken a more sanguine view of allowing clinicians to review and, if they believe necessary, to revise actuarial risk estimates. Hanson (1998), for example, has stated that “it would be imprudent for a clinical judge to automatically defer to an actuarial risk assessment” (p. 53), and Hart (1998) has written, “Reliance—at least complete reliance—on actuarial decision making by professionals is unacceptable” (p. 126). Two primary reasons are given in support of allowing clinicians the option to use their judgment to revise actuarial violence risk assessment estimates. The first reason can be termed questionable validity generalization and the second rare risk or protective factors.

Questionable Validity Generalization The VRAG was constructed and cross-validated on a sample that consisted entirely of male forensic patients who were predominantly White Canadians. The instrument has impressive validity in predicting violence among people with these attributes. But does that validity generalize—at least, does it generalize as impressively—when the instrument is used to assess the violence risk of women, or of civil psychiatric patients, or of people of African ancestry, or of people (of either sex and whatever race and legal status) living in countries other than Canada? This is a question of validity generalization (Cook & Campbell, 1979). Likewise, the ICT generated by the MacArthur Violence Risk Assessment Study was constructed and bootstrapped on a sample of White, African American, and Hispanic civilly hospitalized patients from the United States, who were between 18 and 40 years old. Is the considerable

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predictive validity of the ICT generalizable to people of Asian ancestry, or to forensic patients, or to Canadians, or to people who are less than 18 or more than 40 years old, or to the emergency room assessments of persons who have not recently been hospitalized? The predictive validity of these two instruments may well generalize widely. Yet, there comes a point at which the sample to which an actuarial instrument is being applied appears so fundamentally dissimilar to the sample on which it was constructed and originally validated (e.g., using the VRAG on the kinds of patients studied in the MacArthur research, or using the ICT on the kinds of offenders studied in the VRAG research) that one would be hard pressed to castigate the examining mental health professional who took the actuarial estimate as advisory rather than conclusive. Rare Risk or Protective Factors The second reason often given in defense of allowing a clinician the option to review and revise actuarial risk estimates is that the clinician may note the presence of rare risk or protective factors in a given case, and that these factors—precisely because they are rare—will not have been properly taken into account in the construction of the actuarial instrument. This issue has been termed broken leg countervailings by Grove and Meehl (1996, following Meehl, 1954). The story is simple: A researcher has developed an actuarial instrument that predicts with great accuracy when people will go to the movies, and the instrument yields an estimate of .80 that a given individual, Professor Smith, will go to the movies tomorrow. But the researcher then learns that Professor Smith has just broken his leg and is immobilized in a hip cast. “Obviously, it would be absurd to rely on the actuarial prediction in the face of this overwhelmingly prepotent fact” (p. 307). Grove and Meehl call the countervailing of actuarial risk estimates by rare events “one of the few intellectually interesting concerns of the antistatistical clinicians” (p. 307), but they are skeptical about its applicability to areas such as violence risk assessment. In the broken leg story, they state, there is “an almost perfectly reliable ascertainment of a fact [a broken leg] and an almost perfect correlation between that fact and the kind of fact being predicted [going to the movies]. Neither one of these delightful conditions obtains in the usual kind of social science prediction of behavior from probabilistic inferences” (p. 308). In the context of actuarial instruments for assessing violence risk, the most frequently mentioned “broken leg” is a direct threat, that is, an apparently serious statement

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of intention to do violence to a named victim. Assuming that most minimally rational people who do not want to be in a hospital can consciously suppress the verbalization of such intentions while they are being evaluated, direct threats are presumably rare, and for that reason will not emerge as items on an actuarial instrument. Yet, as Hart (1998) states, “Does it matter at all what an offender’s total score is on the VRAG, how many risk factors are present or whether he scores above a specific cut-off, if he also expresses genuine homicidal intent?” (p. 126). Similarly, Hanson (1998), in the context of predicting violence among sex offenders, has taken this position: “Although I am aware of no study that has examined the relationship between behavioral intentions and sexual offense recidivism, it would be foolish for an evaluator to dismiss an offender’s stated intention to reoffend” (p. 61). Grove and Meehl (1996) no doubt would respond that the “genuineness” of homicidal intent, or whether an offender has actually “stated” his or her intention to reoffend, cannot be determined with anything like the reliability of assessing whether a leg is broken. Even if it could, the relationship between stated intention to be violent and violent behavior is much more tenuous than the relationship between being put in a body cast and going out to the movies. Consider the example of delusions. The MacArthur Study found that the presence of delusions was not generally a risk factor for violence (see previous text). Yet, Appelbaum, Robbins, and Monahan (2000) have cautioned against ignoring delusions in a given case: Even on their face, [these data] do not disprove the clinical wisdom that holds that persons who have acted violently in the past on the basis of their delusions may well do so again. Nor do they provide support for neglecting the potential threat of an acutely destabilized, delusional person in an emergency setting, in which the person’s past history of violence and community supports are unknown. (p. 571)

It may be instructive in thinking about this difficult issue, as it has been in thinking about other topics in this area (Monahan & Steadman, 1996), to analogize violence prediction to weather prediction. The National Weather Service (NWS) routinely collects data on risk factors (e.g., barometric pressure) known to be predictors of one or another type of weather. This information is analyzed by computer programs that yield what the NWS refers to as objective (what would here be called actuarial ) predictions of various weather events. These predictions are given at regular intervals to meteorologists in local areas. The local meteorologists, who refer to the actuarial estimates as “guidance, not gospel,” then

review and, if they believe necessary, revise them. For example, a local meteorologist might temper an objective prediction of “sunny and dry” for the forecast area if he or she looked out the window and saw threatening clouds approaching. A subjective (what would here be called clinical ) prediction is then issued to the media. Weather forecasting is one area in which the clinical review and revision of actuarial risk estimates has been empirically studied (for others, see Grove & Meehl, 1996; Quinsey et al., 1998). Clinical involvement actually increases, rather than decreases, predictive accuracy in the meteorological context. The clinically revised predictions of temperature and precipitation are consistently more valid than the unrevised actuarial ones (Carter & Polger, 1986). Will clinical review and revision increase the validity of actuarial predictions of violence, as it increases the validity of actuarial predictions of the weather? Reasonable people will differ on the aptness of the weather analogy. As with validity generalization, the advisability of allowing clinicians to take into account rare risk or protective factors is ultimately an empirical question. It would be invaluable to make a careful study of (a) how often, when they review actuarial risk estimates, clinicians feel it necessary to revise those estimates; (b) why clinicians believe it necessary to revise the actuarial estimates (e.g., the specific reason that the validity of the actuarial instrument is believed not to generalize, or the specific rare risk or protective factor that is believed to be present); and (c) how much clinicians want to revise actuarial risk estimates. Pending such research, I believe that actuarial instruments (including, among others, the multiple ICT presented here) are best viewed as tools for clinical assessment (cf. Grisso & Appelbaum, 1998)—tools that support, rather than replace, the exercise of clinical judgment. Some recent research indicates that clinical review adds incremental predictive utility to scores derived by actuarially combining risk factors (Heilbrun, Douglas, & Yasuhara, 2009). But this claim is contested (Hanson & Morton-Bourgon, 2009). Violence Risk Assessment: A Dichotomy or a Continuum? Skeem and Monahan (2011) have argued that current instruments to assess violence risk are not adequately characterized by a simple clinical–actuarial dichotomy. Rather, they argue, the risk assessment process now exists on a continuum of rule-based structure, with completely unstructured (“clinical”) assessment occupying one

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pole of the continuum, completely structured (“actuarial”) assessment occupying the other pole, and several forms of partially structured assessment lying between the two. The violence risk assessment process, in this regard, might usefully be seen as having the four components: (1) identifying empirically valid risk factors, (2) determining a method for measuring (scoring) these risk factors, (3) establishing a procedure for combining scores on the risk factors, and (4) producing an estimate of violence risk. It is possible to array five current approaches to violence risk assessment according to whether the approach structures (i.e., specifies rules for generating) none, one, two, three, or all four components of this process. Purely “clinical” risk assessment structures none of the components. The clinician selects, measures, and combines risk factors, and produces an estimate of violence risk, as his or her clinical experience and judgment indicate. Performing a violence risk assessment by reference to a standard list of risk factors that are valid (e.g., age, past violence), such as the lists provided in psychiatric texts, structures one component of the process. Such lists function as an aide m´emoire to identify which risk factors the clinician should attend to in conducting his or her assessment, but they do not further specify a method for measuring these risk factors. The “structured professional judgment” approach exemplified by the HCR-20 (previously described) structures two components of the process: the identification and measurement of risk factors, which may be scored as 0 if absent, 1 if possibly present, or 2 if definitely present. Structured professional judgment instruments do not go further and structure how the individual risk factors are to be combined in clinical practice. Approaches to risk assessment that structure three components of the process are illustrated by the Classification of Violence Risk (previously described). These instruments structure the identification, measurement, and combination of risk factors (via a classification tree design or summing scores). But those who developed the instruments do not recommend that the final risk assessment reflect only the combined scores on the assessed risk factors. The authors advise a professional review of the final risk estimate generated by the instrument. The best-known forensic instrument that structures all four of the components of the violence risk assessment process is the Violence Risk Appraisal Guide (described earlier). This instrument not only structures the identification, measurement, and combination of risk factors. It also specifies that once an individual’s violence risk has

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been actuarially characterized, the risk assessment process is complete.

RISK COMMUNICATION Risk communication as an essential adjunct to violence risk assessment is an issue that will become increasingly salient in the future (Monahan & Steadman, 1996). Indeed, the communication of risk estimates of one form of violence—terrorism—is already of enormous significance (Heilbrun, Wolbransky, Shah, & Kelly, 2010). After a clinician—perhaps with the assistance of an actuarial risk device—has made an estimate of the likelihood of harm that a person represents, how is the clinician to communicate this information to decision makers? “Risk communication” has been defined by the National Research Council (1989) as: an interactive process of exchange of information and opinion among individuals, groups, and institutions; often involves multiple messages about the nature of risk or expressing concerns, opinions, or reactions to risk messages or to legal and institutional arrangements for risk management. (p. 322)

For example, in the United States, most states have adopted the language of the California “dangerousness standard”: that to be admitted to a mental hospital against his or her will, a person must be mentally disordered and “dangerous to self or others.” But some states use the terms likelihood and harm. For example, Virginia rewrote its civil commitment standard in 2008 to require that there be “a substantial likelihood that . . . the person will, in the near future, cause serious physical harm to himself or others” (Va. Code § 37.2-817C). The National Center for State Courts (1986) spoke of “predictions of violence,” and the American Bar Association (1989) made reference to “a substantial risk of serious bodily harm to others.” Finally, one influential court decision phrased the issue in terms of a “probability” of future harm (Cross v. Harris, 1969). Dangerousness, likelihood, risk, and probability, therefore, often have been used fungibly to refer to the level of uncertainty of undesirable outcomes that may occur if some persons with mental disorder are left at liberty. However, the extensive literature in the area of risk perception and behavioral decision theory has uncovered many subtle and anomalous effects that suggest that these various terms may not be fungible. They may in fact have differential effects on the judgments that are rendered by clinicians and courts.

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Although there is a great deal of research on the communication of some risks (e.g., risk of disease or environmental damage; National Research Council, 1989), research on the communication of violence risk is in its infancy. Two studies by Heilbrun and colleagues addressed clinicians’ practices and preferences in this area. Heilbrun, Philipson, Berman, and Warren (1999) found that clinicians were reluctant to employ numerical probabilities in communicating risk estimates, and cited a number of reasons ranging from their view that “the state of the research literature doesn’t justify using specific numbers” to “I don’t want to be held accountable for being that precise.” Heilbrun, O’Neill, Strohman, Bowman, and Philipson (2000) presented experienced psychologists and psychiatrists with vignettes that varied in their method of risk communication. There were virtually no significant differences between the disciplinary groups. Clinicians tended to prefer categorical risk communication (high/moderate/low-violence risk) and risk communication that had explicit implications for risk management. In this regard, McNiel and Binder (1998) compared how clinicians’ categorical assessments of the violence risk presented by newly admitted psychiatric patients compared with their probabilistic assessments. They found that clinical designations of low, medium, and high risk that the patient would be violent in the next week (if not admitted to the hospital) corresponded to mean clinical probability estimates of 29%, 64%, and 76%, respectively. In a study by Slovic and Monahan (1995), adults were shown hypothetical stimulus vignettes describing psychiatric patients and were instructed to judge (a) the probability that the patient would harm someone else, (b) whether the patient should be categorized as “dangerous,” and (c) whether coercion should be used to ensure treatment. Probability and dangerousness judgments were systematically related and were predictive of the judged necessity for coercion. However, judged probability was strongly dependent on the form of the response scale, suggesting that probability was not represented consistently and quantitatively in the subjects’ minds. For example, one response scale for expressing the probability of harm went from 0% to 100% in 10% increments. Another response scale went from “less than 1 chance in 1,000” to “greater than 40%.” Judgments about the probability of violence were much higher using the first response scale than using the second. In a second study, Slovic and Monahan (1995) replicated these findings with experienced forensic clinicians as subjects. Slovic, Monahan, and MacGregor (2000) continued this line of research. Forensic psychologists and

psychiatrists were shown case summaries of patients hospitalized with mental disorder and directed to judge the likelihood the patient would harm someone within 6 months after discharge from the hospital. They classified the patient according to whether he or she was estimated to present a “high,” “medium,” or “low” risk of harming someone after discharge. This study replicated, with real case summaries as stimuli, the response-scale effects found by Slovic and Monahan (1995). Providing clinicians with response scales allowing more discriminability among smaller probabilities led patients to be judged as posing lower probabilities of committing harmful acts. This format effect was not eliminated by having clinicians judge relative frequencies rather than probabilities, or by providing them with instruction in how to make these types of judgments. In addition, frequency scales led to lower mean likelihood judgments than did probability scales. But, at any given level of likelihood, a patient was judged as posing higher risk if that likelihood was derived from a frequency scale (e.g., 10 out of 100) than if it was derived from a probability scale (e.g., 10%). Similarly, communicating a patient’s dangerousness as a relative frequency (e.g., 2 out of 10) led to much higher perceived risk than did communicating a comparable probability (e.g., 20%). The different reactions to probability and frequency formats appear to be attributable to the more frightening images evoked by frequencies (see Dolores & Redding, 2009; Scurich & John, in press). Clearly, it makes no clinical or policy sense to keep twice as many people in the hospital when their risk of violence is characterized as “20 out of 100” as when it is characterized as “20%.” If the individual communicating information about violence risk believes that patients “should” be hospitalized for longer periods of time, our data suggest that one way to accomplish this goal is to communicate violence risk in terms of frequencies rather than in terms of probabilities. Indeed, an intuitive grasp of this finding may explain why advocates for longer hospital stays frame their arguments in terms of frequencies rather than probabilities. For example, Torrey and Zdanowicz (1998) wrote that “approximately 1,000 homicides a year are committed nationwide by seriously mentally ill individuals who are not taking their medication,” and not that the annual likelihood of being killed by such an individual is approximately .0000036 (i.e., 1,000 out of 273 million Americans will die in this manner each year). These advocates are quite open about their motivation: They want the general public to be very concerned about violence by people with untreated mental disorder, in the hope that this concern will translate into increased funding

Violence Risk Assessment

for mental health services (Satel & Jaffe, 1998). The use of frequencies rather than probabilities may promote the desired level of arousal. Can we give any advice to the risk communicator who is not an advocate for one outcome or action over another, but rather desires to present the decision maker with an “objective” or “unbiased” estimate of violence risk? I offer two possibilities. Our findings suggest that probabilities and frequencies each come with a complex set of advantages and disadvantages as formats for communicating violence risk. Neither is inherently superior to or less susceptible of bias than the other. One option, therefore, is that clinicians employ multiple formats for communicating violence risk. For example, a risk communication might read: “Of every 100 patients similar to Mr. Jones, 20 are expected to be violent to others. In other words, Mr. Jones is estimated to have a 20% likelihood of violence.” If multiple formats were used in violence risk communication, the biases associated with any given risk communication format might, at least to some (unknown) extent, cancel each other out. In addition, the possibility of strategic behavior in choosing a risk communication format that promoted a favored policy outcome would be reduced if the risk communicator was instructed to use multiple formats rather than to select a single one. A second option was suggested by Monahan and Steadman (1996). They analogized violence prediction to weather prediction as practiced by the NWS. Whereas the risk of some common meteorological events, such as precipitation, is communicated using a probabilistic format (e.g., 40% chance of rain), the risk of rarer and more severe events, such as tornadoes and hurricanes, is communicated using a categorical format (e.g., a hurricane “watch” or a tornado “warning”). Monahan and Steadman provided illustrative examples of categorical violence risk communications, ranging from low violence risk (“Few risk factors are present. No further inquiries into violence risk or special preventive actions are indicated”) to very high violence risk (“Many key risk factors are present. Enough information is available to make a decision. Take preventive action now; e.g., intensive case management or treatment, voluntary or involuntary treatment, and warning the potential victim”). Of course, the decision maker who received such a categorical communication would also have to be informed about what behaviors constituted violence, what time period was at issue, what specific risk factors were present, and what cutoff scores were used to generate the risk categories. Note that Heilbrun, Philipson, et al. (1999) found that both psychologists and psychiatrists preferred a categorical format for communicating

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risk, especially when the risk communication was coupled with prescriptions for risk management (as in the previous examples from Monahan & Steadman).

CONCLUSION The future of violence risk assessment is likely to see more precise depictions of which specific risk factors are associated with violence in which specific types of people. Violence risk assessment is likely to continue to move strongly in a more structured direction (McNiel, Hung, Cramer, Hall, & Binder, 2011). Increased attention is likely to be given to how estimates of risk are best communicated to those who have to make decisions based on them, and to how risk, once communicated, is clinically managed, both in institutions (Monahan & Steadman, 2012) and in the community (Monahan, 2011).

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Cocozza, J., & Steadman, H. (1976). The failure of psychiatric predictions of dangerousness: Clear and convincing evidence. Rutgers Law Review, 29, 1084–1101. Cook, T., & Campbell, D. (1979). Quasi-experimentation: Design and analysis issues for field settings. Skokie, IL: Rand McNally. Cross v. Harris, 418 F.2d 1095 (1969). Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Dolores, J. C., & Redding, R. E. (2009). The effects of different forms of risk communication on judicial decision making. International Journal of Forensic Mental Health, 8, 142–146. Douglas, K., Ogloff, J., Nicholls, T., & Grant, I. (1999). Assessing risk for violence among psychiatric patients: The HCR-20 Violence Risk Assessment Scheme and the Psychopathy Checklist: Screening version. Journal of Consulting and Clinical Psychology, 67, 917–930. Douglas, K., & Webster, C. (1999). The HCR-20 Violence Risk Assessment Scheme: Concurrent validity in a sample of incarcerated offenders. Criminal Justice and Behavior, 26, 3–19. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995). Ennis, B., & Litwack, T. (1974). Psychiatry and the presumption of expertise: Flipping coins in the courtroom. California Law Review, 62, 693–752. Faigman, D., Kaye, D., Saks, M., & Sanders, J. (2010). Modern scientific evidence: The law and science of expert testimony, 2010–2011 . Eagan, MN: West. Faigman, D., & Monahan, J. (2009). Standards of legal admissibility and their implications for psychological science. In J. Skeem, K. Douglas, & S. Lilienfeld (Eds.), Psychological science in the courtroom: Controversies and consensus (pp. 3–25). New York, NY: Guilford Press. Gardner, W., Lidz, C., Mulvey, E., & Shaw, E. (1996). A comparison of actuarial methods for identifying repetitively violent patients with mental illness. Law and Human Behavior, 20, 35–48. Grisso, T., & Appelbaum, P. (1998). Assessing competence to consent to treatment: A guide for physicians and other health professionals. New York, NY: Oxford University Press. Grove, W., & Meehl, P. (1996). Comparative efficacy of informal (subjective, impressionistic) and formal (mechanical, algorithmic) prediction procedures: The clinical–statistical controversy. Psychology, Public Policy, and Law, 2, 293–323. Grove, W., Zald, D., Lebow, B., Snitz, B., & Nelson, C. (2000). Clinical versus mechanical prediction: A meta-analysis. Psychological Assessment, 12, 19–30. Hanson, R. (1998). What do we know about sex offender risk assessment? Psychology, Public Policy, and Law, 4, 50–72. Hanson, R. K., & Morton-Bourgon, K. E. (2009). The accuracy of recidivism risk assessments for sexual offenders: A meta-analysis. Psychological Assessment, 21, 1–21. Harris, G., Rice, M., & Quinsey, V. L. (1993). Violent recidivism of mentally disordered offenders: The development of a statistical prediction instrument. Criminal Justice and Behavior, 20, 315. Hart, S. (1998). The role of psychopathy in assessing risk for violence: Conceptual and methodological issues. Legal and Criminological Psychology, 3, 121–137. Hart, S. D., Cox, D. N., & Hare, R. D. (1995). The Hare Psychopathy Checklist: Screening version. Toronto, Canada: Multi-Health Systems. Heilbrun, K., Douglas, K. S., & Yasuhara, K. (2009). Controversies in violence risk assessment. In J. L. Skeem, K. S. Douglas, & S. O. Lilienfeld (Eds.), Psychological science in the courtroom: Controversies and consensus (pp. 333–356). New York, NY: Guilford Press.

Heilbrun, K., O’Neill, M., Strohman, L., Bowman, Q., & Philipson, J. (2000). Expert approaches to communicating violence risk. Law and Human Behavior, 24, 137–148. Heilbrun, K., Philipson, J., Berman, L., & Warren, J. (1999). Risk communication: Clinicians’ reported approaches and perceived values. Journal of American Academy of Psychiatry and Law, 27, 397–406. Heilbrun, K., Wolbransky, M., Shah, S., & Kelly, R. (2010). Risk communication of terrorist acts, natural disasters, and criminal violence: Comparing the processes of understanding and responding. Behavioral Sciences and the Law, 28, 717–729. Kansas v. Hendricks, 521 U.S. 346 (1997). Klassen, D., & O’Connor, W. (1988). A prospective study of predictors of violence in adult male mental patients. Law and Human Behavior, 12, 143–158. Kozol, H., Boucher, R., & Garofalo, R. (1972). The diagnosis and treatment of dangerousness. Crime and Delinquency, 18, 371–392. Kraemer, H., Kazdin, A., Offord, D., Kessler, R., Jensen, P., & Kupfer, D. (1997). Coming to terms with the terms of risk. Archives of General Psychiatry, 54, 337. Lidz, C., Mulvey, E., Apperson, L., Evanczuk, K., & Shea, S. (1992). Sources of disagreement among clinicians’ assessments of dangerousness in a psychiatric emergency room. International Journal of Law and Psychiatry, 15, 237–250. Lidz, C., Mulvey, E., & Gardner, W. (1993). The accuracy of predictions of violence to others. Journal of the American Medical Association, 269, 1007–1011. Link, B., & Stueve, A. (1994). Psychotic symptoms and the violent/illegal behavior of mental patients compared to community controls. In J. Monahan & H. Steadman (Eds.), Violence and mental disorder: Developments in risk assessment (pp. 137–159). Chicago, IL: University of Chicago Press. McNiel, D. (1998). Empirically based clinical evaluation and management of the potentially violent patient. In P. Kleespies (Ed.), Emergencies in mental health practice: Evaluation and management (pp. 95–116). New York, NY: Guilford Press. McNiel, D., & Binder, R. (1998, March). Comparison of categorical and probabilistic approaches to communication about psychiatric patients’ risk of violence in clinical practice. Paper presented at the biennial conference of the American Psychology–Law Society, Redondo Beach, CA. McNiel, D., Hung, E., Cramer, R., Hall, S., & Binder, R. (2011). An approach to evaluating competence in assessing and managing violence risk. Psychiatric Services, 62, 90–92. McNiel, D., Sandberg, D., & Binder, R. (1998). The relationship between confidence and accuracy in clinical assessment of psychiatric patients’ potential for violence. Law and Human Behavior, 22, 655–669. Meehl, P. (1954). Clinical versus statistical prediction: A theoretical analysis and a review of the evidence. Minneapolis: University of Minnesota Press. Melton, G., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (3rd ed.). New York, NY: Guilford Press. Menzies, R., & Webster, C. (1995). Construction and validation of risk-assessments in a six-year follow-up of forensic patients: A tridimensional analysis. Journal of Consulting and Clinical Psychology, 63, 766–778. Monahan, J. (1981). The clinical prediction of violent behavior. Washington, DC: U.S. Government Printing Office. Monahan, J. (1993). Limiting therapist exposure to Tarasoff liability: Guidelines for risk containment. American Psychologist, 48, 242–250.

Violence Risk Assessment Monahan, J. (2000). Violence risk assessment: Scientific validity and evidentiary admissibility. Washington and Lee Law Review, 57, 901–918. Monahan, J. (2006a). Tarasoff at thirty: How developments in science and policy shape the common law. University of Cincinnati Law Review, 75, 497–521. Monahan, J. (2007). The scientific status of research on clinical and actuarial predictions of violence. In D. Faigman, D. Kaye, M. Saks, J. Sanders, & E. Cheng (Eds.), Modern scientific evidence: The law and science of expert testimony (pp. 122–147). St. Paul, MN: West. Monahan, J. (2010). The classification of violence risk. In R. Otto & K. Douglas (Eds.), Handbook of violence risk assessment (pp. 187–198). New York, NY: Routledge. Monahan, J. (2011). Mandated psychiatric treatment in the community: Forms, prevalence, outcomes and controversies. In T. Kallert, J. Mezzich, & J. Monahan (Eds.), Coercive treatment in psychiatry: Clinical, legal, and ethical aspects (pp. 33–48). London: WileyBlackwell. Monahan, J., & Appelbaum, P. (2000). Reducing violence risk: Diagnostically based clues from the MacArthur Violence Risk Assessment Study. In S. Hodgins (Ed.), Effective prevention of crime and violence among the mentally ill (pp. 19–34). Dordrecht, The Netherlands: Kluwer Press. Monahan, J., Appelbaum, P., Mulvey, E., Robbins, P., & Lidz, C. (1994). Ethical and legal duties in conducting research on violence: Lessons from the MacArthur Risk Assessment Study. Violence and Victims, 8, 380–390. Monahan, J., & Steadman, H. (Eds.). (1994). Violence and mental disorder: Developments in risk assessment. Chicago, IL: University of Chicago Press. Monahan, J., & Steadman, H. (1996). Violent storms and violent people: How meteorology can inform risk communication in mental health law. American Psychologist, 51, 931–938. Monahan, J., & Steadman, H. (2012). Extending violence reduction principles to justice-involved persons with mental illness. In J. Dvoskin, J. Skeem, R. Novaco, & K. Douglas (Eds.), Applying social science to reduce violent offending (pp. 245–261). New York, NY: Oxford University Press. Monahan, J., Steadman, H., Robbins, P., Appelbaum, P., Banks, S., Grisso, T., . . . Silver, E. (2005). An actuarial model of violence risk assessment for persons with mental disorders. Psychiatric Services, 56, 810–815. Monahan, J., Steadman, H., Silver, E., Appelbaum, A., Robbins, P., Mulvey, E., . . . Banks, S. (2001). Rethinking risk assessment: The MacArthur Study of Mental Disorder and Violence. New York, NY: Oxford University Press. Monahan, J., & Walker, L. (2010). Social science in law: Cases and materials (7th ed.). Westbury, NY: Foundation Press. Mossman, D. (1994). Assessing predictions of violence: Being accurate about accuracy. Journal of Consulting and Clinical Psychology, 62, 783–792. Mulvey, E., & Lidz, C. (1985). Back to basics: A critical analysis of dangerousness research in a new legal environment. Law and Human Behavior, 9, 209–218. National Center for State Courts. (1986). Guidelines for involuntary commitment. Mental and Physical Disability Law Reporter, 10, 409–514. National Research Council. (1989). Improving risk communication. Washington, DC: National Research Press. Novaco, R. (1994). Anger as a risk factor for violence among the mentally disordered. In J. Monahan & H. Steadman (Eds.), Violence

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CHAPTER 23

Clinical and Forensic Issues in the Assessment of Psychopathy STEPHEN D. HART AND JENNIFER E. STOREY

INTRODUCTION 556 NATURE OF PSYCHOPATHY 556 REVIEW OF ASSESSMENT PROCEDURES 563 LEGAL RELEVANCE OF PSYCHOPATHY 568

RECOMMENDATIONS FOR PRACTICE 572 AREAS FOR FUTURE RESEARCH 573 SUMMARY 574 REFERENCES 574

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expert rating scales most commonly used in the clinicalforensic assessment of psychopathy. Third, we discuss the legal relevance of psychopathy. This section is new material. Fourth, we offer best practice recommendations. Finally, we end by identifying areas in need of further research.

Psychopathy is a form of mental disorder commonly observed in forensic settings and potentially relevant to a wide range of legal issues. Of particular importance is the robust association between psychopathy and serious criminality, including violence, which means that the disorder plays a central role in risk assessments conducted as part of psycholegal evaluations in criminal and civil settings. Accordingly, the assessment of psychopathy is a fundamental skill for clinical-forensic psychologists. Extensive and excellent discussions of psychopathy may be found in several volumes (e.g., Cooke, Forth, & Hare, 1998; Patrick, 2006; Salekin & Lynam, 2010). The goal of this chapter is to provide readers with a succinct overview of critical issues related to the clinicalforensic assessment of psychopathy. We hope it can serve as an introduction for trainees and new practitioners, or as a quick refresher and reference for experienced practitioners. We will use a structure in this chapter that is similar to that of our contribution in the first edition of the Handbook (Hemphill & Hart, 2003), with a few changes. First, we begin by discussing the nature of psychopathy as a form of personality disorder. Second, we evaluate the diagnostic interviews, self-report questionnaires and inventories, and

NATURE OF PSYCHOPATHY1 Before we discuss psychopathy further, it is important to clarify some key terms. Many people, including some mental health professionals, are confused about discussions of psychopathy, as they say it “does not exist”—that is, it is not listed in the fourth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV; American Psychiatric Association, 1994) or its text revision (DSM-IV-TR; American Psychiatric Association, 2000), or in the 10th edition of the International Classification of Diseases and Related Health Problems (ICD-10 ; World Health Organization, 1992). This is, of course, simply incorrect. It is the result of confusing what is being

1 At

the time this chapter was written, the American Psychiatric Association’s DSM-5 Personality and Personality Disorder Work Group had not yet reached final decisions regarding revision of the diagnostic criteria for personality disorder. The proposed changes (see www.dsm5.org) would not substantively change either the general definition of personality disorder or the description of psychopathy offered in this section.

The authors gratefully acknowledge the contributions of James F. Hemphill to the previous version of this chapter. 556

Clinical and Forensic Issues in the Assessment of Psychopathy

measured (qua concept) with how it is being measured (qua operation), akin to confusing the terrain one wants to traverse with the map one will use to traverse it. At a conceptual or linguistic level, psychopathy is synonymous with antisocial, dissocial, psychopathic, and sociopathic personality disorder. They are simply different terms for the same disorder. This is explicitly recognized in the DSM-IV-TR (see American Psychiatric Association, 2000, p. 703). Numerous other terms have been used to refer to the same disorder; in fact, Werlinder (1978) identified more than 175. This is not particularly unusual. Consider the various labels used to refer to mental retardation currently used around the world (e.g., intellectual disability, learning disability) or used historically in the United States (e.g., cretinism, moronism). So psychopathy is listed in the DSM-IV-TR, where it is referred to as antisocial personality disorder, and in the ICD-10, where it is referred to as dissocial personality disorder. At an operational level, the various procedures for assessing and diagnosing psychopathy definitely are not equivalent. But even diagnostic criteria identical with respect to name (i.e., at the linguistic level) may differ markedly in content (i.e., at the operational level). For example, the criteria for antisocial personality disorder in the third, revised third, and fourth–text revision editions of the DSM (DSM-III, -III-R, and -IV-TR; American Psychiatric Association, 1980, 1987, 2000) are different, despite sharing the same name; similarly, the criteria for psychopathy in the Psychopathy Checklist (Hare, 1980), the revised PCL (PCL-R; Hare, 1991, 2003), and the Screening Version of the PCL-R (PCL:SV; Hart, Cox, & Hare, 1995) are all different. Psychopathy as Personality Disorder Psychopathy is a form of personality disorder. This means its symptoms, like those of all personality disorders, are maladaptive personality traits (American Psychiatric Association, 1980, 1987, 1994, 2000; World Health Organization, 1992). Personality traits reflect a person’s characteristic or usual adjustment. Personality traits become symptoms when they meet two criteria: severity and impairment (e.g., Widiger & Samuel, 2005; see also Cooke, Hart, Logan, & Michie, 2004). Severity means the traits deviate markedly from the norm, prominent to the extent they are perceived by others as fixed, rigid, or extreme. Impairment means the traits substantially interfere with adjustment by, for example, causing personal distress or dissatisfaction, disrupting basic psychological functions, increasing risk for morbidity and mortality,

557

disturbing interpersonal relations, and interfering with the fulfillment of social roles and obligations. Personality disorder is distinct and should be differentiated from personality disturbance due to other mental disorders and physical illnesses. Conditions such as mental retardation, Asperger’s disorder, dementia due to head trauma, personality change due to general medical conditions, cocaine intoxication, schizophrenia, and bipolar I and II disorder all have symptoms that resemble those of psychopathy in some respects. A primary distinguishing feature of true personality disorder is course: Symptoms of personality disorder generally have an insidious and spontaneous onset in childhood or early adolescence, whereas personality disturbance due to mental disorder or physical illness generally has an onset that is acute, triggered by identifiable stressors, or in adulthood. A secondary distinguishing feature of true personality disorder is phenomenology: Symptoms of personality disorder commonly co-occur in recognizable patterns (i.e., syndromes), whereas personality disturbance due to mental disorder or physical illness generally may be characterized by symptom patterns that are unusual or inchoate. Clinical Features of Psychopathy There is broad consensus that psychopathy is characterized by symptoms in several major areas of personality functioning. The key symptoms have been discussed and debated for the past 200 years (for historical reviews, see Arrigo & Shipley, 2001; Berrios, 1996; Werlinder, 1978), including in now-classic works by Arieti (1963), Cleckley (1941), Karpman (1961), and McCord and McCord (1964). Cooke, Hart, Logan, and Michie (2004) conducted a systematic review of the literature on psychopathy. They translated the various clinical descriptions into traitdescriptive adjectives or adjectival phrases, which they then grouped rationally into domains related to more global aspects of personality functioning. The result was a lexical model they referred to as the Comprehensive Assessment of Psychopathic Personality (CAPP), illustrated in Figure 23.1. According to the CAPP, psychopathy can be described as follows (Hart, 2009; Hart & Cooke, 2007). First, the Attachment domain, which reflects affiliation in interpersonal relations, includes symptoms such as detachment, lack of commitment, and lack of empathy or concern for others. Second, the Behavioral domain, which reflects organization of goal-oriented activities, includes lack of perseverance, unreliability, recklessness, restlessness, disruptiveness,

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Special Assessment Issues +

Detached +

Antagonistic

Attachment Domain

Domineering

+

+

Deceitful

–

+ Manipulative +

Dominance Domain

–

+

Uncommitted Unempathic

+

Uncaring +

Insincere Garrulous

+

Lacks Perseverance

+ Lacks Anxiety + + +

Unreliable

Lacks Pleasure

Lacks Emotional Depth

–

Emotional Domain

Psychopathic Personality Disorder

Behavioral Domain

Reckless +

–

Lacks Remorse

+ + +

Sense of Uniqueness

+

Sense of Entitlement

+ +

Disruptive

+

Aggressive

+

Self-Centered Suspicious

Self-Aggrandizing

+

Lacks Concentration –

Cognitive Domain

Self Domain

–

Intolerant

+

+

Inflexible +

Sense of Invulnerability

+

+

Restless

Lacks Emotional Stability +

+

+

Lacks Planfulness +

Self-Justifying

Unstable Self-Concept

Figure 23.1 Lexical model of psychopathy: The Comprehensive Assessment of Psychopathic Personality (CAPP) Source: Cooke, Hart, Logan, and Michie (2004).

and aggressiveness. Third, the Cognitive domain, which reflects organization of mental activities, includes suspiciousness, inflexibility, intolerance, lack of planfulness, and lack of concentration. Fourth, the Dominance domain, which reflects status in interpersonal relations, includes antagonism, arrogance, deceitfulness, manipulativeness, insincerity, and glibness, or garrulousness. Fifth, the Emotional domain, which reflects the experience and expression of affect, includes lack of anxiety, lack of remorse, lack of emotional depth, and lack of emotional stability. Finally, the Self domain, which reflects organization of self-concept and self–other relation, includes self-centeredness, self-aggrandizement, selfjustification, and a sense of entitlement, uniqueness, and invulnerability. Assessment and Diagnosis There are two primary approaches to the diagnosis of psychopathy. The first approach focuses more narrowly on symptoms related to impulsive, irresponsible, and antisocial behavior (i.e., those in the Behavioral domain of the CAPP model). It underlies the DSM-III, -III-R, and -IV-TR criteria for antisocial personality disorder. The DSM-IVTR criteria, summarized in Table 23.1, serve as a good example: They require symptoms of conduct disorder with onset prior to age 15 and persistence of antisocial behavior past the age of 18. This approach was referred to by Hart and Hare (1997) as the “Washington University tradition,” reflecting the important contributions of several people associated with that institution over the years (e.g.,

Feighner et al., 1972; Robins, 1966). The second approach is broader, including diverse symptoms (i.e., those from multiple domains of the CAPP model). It underlies the ICD-10 criteria for dissocial personality disorder and the PCL-R and PCL:SV criteria for psychopathy. The ICD-10 criteria, summarized in Table 23.2, are a good example. This approach was referred to as the “Cleckley tradition”

TABLE 23.1 DSM-IV-TR Criteria for Antisocial Personality Disorder A. Antisocial behavior since age 15, as indicated by three or more of the following: 1. 2. 3. 4.

Repeated criminal acts Deceitfulness Impulsivity Irritability and aggressiveness

5. Recklessness 6. Irresponsibility 7. Lacks remorse

B. Current age at least 18 C. Conduct disorder before age 15, as indicated by clinically significant impairment in social, academic, or occupational functioning resulting from three or more of the following: 1. Bullied 9. Destroyed property 2. Fought 10. Break and enter 3. Used weapons 11. Lied 4. Cruel to people 12. Stole 5. Cruel to animals 13. Stayed out late (before age 13) 6. Robbed 14. Ran away from home 7. Forced sex on others 15. Truant 8. Set fires D. Occurrence of antisocial behavior not exclusively during the course of schizophrenia or manic episodes Note: DSM-IV-TR = Diagnostic and statistical manual of mental disorders (4th ed., text revision; American Psychiatric Association, 2000).

Clinical and Forensic Issues in the Assessment of Psychopathy TABLE 23.2 ICD-10 Criteria for Dissocial Personality Disorder A. Callous unconcern for the feelings of others and lack of the capacity for empathy B. Gross and persistent attitude of irresponsibility and disregard for social norms, rules, and obligations C. Incapacity to maintain enduring relationships D. Very low tolerance to frustration and a low threshold for discharge of aggression, including violence E. Incapacity to experience guilt and to profit from experience, particularly punishment F. Marked proneness to blame others or to offer plausible rationalizations for the behavior bringing the subject into conflict with society G. Persistent irritability Note: ICD-10 = ICD-10: International statistical classification of diseases and related health problems (10th rev.; World Health Organization, 1992).

by Hart and Hare (1997), reflecting the influence of the classic text, The Mask of Sanity (Cleckley, 1941), in North America. As a result of the focus on delinquent and criminal behavior that characterizes the Washington University tradition, diagnostic criteria sets based on that approach may lack specificity, especially in forensic settings. This point is discussed explicitly in the DSM-IV-TR (American Psychiatric Association, 2000, p. 705) and by others (Hare, 1983, 1985; Hare, Hart, & Harpur, 1991; Widiger & Corbitt, 1995). For this reason, many forensic mental health professionals prefer diagnostic criteria that follow the Cleckley tradition, such as the PCL-R or PCL:SV. Regardless of the approach they take, contemporary diagnostic criteria for psychopathy have three things in common. First, all are fixed and explicit. Examiners must follow rules established a priori to make a diagnosis, based on the presence of various symptoms, features, or other conditions. Second, all the criteria sets comprise multiple symptoms. Examiners must consider the presence of various features of psychopathy. Third, all are based at least in part on symptoms that are individually contributory to diagnosis, rather than necessary for diagnosis.2 Examiners may diagnose the disorder based on various combinations of symptoms. This means criteria sets for psychopathy—like those for almost all other mental disorders, and all other personality disorders—do not yield simple, clean categorical diagnoses. People diagnosed with psychopathy are heterogeneous with respect to symptoms. They also form a 2

Technically, this structure is known as polythetic. In contrast, a structure comprising symptoms that are individually necessary and jointly sufficient for diagnosis is known as monothetic.

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group that has “fuzzy boundaries,” leading to problems with differential diagnosis and multiple diagnoses (i.e., real or apparent comorbidity). Prevalence Epidemiological research in the United States indicates that the lifetime prevalence of psychopathy in the general population, according to DSM-IV-TR or similar criteria, is about 1.5% to 3.5%; in correctional offenders, the rate is 50% to 75% (Grant et al., 2004; Lenzenweger, Lane, Loranger, & Kessler, 2007; Robins, Tipp, & Przybeck, 1991). When more comprehensive diagnostic criteria are used, the prevalence rate is considerably lower. For example, research using the PCL-R and PCL:SV with correctional offenders and forensic psychiatric patients in the United States has reported lifetime prevalence rates of about 15% to 25%, or about one third the rate observed using DSM type criteria (Hare, 1991, 2003). Course The age of onset of psychopathic symptoms is typically between childhood, as young as age 6 to 10, and late adolescence or early adulthood, as old as age 16 to 20. It is common for adults with psychopathy to have been diagnosed in childhood or adolescence as suffering from one of the disruptive behavior disorders (Robins et al., 1991). Indeed, the DSM-IV-TR diagnostic criteria for antisocial personality disorder require that the person met criteria for a conduct disorder before age 15 (American Psychiatric Association, 2000). In middle to late adulthood, the course of psychopathy is characterized by relative stability, although symptoms fluctuate with respect to extremity or dysfunction. For example, there is evidence of moderate diagnostic stability across periods of several months to several years (Alterman, Cacciola, & Rutherford, 1993; Rutherford, Cacciola, Alterman, McKay, & Cook, 1999; Schroeder, Schroeder, & Hare, 1983), persistence of symptoms across adulthood (Hare, McPherson, & Forth, 1988), and long-term risk for negative health outcomes such as morbidity and mortality (Repo-Tiihonen, Virkkunen, & Tiihonen, 2001). There is some evidence that psychopathy-related personality disturbance can be assessed reliably in childhood and adolescence (Kotler & McMahon, 2010) and is associated with increased risk for serious antisocial behavior in adolescence and adulthood (Forsman, Lichtenstein, Andershed, & Larsson, 2010; Forth & Book, 2010). Research of this sort is critical. If it turns out

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Special Assessment Issues

we can identify children or adolescents on a developmental trajectory toward adult psychopathy, then it may be possible to develop early intervention programs that prevent or reduce symptomatology (e.g., Frick & Ellis, 1999; Gresham, Lane, & Lambros, 2000). There is also evidence that psychopathy-related personality disturbance has at least moderate stability in adolescence (Andershed, 2010). Contrary to some claims, however, the evidence base does not constitute compelling evidence that “childhood psychopathy” or “adolescent psychopathy” exist, or that we are able to identify “fledgling psychopaths” (cf. Lynam, 1996). There are at least three major reasons for this (e.g., Edens, Skeem, Cruise, & Cauffman, 2001; Hart, Watt, & Vincent, 2002; Salekin, Rosenbaum, Lee, & Lester, 2009). First, personality, whether normal or abnormal, may not crystallize or stabilize for some years after the maturational changes (both biological and social) that follow puberty (Andershed, 2010; more generally, see Terracciano, McCrae, & Costa, 2010). This means personality disturbance present in childhood and adolescence may spontaneously remit prior to adulthood. For example, the majority (50% to 75% or more) of children and adolescents with symptoms of disruptive behavior disorder—even those who meet full diagnostic criteria for conduct disorder—experience partial or even full remission and do not go on to develop psychopathy as adults (Robins et al., 1991). It also means that personality disturbance may not become clinically significant until late adolescence or even adulthood. For example, the age of onset of psychopathic symptoms from the affective, behavioral, and emotional domains is typically in early adolescence, whereas that of symptoms from the cognitive, dominance, and self domains may be in middle or even late adolescence (e.g., Klaver, 2006). Second, symptoms of psychopathy may not be manifested in childhood or adolescence the same way they are in adulthood (Kotler & McMahon, 2010). Some symptoms, such as “glibness and superficial charm” and “irresponsibility,” have been well described in adulthood but not in childhood or adolescence. Other symptoms, such as “promiscuity” and “parasitic lifestyle,” are of questionable relevance in childhood and adolescence. Third, symptoms of psychopathy should be stable across time with respect to both trait extremity and impairment of functioning (Andershed, 2010). It is not clear that either criterion can be met in childhood or adolescence, due to lack of opportunity. For example, it is not until late adolescence or early adulthood that people enter into important social roles and obligations, such as

employment or marital relationships or parenthood, and have the opportunity to succeed or fail in them. The net result is that many diagnoses of psychopathy based on the presence or absence of personality disturbance in childhood or adolescence subsequently will prove to be false-positive or false-negative errors. The best way to avoid these diagnostic errors is not to diagnose psychopathy before the beginning of early adulthood, at least 18 years old or possibly even 25 years old (American Psychiatric Association, 2000; Hare, 1991, 2003; World Health Organization, 1992). Those who assess psychopathy-related personality disturbance in childhood or adolescence should bear in mind the potential ethical and legal problems associated with this practice (e.g., Edens & Vincent, 2008; Edens et al., 2001; Ogloff & Lyon, 1998; Viljoen, MacDougall, Gagnon, & Douglas, 2010). Gender, Age, and Culture The prevalence of mental disorders typically varies as a function of demographic characteristics such as gender, age, and culture or ethnicity. The same is true for psychopathy. With respect to gender, males are more likely than females to demonstrate all symptoms of psychopathy, resulting in a male:female sex ratio for lifetime prevalence of psychopathy that is about 3:1, according to epidemiological research (Lenzenweger et al., 2007; Robins et al., 1991). With respect to age, and focusing on adults (aged 18 and older), some epidemiological research in the United States has reported a cohort effect, with higher lifetime prevalence rates in younger generations than in older generations (Robins et al., 1991). With respect to culture, although psychopathy is found across cultures, there is some evidence of cross-cultural differences in the prevalence of symptoms and diagnoses of psychopathy (Cooke, 1996). One explanation for these group differences is a lack of conceptual equivalence. Sometimes, a disorder is more apparent, recognized, or relevant in one group than in another. This does not seem to be the case with psychopathy. According to literature reviews and anthropological research, psychopathy appears to have conceptual equivalence across gender and culture. Little attention has been paid to age. A second explanation is a lack of structural equivalence. A disorder’s syndromal structure—the pattern of associations among its symptoms—may vary. Put simply, the disorder “looks different” across groups, making it difficult or even impossible to develop adequate assessment

Clinical and Forensic Issues in the Assessment of Psychopathy

procedures and diagnostic criteria. This also does not seem to be the case with psychopathy. A large and growing body of research supports the structural equivalence (i.e., stability, if not strict invariance) of psychopathy across gender and culture. Once again, little attention has been paid to age. A third explanation is a lack of metric equivalence. Even if a disorder has good conceptual and structural equivalence across groups, procedures for assessing or measuring symptoms of the disorder may be biased and not directly comparable across groups. There is some evidence of bias in existing procedures for assessing or measuring psychopathy. Specifically, the findings of item response theory (IRT) analyses indicate that these procedures may underestimate the prevalence of psychopathy in European countries compared to Canada and the United States, and possibly in women compared to men. Yet again, little attention has been paid to age. But the underestimation is small in magnitude and not sufficient on its own to account for the observed group differences, raising the possibility they are due at least in part to cultural facilitation (Cooke, Michie, Hart, & Clark, 2005; Paris, 1998). In highly individualistic cultures such as the United States, norms and values that emphasize the importance of distinctiveness, status, self-confidence, honor, competition, and freedom from obligations to others may also foster the development of extreme manifestations of the same characteristics—for example, conceit, manipulativeness, irresponsibility, pathological dominance, and aggressiveness. Similarly, within a dominant culture, the expression of symptoms of psychopathy may be facilitated in certain subgroups, such as males or younger generations, that subscribe to more individualistic norms and values. Comorbidity Comorbidity among mental disorders is the rule rather than the exception. With respect to psychopathy, four major patterns of comorbidity are observed. First, psychopathy has a high rate of comorbidity with substance use disorders (Compton, Conway, Stinson, Colliver, & Grant, 2005; Hemphill, Hart, & Hare, 1994; Lenzenweger et al., 2007; Taylor & Lang, 2006). This comorbidity may reflect a common etiological mechanism, or it may be that in some cases substance use disorders are a consequence or complication of psychopathy. (It is not plausible that psychopathy is a consequence or complication of substance use disorders, as symptoms of the former generally have onset many years before those of the latter.)

561

Second, psychopathy also has a high rate of comorbidity with other personality disorders, specifically, the Cluster B borderline, narcissistic, and histrionic personality disorders in DSM-IV-TR or emotionally unstable and histrionic personality disorders in ICD-10 (Grant, Stinson, Dawson, Chou, & Ruan, 2005; Hart & Hare, 1989; Hildebrand & de Ruiter, 2005; Lenzenweger et al., 2007). The high rate of comorbidity among them almost certainly reflects inadequacies in their diagnostic criteria (i.e., a failure to “carve nature at its joints”), as well as common etiological factors. Third, low rates of comorbidity are observed between psychopathy and certain other personality disorders, specifically the DSM-IV Cluster C avoidant, dependent, and obsessive-compulsive personality disorders or the ICD-10 anxious/avoidant, dependent, and anankastic personality disorders (Hart & Hare, 1989; Hildebrand & de Ruiter, 2005; Lenzenweger et al., 2007; Widiger, 2006). The low rates of comorbidity among the disorders suggest they have independent or even competing etiologies. Finally, the rates of comorbidity between psychopathy and most other disorders are inconsistent, unclear, or unremarkable (Compton et al., 2005; Hart & Hare, 1989; Hildebrand & de Ruiter, 2005; Widiger, 2006). Etiology The etiology of psychopathy is unknown. Although research has failed to identify any childrearing experiences, familial dysfunctions, or other adverse life experiences that are found both frequently and specifically in people with psychopathy compared to people with other mental disorders, sociocultural factors certainly appear to play a role in the expression of the disorder (Farrington, 2006). The same is true of biological factors, such as prenatal trauma, neurotransmitter abnormalities, and structural abnormalities of the brain (Minzenberg & Siever, 2006; Neugebauer, Hoek, & Susser, 1999; Raine & Yang, 2006). Also, some twin and adoption research has reported that the heritability of psychopathy is substantial (Livesley, 1998; Waldman & Rhee, 2006), but molecular genetic research has not identified genetic markers. A common theme underlying many etiological theories that focus on biological factors is that psychopathy is associated with impaired ability to experience emotions and integrate them in executive functions; this core emotional deficit results in a failure of attachment to others, inattention to cues of impending punishment, and insensitivity to reward or punishment (for reviews, see Blair, 2003, 2006; Fowles & Dindo, 2006; Hiatt & Newman, 2006).

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Special Assessment Issues

A few theoretical models reject the notion that psychopathy is a mental abnormality at all. First, some interpersonal and behavioral genetic theories view psychopathy as an extreme variant of the same personality traits found in all people (Livesley, 1998; Lynam & Derefinko, 2006; Miller, Lynam, Widiger, & Leukefeld, 2001). According to these theories, psychopathy is not associated with any unique or specific causal influences and any differences between people with versus without the disorder are quantitative rather than qualitative in nature—that is, a matter of degree rather than of kind. Second, some sociobiological and evolutionary theories view psychopathy as a specific adaptation to environmental conditions (Mealey, 1995). According to these theories, the human species has the genetic capacity to express traits associated with psychopathy. In sociobiological theories, the genetic disposition for psychopathy exists in only a minority of humans and its manifestation is only partially dependent on environmental circumstances; but the genetic disposition confers an advantage in terms of enhanced reproductive success for affected individuals. In evolutionary theories, the genetic disposition exists in all humans, and its manifestation is highly dependent on specific environmental triggers; the genetic disposition confers an advantage in terms of reproductive success for the species as a whole—or, at least, conferred an advantage for the species at some point during human evolution.

Psychopathy and Violence Psychopathy is an established risk factor for violence in adulthood.3 At least when measured by the PCL-R or PCL:SV, psychopathy is perhaps the single strongest risk factor for violence identified to date. The evidence base is extensive and has been subjected to narrative review (e.g., Douglas, Vincent, & Edens, 2006; Hart, 1998) and meta-analytic review (e.g., Hemphill, Hare, & Wong, 1998; Leistico, Salekin, DeCoster, & Rogers, 2008; Salekin, Rogers, & Sewell, 1996). Perhaps the most general finding is that the association between overall psychopathic symptomatology and violence is moderate 3

There is a lack of consensus regarding the nature of the association between psychopathy and violence. According to some, antisocial behavior such as violence is a primary symptom of psychopathy (Hare & Neumann, 2010). To others, violence is an adverse outcome associated with psychopathy (Cooke, Michie, Hart, & Clark, 2004; Skeem & Cooke, 2010). Regardless, both camps agree that psychopathy should be correlated with future violence.

in magnitude. For example, the correlation between PCLR or PCL:SV total scores and future violence is typically between r = 0.25 and r = 0.30, and the odds ratio is typically between 5 and 10. Although the association between psychopathy and violence is robust, it tends to be larger in community settings than institutional settings, and also tends to be larger when the outcome reflects general but serious antisocial conduct (e.g., any violence) rather than more specific or less serious antisocial conduct (e.g., sexual violence, any misconduct). The predictive validity of psychopathy vis-`a-vis violence is greater than that of other established demographic, criminal history, and clinical risk factors. This has been demonstrated in several ways. First, measures of psychopathy typically predict violence as well as or even better than measures of past violence or other forms of mental disorder, such as psychosis or substance use. For example, the correlation between psychosis and violence is typically between r = 0.12 and r = 0.16, and the odds ratio is typically between 2.17 and 3.50 (Douglas, Guy, & Hart, 2009). Second, in studies that directly compared multiple risk factors, psychopathy predicts violence even after controlling for history of violence, other mental disorder, and so forth (e.g., Monahan et al., 2001) and after excluding PCL-R or PCL:SV items that reflect past antisocial conduct (e.g., Hare & McPherson, 1984). Third, measures of psychopathy typically predict violence only slightly less well than multi-item violence risk assessment instruments constructed theoretically or statistically (e.g., Yang, Wong, & Coid, 2010). An important caveat here is that psychopathy is only one risk factor to consider as part of comprehensive violence risk assessment. The presence of psychopathy is neither necessary nor sufficient to conclude that someone is at high risk for future violence, because not all people with psychopathy are violent and not all people who commit violence have psychopathy. Furthermore, for some specific forms of violence, such as spousal assault, stalking, and sexual violence, risk factors such as disordered attachment may be more important than psychopathy (e.g., Storey, Hart, Meloy, & Reavis, 2009). Finally, information about psychopathy cannot be used, either on its own or in combination with information about other risk factors, to meaningfully estimate the specific probability or absolute likelihood that a given individual will commit violence in the future (e.g., Hart, Michie, & Cooke, 2007; see also Cooke & Michie, 2010). Estimates of this sort are not feasible given the state of the science at the present time, and indeed may never be possible to make with a reasonable degree of confidence or certainty.

Clinical and Forensic Issues in the Assessment of Psychopathy

REVIEW OF ASSESSMENT PROCEDURES In this section, we review and evaluate some commonly used procedures for the clinical-forensic assessment of psychopathy in adults. The procedures we discuss fall into three general categories: structured diagnostic interviews; self-report questionnaires and inventories; and, expert rating scales. A comprehensive review of these procedures is beyond the scope of this chapter; rather, our goal is to highlight some of their important strengths and weaknesses. As a framework for evaluating strengths and weaknesses, we relied first on the general criteria for evaluating assessment procedures as outlined in the second edition of the Standards for Educational and Psychological Testing (American Educational Research Association, American Psychological Association, & National Council on Measurement in Education, 1999). In particular, we considered whether the assessment procedures have clear and explicit procedures for administration, scoring, and interpretation, and a body of research that supports the reliability and validity of test scores. We also considered the methodmode match and method-function match of the assessment procedures (Haynes, Richard, & Kubany, 1995). Method-mode match refers to the goodness-of-fit between an assessment procedure and the nature of the construct it was designed to assess, whereas method-function match is the goodness-of-fit between the assessment procedure and the decision making purpose for which it will be used. Several important features of psychopathy are relevant to evaluation of method-mode match (Hart et al., 1995). First, psychopathy has diverse symptoms. Ideally, assessment procedures should sample systematically and comprehensively from domains of symptoms, providing dimensional measures of each. Second, psychopathy is assumed to be reasonably stable throughout adulthood. Ideally, assessment procedures should have moderate to high temporal stability (i.e., test-retest reliability) and be unaffected by transient factors such as mood state, yet also should be sensitive to changes over time. Third, an important symptom of psychopathy is deceitfulness. Ideally, assessment procedures should not only evaluate the extent to which a person characteristically lies and manipulates, but also minimize the extent to which deceitfulness interferes with the assessment of other symptoms. Fourth, psychopathy is associated with risk for serious antisocial behavior, such as violence. Ideally, assessment procedures should be systematically associated with, but also conceptually distinct from, indexes of antisocial behavior.

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Two features of forensic decision making are relevant to method-function match. First, forensic decision making takes place in an adversarial context that encourages response distortion, including minimization and denial of mental disorder. Ideally, assessment procedures should require minimal cooperation from parties to legal proceedings, and should not rely solely on uncorroborated statements made by parties to legal proceedings. Second, forensic decision making often involves people who have limited educational achievement or are suffering from acute mental health problems. Ideally, assessment procedures should require minimal language or literacy skills. Diagnostic Interviews These procedures all use (semi-)structured interview schedules to gather information from the person being evaluated to make a diagnosis according to fixed and explicit criteria (e.g., Rogers, 2001). Two of the most commonly used structured diagnostic interviews for the assessment of psychopathy include the Structured Clinical Interview for DSM-IV, Axis II (SCID-II; First et al., 1995) and the International Personality Disorder Examination (IPDE; Loranger et al., 1994). SCID-II As its name implies, this interview was intended to assist the diagnosis of DSM-IV personality disorders, including antisocial personality disorder. The interview schedule contains a series of questions designed to tap each symptom of the various personality disorders. The questions are phrased so that they encourage respondents to acknowledge relatively minor adjustment problems; accordingly, clinicians ask the standard questions and, if the person admits to problems, they are free to ask probe or follow-up questions to confirm the presence and severity of symptoms. Consistent with this approach, evaluators can administer a self-report questionnaire to the person before the interview and then probe only those areas in which the person admits problems. Evaluators are expected to be familiar with the person’s psychiatric history in advance, which assists in the differential diagnosis of DSM-IV Axis I and II disorders. It is possible, although not a requirement, to incorporate collateral information in a SCID-II assessment. The SCID-II does not yield scores per se. Severity ratings for individual symptoms are used to diagnose the presence or absence of each personality disorder, and can also be used to create symptom counts for each disorder. Including time spent taking

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Special Assessment Issues

a psychosocial history, overviewing mental disorder, and administering the self-report screening questionnaire, a SCID-II assessment requires approximately 2 to 3 hours to complete.

Self-Report Inventories and Questionnaires

The IPDE was designed to permit the diagnosis of both DSM-IV and ICD-10 personality disorders, including DSM-IV antisocial and ICD-10 dissocial personality disorder. The interview schedule contains a series of general questions, organized thematically, that are designed to tap symptoms of the various personality disorders. Clinicians ask the standard questions and must follow up with a series of probes to confirm the presence and severity of symptoms. Each question is posed to every respondent. Prior to the interview proper, clinicians obtain an overview of the respondent’s psychosocial history. The format of the IPDE encourages clinicians to incorporate collateral information in their symptom ratings. The IPDE severity ratings for individual symptoms can be used to diagnose the presence or absence of each personality disorder, and to create symptom counts and dimensional ratings for each disorder.

These procedures require the person being evaluated to respond to a series of specific questions using a fixed response format. Usually, they are administered in written form, although it is possible in many cases to administer them orally or by means of audiocassettes. Multiscale inventories commonly used to assess psychopathy include the second edition of the Minnesota Multiphasic Personality Inventory (MMPI-2; Butcher, Dahlstrom, Graham, Tellgen, & Kaemmer, 1989) and its Restructured Form (MMPI-2-RF; Ben-Porath & Tellegen, 2008), the third edition of the Millon Clinical Multiaxial Inventory (MCMI-III; Millon, Davis, & Millon, 1997; Millon, Millon, Davis, & Grossman, 2009), and the Personality Assessment Inventory (PAI; Morey, 1991, 2007). A number of self-report questionnaires focused specifically on assessment of psychopathy have been developed (e.g., Blackburn & Fawcett, 1999; Gustaffson & Ritzer, 1995; Levenson, Kiehl, & Fitzpatrick, 1995; Lynam et al., 2011), perhaps the most popular one being the Psychopathic Personality Inventory (PPI; Lilienfeld & Andrews, 1996) and its revision (PPI-R; Lilienfled & Widows, 2005).

Evaluation

MMPI-2 and MMPI-2-RF

With respect to the general criteria for evaluating tests, diagnostic interviews have manuals that assist administration, scoring, and interpretation, although they have been criticized for lack of detail and a complete absence of normative data (Widiger & Samuel, 2005). There is also an evidence base that supports at least some aspects of their reliability and validity—in particular, interrater and testretest reliability, as well as concurrent validity vis-`a-vis other diagnostic interviews and clinical diagnoses. With respect to method-mode and method-function match, an important strength of the SCID-II and IPDE is that they tend to yield diagnoses of moderate temporal stability. They have several weaknesses, however. They are sensitive to state factors such as acute psychopathology (Widiger & Samuel, 2005). It is unclear if they are sensitive to change. They suffer from the same content limitations as the diagnostic criteria on which they were based, and so are limited in their coverage of psychopathic symptoms, and yet, at the same time, over-focus on antisocial behavior. When used as orally administered self-report inventories, they are susceptible to distortion, require cooperation, and require language skills. The SCID-II also requires literacy skills, if one uses the self-report screening questionnaire. These latter problems are minimized by integrating collateral information.

The MMPI-2 is a multi-scale self-report inventory intended to be a broadband measure of personality and psychopathology. All 567 items on the MMPI-2 are declarative statements phrased in the first person, singular. Respondents are asked to indicate whether the statements are true or false—or mostly true or false—as applied to them. The MMPI-2 takes approximately 1 to 1.5 hours to complete and according to the MMPI-2 manual requires “an eighth-grade reading level to comprehend the content of all the MMPI-2 items and to respond to them appropriately” (Butcher et al., 1989, p. 14; see also p. 1). The MMPI-2 has been translated into a variety of languages, and norms for the MMPI-2 are available for large, representative samples of community residents. Two clinical scales from the MMPI-2—the Psychopathic Deviate (Pd ) scale and the Hypomania (Ma) scale—have been used singly and in combination to assess characteristics of psychopathy. The MMPI-2 has a number of validity scales, in addition to the clinical scales, that are relevant for conducting clinical-forensic assessments. Items were selected for most MMPI-2 clinical scales by statistically contrasting for each item the response rate from a clinical group of interest with the response rate from a comparison group or groups (Hathaway & McKinley, 1940). The clinical group that was

IPDE

Clinical and Forensic Issues in the Assessment of Psychopathy

used to construct the original MMPI Pd scale comprised adolescents, most of whom were females with long histories of minor delinquency, diagnosed as “psychopathic personality, asocial, and amoral type.” McKinley and Hathaway (1944) acknowledged that “no major criminal types” (p. 167) were involved in the construction of the MMPI Pd scale. It should be recognized that, in addition to characteristics of clinical interest, this empirical approach to scale construction selects items that reflect sample characteristics such as socioeconomic background and education (Wiggins, 1973). The MMPI-2-RF is the restructured form for the MMPI-2. The MMPI-2-RF is similar to the MMPI-2 in format, but it is considerably shorter (338 items), requires less time to complete (35 to 50 minutes), and requires only fifth-grade reading ability (Ben-Porath & Tellegen, 2008). The test was normed in the United States on a nationally representative group of adult community residents. The MMPI-2-RF consists of 51 overlapping scales, including 9 validity scales. Several of the scales are relevant to psychopathy, such as BXD (Behavioral/ Externalizing Dysfunction), RC4-(asb) (Antisocial Behavior), JCP (Juvenile Conduct Problems), SUB (Substance Abuse), AGG (Aggression), and AGGR-r (Aggressiveness –Revised) (Sellbom et al., in press). MCMI-III The MCMI-III is a multi-scale self-report inventory intended “to provide information to clinicians . . . who must make assessments and treatment decisions about individuals with emotional and interpersonal difficulties” (Millon et al., 1997, p. 5). It was constructed using a combination of rational/theoretical and empirical approaches. The MCMI-III is comprised of 175 items, all declarative statements phrased in the first person, singular. Respondents are asked to rate the degree to which they agree with the statements using a True/False response format. Administration of the MCMI-III takes approximately 30 minutes, and self-administration requires at least a Grade 8 reading ability. The items form a number of overlapping scales and indexes. Four scales are used to assess response styles that may potentially invalidate MCMI-III profiles: the Validity Index (Scale V), which measures “bizarre or highly improbable” (p. 118) responses; the Disclosure Index (Scale X), which measures the tendency to provide self-revealing or secretive responses; the Desirability Index (Scale Y), which measures the tendency to provide overly favorable responses; and the Debasement Index (Scale Z), which measures the tendency to overreport

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personal difficulties. Scales 6A and 6B were designed to assess, respectively, antisocial personality disorder and sadistic (or aggressive) personality disorder. Norms for the MCMI-III were derived from a large sample of people assessed or treated in a wide range of inpatient and outpatient mental health settings. Separate norms for correctional offenders are now available. Norms for community residents are not available. PAI The PAI is a multi-scale self-report inventory intended to measure “critical clinical variables” (Morey, 1991; p. 1). It comprises 344 items, all declarative statements phrased in the first person, singular. Respondents are asked to rate the degree to which the statements are true of them on a 4-point scale (1 = very true, 2 = mainly true, 3 = slightly true, 4 = false). Administration of the PAI takes approximately 1 hour. Self-administration requires approximately Grade 4 reading ability; a Spanish translation is available. The items form a number of nonoverlapping scales, including 4 to assess response bias, 11 to assess clinical syndromes, 5 to assess treatmentrelated characteristics, and 2 to assess interpersonal style. Norms for the PAI were based on a large, representative sample of community residents and supplemented with norms from clinical settings. One scale, Antisocial Features (ANT), was designed to assess “personality and behavioral features relevant to the constructs of antisocial personality and psychopathy” (Morey, 1991; p. 18). Three subscales measure distinct facets of psychopathic symptomatology. Antisocial Behaviors (ANT-A) taps a history of conduct problems and criminality. Egocentricity (ANT-E) measures selfcentered, callous, and remorseless behavior, or “the pathological egocentricity and narcissism often thought to lie at the core of this disorder” (Morey, 1991; p. 72). Stimulus Seeking (ANT-S) reflects “a tendency to seek thrills and excitement and low boredom tolerance” (Morey, 1991; p. 72). PPI-R The PPI-R is a self-report measure of psychopathy-related personality traits designed for use in clinical and nonclinical settings. It comprises 154 items, all declarative statements phrased in the first person, singular. Respondents are asked to rate the degree to which the statements are true of them on a 4-point scale (1 = false, 2 = mostly false, 3 = mostly true, 4 = true). Self-administration requires approximately Grade 4 reading ability and takes approximately 20 to 30 minutes to complete.

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The items form eight nonoverlapping Content scales: Machiavellian Egocentricity, Rebellious Nonconformity, Blame Externalization, Carefree Nonplanfulness, Social Influence, Fearlessness, Stress Immunity, and Coldheartedness. The Content scale scores are summed to create three factor scores (Self-Centered Impulsivity, Fearless Dominance, and Coldheartedness), as well as Total scores. In addition, there are four validity scales (Virtuous Responding, Deviating Responding, and two Inconsistent Responding scales). The PPI-R was constructed in university students and normed in a large sample of adult community residents and a small sample of adult male offenders. Evaluation With respect to the general criteria for evaluating tests, self-report inventories and questionnaires have detailed manuals that assist administration, scoring, and interpretation. There is also an evidence base that supports at least some aspects of their reliability and validity—in particular, structural reliability. One major concern is that some lack norms for forensic populations. Another is that most self-report scales of psychopathy have low-to-moderate concurrent validity with other methods of assessment, and only moderate concurrent validity with each other (e.g., Douglas, Guy, Edens, Boer, & Hamilton, 2007; Edens, Hart, Johnson, Johnson, & Olver, 2000; Hare, 1985; Hart, Forth, & Hare, 1991; Poythress et al., 2010; Sellbom et al., in press). With respect to method-mode and method-function match, self-report inventories and questionnaires have major weaknesses. They have low-to-moderate temporal stability, and are very sensitive to state factors such as acute psychopathology and mood state (Widiger & Samuel, 2005). It is unclear if they are sensitive to change in symptomatology. Some of them (e.g., MMPI-2 and MCMI-III) have limited coverage of psychopathic symptoms. They are susceptible to distortion, require cooperation, and require literacy and language skills. They cannot integrate collateral information. The MMPI-2, MCMI-III, and PAI were not designed for use in forensic settings, but correctional norms of some type either exist or are in development for all three inventories. There is not a large and systematic literature involving self-report measures that has consistently found associations with antisocial, criminal, and violent behaviors among offenders or patients in forensic settings. Some commentators remain optimistic that self-reports may yet prove useful in the clinical-forensic assessment of

psychopathy. For example, Lilienfeld and Fowler (2006) offered the sanguine view that “rumors of the death of self-reports measures of psychopathy have been greatly exaggerated” (p. 128). Although perhaps exaggerated, it appears that the rumors have not yet been dispelled.

Expert Rating Scales These procedures are multi-item rating scales. Trained observers rate the severity of symptoms based on all available clinical data (e.g., interview with the respondent, review of case history information, interviews with collateral informants). The PCL-R falls into this category, as does the PCL:SV (Hart et al., 1995). PCL-R The PCL-R (Hare, 1991, 2003) is designed to assess and diagnose psychopathy in adult correctional offenders and forensic psychiatric patients, male or female. It comprises 20 items (see Table 23.3), some of which reflect pathological personality traits and others that reflect specific forms of antisocial conduct. Item definitions average about 200 words or so in length. Items are scored on a 3-point scale (0 = item doesn’t apply, 1 = item applies somewhat,

TABLE 23.3 Items in the Hare Psychopathy Checklist–Revised (PCL-R) 1. Glibness/superficial charm 2. Grandiose sense of self-worth 3. Need for stimulation/proneness to boredom 4. Pathological lying 5. Conning/manipulative 6. Lack of remorse or guilt 7. Shallow affect 8. Callous/lack of empathy 9. Parasitic lifestyle 10. Poor behavioral controls 11. Promiscuous sexual behavior 12. Early behavioral problems 13. Lack of realistic, long-term goals 14. Impulsivity 15. Irresponsibility 16. Failure to accept responsibility for own actions 17. Many short-term marital relationships 18. Juvenile delinquency 19. Revocation of conditional release 20. Criminal versatility Note: Adapted from Hare (1991, 2003).

Clinical and Forensic Issues in the Assessment of Psychopathy

2 = item definitely applies). Items can be summed to create Total scores ranging from 0 to 40; a cutoff score of 30 and higher is used to diagnose psychopathy. Scores can also be calculated for two superordinate factors and four subordinate factors, called facets. The PCL-R has been translated into many languages. The PCL-R is usually administered as part of a comprehensive psychodiagnostic evaluation, comprising an interview and review of file information. It is possible to administer the test based solely on third-party information if a person refuses or is otherwise unable to be interviewed, provided the quantity and quality of this information is sufficient. This procedure may, however, result in a score that is substantially lower than would have been obtained if the person had been interviewed. It is not possible to administer the PCL-R without access to thirdparty information, except for certain research purposes. It takes about 20 to 30 minutes to score and interpret the test. Norms are available for a variety of reference groups from around the world. PCL:SV The PCL:SV (Hart et al., 1995) was derived from the PCL-R. It was designed to assess and diagnose psychopathy in adult populations, regardless of gender, psychiatric status, or criminal history. It comprises 12 items (see Table 23.4), most of which reflect pathological personality traits and two of which reflect general antisocial conduct. Item definitions average about 50 words or so in length. Items are scored on a 3-point scale (0 = item doesn’t apply, 1 = item applies somewhat, 2 = item definitely applies). Items can be summed to create Total scores ranging from 0 to 24; a cutoff score of 18 and higher is used to diagnose psychopathy. Scores can also be calculated for two parts, isomorphic to the two superordinate factors of the PCL-R. The PCL:SV has been translated into several languages. Like the PCL-R, the PCL:SV is usually administered as part of a comprehensive psychodiagnostic evaluation, comprising an interview and review of file information, TABLE 23.4 Items in the Screening Version of the Hare Psychopathy Checklist–Revised (PCL:SV) 1. 2. 3. 4. 5. 6.

Superficial Grandiose Deceitful Lacks remorse Lacks empathy Doesn’t accept responsibility

7. 8. 9. 10. 11. 12.

Note: Adapted from Hart et al. (1995).

Impulsive Poor behavioral controls Lacks goals Irresponsible Adolescent antisocial behavior Adult antisocial behavior

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but can be administered based solely on third-party information. Scoring of the PCL:SV requires less information, and less detailed information, than does the PCL-R; further, the PCL:SV can be scored even when the person does not have a criminal record or when the complete record is not available. It takes about 10 to 20 minutes to score and interpret the test. Norms are available for a variety of reference groups, including adult male and female correctional offenders, forensic psychiatric patients, civil psychiatric patients, and community residents. Evaluation With respect to the general criteria for evaluating tests, expert rating scales have detailed manuals that assist administration, scoring, and interpretation. Extensive norms are available. There is a very large evidence base that supports every major aspect of their reliability and validity. The psychometric properties of the PCL-R and PCL:SV have been evaluated extensively within the framework of Classical Test Theory. The findings indicate that the structural, interrater, and test-retest reliabilities of the tests are good to excellent. The tests also have been evaluated within the framework of Modern Test Theory (IRT), with similar positive findings. The concurrent validity of the tests is good. They have moderate-tolarge correlations with clinical diagnoses made using other criteria, and low-to-moderate correlations with self-report measures of psychopathy. Their predictive validity is also good. They are moderately correlated with serious antisocial behavior, including violence, in both institutional and community settings. Finally, their construct validity is good. They have been used to study the course, comorbidity, etiology, and treatment of psychopathy. With respect to method-mode and method-function match, expert rating scales have several strengths. They have good coverage of psychopathic symptoms, at least relative to other measures, and have subscales for assessment of specific symptom domains. They are specifically designed to integrate information from multiple sources. They are not susceptible to response distortion, do not require cooperation, and require only limited language skills. They have moderate-to-high temporal stability, and are relatively insensitive to state factors such as acute psychopathology and mood state. The weaknesses of expert ratings scales include the fact that they are saturated to some extent with indexes of antisocial behavior (especially the PCL-R), and it is unclear if they are sensitive to change in symptomatology.

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Special Assessment Issues

LEGAL RELEVANCE OF PSYCHOPATHY The law, as a set of principles and procedures designed to prevent and resolve conflict, assumes that people involved are true agents, able to think and act in a reasoned, deliberate manner (Morse, 2004). When people’s agency is disturbed to the point that their behavior is fundamentally irrational or involuntary—that is, when they suffer from some kind of cognitive or volitional impairment—as a direct result of mental disorder, the law may permit the state to exercise its powers of control over citizens (Morse, 2002, 2004; Schopp, 2001; Slobogin, 2007; Verdun-Jones, 1989). The rationale for exercising power is to ensure the safety and well-being either of people suffering from mental disorder (in the case of parens patriae powers) or of the general public (in the case of police powers). But how does the law determine when a person’s cognitive or volitional abilities are sufficiently impaired by mental disorder to trigger the need for special care or control? Analyses of this issue by numerous psycholegal scholars—including Grisso (2003), Melton, Petrila, Poythress, and Slobogin (2007), Morse (2004), and Schopp (2001)—concur that three general requirements must be met (see Figure 23.2). First, the person must suffer from a bona fide mental disorder. Second, the person must suffer an impairment of legally relevant cognitive or volitional functions (although the law often is vague concerning which cognitive or volitional functions are legally relevant; Schopp, 2001). Third, the impairment of cognitive or volitional functions must be due at least in part to the mental disorder. Put differently, there must exist a discernible causal nexus between the mental disorder and the impairment of cognitive or volitional functions. Schopp (2001, p. 46) summarized the requirements as follows: Persons are eligible for legal status if and only if: (a) They suffer impairment of psychological capacities (b) rendering them unable to competently perform (c) psychological operations. Let us now examine the first two requirements in greater detail, especially insofar as they relate to

psychopathy. This discussion is based substantially on the analysis presented in Hart (2009). Is Psychopathy a Mental Disorder? Mental disorder is defined differently in law than in the mental health professions (specifically with respect to psychopathy, see Lyon & Ogloff, 2000; Ogloff & Lyon, 1998; more generally, see Melton et al., 2007; Schopp, 2001). The legal definition is not bound by the diagnostic criteria contained in any specific nosological system in psychology or psychiatry. It may be considered broader than the mental health definition in the sense that the legal definition typically is defined as an abnormality of the mind or mental functions. But it is also narrower in the sense that it includes only conditions that are internal (reside within the person), intransient (persistent), and involuntary (are outside his or her control), thereby excluding problems stemming from ephemera, environmental factors, or bad decisions (Verdun-Jones, 1989). In practice, this means that some abnormalities or conditions recognized by mental health professionals and included in, for example, the DSM-IV-TR may not be considered bona fide mental disorders in the law (e.g., simple intoxication resulting from voluntary ingestion of a psychoactive substance). According to this analysis, psychopathy meets the legal criteria for mental disorder. It is an abnormality of personality functions recognized in official nosological systems. It is persistent. It reflects something more than simply social deviance or bad choices. A few statutes have attempted to specifically exclude psychopathy as a legally recognized mental disorder on the grounds that the diagnosis merely reflects repeated antisocial acts (e.g., the proposed standard for legal insanity in the Model Penal Code; American Law Institute, 1962), a view shared by some legal commentators (e.g., McSherry, 1997, 1999); but, as is clear from the previous discussion, this is an inaccurate characterization. Psychopathy comprises a broad range of symptoms, and repeated antisocial conduct is not considered sufficient—and may not even be necessary—for diagnosis. Can Psychopathy Impair Cognitive or Volitional Functions?

Psychopathy

Causal Nexus

Functional Impairment

Figure 23.2 Three conditions necessary for psychopathy to be legally relevant

Cognitive functions are construed in broad terms in the law as those related to the capacity for rational thought, including the abilities to perceive the outside world accurately, to weigh or consider information, and to appreciate meaning or consequences of interpersonal

Clinical and Forensic Issues in the Assessment of Psychopathy

behavior; in contrast, volitional functions are related to people’s ability to exercise their agency, intentionality, or instrumentality—that is, their capacity for voluntary and purposeful behavior, including the abilities to choose goals, make and implement plans, and evaluate and revise plans (e.g., Denno, 2003; Malle & Nelson, 2003; McSherry, 2003; Morse, 2002, 2004; Shuman, 2002). The law is interested in a person’s ability to make decisions, discharge responsibilities, or self-regulate behavior only in very specific contexts. Also, the law is interested only when people have major functional impairments in these areas; people need only demonstrate some basic or minimal capacity in the relevant domains (Melton et al., 2007; Verdun-Jones, 1989). There is considerable scientific evidence supporting the view that psychopathy is associated with some impairment of cognitive functioning. The primary finding from experimental research indicates that psychopathic offenders have problems perceiving and processing abstract and emotional information, especially linguistic information. For example, compared to nonpsychopathic controls, psychopathic offenders have difficulty recognizing abstract and emotional words in lexical decision tasks; exhibit little differentiation between emotional and nonemotional words on behavioral tasks and measures of cortical activity; do not discriminate well between various facial expressions of emotion; and have problems interpreting metaphors (e.g., Hastings, Tangney, & Stuewig, 2008; Herv´e, Hayes, & Hare, 2003; Kiehl et al., 2006; Kiehl, Hare, McDonald, & Brink, 1999; Verona, Patrick, Curtin, Bradley, & Lang, 2004; Williamson, Harpur, & Hare, 1991). The corpus of relevant research comprises literally scores of studies conducted by scores of independent investigators working in dozens of countries over the past 20 years. There is also considerable evidence indicating that psychopathy is associated with impairment of volitional functioning. The findings from experimental research here indicate that psychopathic offenders have problems evaluating the potential consequences of their actions, inhibiting impulses, implementing plans, and learning from punishment. For example, compared to nonpsychopathic controls, psychopathic offenders show little anticipatory anxiety in the face of an impending aversive stimulus; overfocus on cues of potential reward, ignoring cues of potential punishment; and have trouble sustaining attention (Blair et al., 2004; Hiatt, Schmitt, & Newman, 2004; Mitchell et al., 2006). The corpus of relevant research is even older and larger than that supporting cognitive impairment, comprising hundreds of studies over almost 50 years.

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Is the Impairment Sufficient to Mitigate Culpability? Anglo-American legal tradition holds that people are culpable and therefore deserving of denunciation or punishment only when they engaged in proscribed behavior voluntarily and knowingly (Melton et al., 2007; Morse, 2002; Schopp, 2001; Slobogin, 2007; Verdun-Jones, 1989). This leads to two potential ways in which culpability can be mitigated. First, people accused of crimes can claim that their behavior was not voluntary because they had no real choice or were incapable of deliberation. If this claim is accepted, then the actus reus element of the offense has been negatived; in essence, they are found not to have engaged in intentional, purposive behavior because they could not formulate, choose, and implement plans. Second, people accused of crimes can claim that they did not understand or appreciate the nature, consequences, or wrongfulness of their actions. Acceptance of this claim means that the mens rea element of the offense has been negatived; they are found not to have had evil intent when engaging in the proscribed behavior because they could not attend to, perceive accurately, or think rationally about the environment. Depending on the law of the land and the nature and severity of the functional impairment stemming from it, mental disorder may be recognized as a factor that can negative either the actus reus or the mens rea. The mitigation of culpability may be complete, resulting in acquittal, or it may be partial, resulting in reduced punishment. Deciding this issue requires a retrospective assessment of mental state, an evaluation of the person’s psychological functioning at some time in the past. We have concluded that psychopathy is recognized in the law as a mental disorder that can impair cognitive or volitional functions. But is the nature and severity of functional impairment associated with psychopathy sufficient to mitigate culpability? Many different courts have grappled with this question over the years, and most have concluded that the answer is a resounding no (DeMatteo & Edens, 2006; Lyon & Ogloff, 2000; Rudnick & Levy, 1994; Walsh & Walsh, 2006). With respect to cognitive functions, the impairment associated with psychopathy may be characterized as restricted in nature or scope and moderate in severity. People with psychopathy have fundamental difficulties perceiving or reasoning about the emotional and interpersonal consequences of their actions. There is little doubt that cognitive impairment of this sort is likely to influence their behavior on a day-to-day basis. Yet their understanding of the physical consequences of their actions is intact;

570

Special Assessment Issues

they can use this ability to compensate for or overcome their impairment (at least to some extent), and the law expects them to do so. To illustrate, a person with psychopathy knows that strangling another person for the sheer fun of it has the potential to cause serious injury or death, yet may be indifferent as to the impact of these consequences for self or others. In simple terms, the person with psychopathy knows such an act is considered immoral and illegal and has consequences that are considered bad or harmful by others, even though he or she may be rather sanguine about the act. The law typically holds that people with psychopathy are capable of and can reasonably be expected to use their intact cognitive skills and abilities to overcome their impairments when making decisions with potentially serious consequences (Campbell, 1992; Fine & Kennet, 2004; McSherry, 1997, 1999; Schopp & Slain, 2000; Verdun-Jones, 1989). Similarly, the law expects that people with a physical disability such as serious color blindness should be aware of and compensate for their handicap—knowing they may have difficulty discriminating between red and green traffic lights, they should either avoid driving or develop strategies to ensure they can drive safely. With respect to volitional functions, the impairment associated with psychopathy may also be characterized as restricted in nature or scope and moderate in severity. People with psychopathy have fundamental difficulties maintaining attention or interest and exerting effort with respect to goal-directed activity. Again, although there is little doubt that volitional impairment of this sort influences behavior on a day-to-day basis, it is possible for people with psychopathy to perceive alternative courses of action, make choices, and compensate for or overcome their volitional impairment (at least to some extent) using other skills or abilities. Another illustration: A person with psychopathy may find working for a living very tedious and have fantasies of robbing a bank, but experiences the idea of bank robbery as a choice or possible future that requires effort or planning rather than as an unavoidable destiny or irresistible impulse. Thus, although they may want to engage in antisocial activity more often than do others, people with psychopathy are capable of exercising true agency with respect to this decision and the law expects them to do so.

harm to others.4 In contrast to culpability, deciding the issue of commitment requires an assessment of current mental state with an eye toward the future, that is, an evaluation of the person’s likely psychological functioning in the foreseeable future. Two types of commitment are permitted under the civil law of various Anglo-American jurisdictions (Melton et al., 2007; Schopp, 2001; Slobogin, 2007). The first is traditional civil commitment under mental health statutes. It typically does not require that people have any history of violent behavior, but instead requires they pose an imminent risk for violence due to acute mental disorder. The commitment generally is shortterm in nature, with a time horizon of days to weeks (although it may be extended). The second, newer form of civil commitment is under specialized statutes, such as sexually violent predator laws (Janus, 2000). It typically requires that people have committed serious violence or sexual violence in the past, and they also pose a persistent risk for future (sexual) violence due to chronic mental disorder. The term of commitment here generally is long-term, with a time horizon of years, and may even be indefinite. Although statutes differ in terms of the specific type and quantum of risk that must be posed to justify commitment, a common element is that all require the state to demonstrate that the violence risk is due (at least in part) to mental disorder. Before the state can commit, it must prove that the person has a mental disorder that impairs cognitive or volitional functions in a way that increases violence risk, and continued commitment requires the state provides people treatment (or management) for mental disorder and regularly evaluates them to determine whether they should be released because they no longer pose a violence risk due to mental disorder (i.e., their mental disorder remits, their cognitive or volitional impairments are remediated, or the risks they pose are no longer considered serious). (For further discussion, see Janus, 2000; Morse, 2002; Schopp, 2001.) Psychopathy is a mental disorder that impairs cognitive or volitional functions; but is the impairment sufficient to justify commitment? Courts that have grappled with this question typically concluded that the answer is no with respect to traditional or short-term commitment, but yes with respect to indefinite or long-term commitment (DeMatteo & Edens, 2006; Lyon & Ogloff, 2000; Walsh & Walsh, 2006; Zinger & Forth, 1998).

Is the Impairment Sufficient to Justify Commitment?

4 Civil

Here, commitment—that is, civil commitment—refers to the preventive detention of people based on risk for future

commitment also can be justified purely on parens patriae grounds due to risk of harm to self through suicide or self-neglect (Melton et al., 2007; Schopp, 2001), but our focus here is on violence risk.

Clinical and Forensic Issues in the Assessment of Psychopathy

It is not entirely clear why psychopathy generally is considered insufficient as a basis for short-term civil commitment. Based on the previous discussion, it appears inarguable that psychopathy is associated with cognitive or volitional impairment, and even though this impairment may be restricted in scope and only moderate in severity, it is certainly associated with a substantially increased risk for serious crime or violence and poor response to community-based strategies designed to manage or reduce this risk. There are at least two possible explanations. The first is that courts may view short-term civil commitment as requiring a very high level of cognitive or volitional impairment—a gross disturbance of perception, reasoning, or behavioral regulation—to avoid excessive use of police powers by the state, especially in cases where the person may have no history of actual, attempted, or threatened harm of another person. Because psychopathy is typically associated with cognitive and volitional impairment that is restricted in nature or scope and moderate in severity, as discussed previously, it may simply not meet the level of impairment typically required by courts. The second possible explanation focuses on the risks associated with psychopathy. Perhaps courts view psychopathy as meeting the criterion for commitment with respect to level of impairment, but do not accept that it is associated with an imminent risk of harm. Because psychopathy is a chronic condition, courts may believe the violence risk stemming from it is also chronic, rather than acute or limited in duration to the near future. Whatever the explanation, courts and evaluating experts appear to have had little difficulty determining that psychopathy can justify long-term commitment, either on its own or as a cofactor (Jackson & Richards, 2007; Levenson & Morin, 2006; Sreenivasan, Weinberger, & Garrick, 2003). Apparently even the restricted, moderate severity cognition and volitional impairment associated with psychopathy is sufficient to conclude that the disorder may elevate risk over the long-term—at least in cases where the person has perpetrated (sexual) violence in the past. Individualized Inquiry Two additional points greatly complicate the discussion. First, decisions about culpability and commitment are fixed or focused on a critical point in time: a time in the past, for culpability decisions, or in the present and future, for commitment decisions (Schopp, 2001). As psychopathy, functional impairment, and any causal nexus between them are dynamic in nature and fluctuate over time, one cannot take the status of any of these factors at one time

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and use this to infer status at other times. Thus, in an individual case, the evaluator needs to determine whether the three elements (mental disorder, functional impairment, and causal nexus between them) existed, exists, or will exist at the critical time. Second, decisions about culpability and commitment must be based on something more than stereotypical views of the “average” person with psychopathy. The evaluator cannot infer that a causal nexus existed between psychopathy and functional impairment at the critical time in an individual case based simply on the fact that psychopathy is often or usually associated with such functional impairment (i.e., in other cases). Rather, the evaluator needs to directly assess the causal nexus. Unfortunately, there are no assessment procedures with established validity or reliability that can be used to assess current psychopathic symptomatology or to assess a causal nexus between psychopathy and functional impairment. In the absence of standardized procedures, evaluators are forced to rely on unstructured clinical judgment. But even unstructured judgments should still be guided by available evidence and logic. For example, when assessing psychopathy at a particular point in time, evaluators may begin by using the PCL-R, PCL:SV, or some other set of comprehensive diagnostic criteria—such as those in the ICD-10, the Psychopathy Criterion Set from the DSM-IV Antisocial Personality Disorder Field Trial (Hare, Hart, Forth, Harpur, & Williamson, 1998), or the CAPP (Cooke, Hart, et al., 2004) criteria—as a conceptual framework for evaluating lifetime symptoms of psychopathy. Next, they could look for evidence in the form of overt behavioral indicators that these symptoms were present at or around the critical point in time. If there is evidence symptoms may have been present, then evaluators should try to rule out other potential explanations or causes, such as comorbid acute mental disorder or physical illness or situational exacerbation of “normal” personality traits. Once evaluators have concluded symptoms were present at the critical time, then they must look for evidence that the functional impairment was present at the same time and that there was a causal nexus between the two. Things are more difficult when assessing the causal nexus between psychopathy and functional impairment at some critical point in time. No standardized assessment procedures have been developed. Instead, evaluators must use abductive reasoning to develop and test competing explanations for any observed association between psychopathy and functional impairment, a process sometimes referred to in mental health as formulation (e.g.,

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Hart, Sturmey, Logan, & McMurran, 2011; Sturmey & McMurran, 2011). The plausibility of the various causal explanations is judged on logical grounds, according to the extent they cohere with the facts of the case, commonsense views of the world, and scientific research and theory. Once implausible causal explanations have been rejected, evaluators examine the survivors to determine whether psychopathic symptoms play one or more causal roles with respect to functional deficits. To the extent that plausible causal explanations rely on psychopathy, then the existence of a causal nexus is supported; but if one or more plausible causal explanations do not rely on psychopathy, then the existence of a causal nexus is questionable. Note that the law may not require that psychopathy is the only causal factor or even the primary causal factor, merely that it plays some important causal role. Two points are worth discussing here. First, it is important that evaluators consider multiple or competing explanations for the causal nexus. Philosophers and cognitive scientists have long warned us of the problems with trying to confirm theories, rather than trying to disconfirm them or pitting them against each other. The plausibility or verisimilitude of a particular causal explanation must be judged vis-`a-vis alternatives. Second, it is important for evaluators to keep in mind that their causal explanations are not direct observations of a physical phenomenon or deductions based on strong theory; they are simply inferences from and limited by available evidence. Evaluators should advance their explanations with humility, acknowledging that the nature of the causal nexus is unknown and ultimately unknowable.

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RECOMMENDATIONS FOR PRACTICE In this section, we make some recommendations concerning best practice with respect to the clinical-forensic assessment of psychopathy. They flow directly from issues discussed in the previous sections. Some are relevant to the clinical-forensic assessment of all personality disorders (e.g., Hart, 2001), whereas others are unique to psychopathy (e.g., Hart, 1998). We have tried to use language that emphasizes that the recommendations are aspirational in nature; we recognize that it may not be feasible, practical, or appropriate to follow them in certain circumstances. When conducting clinical-forensic assessments of psychopathy, we recommend that evaluators: 1. Assess symptoms broadly, straying beyond the confines of standardized diagnostic criteria as necessary

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and appropriate. This recommendation recognizes the heterogeneity of psychopathic symptoms. Assess the two major facets of symptoms, namely, severity (the extremity of pathological personality traits) and impairment (the extent to which those traits disturb psychosocial functioning). This recommendation recognizes the complexity of symptoms of psychopathy. Assess symptoms along a continuum, either in addition to or instead of making categorical diagnoses. This recommendation recognizes the difficulty of making simple categorical judgments regarding symptoms or diagnoses of psychopathy. Assess the course of symptoms, that is, their severity and impairment over time. This recommendation recognizes that symptoms of psychopathy are generally stable, but not at all static or fixed. Consider the potential influence of acute physical and mental health problems. This recommendation recognizes that certain conditions may mimic symptoms of psychopathy and need to be ruled out when diagnosing the disorder. Consider the potential influence of gender, age, and culture. This recommendation recognizes that group differences may influence the expression of symptoms of psychopathy and need to be ruled out when diagnosing the disorder. Assess psychopathy using methods that integrate information from diverse sources, such as expert rating scales or certain diagnostic interviews. This recommendation recognizes the limitations of assessment methods that rely solely or even primarily on uncorroborated statements by the person being evaluated, such as self-report inventories and questionnaires and certain diagnostic interviews. Assess psychopathy in adulthood, and exercise great caution when assessing psychopathy in early adulthood. This recommendation recognizes that psychopathy is a form of adult psychopathology, and there is lack of consensus that psychopathy exists and can be diagnosed in childhood and adolescence. Assess the causal nexus between psychopathy and any legally relevant impairment of cognitive or volitional functions. This recommendation recognizes the need to conduct an individualized inquiry in forensic evaluations. Interpret assessment findings in a way that emphasizes that psychopathy is not a necessary or sufficient factor with respect to violence risk. This recommendation recognizes the fallible or uncertain nature of

Clinical and Forensic Issues in the Assessment of Psychopathy

risk assessment, as well as the limited or imperfect association between psychopathy and violence risk.

AREAS FOR FUTURE RESEARCH In our chapter in the first edition of the Handbook, we discussed four areas in which we felt more research was sorely needed. We revisit them here and discuss progress made since 2003. Examine the Temporal Stability of Psychopathy We have discussed at some length that psychopathy is first evident at a young age and tends to remain stable across the lifespan. Thus, assessment procedures should yield scores that demonstrate high test-retest reliability. In our previous chapter, we lamented that surprisingly little research has been conducted examining the test-retest stability of scores on assessment procedures for psychopathy such as the PCL-R and PCL:SV. The situation has not really changed; only a few studies were published in the past 10 years that examined stability over brief periods of time. This is an area of urgent need. Evidence concerning the temporal stability of psychopathy—or lack thereof—is of considerable theoretical and practical importance. It is related to two questions that are critical to clinical-forensic practice. First, what is the extent of change that can be expected in symptoms of psychopathy, either with or without treatment? And second, can change in symptoms of psychopathy be assessed reliably? Of particular interest would be research on stability of psychopathy across key developmental stages—for example, from middle to late adolescence, from late adolescence to early adulthood, and from early to middle adulthood. Test-retest periods of 3 to 5 years would be ideal for research of this sort. Examine Incremental Validity This is an area in which much research has accumulated during the past 10 years. A host of individual studies compared the predictive validity of assessment procedures for psychopathy, primarily the PCL-R or PCL:SV, to that of indexes of criminality, other risk factors for serious criminality and violence, or multi-item violence risk assessment instruments. The evidence base has grown to the point that multiple meta-analyses have addressed various aspects of this question (e.g., Yang et al., 2010). A general finding is that measures of psychopathy such as the

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PCL-R and PCL:SV predict future violence better than do most other individual risk factors, but slightly less well than do multi-item violence risk assessment instruments. Another general finding is that although items in the PCLR that directly reflect antisocial behavior are more strongly related to future violence than items that do not directly reflect antisocial behavior, when taken together, the latter predict violence about as well as do the former. Study Clinical Settings Ten years ago, we called for research on how practicing clinicians administer, score, and interpret assessment procedures such as the PCL-R and PCL:SV, as well as the barriers to good or proper use of the PCL-R and PCL:SV. This is an area in which relatively little work has been done. There are two notable exceptions here. One is the work of Murrie, Boccaccini, and colleagues (e.g., Edens, Boccaccini, & Johnson, 2010; Murrie, Boccaccini, Johnson, & Janke, 2008), which examined the interrater reliability of PCL-R scores of opposing experts. For example, Murrie et al. (2008) found very low levels of interrater reliability between experts representing the plaintiff and respondent in sexually violent predator cases (ICC = .39). The disagreements between raters were in the direction favoring their clients’ cases. The authors have suggested this may reflect an “allegiance bias.” It is worth noting that the extent and the causes of the low interrater reliability are still under investigation. Also, the interrater reliability of the PCL-R was about as low as that of highly structured actuarial risk assessment instruments in the same sample. The other exception is the work of Cooke and Michie (2010) on the imprecision of the interrater reliability and predictive accuracy of PCL-R scores. All diagnoses and test scores are associated with measurement error. But most of the standard ways to index measurement error provide an “expected” or “on average” estimate of error, rather than characterizing the impact of this measurement error in an individual case. Cooke and Michie (2010) examined the precision of test scores and test-based predictions of violence in a single case using Monte Carlo methods. They found that the frequency of large measurement errors and, in part as a consequence, large prediction errors was much greater than expected, and concluded “on the basis of empirical findings, statistical theory, and logic . . . predictions of future offending cannot be achieved in the individual case with any degree of confidence” (p. 259).

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Research of this sort is of great assistance to the field of clinical-forensic psychology. Findings like those of Murrie and colleagues and Cooke and Michie should motivate practitioners to be cautious and humble when interpreting test scores. If the findings look bad for the PCL-R, which is one of the best and most-studied tests in forensic psychology, imagine what they would look like if similar analyses were conducted on tests with weaker psychometric properties. Evaluate Treatment Efficacy The treatment of psychopathy is an area in which little has been published in the past 10 years, but a lot of work has been done. Several groups around the world have developed, piloted, or evaluated treatment programs for psychopathic offenders. Two international conferences on the treatment of psychopathy have been held in Bergen, Norway, which has helped to further stimulate research and development. Some uncontrolled treatment evaluations have been published (e.g., Chakhssia, de Ruiter, & Bernstein, 2010), as well as meta-analyses of uncontrolled treatment evaluations (Salekin, Worley, & Grimes, 2010). But still, to date not a single randomized controlled trial (RCT) on the treatment of psychopathy has been published.

SUMMARY The procedures for assessing psychopathy can be grouped into three broad categories: structured diagnostic interviews, self-report questionnaires and inventories, and expert rating scales. This chapter critically examined each of these three broad procedures while keeping in mind the unique assessment issues with respect to forensic contexts and psychopathy assessments. Expert rating systems are considered superior to the other two categories for assessing psychopathy. A variety of professional and clinical issues that clinicians should keep in mind when conducting psychopathy assessments were discussed, as were practical recommendations for dealing with many of these issues. The chapter concluded with an examination of inadequately studied areas concerning psychopathy that should be a focus of future research. REFERENCES Alterman, A. I., Cacciola, J. S., & Rutherford, M. J. (1993). Reliability of the Revised Psychopathy Checklist in substance abuse patients. Psychological Assessment, 5, 442–448.

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Clinical and Forensic Issues in the Assessment of Psychopathy Loranger, A. W., Sartorius, N., Andreoli, A., Berger, P., Buchheim, P., Channabasavanna, S. M., . . . Regier, D. (1994). The International Personality Disorder Examination: The World Health Organization/Alcohol, Drug Abuse, and Mental Health Administration international pilot study of personality disorders. Archives of General Psychiatry, 51, 215–224. Lynam, D. R. (1996). Early identification of chronic offenders: Who is the fledgling psychopath? Psychological Bulletin, 120, 209–234. Lynam, D. R., & Derefinko, K. J. (2006). Psychopathy and personality. In C. J. Patrick (Ed.), Handbook of the psychopathy (pp. 133–155). New York, NY: Guilford Press. Lynam, D. R., Gaughan, E. T., Miller, J. D., Miller, D. J., MullinsSweatt, S., & Widiger, T. A. (2011). Assessing the basic traits associated with psychopathy: Development and validation of the Elemental Psychopathy Assessment. Psychological Assessment: A Journal of Consulting and Clinical Psychology, 23, 108–124. Lyon, D. R., & Ogloff, J. R. P. (2000). Legal and ethical issues in psychopathy assessment. In C. B. Gacono (Ed.), The clinical and forensic assessment of psychopathy: A practitioner’s guide (pp. 139–173). Mahwah, NJ: Erlbaum. Malle, B. F., & Nelson, S. E. (2003). Judging mens rea: The tension between folk concepts and legal concepts of intentionality. Behavioral Sciences and the Law, 21, 563–580. McCord, W., & McCord, J. (1964). The psychopath: An essay on the criminal mind. Princeton, NJ: Van Nostrand. McKinley, J. C., & Hathaway, S. R. (1944). The Minnesota Multiphasic Personality Inventory V: Hysteria, hypomania, and psychopathic deviate. Journal of Applied Psychology, 28, 153–174. McSherry, B. (1997). The reformulated defence of insanity in the Australian Criminal Code Act 1995 (Cth). International Journal of Law and Psychiatry, 20, 183–197. McSherry, B. (1999). Mental impairment and criminal responsibility: Recent Australian legislative reforms. Criminal Law Journal, 23, 135–144. McSherry, B. (2003). Voluntariness, intention, and the defence of mental disorder: Toward a rational approach. Behavioral Sciences and the Law, 21, 581–599. Mealey, L. (1995). The sociobiology of sociopathy: An integrated evolutionary model. Behavioral and Brain Sciences, 18, 523–599. Melton, G. B., Petrila, J., Poythress, N., & Slobogin, C. (2007). Psychological evaluations for the courts: A handbook for attorneys and mental health professionals (3rd ed.). New York, NY: Guilford Press. Miller, J. D., Lynam, D. R., Widiger, T. A., & Leukefeld, C. (2001). Personality disorders as extreme variants of common personality dimensions: Can the Five-Factor Model adequately represent psychopathy? Journal of Personality, 69, 253–276. Millon, T., Davis, R., & Millon, C. (1997). Millon Clinical Multiaxial Inventory–III (MCMI-III) manual (2nd ed.). Minneapolis, MN: National Computer Systems. Millon, T., Millon, C., Davis, R., & Grossman, S. (2009). Millon Clinical Multiaxial Inventory–III (MCMI-III) manual (4th ed.). Minneapolis, MN: NCS Pearson. Minzenberg, M. J., & Siever, L. J. (2006). Neurochemistry and pharmacology of psychopathy and related disorders. In C. J. Patrick (Ed.), Handbook of psychopathy (pp. 251–277). New York, NY: Guilford Press. Mitchell, D. G. V., Fine, C., Richell, R. A., Newman, C., Lumsden, J., Blair, K. S., & Blair, R. J. R. (2006). Instrumental learning and relearning in individuals with psychopathy and in patients with lesions involving the amygdala or orbitofrontal cortex. Neuropsychology, 20, 280–289. Monahan, J., Steadman, H. J., Silver, E., Appelbaum, P. S., Robbins, P. C., Mulvey, E. P., . . . Banks, S. (2001). Rethinking risk assessment: The MacArthur study of mental disorder and violence. New York, NY: Oxford University Press.

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CHAPTER 24

Child Sexual Abuse Evaluations KATHRYN KUEHNLE AND MARY CONNELL

SCOPE OF THE PROBLEM 579 EFFECTS OF CHILD SEXUAL ABUSE 583 BASE RATES OF CHILDREN’S BEHAVIORS MEMORY 587 SUGGESTIBILITY 592

ASSESSMENT TOOLS 595 STRUCTURING THE INTERVIEW 597 CHILDREN’S TESTIMONY 602 SUMMARY 605 REFERENCES 605

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and understanding differences between non-sexually abused and sexually abused children, and considers issues of instrument sensitivity and specificity when using assessment protocols and tools. To address the critical issues in CSA evaluations, this chapter considers two sources for information: published research and the law.

The determination of whether sexual abuse of a child has occurred is a complex problem. Accurate estimates of the relative percentage of true and false allegations of child sexual abuse (CSA) evade researchers. There is significant debate in the research community over whether child victims of sexual abuse or nonvictims are grossly misidentified (e.g., Faust, Bridges, & Ahern, 2009; Herman, 2009), and which type of error (i.e., falsepositive or -negative) creates the greatest harm (Ceci & Friedman, 2000; Lyon, 1999). The scientific and clinical communities are in agreement that professionals who assess allegations of CSA should not assume cause-and-effect associations between a single aspect of behavior (e.g., behavioral or emotional symptoms, interactions with anatomically or nonanatomically detailed dolls, drawings with genitalia, one statement by a child) and the occurrence or nonoccurrence of a sexual abuse event (Kuehnle, 1998c), and should not rely solely on their subjective observations (Ceci, Loftus, Leichtman, & Bruck, 1994; Leichtman & Ceci, 1995). To meet the challenge presented by these complex cases, Kuehnle (1998b) proposed the scientist-practitioner model for evaluating CSA allegations. This model grounds opinions regarding the occurrence of CSA on empirically established relationships between data and the behavior of interest, rather than on subjective conclusions. Using empirically derived information, the scientist-practitioner defines CSA as a life event rather than as a clinical syndrome, relies on base rates of behavior for distinguishing

Definition of Child Sexual Abuse Every state defines child abuse and neglect, including sexual abuse, in statute and code or rule. State statutes also establish the evidence or proof needed to make a specific finding or disposition as a result of the state investigative inquiry into an allegation of maltreatment. The U.S. Department of Health and Human Services Administration for Children and Families (2010) defines CSA as “a type of maltreatment that refers to the involvement of the child in sexual activity to provide sexual gratification or financial benefit to the perpetrator, including contacts for sexual purposes, molestation, statutory rape, prostitution, pornography, exposure, incest, or other sexually exploitative activities” (p. 128). Across states, the definitions of CSA vary. While all states identify children as incompetent to consent to sexual activity with adults, the legal age of consent ranges from 14 to 18 (Berliner, 2000; Myers, 1997a). Illegal sexual interactions, for which children do not have the maturity to provide consent, include activities of contact and noncontact, such as fondling of genital areas, oral sex, intercourse, exposure to indecent acts, sexual rituals, or involvement in child pornography. 579

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Child-on-child sexual abuse is not addressed within the statutes in the majority of states. When a child commits an act of sexual abuse on a child, this may not be a crime in the laws of a state. Instead, child sexual abuse perpetrated by a minor may be addressed within the state’s statutes for the management of juveniles who commit criminal offenses or may not be addressed by any statute. The professional literature defines child-on-child sexual abuse as sex forced on one child by another, regardless of age difference, and any sexual activity between children who differ by a minimum of 3 to 5 years in age. In reference to child-on-child sexual abuse, Berliner states: “When children 12 and under are the focus, in general, misconduct should primarily be considered a behavior problem, not a crime” (as cited in Araji, 1997, p. 38). Incidence and Prevalence As noted by Berliner (2011, p. 216), “Answering the seemingly simple question, ‘How common is sexual abuse?’ turns out to be quite complicated.” None of the national agencies collect data that encompass all possible cases of alleged CSA identified as perpetrated by intrafamilial and extrafamilial sexual abusers. Statistics based on alleged CSA reported to child protection agencies and reflected in national statistics such as those found in the National Child Abuse and Neglect Data System (NCANDS) may include primarily those cases perpetrated by parents or caregivers (U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth and Families, Children’s Bureau, 2010). However, most sexual abuse is not committed by biological fathers or mothers (Hansen et al., 2006; Saunders, Kilpatrick, Hanson, Resnick, & Walker, 1999). Other national efforts to document the incidence of CSA include the National Criminal Victimization Survey (NCVS), which collects crime data, including sexual offenses, but does not collect data on crimes perpetrated on individuals under 12 years old, and the FBI Uniform Crime Reporters, which collect data from law enforcement agencies, but do not distinguish child and adult cases. In contrast to these previously cited national data collection efforts, the National Incidence Study (NIS) is a congressionally mandated data collection effort conducted by the U.S. Department of Health and Human Services with a primary goal of providing annual estimates on the total number of children who are abused or neglected in the United States. The NIS data sources include records from child protection services, law enforcement and public health agencies,

courts, schools, and hospitals. In order to provide nationally representative estimates of the prevalence and distribution of all categories of abuse and neglect, the NIS is conducted in a representative sample of counties (Sedlak, 2001). Research employing surveys has also been used to estimate incidence/prevalence of CSA. The National Survey of Children’s Exposure to Violence is the most comprehensive nationwide survey of the incidence and prevalence of children’s exposure to violence to date (Finkelhor, Turner, Ormrod, Hamby, & Kracke, 2009). Conducted between January and May 2008, the survey measured the past-year and lifetime exposure to violence for children age 17 and younger through telephonic interviews with the youths ages 10 to 17, and with adult caregivers of children age 9 and younger. One in 16 children reported having been sexually abused within the past year of the interview and nearly 1 in 10 over their lifetimes; nearly 1 in 5 girls ages 14 to 17 had been the victim of a sexual assault or attempted sexual assault in their lifetimes. Sexual victimizations included attempted and completed rape (1.1% past year, 2.4% lifetime); sexual assault by a known adult (0.3% past year, 1.2% lifetime), an adult stranger (0.3% past year, 0.5% lifetime), or a peer (1.3% past year, 2.7% lifetime); flashing or sexual exposure by an adult (0.4% past year, 0.6% lifetime) or peer (2.2% past year, 3.7% lifetime); sexual harassment (2.6% past year, 4.2% lifetime); and statutory sexual offenses (0.1% past year, 0.4% lifetime). Adolescents ages 14 to 17 were the most likely to be sexually victimized, with almost 1 in 6 reporting some form of sexual victimization in the preceding year. Declining Rates These data make clear that the rate of child maltreatment is high in the United States. As disturbing as these numbers are, there is some evidence that rates may be declining. Data from the fourth National Incidence Study of Child Abuse and Neglect (NIS-4; Sedlak et al., 2010) suggest declining rates of sexual abuse and physical abuse, which is consistent with trends suggested by CPS data gathered by the National Child Abuse and Neglect Data System (NCANDS; U.S. Department of Health and Human Services, Administration on Children, Youth, and Families, 2010). Finkelhor and Jones (2006) closely examined the conflicting data from several national studies and, after accounting for methodical differences, noted that the observed declines in child sexual (and physical) abuse

Child Sexual Abuse Evaluations

are genuine and are not the product of other factors. In support of this conclusion they noted: 1. The decline in agency statistics is paralleled by declines in victim self-reports from at least two other sources, the NCVS (data on sexual assault to teens by known persons) and a statewide survey of students in Minnesota (Minnesota Department of Children, Families, & Learning and Minnesota Department of Human Services, 2001). 2. The patterns in the CPS data do not bear the hallmarks of declines due to decreased reporting, changed standards or other artifactual explanations. For example, declines are strong for all categories of reporting source, and for all types of sexual abuse. Cases with more equivocal or problematic evidence have not declined more than other cases (for more details, see the analyses in Finkelhor & Jones, 2004; Jones, Finkelhor, & Halter, 2006). 3. There have been declines in the most clear-cut, unambiguous and uncontroversial cases of sexual abuse, like those that involve offender confessions and sexually transmitted diseases (Finkelhor & Jones, 2004). 4. Other closely related child welfare indicators have also declined over the same period. For example, in addition to other forms of juvenile and adult crime victimization, there have also been declines in teen suicide, running away, juvenile delinquency, and teen pregnancy (Hammer, Finkelhor, & Sedlak, 2002). These other problems are generally thought to be outcomes of or connected to sexual abuse. These related declines, from independent data sources, give plausibility to the sexual abuse decline. (pp. 688–689)

Categories of Allegations Maltreatment is defined as “[a]ny recent act or failure to act on the part of a parent or caretaker which results in death, serious physical or emotional harm, sexual abuse or exploitation; or an act or failure to act which presents an imminent risk of serious harm” (NCANDS, 2010). Most states recognize four major types of maltreatment: neglect, physical abuse, psychological maltreatment, and sexual abuse. How states define the types varies. Similarly, states vary in the language employed to describe outcomes but NCANDS categorizes cases as substantiated, indicated, or unsubstantiated (NCANDS, 2010). Substantiated is an investigation disposition that concludes that the allegation of maltreatment or risk of maltreatment was supported or founded by state law or state policy. This is the highest level of finding by a state agency. A report finding of indicated or reason to suspect is a report disposition that concludes that maltreatment cannot be substantiated under state law or policy, but there is reason

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to suspect that the child may have been maltreated or was at risk of maltreatment. This is applicable only to states that distinguish between substantiated and indicated dispositions (NCANDS, 2010). Reports that are determined to be false allegations comprise a very small percentage of the unsubstantiated cases of child maltreatment reported to and investigated by CPS (U.S. Department of Health and Human Services, Administration for Children and Families, Administration on Children, Youth, and Families, Children’s Bureau, 2010). According to data collected for the annual report of NCANDS for the year 2009, CPS investigated about 62% of the reported cases. Of those, CPS made a positive finding in one fourth (22.1% were substantiated, 1.3% were indicated, and 0.5% were determined through an alternative response to be victims). Three quarters of the CPS findings did not have a positive finding of maltreatment; of those, 64.3% were unsubstantiated, 8.7% were determined through an alternative response to be nonvictims, 1.6% were closed with no finding, 1.3% were designated “other,” 0.1% were considered intentionally false, and 0.2% were unknown. The NCANDS did not identify the percentage of intentionally false reports by category of abuse. The “alternative response” designation was used by NCANDS researchers to refer to those reports that were handled by an alternative approach that focused primarily on the needs of the family and may or may not have included a determination regarding the alleged maltreatment. Kuehnle and Connell (2010) suggested that there is a greater risk for false allegations in child custody cases compared to child welfare cases due to the different dynamics that occur in these diverse circumstances. Some research indicates that the rate of false sexual abuse allegations ranges from 6% to 8% (Faller, 1991; Jones & McGraw, 1987), but others have argued that this estimate is misleadingly low (Ceci & Bruck, 1995), and a more accurate estimate is 23% to 35% when other comprehensive criteria are included in the approximation. Lower estimates of false allegations are based on intentional lying as the sole criterion, whereas the higher estimates are based on both intentional lying and suggestive questioning. Ceci and Bruck proposed that a more appropriate label for these higher estimates would be false suspicions rather than false allegations. Risk Factors for Child Sexual Abuse Most sexual abuse is not committed by parents. Fathers and stepfathers are identified as offenders in

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approximately 16% of CSA cases (Hansen et al., 2006; Saunders et al., 1999). Of the child victims of sexual abuse in Finkelhor et al.’s sample, 71% were assaulted by someone they were acquainted with or knew by sight and 18% were assaulted by a complete stranger (Finkelhor, Hammer, & Sedlak, 2008). Children are at increased risk for victimization when they live in a home where parents’ abilities to nurture and supervise are substantially compromised by violence, substance abuse, poverty, and single-parent status (Finkelhor, 2008; Sedlak & Broadhurst, 1996). Children in families of low socioeconomic status (SES) are twice as likely to be sexually abused than their counterparts in higher-SES homes, and are at greater risk for other forms of abuse as well (Sedlak et al., 2010). The NIS-4 study also investigated family structure and found that children living with married and unmarried cohabitating biological parents, or with a single parent not living with a partner, were sexually abused at a significantly lower rate than children living with a parent cohabiting with a partner who was not biologically related to the child, or living with married parents who were legally but not biologically related to the child. Other family factors associated with increased prevalence of CSA include parental substance abuse (Emery & Laumann-Billings, 1998; Hawley, Halle, Drasin, & Thomas, 1995) and poor family or peer relationships (Fergusson, Lynskey, & Horwood, 1996; Fleming, Mullen, & Bammer, 1997). Retrospective research with over 8,000 victims of child sexual and physical abuse indicated that parent alcohol abuse and drug abuse were associated with more than a twofold increase in risk for sexual and physical abuse during childhood (Walsh, MacMillan, & Jamieson, 2003). Research has consistently shown that females are more likely to be abused than males (Sedlak et al., 2010). Finkelhor et al.’s (2008) sample of sexual assault victims was disproportionately female (89%); ages 12 to 17 (81%); and assaulted by a male (95%). Other child characteristics that are associated with increased risk are early sexual maturation in girls (Fergusson & Mullen, 1999) and emotional and physical disabilities (Sobsey, Randall, & Parrila, 1997; Sullivan & Knutson, 1998). Consistent with these earlier findings, Beauregard, Rossmo, and Proulx (2007) reported that sex offenders targeted children who have family problems, lack supervision, and are in need of help. Beauregard, Proulx, Rossmo, Leclerc, and Allaire (2007), upon analyzing the behavior of incarcerated sex offenders, identified two primary methods they employed to access children: infiltrating

families and infiltrating child-centered jobs. The family infiltrator becomes acquainted with the family and offers different types of help. The child-centered job infiltrator chooses a profession that provides access to children. Sex offenders emphasize the extent to which they seduce their victims over time and use strategies such as giving special rewards or privileges and threatening to withdraw benefits such as love and attention (Leclerc, Proulx, & Beauregard, 2009). Because of the power and status differences between perpetrators and victims, force is typically unnecessary although not absent in all cases (see Lyon & Ahern, 2011, for review). Mandated Reporting All 50 states have passed some form of a mandatory child abuse and neglect reporting law in order to qualify for funding under the Child Abuse Prevention and Treatment Act (CAPTA), as amended in 1996. Currently, child maltreatment reporting laws are in effect in all 50 states and, in most states, criminal penalties for failure to report known or suspected cases of child maltreatment have been established (Finlayson & Koocher, 1991). In all states, professionals have a duty to report suspicions of child maltreatment. In the NIS-4 study (Sedlak et al., 2010), those professionals who, as a function of their job duties, came into regular contact with children (e.g., employees of police and sheriffs’ departments, public schools, day care centers, hospitals, social service agencies, mental health agencies, county juvenile probation departments, public health departments, public housing programs, shelters for runaway and homeless youth, domestic violence shelters) were surveyed regarding their reporting practices. The study participants were 10,791 professionals in 1,094 sentinel agencies. One fourth of the professionals (24%) had neither received written instructions nor attended a workshop about their state’s reporting requirements while working in their current agencies. Professionals who received training were more likely to indicate they had made a report of suspected child maltreatment to CPS than those who had not received training (67% versus 53%). Fewer professionals in schools and other agencies said that they had reported a case (54% and 50%, respectively) compared to 87% of law enforcement professionals and 77% of professionals in health agencies. Of particular concern was the finding that almost one fourth (23%) of the professionals surveyed indicated that they would not report described situations of harm or physical injury resulting from maltreatment.

Child Sexual Abuse Evaluations

EFFECTS OF CHILD SEXUAL ABUSE Identifying the effects of an experience of CSA is complicated by the lack of a cohesive definition of CSA. This lack of cohesiveness makes research on the consequences of CSA ambiguous and outcomes can be difficult to replicate or generalize (Haugaard, 2000). Despite the definitional difficulties, researchers have established some patterns of CSA outcomes (see Yancey & Hansen, 2010). There is strong evidence that the accumulation of experienced traumas is more significant than the type of trauma experienced by the child (Finkelhor, 2008). When other types of traumas are experienced or other family violence co-occurs with CSA, the outcomes of child sexual victimization or other independent traumas are associated with more serious psychological and physical health problems for child victims (Dong et al., 2004; Finkelhor, Ormond, & Turner, 2009).

Child Sexual Abuse Is an Event CSA is an event or a series of events, not a psychiatric disorder, and the potential symptoms that sexually abused children may exhibit vary significantly (Kendall-Tackett, Williams, & Finkelhor, 1993; Kuehnle, 1998a). The broad range of behaviors exhibited by child victims varies as a function of personality differences, personal interpretation of the event, identity of the perpetrator, characteristics of the sexual acts, co-occurring forms of family violence, family stability, and the parents’ response to the abuse. Sexual abuse is not an experience leading in some basic and systematic manner to a single symptom or syndrome. For example, although aberrant sexual behaviors are considered the most specific effects and among the most treatment-resistant sequelae of sexual abuse (Cosentino, Meyer-Bahlburg, Alpert, Weinberg, & Gaines, 1995; Finkelhor & Berliner, 1995; Friedrich, 1998), children who are not victims of sexual abuse also exhibit these same behaviors. In a normative study of over 2,000 children, although Friedrich (1998) found that sexual abuse was the best predictor of aberrant sexual behavior, he also found family sexuality involving the child’s recurrent exposure to sexual material and activity was the second best predictor. There is significant variability (i.e., 7% to 90%) in numbers of sexually abused children exhibiting aberrant sexualized behaviors (Kendall-Tackett et al., 1993). This variability may be partially accounted for by the methodological weaknesses characterizing this research, including confounded

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variables and inconsistency in the definitions of sexual behavior problems (see Briere, 1992). Moderating Variables and Outcomes Yancey and Hansen (2010) identified and separated potential moderating variables of CSA outcomes into categories: Personal Factors (e.g., age, gender, attributions); Familial Factors (e.g., parental history of CSA, family discord, parental reaction to disclosure); and AbuseSpecific Factors (i.e., severity of abuse, duration of abuse, victim–perpetrator relationship). The age and cognitive development of the child victim may affect the outcomes that are displayed following CSA. Very young children likely have less understanding of the implications of the abuse, and therefore these victims may not show as many symptoms and negative outcomes following CSA as older children (cited in Feiring, Taska, & Lewis, 1998a, 1998b; Kendall-Tackett et al., 1993; Yancey & Hansen, 2010: but see Paolucci, Genuis, & Violato, 2001). Feiring et al. (1998a) found that victims first abused as adolescents were more likely than victims first abused as children to report depressive symptoms and low self-esteem. While Kendall-Tackett et al. found that older children reported more symptoms than younger children, many studies they reviewed did not control for duration of abuse, severity of abuse, or the nature of the relationship between the victim and perpetrator. In contrast, a meta-analysis conducted by Paolucci and colleagues did not find age at the time of sexual abuse to predict post-abuse outcome. Yancey and Hansen (2010) noted that there is an absence of longitudinal research following victims for any period after disclosure, which makes conclusions regarding the effect of age on outcome tenuous. CSA Victim Attributions Whereas early research on the outcomes of CSA did not include males because it was believed that male children were rarely sexually abused, more recent research indicates that outcomes for male and female child victims are similar (Kendall-Tackett et al., 1993), but male victims are more likely to display more externalizing behaviors (Heath, Bean, & Feinauer, 1996; Kendall-Tackett et al., 1993; Young, Bergandi, & Titus, 1994) and females tend to display more internalizing behaviors (Kendall-Tackett et al., 1993; Stern, Lynch, Oates, O’Toole, & Cooney, 1995). How victims interpret their sexual abuse experience is highly correlated with symptom presentation. Victims who endorse greater negative attributions such as

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blaming themselves, thinking their behavior triggered the abuse, or believing that they were at fault for not stopping it report higher levels of depression and anxiety and lower self-esteem (Feiring & Taska, 2005; Feiring, Taska, & Chen, 2002; Kolko, Brown, & Berliner, 2002). Kolko and colleagues concluded that the victims’ attributions are as significant a factor in the effects of abuse as are the characteristics of the abuse. Feiring et al. (1998a) found shame and negative attributional style (e.g., self-blame) was a moderator for symptom outcome and abuse characteristics (e.g., age at onset, duration), making abuse characteristics nonsignificant when shame and attributional style were added to a regression equation. Family Factors Associated With Outcomes Important familial factors related to children’s outcomes include parental responses to disclosure and support of the victim, parents’ mental health, and level of family discord. Support by a parent is a strong predictor of positive adjustment of child victims following disclosure of abuse (cited in Berliner, 2011: Bernard-Bonnin, Herbert, Daignault, & Allard-Dansereau, 2008; Mannarino & Cohen, 1997), and may be more influential on victims’ adjustment than the abuse characteristics (Elliott & Carnes, 2001; Spaccarelli & Kim, 1995). Family support and victim attributions are negatively correlated, with low parental support related to high negative attributions (Yancey & Hansen, 2010). In general, the greater the support provided by parents, the fewer behavioral and emotional difficulties, including fewer negative abuse-related attributions, are exhibited by the victim (Deblinger, Steer, & Lippman, 1999; Elliott & Carnes, 2001; Feiring, Coates, & Taska, 2001). Research examining the relationship between parents’ mental health status and history of CSA and the adjustment of sexually abused children’s outcome is limited and inconclusive, unless associated with current family dysfunction (see Yancey & Hansen, 2010). Family dysfunction and greater family conflict is associated with behavioral symptoms in victims following sexual abuse (Deblinger et al., 1999; Hebert, Tremblay, Parent, Daignault, & Piche, 2006; Kendall-Tackett et al., 1993; but see Stern et al., 1995) and the impact of living in a dysfunctional family may have more deleterious effects than CSA alone (Nelson, Moser, Johnson, Graves, & Hart, 1999). Yancey and Hansen (2010) reported that the stress experienced by a family impacts not only CSA victims and their adjustment, but the ability of family members to respond in a caring and nurturing way to the victims. However, researchers have yet to consistently define dysfunction

and tease out the independent weight of characteristics of dysfunctional families (e.g., substance abuse, antisocial personality, thought disorders, and domestic violence). Abuse Characteristics Associated With Outcomes Abuse severity, abuse duration, and the relationship between the victim and the perpetrator can have a significant impact on the outcome that a victim experiences. Some empirical investigations indicate that child victims who experience the most severe abuse (i.e., penetration and violence, threats, and force) show the highest rates of depressive symptoms, anxious symptoms, conduct problems, substance use, and attempted suicide (cited in Yancey & Hansen, 2010: Beitchman, Zucker, Hood, DaCosta, & Akman, 1991; Fergusson et al., 1996; but see Manion, Firestone, Cloutied, Ligezinska, McIntyre, & Ensom, 1998). However, the majority of research has defined severity of abuse, generally, as a continuum of abuse ranging from some type of penetration (oral, vaginal, or anal) to abuse that does not involve physical contact (e.g., exposure, pornography, or sexual talk), making it impossible to examine the impact of the severity of sexual acts on outcome (Yancey & Hansen, 2010). Duration of abuse appears to be a more robust predictor of negative outcomes for sexually abused children than the “severity” of abuse. That is, sexual abuse lasting over longer periods of time is associated with more negative outcomes (Finkelhor & Dziuba-Leatherman, 1994; Hebert et al. 2006; Ruggiero, McLeer, & Dixon, 2000). Although it has been hypothesized that the closer the relationship between the victim and perpetrator the more severe the impact on the child, many researchers have failed to find a significant difference in outcome for victims of intrafamilial and extrafamilial abuse. While Ketring and Feinauer (1999) reported that victims abused by a father figure reported greater impairment than those abused by other family members and non-family members, Lucenko, Gold, and Cott (2000) found the familial connection between the victim and perpetrator was not as important as the quality of that relationship between the victim and perpetrator. Yancey and Hansen opined that measuring the closeness of the victim–perpetrator relationship, rather than the category into which the relationship falls (e.g., biological father, stepfather, youth minister, or neighbor), will yield better prediction of the potential impact of sexual abuse. In a review of 45 studies conducted by Kendall-Tackett et al. (1993), between 21% and 49% of sexually abused children were asymptomatic. The majority of symptomatic child victims returned to pre-abuse functioning on many

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dimensions and 10% to 25% of symptomatic victims did not improve or deteriorated within 18 months after disclosure of abuse. Recent research developments help to explain this variability and are noted by Berliner (2011), who writes, “The most important advance in studying the prevalence and impact of traumatic events has been the move away from focusing on a single type of trauma and toward assessing a range of victimization experiences and adversities” (p. 221).

behaviors also must be considered. As noted by Poole and Wolfe (2009), during childhood it is within the realm of normal development for children’s behaviors to suddenly change. Although parents may be alarmed at dramatic changes in their children’s behaviors, these changes may not be indicative of sexual abuse but may be biologically programmed adaptations to specific developmental periods or side effects of cognitive, emotional, and physical growth.

CSA Outcome Is Not a Behavior Syndrome

Normative Behavior

In child sexual abuse cases, behavioral syndrome testimony is highly controversial, and appellate court decisions on its admissibility have been contradictory. Mason’s (1998) review of 122 appellate court decisions between 1980 and 1990 revealed that the characteristics specified as indicators of child sexual abuse by expert witnesses in these cases varied widely, demonstrated a number of critical contradictions, and produced an imprecise behavioral profile. Although some courts have allowed testimony on various permutations of child sexual abuse syndrome, other courts have disallowed such testimony (Levine & Battistoni, 1991; Mason, 1995; Richardson, Ginsburg, Gatowski, & Dobbin, 1995). Myers (1997a) reported that Child Sexual Abuse Accommodation Syndrome (CSAAS) testimony primarily has been admitted in criminal cases as rebuttal testimony when the child’s behavior has been portrayed by the defense as unrepresentative of an experience of sexual abuse (e.g., Davenport v. State, 1991). The most frequent use of this type of CSAAS testimony is to explain factors such as delayed disclosure (e.g., State v. Gokey, 1990), a child’s recantation (e.g., People v. Gallow, 1991), and/or other behaviors exhibited by the child that might lead a jury to doubt the evidence presented by the prosecutor (e.g., State v. Reser, 1989). This type of testimony is most likely to be allowed if the expert indicates that such behaviors are consistent with and could indicate sexual abuse, but also acknowledges other possible causes (e.g., State v. Roenfeldt, 1992). In contrast, courts generally have not allowed CSAAS testimony to be introduced by prosecutors to suggest that a child who displays these symptoms is a victim of sexual abuse.

Normative data on 1,300 children from the general population indicate that behavior problems are a part of normal children’s development, with high percentages of preschool- and elementary school–age children in the general population exhibiting problems such as nightmares, sudden changes in mood, poor concentration, fearfulness, disobedience, and temper tantrums (Achenbach, 1991). Toileting, sleep problems, and somatic complaints also are common behaviors exhibited in the general child population (see Poole & Wolfe, 2009). Accordingly, toileting problems are not specific to sexually abused children and are associated with a variety of factors, including bladdersphincter abnormalities, urinary tract infections, bullying in school, constipation, and psychiatric problems (as cited in Poole & Wolfe, 2009; Bakker, van Sprundel, van der Auwera, van Gool, & Wyndaele, 2002; Eidlitz-Markus, Shuper, & Amir, 2000; Fekkes, Pijpers, Fredriks, Vogels, & Verloove-Vanhorick, 2006). For example, although encopresis occurs more frequently in sexually abused children than non-sexually abused children, encopresis occurs with equal frequency in sexually abused children and children referred for psychiatric problems who have no known history of sexual abuse (Mellon, Whiteside, & Friedrich, 2006).

BASE RATES OF CHILDREN’S BEHAVIORS If the manifestation of specific behaviors is used to determine the occurrence of child sexual abuse, the rate at which non-sexually abused children exhibit these specific

Sleep Problems Sleep problems in the general child population can result from numerous factors other than abuse, including medical conditions, family conflicts, poor parent emotional health, the parent not establishing bedtime routines to help the child learn to emotionally calm down for sleep, and the child not learning to soothe and put himself back to sleep because the parent routinely rocks or nurses the child to sleep (cited in Poole & Wolfe, 2009: El-Sheikh, Buckhalt, Cummings, & Keller, 2007; Jones, Burnham, & Anders, 2000). Sleep problems may include partial arousals, including talking, sleepwalking, and night

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terrors. Partial arousal is a developmental phenomenon rarely caused by anxiety or depression and can be triggered by some medications, fever, and lack of sleep (Goldin & Rosen, 1997; Mindell & Dahl, 1998). Compared to partial arousals, nightmares are more common and occur in approximately 50% of preschool- and a quarter of elementary school–age children (National Sleep Foundation, 2004). Children who experience inadequate sleep show greater irritability, labile emotions, anxiety, depression, behavior problems, and decreases in school performance (El-Sheikh et al., 2007). Based on this research, sleep problems cannot be used to differentiate sexually abused children from non-sexually abused children (Poole & Wolfe, 2009).

Somatic Complaints Somatic complaints also do not reliably discriminate between sexually abused and non-sexually abused children. Although mothers of sexually abused children report unusually high rates of somatic complaints by their children (e.g., headaches, stomachaches), these accounts reported by mothers have not been empirically substantiated (Poole & Wolfe, 2009). Empirical investigations show that somatic complaints are very common among the general child population. Thirty percent of children in U.S. samples report frequent fatigue or weakness, 10% to 30% of children report at least weekly headaches, and 15% report four or more somatic symptoms (Rhee, 2003). Research also indicates that girls have higher reports of somatic symptoms than boys, and depressed or anxious children report more symptoms compared to the general child population.

Fears Poole and Wolfe (2009) reported that children’s fears may be developmentally based, influenced by culture, or prompted by anxious adults and maintained by reinforcing fearful behavior. Throughout children’s normal development during the early years major types of anxieties arise, including fears of injury, parental separation, being alone, robbers, and imaginary creatures (Reed, Carter, & Miller, 1992). As children age, these fears change to fears of failure, criticism, and illness (Gullone & King, 1993, 1997). Although the previously described behaviors, including defecation, urination, sleep, somatic symptoms, and fears, may be part of normal development for children in the general population, these behaviors also may be exhibited

by sexually abused children. However, these behaviors are not unique to children who have been sexually abused. Sexual Behavior Forms of sexual behavior, commonly exhibited by all children during infancy, childhood, and adolescence, also may be misinterpreted by misinformed parents, teachers, and health-care professionals as indicators of sexual abuse. During early development sexual behaviors found in the general child population include (a) masturbation to orgasm by children 8 months of age and older (Crooks & Baur, 2002); (b) frequent massaging of genitals and rubbing bodies against furniture, toys, and other objects by infants and toddlers (see Kelley & Byrne, 1992; Martinson, 1994); (c) comparing one’s body and touching other children’s bodies by preschoolers; and (d) playing games that involve sexual exposure by school-age children (Friedrich, 1998). The most frequently occurring sexual behaviors observed by preschool teachers include limited looking at and touching by preschoolers of each other’s genitals, simulated sexual intercourse, and drawing genitalia (Davies, Glaser, & Kossoff, 2000). In contrast, sexual behaviors that are rarely observed in the general population of children in the United States involve a child inserting anything into another child or engaging in oral–genital contact. In two studies, only 3% of presumably nonsexually abused young girls engaged in the insertion of objects into the anus or vagina, and no boys engaged in these acts (Friedrich, Fisher, Broughton, Houston, & Shafran, 1998; Friedrich, Grambsch, Broughton, Kuiper, & Beilke, 1991). A small number of children have sexual intercourse with their peers prior to the age of 13, including 7% of girls and 27% of boys of African American heritage; 4% of girls and 11% of boys of Hispanic heritage, and 3% of girls and 5% of boys of Caucasian heritage (Eaton et al., 2006). However, in the general child and adolescent population, oral sex appears to be a more frequent sexual behavior and considered a less risky behavior for children in their late prepubescent and pubescent years (Poole & Wolfe, 2009). Professionals surveyed by Haugaard (1996) indicated that they believed sexual curiosity was common for preschool-age children but not for children after the preschool years. Ninety-three percent of mental health professionals surveyed indicated that, whereas 4-year-old children showing their genitals was common, this behavior was uncommon for 8-year-olds. Although children in

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their prepubescent years are aware that adults disapprove of sexual behavior, in several research studies, 6% to 17% of subjects reported that they engaged in showing genitals and mutual touching between the ages of 6 and 10 (Larsson & Svedin, 2002). Between middle and late childhood, five sexual behaviors are identified by Poole and Wolfe (2009) as increasing in frequency as curiosity about adult sexual behavior increases, including talking about sex, kissing and hugging, looking at pornographic pictures or nudity in the media, sexual teasing, and general interest in the opposite sex.

MEMORY

Children’s Knowledge of Adult Sexual Behaviors

Early Memory

Historically, age-inappropriate sexual behavior and advanced knowledge about sex have been identified as the most salient markers in identifying children who are victims of sexual abuse (Brilleslijper-Kater, Friedrich, & Corwin, 2004). Although adult sexual behaviors are exhibited by sexually abused children at a higher frequency than non-sexually abused children, these behaviors are not exclusive to sexually abused children. Further, over the past decade, children’s knowledge about sexual behavior has increased significantly due to the Internet and wireless communication devices. Pornography Web sites account for 12% of total Internet Web sites, with a total of 42 million Web sites containing pornography; 100,000 Web sites offer illegal child pornography; and child pornography generates approximately $3,000,000,000 (Ropelato, 2006; http://internetfilter-review.toptenreviews.com/internet-pornographystatistics.html). Wolak, Mitchell, and Finkelhor (2007), using a nationally representative sample of 1,500 Internet users between the ages of 10 and 17, found that approximately 40% of the teens and preteens visited sexually explicit sites annually, either deliberately or accidentally. This highly sexualized culture in the United States also has developed behaviors such as “sexting,” which refers to the sending of a photograph or other visual image depicting a person in a partial or total state of nudity via text message from one cell phone to another. In a nationally representative telephone survey conducted by Lenhart (2009), 4% of cell-owning teens aged 12 to 17 reported that they had sent nude or nearly nude images of themselves via text messaging, and 15% reported receiving such images. And older teens reported higher rates of these behaviors. It is important to note that these data may underestimate true incidence rates of this behavior given teens’ anticipation of negative responses from adults.

Several models have been advanced to explain the development of early memory in children. Of particular interest to investigators of children’s memory of trauma is autobiographical memory—how children remember events or experiences that relate to or have particular significance to them.

General concepts of memory development and factors affecting accuracy of memory are relevant in evaluating children’s allegations of CSA. This section addresses the development and endurance of children’s autobiographical memory, whether the brain processes traumatic and nontraumatic experiences differently, and the authenticity of repressed memories. As noted by Howe (2000), there exist science and pseudoscience on these topics, both of which may be presented as fact in the legal arena.

Tulving’s Monohierarchical Multimemory Systems Model Autobiographical memory can be defined as an explicit memory for events related to oneself, including memories of specific experiences and personal facts about one’s life (Chae, Goodman, & Edelstein, 2011). Autobiographical memory is of particular interest when examining children’s memory for significant events. The memory system is functioning in the infant immediately after birth, and possibly, even in the fetus in utero. However, at this early stage, memory is restricted to what theorist Tulving described as procedural memory (Tulving, 1985). The infant avoids a particular object that is related to a painful experience without consciously recollecting or thinking about the event. Theoretically, the next kind of memory that develops in this hierarchical system, according to Tulving, is semantic memory, consisting of symbolically represented factual knowledge about the internal and external world. These most primitive forms of memory, procedural and semantic, are demonstrated by lower animals, infants, and some adults with brain damage (Tulving, 1985). Episodic memory, or memory for personally experienced events through “time travel” (“Yesterday we had ice cream”), requires a higher level of cognition and is predicated on possession of procedural and semantic memory. Tulving (2002) asserted that, because of the processes of brain maturation, episodic memory is relatively late occurring, and children must reach a certain (undefined) age to develop an episodic memory

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system. Episodic memory is the broad category under which autobiographical memory can be included; one may recall episodes from the past, but autobiographical memory involves a timeline of one’s life history with events of personal significance (Chae et al., 2011). Howe and Courage’s personalization model The personalization theory of autobiographical memory development posits that emergence of the cognitive self, as manifested by mirror self-recognition, marks the onset of a capacity for autobiographical memory and the end of infantile amnesia (Howe & Courage, 1993, 1997; Howe, Courage, & Edison, 2003). From about 18 to 24 months of age, children exhibit the internal self-representation that allows them to begin to organize, communicate about, and remember events. According to this theory, the event information encoded during the first year of life, prior to the emergence of the self-concept, cannot be made autobiographical and eventually becomes inaccessible. Empirical support for this emergence of autobiographical memory at around age 2 is found, for example, in a study by Howe, Courage, and Peterson (1994) in which children involved in traumatic injuries and treated in emergency rooms were questioned about the events. Children less than 2 years old recalled some of the global features of the incidents but gave fragmented and incomplete narratives, whereas children older than 2 gave accurate, coherent, and detailed accounts. When tested 6 months later, the older children demonstrated recall for at least central details. Nelson and Fivush’s Sociocultural Model Nelson and Fivush (2004) offer a social culture model of development of autobiographical memory, and while acknowledging that some neurological developmental events are necessary precursors, they theorize that autobiographical memory emerges from the interaction of social, cognitive, and communicative domains. Based on their model, language is necessary for the development of autobiographical memory, and events experienced before the age of 18 months are inaccessible because the infant lacks language to coherently organize the experience in memory. Nelson and Fivush focus on the role of parent–child reminiscing in the development of autobiographical memory (see Nelson, 2007 for review). Mothers vary in the detail and richness of their discourse with their children about the past. Elaborative mothers tend to provide rich background detail, ask novel questions, and engage the child in the process of discourse with open-ended questions, whereas nonelaborative or repetitive mothers offer little background and use yes–no

questions. Children whose mothers are more elaborative have more detailed memories of their experiences (Nelson, 2007). Events experienced before the age of approximately 18 months are not verbally accessible to children or adults; events experienced between about 18 months and 2.5 to 3 years are reported in fragmentary fashion and seem to be prone to increasing error over time (Fivush, 1998). Once children reach the age of about three years, they encode events in memory and can retain memory of and give reasonably coherent accounts of these events for over half a decade. The research is robust in showing that older children and adults have amnesia for experiences before their second birthday except in rare cases. This amnesia applies to all categories of memories (traumatic and nontraumatic). These experiences are made into accessible memories only when the experience is reconstructed through later family retelling. This amnesia for early experiences is labeled infantile amnesia. The mechanisms behind infantile amnesia are debated, and some of the theories put forth include: (a) Experiences in infancy are not represented in words and narratives but in sensory experiences, and it may not be possible to transfer these sensory experiences into words once language becomes acquired; (b) brain organization, rapid growth in brain connections, and reorganization involving a reduction in unnecessary connections create a new neural development that makes the early memories inaccessible; and (c) the essence of an autobiographical memory is its relationship to the identity of self, and an infant cannot form an autobiographical memory because she does not have an understanding that she is a separate entity from others. By the age of 3 or 4, children have developed a basic foundation to recall recent and distant events (Fivush & Nelson, 2004; Nelson & Fivush, 2004). There are also rapid developments in memory during middle childhood with the development of greater word knowledge, which aids children in the interpretation of events (Quas et al., 1999). Emerging research indicates that unique, distinctive, and personally consequential experiences, regardless of whether the experiences were positive or negative, are well remembered for as long as 6 years during childhood (Conway, 1996; Fivush & Schwartzmueller, 1998; Howe, 1997). Although there is evidence that children’s memories—as compared to adults’ memories—fade more quickly, if events are personally significant and repeatedly rehearsed through questioning and cuing, such memories are likely to be strengthened (Hudson, 1990).

Child Sexual Abuse Evaluations

Klemfuss and Ceci (2009) concluded there is no evidence that any experiences completely escape the period of infantile amnesia. Unless an experience during the first 2 years of life was reconstructed by later family retellings, individuals cannot remember even painful repeated experiences, such as sexual abuse. While the preceding theories are often presented as separate mechanisms underlying infantile amnesia, it is most likely that several, if not all, of these mechanisms are related to the phenomenon (Klemfuss & Ceci, 2009). Both the advent of reminiscence conversations with caregivers and the development of a cognitive understanding of self contribute separately to the end of the period of infantile amnesia (Harley & Reese, 1999). Chae, Goodman, and Edelstein’s Attachment Perspective on Autobiographical Memory Development Chae and her colleagues (2011) built on these theories of childhood memory and proposed that mother–child attachment is particularly relevant in autobiographical memory development. They suggested that, insofar as avoidant children are less likely to encode, process, and discuss negative events, their autobiographical memory for those experiences may be less well developed. Attachment-related differences exist in parental behaviors toward children before and during a negative event. For example, for children undergoing inoculations, secure parents demonstrated more supportive and kinder behavior toward their distressed children whereas avoidant parents became less positively and often more negatively engaged (Edelstein et al., 2004), which Chae and her colleagues suggested might affect the amount and type of information the child encodes for the experience. Storage of the memory may also be affected by the nature of parent–child interactions about events. Sales, Fivush, and Peterson (2003) found that parents were more likely to ask open-ended questions when discussing negative events with their children (e.g., a medical emergency) and closed-ended questions when discussing positive events (e.g., a family vacation). This and other research suggests that parents may more actively process negative events. Ackil, Van Abbema, and Bauer (2003) found that mother–child dyads differed substantially in how they conversed about traumatic and nontraumatic events. They spent more time discussing the details of their shared traumatic event (devastating tornado), and their conversations were more coherent, complete, and elaborate than conversations about nontraumatic events. Mothers placed the traumatic event in a broader autobiographical context as well, discussing life events before and after the trauma,

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and seemed thereby to help their children regulate negative affect. How parents and children discuss negative events may shape the children’s subsequent autobiographical recollections (Fivush, 1997; Hudson, 1990; Nelson & Fivush, 2004). Children whose parents displayed a more elaborative style demonstrated better memory about their hospital emergency room treatment (Peterson, Sales, Rees, & Fivush, 2007). They recalled more unique units of information and gave more complete and more accurate accounts of the experience than did children with less elaborative parents. Children’s capacity to narrate past experiences may be affected by the comments and questions that parents pose during such conversations. Chae and her colleagues (2011) further suggested that there may be several additional consequences to attachment deficits in children. Insecurely attached children may be more apprehensive and distressed during interactions and may be more reluctant to report memories than their more securely attached peers, especially to a stranger. Avoidant children may attempt to block out memories and be more hesitant to report negative events because of prior rebuffs when seeking help from their parents about emotionally disturbing events and, as a result, may form less detailed memories. These children may also be more susceptible to misleading suggestions in their rush to end interviews. Research into the impact of maternal attachment and response styles may be important in understanding how children experience, remember, and report negative events. Open conversation about emotions in relation to negative events may facilitate both the child’s comprehension of the emotional event and the accessibility of memories of the event over time (Chae et al., 2011). Indeed, CSA victims who experienced maternal support following disclosure demonstrated more accurate longterm memory for the abuse (Edelstein et al., 2005). However, other research indicates that socialization may discourage reporting negative memories. Saywitz, Goodman, Nicholas, and Moan (1991), for example, found that during free recall 5-year-olds more readily revealed experiences of anal/genital touching than did 7-year-olds. Schaaf, Alexander, and Goodman (2008) found that when children were questioned about negative experiences such as getting their pants pulled down outside of a store or getting a timeout for throwing a rock through a window, older children (i.e., 5-year-olds vs. 3-year-olds) gave more do-not-know answers, and more such answers regarding negative compared to positive experiences (receiving a

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Special Assessment Issues

big stuffed giraffe as a gift, going to Disneyland). In contrast, the younger children’s do-not-know answers did not change as a function of event salience. Whether disclosure of abuse occurs is of course a separate issue from whether the child remembers the event—children may remember and yet not disclose abuse. Attachment style and parenting style could have an impact on both the child’s development of autobiographical memories for events and the child’s tendency toward and style of reporting negative or traumatic experiences. Further research may illuminate the relationships among attachment, parenting style, children’s development of autobiographical memory, and children’s capacities to report events.

Impact of Trauma on Memory Research findings are inconsistent regarding the impact of stress on children’s memory (see Davies, 1993, for a review). Physiological and psychological stress trigger integrated activity of the neural and neuroendocrine systems, which can create a failure to remember or enhance memory (Gold & McCarty, 1995). Researchers continue to debate whether memories for traumatic and nontraumatic events are processed in different ways (Alpert, 1995; Hembrooke & Ceci, 1995; Howe et al., 1994; Whitfield, 1995). According to Howe (2000), memories for traumatic events adhere to the same principles as memories for less salient events, and they will endure to the extent that they remain unique and distinctive against a background of other experiences. Quas et al. (1999) concluded, “stressful and traumatic memories tend to be governed by similar, general age-related mechanisms that dictate whether early childhood experiences will be remembered in the long term” (p. 258). Van der Kolk and his colleagues proposed a different model, suggesting that when children are confronted with trauma, they (a) are unable to process the information, (b) employ the defense mechanism of dissociation, and (c) compartmentalize the unintegrated memory, which consists mainly of sensory perceptions and affective states (van der Kolk & Fisler, 1995; van der Kolk & van der Hart, 1991). Other models suggest physiological components associated with traumatic stress and memory problems. Bremner, Krystal, Southwick, and Charney (1995) proposed that traumatic stress creates abnormalities in the functioning of brain regions involved in memory, which is revealed in lower left hippocampal volume in survivors of child physical and sexual abuse. Other researchers have argued that memory for traumatic events involves

a coordination of standard memory processes and stressactivated neurological mechanisms that leads to the formation of strong (McGaugh, 2002) or highly fragmented (Nadel & Jacobs, 1998) memories. Researchers continue to search for a clear understanding of the interaction of stress and memory and note that intensity and chronicity may not be solely responsible for the impact of stress on memory processes. Rather, these factors may interact with individual differences (Cicchetti, Rogosch, Lynch, & Holt, 1993; Goodman & Quas, 1997). Authenticity of Repressed and Recovered Memories in Children As summarized by Greenhoot and Tsethlikai (2009), Freud proposed that repression represents a psychological defense process that pushes overwhelmingly traumatic memories into the unconscious and renders them inaccessible to ordinary elicitations (Freud, 1915/1957). In contrast, Janet (1919/1925) proposed that traumatic stress can prompt a dissociative state that is split from normal consciousness, so that traumatic memories are compartmentalized and not integrated with the autobiographical memory system. The terms repression and dissociation are often used incorrectly in an interchangeable manner to explain traumatic amnesia in the psychological literature. According to Greenhoot and Tsethlikai, models of traumatic amnesia identify: (a) traumatic experiences to be processed in a predominantly different manner from ordinary events; (b) severity of psychological trauma and forgetting to be positively related; and (c) unconscious representations of traumatic events to be sustained in the absence of verbally accessible memories. Considerable controversy has surrounded proposed models of traumatic amnesia, the claims that memory for traumatic experiences involves special mechanisms, and the claims that once-lost memories can be recovered intact. Many cognitive and developmental psychologists argue that traumatic memories are structured from the same mechanisms as standard memory, although they may be attenuated or intensified by emotional processes (Loftus & Davis, 2006; Ornstein, Ceci, & Loftus, 1998; Schooler & Eich, 2000). As described by Greenhoot and Tsethlikai (2009), if memory for traumatic experience is structured on traumatic amnesia mechanisms, more forgetting should be observed for experiences with greater traumatic impact. Traumatic events that are directly experienced as opposed to witnessed, and trauma that involves the betrayal of attachment relations, most likely would activate special

Child Sexual Abuse Evaluations

mechanisms like repression and dissociation and therefore be forgotten. Repeated trauma would more likely create partial or complete dissociation—thereby hastening forgetting—than would a one-time trauma. However, if memory for traumatic experiences activates standard memory mechanisms, less forgetting should be observed for events that are directly experienced than for those that are witnessed. Studies of the effect of event repetition on learning and memory suggest that event frequency should be positively related to retention, although the formation of a generic or schematic representation may interfere with remembering the details of any single episode. Since events that take place during the interval between an event and later recollection can affect memory, partial reexposure to or repeatedly discussing a traumatic experience may strengthen memory, or exposure to misinformation may reduce memory accuracy. Much of the research on children’s memories for stressful or traumatic experiences has focused on one-time traumas, such as school shootings, hurricanes, or physical injuries (Parker, Bahrick, Lundy, Fivush, & Levitt, 1999; Peterson, & Whalen, 2001; Pynoos, & Nader, 1989). In contrast to the theory of traumatic amnesia, this research suggests that these types of traumatic events tend to be remembered quite well when experienced during childhood, although they are unlikely to be recalled when experienced during infancy or toddlerhood. Several studies using alleged child victims of abuse examined the assumption that more dissociative individuals have poorer memory for traumatic experiences of abuse because they form compartmentalized and unconscious representations while dissociated. In one study of 182 3-to-17-year-olds being evaluated for alleged maltreatment, indices of dissociation were unrelated to memory for an anogenital exam that was part of the forensic assessment (Eisen, Qin, Goodman, & Davis, 2002). Children with more dissociative tendencies provided more detailed reports of their abuse than children with lower levels of dissociation. In contrast, Eisen, Goodman, Qin, Davis, and Crayton (2007), with a larger sample (N = 328), found that children who reported more dissociative tendencies made more errors in their recollections of a forensic anogenital exam than children with fewer dissociative tendencies. These results, along with the findings of some adult studies (Goodman et al., 2003), suggest that dissociative tendencies may influence children’s memories for aversive experiences. But it has not been established that high dissociators actually encode isolated, compartmentalized memories (Greenhoot & Tsethlikai, 2009). More research in this area is needed

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to clarify the relationship between dissociative tendencies and encoding, storage, and retrieval of memory. Greenhoot, McCloskey, and Glisky (2005) are the only researchers who have examined trauma-related memories of family violence formed during childhood and adolescence using a prospective design. The researchers examined adolescents’ memories for mother-directed spousal violence and child physical abuse, as well as several salient nonabusive but nonetheless difficult events (e.g., suicide in the family, parent getting arrested) that had been documented 6 years previously, when they were 6 to 12 years old. Adolescents who had experienced the most severe abusive acts as children were unlikely to remember them, and this was especially true for childdirected abuse. Although these patterns seem consistent with trauma amnesia models, the researchers concluded that repression and dissociation could not explain the fact that teens exposed to the most severe violence when children were also less likely than other teens to report complete amnesia for their family violence histories. Furthermore, consistent with research on the role of participating versus witnessing events, higher rates of complete forgetting were observed for violence that was witnessed than for violence that was directly experienced. Greenhoot and her colleagues (2005) observed that the adolescents exposed to the more severe violent acts (e.g., burning, kicking) tended to be exposed to less severe and more common violent acts as well (e.g., slapping, spanking, hitting with an object) and may have formed schematic memories of their abuse histories. The researchers opined that these adolescents reported only the most common forms of violence rather than the less common severe acts due to their development of schematic memories. The other predictors of memory for abuse in this study (e.g., age, recent exposure to abuse) were consistent with the traditional literature on memory development. Memory for abuse was partially explained by individual differences in children’s memory for nonabusive events and their performance on an assessment of general autobiographical memory capacity, suggesting that these memories draw on some of the same underlying processes (Greenhoot et al., 2005). Greenhoot and Tsethlikai (2009) summarized the research on children’s memories of traumatic experiences with the following: Most children remember the core components of traumatic experiences over very long periods, often in vivid detail, but like memories of ordinary events these memories are vulnerable to distortion. It should not be considered extraordinary for a child or adolescent to forget an experience as

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Special Assessment Issues

aversive as abuse, especially if the child was very young at the time of the event or was not re-exposed to reminders of the experience over time. Some children or adolescents may avoid thinking or talking about abuse or other traumatic experiences, and this cognitive avoidance most likely leads to forgetting through the activation of ordinary forgetting mechanisms. There is little conclusive evidence that suggests that forgetting of trauma is the result of traumatic amnesia due to repression or dissociation, therefore abuse memories that are recalled after a period of forgetting are not indelible and, like memories of ordinary events, may be subject to reconstructive memory processes. Cases of recovered memories of abuse experienced preverbally should lead the evaluator to question the validity of the report. (p. 238)

SUGGESTIBILITY Because memory for experience is reconstructive, with autobiographical recall filtered through one’s current beliefs, knowledge, expectations, and motivations (see Howe, 2000), memory is subject to new information and the construction of inaccurate recollections (e.g., Brainerd & Reyna, 1996). Although true memories survive longer than fictitious memories that are based on misinformation, false memories survive across extended time intervals (Poole & White, 1993). These findings have been obtained for preschoolers and older children (e.g., Bruck, Ceci, & Hembrooke, 1998). Klemfuss and Ceci (2009) wrote, “The memory system is not static but is constructive: it elaborates, deletes and shapes its contents” (p. 158). Suggestibility generally refers to errors that arise when children are exposed to information that is false or to social pressures that encourage particular types of answers (see Ceci & Bruck, 1993 for review). There is strong disagreement over the degree to which young children are suggestible and the extent to which their suggestibility may lead to false allegations of sexual abuse (see debate by Ceci & Friedman, 2000 and Lyon, 1999). If suggestions have influenced children’s statements, it is unlikely the resulting statements and narratives can be accurately identified as having been influenced by the suggestions of another person. Problematically, neither experienced professionals nor lay people may be able to distinguish children’s memory-derived narratives from those that were influenced by suggestive or leading questions. Research on college students’ review of statements by children who were either truthful or coached to lie showed only chance levels of accuracy (Edelstein, Luten, Ekman, & Goodman, 2006), and mental health professionals and researchers

with experience working with children involved in the legal system were also highly inaccurate in their discrimination of real and fictitious events based on children’s narratives after suggestive interviews (Leichtman & Ceci, 1995). The clinicians and researchers on average rated the least accurate child (narrating an event that never occurred) as the most credible and the most accurate child (narrating an event that occurred) as the least credible. Klemfuss and Ceci (2009) concluded that mental health professionals’ assessments of the accuracy of children’s sexual abuse reports are “disturbingly unreliable” (p. 172). Areas That Show Research Consensus A large body of research accumulated over the past several decades has led to the emergence of several consistent findings regarding conditions that facilitate or impede children’s reports of experienced events. Age is the most reliable predictor of children’s memory accuracy and their suggestibility (see Quas et al., 1999). As summarized by Malloy and Quas (2009), “With age, children’s memory accuracy improves and suggestibility decreases” (p. 268). While children’s age at the time of the experienced event affects how information is encoded and stored, age is also predictive of the accuracy of their narrated memory. Passage of time may alter the strength of the memory, past suggestive interviews may have tainted the memory, and the child’s current resistance to suggestibility will influence the accuracy of the memory narrated by the child. Both cognitive and social factors are associated with age differences in children’s suggestibility. Cognitively, young children are limited in their general knowledge, understanding of events, and ability to draw relevant inferences (Bauer, Burch, Scholin, & Guler, 2007). These and other cognitive limitations affect how well an event is encoded and stored in memory and the rate of forgetting, all of which subsequently affect children’s errors in memory retrieval (Malloy & Quas, 2009). In studies of false memory conducted by Ceci and his colleagues (e.g., Bruck, Ceci, & Hembrooke, 2002; Ceci, Huffman, Smith, & Loftus, 1994; Leichtman & Ceci, 1995) children were repeatedly interviewed with highly suggestive questions about events that never occurred. Three- and 4-year-old children made significantly more errors of commission regarding false events than 5- and 6-year-olds. Following the suggestive interviews, children’s commission errors also emerged in their narratives when asked open-ended questions about the false events, and they sometimes provided elaborate details to augment their reports of

Child Sexual Abuse Evaluations

events that had never occurred. These findings indicate that children’s errors that occur after highly leading questioning are not simply social desirability responses (i.e., responses provided to please the interviewer). Instead, children appear to incorporate the false information into their memories as actual experiences. Children’s exposure to false information can interfere with their source monitoring (i.e., the process of identifying the origin of one’s knowledge). Source monitoring deficiencies entail difficulty distinguishing between events that happened and events one merely thought about or heard discussed. Young children are more likely than older children and adults to have difficulty determining whether they obtained information from their own experiences or from other sources (e.g., Poole & Lindsay, 1995, 1998). Content of Interviewer’s Questions Interviews typically include several types of questions and children’s suggestibility varies across question types. Malloy and her colleague (2009) identified question types as: (a) open- or closed-ended, (b) including only information already disclosed by the child, (c) containing new information based on interviewer interpretation or prior knowledge, (d) question complexity, and (e) the suggestiveness of the question. Because free-recall questions do not contain information about the event, they are the least controversial in terms of their potential suggestiveness. The foremost problem with free-recall questions is that young children typically do not provide enough information for the interviewer to learn about key details of an event. Interviewers then typically move to more focused questions that target specific information and that are more controversial because of their suggestibility and increased potential to bring about inaccurate statements (Malloy & Quas, 2009). When interviewers ask numerous specific questions, and the format involves yes–no question pairs (i.e., a yes–no question followed by a request to describe the event: “Did Uncle Joe . . . ?”; “Tell me about that”), children’s performance can be compromised (Peterson & Bell, 1996; Peterson & Briggs, 1997; Poole & Lindsay, 1995). Repeating closed-ended or specific questions also tends to elicit inconsistency and speculation by children (Poole & White, 1991, 1993). Further complicating the evaluation of children’s statements is the inaccuracy of interviewers’ recollection of how information has been elicited from the child. For example, mothers who interviewed their 4-year-old children about a structured play activity they did not observe had difficulty recalling whether

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their children’s statements were prompted or spontaneous, and whether specific utterances were spoken by themselves or their children (Bruck, Ceci, & Francoeur, 1999). Similarly, interviewers may misattribute, even in contemporaneously taken notes, whether the details provided by children were prompted or spontaneous (Lamb, Orbach, Sternberg, Hershkowitz, & Horowitz, 2000). Regardless of the type of direct question, children’s errors increase when they are asked direct rather than freerecall questions (e.g., Lyon, Malloy, Quas, & Talwar, 2008; Quas & Schaaf, 2002; Scullin, Kanaya, & Ceci, 2002). A direct open-ended question would be, “What was your uncle wearing?” (Scullin et al., 2002). The most suggestive direct questions are those with tag endings or embedded assumptions, which pressure children to give a desired response, such as “He was wearing a red T-shirt, wasn’t he?” (Lyon et al., 2008; Quas et al., 2007). Investigations also show that prior to suggestive interviewing, when presented with misinformation that negatively stereotypes an individual, children are at heightened risk to provide inaccurate information to misleading questioning about the identified individual. For example, 46% of the 3- and 4-year-old children who were presented with negative information about an individual named Sam Stone provided inaccurate negative information about him after four misleading interviews over a 10-week period (Leichtman & Ceci, 1995). In the combined stereotyped information and suggestive interview group, 21% of the 3- and 4-year-olds and 11% of the 5- and 6-year-olds continued to maintain that they saw Sam Stone do the fictitious misdeeds even after their erroneous statements were challenged. In all experimental groups, the error rates of younger children were significantly higher than the error rates of older children. In contrast, children who were not provided the pre- or post-event misleading information were highly accurate in their recounting of the event. In another study, when the interviewer asked 4-to6-year-old children several misleading questions followed by accusatory statements (e.g., “He wasn’t supposed to do that . . . that was bad”), the children’s errors increased and they endorsed more biased interviewer interpretations of the events (Lepore & Sesco, 1994). Context of the Interview Beyond the content of the interviewer’s questions, the context of the interview may wield a compelling influence on children’s suggestibility. As identified by Malloy and Quas (2009), external interview factors such as the interviewer’s style (Carter, Bottoms, & Levine, 1996;

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Goodman, Bottoms, Schwartz-Kenney, & Rudy, 1991; Lepore & Sesco, 1994), confirmatory bias (see Ceci & Bruck, 1995), and contextual pressure techniques (see Garven, Wood, & Malpass, 2000; Garven, Wood, Malpass, & Shaw, 1998) are important factors that can increase children’s suggestibility. Garven and his colleagues (1998) identified and investigated contextual pressure techniques analogous to those used in the McMartin preschool case insofar as they (a) provided co-witness information (i.e., interviewers told children that other individuals had already disclosed), (b) used selective reinforcement (i.e., children were provided positive consequences for alleging abuse and negative consequences for denying abuse), (c) used repeated questioning (i.e., repeated questions to elicit a new answer when children did not give an answer that was consistent with abuse), and (d) invited speculation (i.e., asked children to speculate or imagine what might have happened). Preschool-age children were interviewed about the behaviors of a man who made a visit to their classroom. In the social incentive condition, 58% of the children made false statements compared to 17% of the children in the control group in which no contextual pressures were provided. Many of the children who made false statements maintained these statements in an interview 2 weeks after the event and first interview, even when challenged about the reality of their allegations. Malloy and Quas (2009) summarize that when certain conditions are met (e.g., neutral interviewer, open-ended questioning, absence of repeated suggestive interviewing, and no induction of a motive for the child to make a false report), the recall of even very young preschoolage children can be highly accurate, although limited in the number of details (e.g., Baker-Ward, Gordon, Ornstein, Larus, & Clubb, 1993; Parker et al., 1999). When interviewers are supportive but do not selectively reinforce the child’s responses (Bottoms, Quas, & Davis, 2007) and ask open-ended questions (see Brown & Lamb, 2009), they garner information that is based on the child’s memory of an experience and lessen the risk of inaccurate statements. However, open-ended questions can elicit inaccurate reports if a child has incorporated as part of his or her memory misinformation (Leichtman & Ceci, 1995).

Areas for Future Research Although researchers have made progress in identifying external interview variables that are associated with children’s suggestibility, less is understood about other

external factors and internal characteristics of children that create individual differences in children’s susceptibility to suggestibility (Bruck, Ceci, & Melnyk, 1997; Eisen, Goodman, Qin, & Davis, 1998; Harris, Goodman, Augusti, Chae, & Alley, 2009). These less understood variables include constitutional (e.g., temperament), social (e.g., attachment), emotional (e.g., self-confidence), and cognitive (e.g., language) factors. Ornstein and his colleagues identified preliminary research correlations between measurements of temperament (i.e., approach/ withdrawal and adaptability) and children’s memory for stressful medical procedures (Ornstein, Sharpiro, Clubb, Follmer, & Baker-Ward, 1997, cited in Harris et al., 2009). Vrij and Bush (2000) found that children with greater self-confidence and higher intelligence are less vulnerable to adults’ suggestions containing misinformation. In contrast, more creative children show greater vulnerability to suggestion. Harris et al. (2009) pointed out that it is undetermined exactly how various kinds of intelligence, such as verbal versus nonverbal intelligence, fluid (e.g., on-the-spot problem solving and abstract reasoning) versus crystallized intelligence (e.g., vocabulary, general information), and practical versus analytical intelligence, are differentially related to children’s susceptibility to suggestibility. Alexander et al. (2002) proposed that better executive functioning may bolster resistance to suggestion by making it easier to inhibit the more recently encoded misinformation, and/or to keep both the reality of what occurred and false suggestions in working memory simultaneously, which may foster accurate monitoring of the sources of such information. Further, cultural factors may be related to suggestibility. For example, Bottoms, Shaver, and Goodman (1996) provided evidence that children who believe in the devil may be more susceptible to suggestions about satanic ritual abuse, and Quas and her colleagues (1999) also found that children from cultures that foster or require children’s agreement with adults may be more vulnerable to adult interviewers’ suggestions. Harris et al. (2009) cautioned that the predictive power of these individual differences is most likely too weak to be a determining factor for the courts in specific cases, and many children would be misclassified, either as accurate or inaccurate witnesses, if legal decision making relied too heavily on these individual-difference findings. Another area that lacks consensus is the impact of repeated interviews on children. In reality, despite programmatic efforts to reduce the number of interviews children must endure, children alleged to have been sexually

Child Sexual Abuse Evaluations

abused are typically interviewed about the events in question multiple times. Children may be interviewed by parents, relatives, friends, mental health professionals, child welfare staff, law enforcement, physicians, and forensic mental health professionals. Informal interviews often precede the formal interview that may be identified as the first and only interview (LaRooy, Lamb, & Pipe, 2009). LaRooy and his colleagues concluded: (a) Research is not yet sufficient to support strong conclusions about the risks or benefits of repeated interviews with alleged victims of sexual abuse; (b) Developmentally appropriate protocols for repeatedly interviewing alleged victims have not yet been published; and (c) Further investigations need to include the interviewer’s identity and training, length of delays before and between interviews, age of the child, and suggestiveness of the interview. These researchers opined, “It is particularly difficult to distinguish the effects of suggestive interviews from repeated interviews” (p. 329).

ASSESSMENT TOOLS If assessment tools are used in the evaluation of sexual abuse, they should be chosen only if they contribute to the predictive accuracy of the assessment. Melton, Petrila, Poythress, and Slobogin (2007, p. 48) identify 12 factors that should be considered prior to selecting a psychological instrument or assessment technique as part of a forensic assessment: 1. What is the construct to be assessed? 2. How directly does the instrument assess the construct of interest? 3. Are there alternative methods that assess the construct of interest in more direct ways? 4. Does the use of this instrument require an unacceptable degree of inference between the construct it assesses and the relevant psycholegal issue(s)? 5. Is the instrument commercially published? 6. Is a comprehensive user manual available? 7. Have adequate levels of reliability been established? 8. Have adequate levels of validity been demonstrated? 9. Is the instrument valid for the purpose for which it will be used? 10. What are the qualifications necessary to use the instrument? 11. Has the instrument been subject to peer review? 12. Does the instrument include measures of response style?

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Children’s play with sand, dolls, or some other medium, and drawings are at times interpreted as projecting specific information. Mediums used as projective techniques may be identified as having symbolic meanings but meet few, if any, of the previously listed guidelines for forensic assessment tools. Mediums used as projective techniques also clearly fail to meet thresholds for relevance and reliability regarding legal issues such as whether a child has experienced sexual abuse (see Murrie, Martindale, & Epstein, 2009, for review). There is no instrument, technique, or standardized test that can reliably and validly discriminate sexually abused from non-sexually abused children. Anatomical Dolls as Aids to Children’s Communication Klemfuss and Ceci (2009) observed that the use of anatomically detailed dolls in forensic interviews has been discouraged. They observed that there is little support for the claim that anatomically detailed dolls can improve a child’s testimony, and some research has demonstrated that the dolls lead children to make false claims of abuse or to interact with the dolls in ways that some adults may wrongly interpret as indicative of abuse. Research indicates that the anatomical dolls may not increase the number of accurate details reported (Lamb, Hershkowitz, Sternberg, Boat, & Everson, 1996) and other research suggests dolls may increase the number of false statements elicited during children’s interviews (Bruck, Ceci, Francoeur, & Renick, 1995; DeLoache & Marzolf, 1995; Steward & Steward, 1996). For example, Bruck et al. (1995) studied 3-year-old children’s memory of a physical examination, with half of the children also experiencing a genital examination. Errors of omission were high, with 50% of the genitally examined children failing to indicate their genitals were touched when interviewed. Although use of anatomical dolls did not reduce errors of omission, it appeared to increase errors of commission, with 60% of children in both genital-exam and nongenital-exam groups using the dolls in a sexualized manner and falsely indicating genital insertions. In contrast, anatomical dolls paired with a directed question appeared to assist disclosures of genital touching during a physical examination in slightly older children (Saywitz et al., 1991). Poole and Lamb (1998) cautioned interviewers to be aware that the gains they achieve by using the dolls can be easily outweighed by questions regarding the accuracy of the children’s reports. A major limitation with the use of anatomical dolls with young children is the children’s

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inability to understand that the doll and the doll’s genitals are representations of their own bodies and young children may explore the dolls in ways that appear sexual when in reality they are engaging in exploratory play (Klemfuss & Ceci, 2009). Pipe and Salmon (2009) noted that concerns about the inaccuracy of doll-associated reports have prompted many researchers to recommend caution in the forensic use of dolls, especially when young children are involved (citing Bruck & Ceci, 1996; Bruck et al., 1995; Bruck, Ceci, & Principe, 2006; Dickinson, Poole, & Bruck, 2005; Kuehnle, 1996, 1998b; Poole & Lamb, 1998). They noted, however, that their use during interviews with allegedly abused children is still relatively widely advocated in specific guidelines or protocols in which the dolls are used for very specific purposes, such as clarification when the child has already made a verbal allegation in the interview (American Professional Society on the Abuse of Children, 1995, 2002; American Prosecutors Research Institute, 2003; Everson & Boat, 2002; Faller, 2005; Walters, Holmes, Bauer, & Vieth, 2003, cited in Pipe & Salmon, 2009). We do not advocate use of anatomical dolls during forensic interviews with children alleged to be sexually abused, or for that matter during any forensic interview with children. Presentation of Body Diagrams to Aid Description Body diagrams (also called body maps or human figure diagrams or drawings) refer to two-dimensional representations of the human body. These diagrams vary in the anatomical detail depicted, and can be “gingerbread” figures, clothed-figure outlines, or nude figure outlines with genitalia depicted (Bruck, 2009; Willcock, Morgan, & Hayne, 2006). Pipe and Salmon (2009) noted that body diagrams offer an alternative to anatomically detailed dolls as a means of helping children recount abusive experiences and may be useful for eliciting or clarifying very specific information, such as the meaning of idiosyncratic body labels. Body diagrams are identified as addressing linguistic (e.g., limited vocabulary), cognitive (e.g., limited understanding), or motivational (e.g., embarrassment) difficulties, by allowing children to respond nonverbally (Brown, 2011; Brown et al., 2007). The American Academy of Child and Adolescent Psychiatry (1997) recommended that body diagrams be presented to the child, who may be asked to name each body part, and when genitalia are named or drawn, the child may be asked if anyone has touched the child there. Few investigators have studied the use of body diagrams with children for the purpose of indicating and/or

clarifying names for body parts or where the child was touched and which body parts of the alleged perpetrators touched the child (Pipe & Salmon, 2009). Pipe and her colleague reported that existing studies “have generally examined the use of the diagrams as a means of eliciting reports of touch, rather than as a means of clarifying or elaborating on touch that has already been reported” (p. 379). Although body diagrams do help children report touch that occurred, they also lead to reports of touch that did not occur, principally when used in combination with questions about touch, such as yes–no questions (see Brown, 2011). Pipe and Salmon (2009) cautioned that “without verbal elaboration, reports of touches using a body diagram may be misinterpreted because, for example, children may be imprecise in indicating where they were touched, did not understand what touch meant, demonstrated their knowledge, or simply attempted to satisfy the perceived demands of the task” (p. 362). Children’s Drawing to Aid Description Drawings are often utilized when working with children to build rapport and may be used as a nonverbal aid in interviews to help children communicate ideas. Pipe and Salmon (2009) identified several studies that showed children who drew while narrating a specific past experience provided more accurate information about the event without increasing errors or compromising accuracy (citing Butler, Gross, & Hayne, 1995; Gross & Hayne, 1999). Like other techniques, drawings may also provide a structure and alternative focus from the interviewer (Butler et al., 1995). Similar to other nonverbal techniques, the effects of drawing are not uniform across all age groups and frameworks in which it is used. Strange, Garry, and Sutherland (2003) identified findings suggesting that when children were asked to draw fictitious events they were more likely to claim that they had experienced those events compared to children who did not draw. Several other studies have also found that when children were asked to draw fictitious events, they were more likely to claim that they had experienced those events than those who did not draw (e.g., Salmon & Pipe, 2000; Gross & Hayne, 1999). Similarly, Gross, Hayne, and Poole (2006) found that asking children to draw “false events” led to more of the 5-to-7-yearolds reporting the false events in a subsequent free-recall interview as compared to children who received no misinformation or misinformation provided through questioning by the interviewer. Older children (9 to 10 years old) who drew false events were also more likely to report

Child Sexual Abuse Evaluations

them in free recall than a control group who received no misinformation. However, in contrast to their younger counterparts, the older children were not more likely to do so than older children who received misinformation through questioning by the interviewer. In their review of nonverbal aids, Pipe and Salmon 2009 concluded: Nonverbal aids can help children to report forensically relevant information about “what happened” to them. However, the accuracy of the information elicited is likely to be critically dependent on how the techniques are used, with whom, and in what context. The effects of misleading questioning and coercive approaches to interviewing may be magnified when used in conjunction with nonverbal aids and techniques, such as dolls, body diagrams, or asking children to draw. . . . Extant research is mute regarding the use of nonverbal techniques in some of the very specific ways currently recommended by professional organizations, for example, for clarification of touch or bodily contact that has already been reported, highlighting the need for greater communication between professionals in the field and researchers whose work would guide them. (pp. 389–390)

STRUCTURING THE INTERVIEW “The informativeness of interviews with child victims is strongly influenced by the skill and expertise of the interviewers and . . . skillful interviewers can make children into reliable and invaluable informants” (Lamb, Sternberg, & Esplin, 1998, p. 815). According to Wood and Garvin (2000), professionals interviewing children about allegations of abuse should do the following: 1. Make the child feel physically and emotionally comfortable at the beginning of the interview. 2. Convey warmth and interest in the child, both through words and nonverbal cues such as posture, eye contact, and tone of voice. 3. Use simple vocabulary and short sentences, as appropriate to the child’s age. 4. Ask open-ended questions in the early interview to encourage the child to give longer, fuller answers in his or her own words. 5. Introduce the topic of concern in as non-suggestive a way as possible. 6. During the substantive part of the interview, encourage the child to describe what happened in his or her own words, starting at the beginning and continuing up to the end. 7. Use open-ended questions as much as possible. If mildly suggestive questions are used to focus the child’s attention

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on a particular topic, follow them up with open-ended questions. 8. Avoid interrupting the child’s statement. Save specific questions about details until the later parts of the interview, when the child has finished describing what happened. 9. End the interview by thanking the child and describing what will happen after he or she leaves the interview room. Provide older children with an opportunity to ask questions. (pp. 110–111)

When structuring an interview, it may be useful to think about how interviews can go wrong (Wood & Garvin, 2000). Improper interviewing techniques such as use of leading questions, improper influence and reinforcement, and removal from direct experience can all contribute to an improper and potentially biased interview. When the interviewer holds a preconceived belief and confirmatory bias influences the suggestiveness of the questions, the child’s accuracy may be compromised, particularly when less than 5 years of age. As identified by Wood and Garvin (2000), interviewers may inadvertently influence or persuade children by inducing conformity, eliciting obedience to authority, or inducing stereotypes to communicate negative attributes about the suspected perpetrator. Interviewers’ use of reinforcement can shape children’s responses, and an interviewer with a preconceived idea about what happened may inadvertently shape certain responses from the child through praise or criticism. Asking the child questions that are outside his or her direct experience is another problematic interview technique. Asking the child to speculate or to pretend or imagine something, or using puppets to facilitate the interview, all risk causing the child to describe imaginary rather than real events (Wood & Garvin, 2000). The evaluator must consider a range of hypotheses (Kuehnle, 1996; Kuehnle & Kirkpatrick, 2005) and base interview strategies on an empirical foundation. The failure to remain open to alternative hypotheses can pose serious risks to the scientific soundness of conclusions (Dawes, Faust, & Meehl, 1989). For example, if the interviewer holds only one hypothesis about an event, and the hypothesis is correct, it can lead to high levels of accurate recall by young children; however, if the hypothesis is incorrect, it can lead to high levels of inaccurate recall (Wood & Garvin, 2000). In designing a sound interview, the evaluator must consider five central factors that strongly affect children’s capacity as witnesses: (1) children’s tendency to be reticent and generally uncommunicative with unfamiliar adults; (2) children’s familiarity with being tested

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by adults (e.g., “What is the name of this animal?”) but lack of familiarity with adults treating them as sources of information that are unknown by the adult; (3) children’s poorer linguistic skills; (4) children’s poorer memory for events; and (5) children’s tendency to forget information more quickly (Lamb, Sternberg, & Esplin, 1994). Furthermore, the passage of time must also be considered, in that time can affect both memory and suggestibility (Lamb et al., 1998). Recording the Interview There is consensus among researchers that audio recording or videotaping the interview is the most accurate method of recording the specific questions and answers (see Ceci & Bruck, 2000). Lamb et al. (2000) examined how accurately forensic evaluators captured the content of investigative interviews with children. Interviewers kept contemporaneous, supposedly verbatim notes of interviews that were also being audio recorded. Their handwritten notes failed to reflect one quarter of the abuse-relevant details reported by the children and only half of the exchanges between the children and the interviewers. The structure of the interviews was also misrepresented. Examiners regularly misattributed details to more open prompts rather than more focused prompts, and in fact fewer than half (44%) of the details provided by the children were correctly attributed to the type of eliciting utterance made by the interviewer (Lamb et al., 2000). Berliner and Lieb (2001) compared audio recording or video recording to near-verbatim contemporaneous notetaking accomplished by a second party rather than the interviewer. Note-taking fared very poorly compared to either audio or video recording. The contemporaneous note-takers missed almost a fifth of the interview questions. Warren and Woodall (1999) found that experienced professionals could recall the gist of reported events when asked to do so immediately after interviews about those events. When their recollections about the interviews were compared to transcripts, it was found that interviewers correctly recalled 83% of major event details reported by the children, 65% of the total number of event details, and 60% of the children’s errors. About half of the interviewers erroneously reported errors that had not actually occurred in the children’s accounts, however, and they recalled only 20% of the specific interview questions and answers. Important content was omitted, and the majority of the verbatim information was lost. This led the investigators to conclude that interviewers

could not give adequate accounts of interviews based upon memory: Our results suggest that the hearsay testimony of children’s interviewers is degraded. Even immediately after an interview, important content was omitted from hearsay accounts, and the majority of the verbatim information (specific wording and content of questions and answers) was lost. Our results also suggest that interviewers are unlikely to be able to accurately reconstruct verbatim information later. This loss of sometimes critical information can be problematic for both sides in the legal system. (Berliner & Lieb, 2001, p. 369)

Berliner and Lieb (2001) opined that videotaping provides the most accurate and detailed form of recording CSA interviews, audio-taping provides a less adequate system of recoding than videotaping since nonverbal demeanor and behavior is lost, and both are better than note-taking. There appears to be a consistent finding, then, that note-taking is not a reliable means of capturing the important data from children’s interviews regarding alleged sexual abuse. Despite the consensus among researchers that videoor audiotaping the CSA interview is the most accurate method of recording specific questions and answers, there is an absence of recommendations in guidelines promulgated by various professional organizations, such as the American Professional Society on the Abuse of Children (APSAC), American Psychological Association, or American Psychiatric Association. While some organizations address the benefits of electronic recording of interviews, a recommendation that all interviews be recorded is not offered by any professional organization. Sequence of Interview Steps Most research-based guidelines and recommendations for interviewing alleged sexually abused children form a consensus for the structure and sequence of interview steps (APSAC, 1996; Kuehnle, 1996; Poole & Lamb, 1998). Brown and Lamb (2009) reviewed five structured interview protocols used in the United States, England, and Canada, and identified the components that were common to all of these structured protocols: (a) development of rapport, (b) assessment of the child’s ability to answer questions and provide details, (c) identification of ground rules for the interview, (d) interview practice on non-abuserelated questions, (e) introduction of the sexual abuse topic beginning with open-ended questions, and (f) interview closure. Despite this consensus, many interviewers do an inadequate job of building rapport or addressing the

Child Sexual Abuse Evaluations

interview ground rules, they progress prematurely to specific questions, and they rely too heavily on specific and yes–no questions (cited in Brown & Lamb, 2009: Warren, Woodall, Hunt, & Perry, 1996; Westcott & Kynan, 2006; Wood, McClure, & Birch, 1996), even with specific training (see Brown & Lamb, 2009). Building Rapport In developing rapport, the goal is to build a comfortable and safe atmosphere that will allow the child to talk openly and without fear of judgment or criticism (Sattler, 1998). Research is robust in showing that a substantial proportion of children are reluctant to disclose their abuse when interviewed (London, Bruck, Ceci, & Shuman, 2005; London, Bruck, Wright, & Ceci, 2005). Establishing rapport with children reduces their anxiety, facilitates communication, reduces suggestibility, and increases the accuracy of their statements (see Bottoms et al., 2007, and Hershkowitz, 2011, for reviews). Development of rapport begins with introducing oneself to the child and discussing neutral topics that are age appropriate. Interviewers should be relaxed and convey interest in what the child has to say, and they should not dominate the conversation with questions (see Poole & Lamb, 1998). Specific techniques for personalizing the interview and communicating empathy without suggesting to the child that the alleged event has occurred include using the child’s name, giving the child undivided attention, timing questions and comments appropriately, and repeating the child’s last comment when moving to a follow-up question (Fisher & Geiselman, 1992). Children may have a range of motivations for not disclosing and it is essential that interviewers not give in to their own frustrations and add to the child’s stress by being increasingly less sensitive or less supportive with reluctant or nondisclosing children (Hershkowitz, 2011). Hershkowitz reported that because of the need to enhance rapport with allegedly abused children, the revision of the NICHD interview protocol has been undertaken (citing Hershkowitz, Lamb, & Katz, manuscript in preparation). The presentation of treats or gifts to children preceding or following a sexual abuse interview is controversial. Interviewers who do so may be accused of manipulating children’s responses to questioning. However, empirical data are not available to establish whether providing children with candy, cookies, or toys enhances, interferes with, or has no effect on the accuracy or completeness of their narrations. Empirical data are also absent on the facilitating or interfering effect of manipulatives (e.g.,

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paper, crayons, clay) used to assist the interviewer in maintaining children’s alertness and attention to the forensic interview. Assessing the Child’s Ability to Answer Questions and Provide Details To acquire the most accurate and developmentally detailed information, the evaluator must determine the child’s linguistic capacity. This determination rests on developmental information obtained about the child, observation of the child, and knowledge of child development research. The accuracy of children’s accounts is significantly influenced by the linguistic style and complexity of the language used by interviewers (Lamb, Malloy, & LaRooy, 2011). The more impoverished children’s language, the greater the likelihood that their statements with be misunderstood or they will misunderstand the interviewer’s questions. Young children frequently interpret words very concretely; for example, children may not answer a question about something that happened at their house if they live in an apartment (Walker, 1999). Failure to vary language in accordance with children’s developmental level is all too common in the questions of law enforcement officers, protective service workers, attorneys, and trained mental health professionals. Inappropriate complexity of questions increases the risk for young children providing inaccurate information due to their misunderstanding the question (Evans, Lee, & Lyon, 2009; Korkman, Santtila, Drzewiecki, & Sandnabba, 2008). Perry et al. found that kindergarteners may not even recognize that they have not understood a complex question and, as a result, are unlikely to ask the interviewer for clarification (Perry et al., 1995). It is a generally accepted practice to acquire a developmental history before the interview rather than to conduct a blind interview (Hewitt, 1999; Kuehnle, 1996). A developmental history is helpful for the selection of appropriate interview procedures and placement of the child’s answers in a developmental context (Lamb et al., 2011; Saywitz & Camparo, 1998). Knowledge of the child’s developmental history allows the evaluator to plan ahead and structure some preliminary nonleading questions. However, misinformation provided to interviewers prior to an interview can influence their questions and lead to increased errors of commission by some children (White, Leichtman, & Ceci, 1997). There is little research to support the notion that interviewers who are ignorant about the abuse allegations will not ask leading questions. Although an interviewer may be blind to the variables associated with

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the child and alleged abuse, the interviewer may still ask inappropriate questions due to a limited knowledge of the child’s developmental needs and limitations. Regardless of the court’s need for specific facts, children should not be asked questions during the substantive interview requiring answers of specific facts unless the child is developmentally competent to do so (see Lamb et al., 2011, for review). For example, young children may provide inconsistent and inaccurate answers to questions regarding frequency or point in time of an event because they lack the capacity to answer these questions. Most children less than 6 or 7 years of age cannot count events that are abstract and do not have discrete boundaries (e.g., “How many pieces of candy did you eat yesterday?” versus “How many pieces of candy is this?”) and cannot determine that something happened before or after something else (Saywitz, 1995). Prior to the age of 8, most children may confuse unfamiliar words with words that sound familiar (Saywitz, 1995); and before the age of 10, most children have difficulty temporarily dating events (e.g., month of a year or day of a month; Orbach & Lamb, 2007a, 2007b). The evaluator must assess not only linguistic competency but also the child’s linguistic style to frame questions that match each child’s idiosyncratic use of language (e.g., penis, dick, pee-pee) and determine the child’s names for the important people in his or her life. To assess whether children possess the skills necessary to answer specific forensic interview questions such as dates, times, locations, and physical descriptions, the evaluator can ask the child to identify the current season, date, and time; city and state where the child lives; and race, age, and height of the evaluator (Saywitz & Camparo, 1998). Although the use of body figure or anatomical drawings to prompt the labeling of body parts provides the interviewer with the child’s words for these parts and functions, as previously reviewed, the timing of this inquiry is debated. Interviewers who ask for genital labels early in the interview can be criticized for suggesting sexual themes (Poole & Lamb, 1998). Assessing Children’s Capacity to Testify Lyon (2011) wrote that in determining the competency of child witnesses the law recognizes two types of child witness competency: “basic competency and truth–lie competency” (p. 69). Basic competency is defined as children’s ability to perceive, remember, and communicate, whereas truth–lie competency is defined as children’s understanding the difference between truth and lies and

the importance in telling the truth. To provide information relevant to legal decisions about the child’s capacity to testify, children’s understanding of truth and lies may be directly assessed by the interviewer (Myers, 1998). To establish this competency, children must demonstrate their understanding of truth and lies through identification or definition of these concepts. By age 4 many children can make the distinction between a truthful and untruthful statement, although if asked to verbally define the word truth or lie, they are unable to do so. It is not until age 7 that most children can define the term truth, although the ability to define the term lie may be accomplished earlier (Lyon & Saywitz, 1999). Based on these developmental findings, the evaluator should use identification questions (e.g., present interviewee with a picture depicting two children with a car on the table between them; one child says the object is a car, the other child says the object is a horse, and the interviewee is asked which child is telling the truth) rather than definition questions (e.g., “What does it mean to tell the truth?”) with children under the age of 8. Research has shown that children who correctly answer truth–lie questions are not more accurate or less suggestible than same-age peers who are unable to do so (Huffman, Warren, & Frazier, 1997; Pipe & Wilson, 1994), but researchers have also found that if children are asked to promise to tell the truth their honesty increases (e.g., Lyon & Dorado, 2008; Lyon et al., 2008). However, truth–lie discussions may have limited value because children’s provision of inaccurate information is often based on a misunderstanding of the questions or on a failure in their ability to grasp the source of their knowledge. Current competency procedures do not address some of these primary reasons why children misreport events (Poole & Lamb, 1998). Establishing the Ground Rules for the Interview Because the forensic interview setting and tasks are complex and unfamiliar, children may display comprehension problems based on the following assumptions and social behaviors: (a) Children assume that adults’ dialogue is sincere and reliable; (b) children perceive adults to be trustworthy conversational partners who would not intentionally deceive them; (c) children consider adults to be highly knowledgeable sources of information who know more than they; and (d) children acquiesce to adults’ leading questions to please, avoid anger, or protect themselves from humiliation (Saywitz & Moan-Hardie, 1994). School-age children benefit from instructions on

Child Sexual Abuse Evaluations

ground rules that address these assumptions and social tendencies, including instructions given prior to the substantive segment of the interview to: (a) tell only what happened; (b) admit lack of knowledge rather than guess; (c) remember that the interviewer was not present during the event of focus; (d) correct the interviewer when he or she misstates the facts; (e) not think they made a mistake if the interviewer asks a question more than once; (f) tell all the details they can remember, even the ones that they think are unimportant; (g) tell the interviewer when they don’t understand (Reed, 1996). Strategies for enhancing children’s resistance to suggestibility are less effective with preschool-age children, especially with children under the age of 5 (Saywitz, Geiselman, & Bornstein, 1992). Practice Interview on Non-Abuse-Related Questions The purpose of the practice interview is to encourage the child to volunteer elaborated narratives so that the interviewer can minimize the use of specific queries when questioning the child about the alleged abuse and gain additional information that can inform judgments about the child’s linguistic capacities and skills (see Roberts, Brubacher, Powell, & Price, 2011 for review). There are a number of experimentally derived protocols that assist the interviewer in training children to elaborate their narratives (e.g., Lamb et al., 1994; Saywitz & Snyder, 1996; Saywitz, Snyder, & Lamphear, 1996; Saywitz, Snyder, & Nathanson, 1999). The core components of these protocols include instructing the interviewer to identify a recent event that the child experienced and ask a sequence of questions that probe for details, such as: (a) “Think hard and tell me what happened from the time you got up that morning until [some incident that occurred that same day]”; (b) “Then what happened?”; (c) “Tell me everything that happened after [another event that occurred that same day]”; and (d) “Tell me more about [another incident mentioned by the child occurring on that same day].” Children typically are instructed to tell the interviewer details regarding everything they remember and to include things that they think may be unimportant (Poole & Lamb, 1998). A mnemonic protocol developed by Saywitz and colleagues, titled the narrative elaboration technique, involves presenting children with five cards showing simple drawings representing categories of participant, setting, action, conversation, and affective state (e.g., Saywitz & Geiselman, 1998; Saywitz & Snyder, 1996). With the cards as reminders, the child practices narrating

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details from each category when describing routine activities. After practicing on nonabuse events, the child is asked to describe the event under investigation while using the cards as mnemonic aids. Saywitz and Goodman (1996) found that school-age children trained in this technique provided 53% more accurate information in a free-recall narrative of a past nontraumatic event than children who received no training. Introducing the Sexual Abuse Topic Through Open-Ended Questions The substantive part of the interview begins when the interviewer transitions to the target topic (see Orbach & Pipe, 2011, for review). The goal is to introduce the subject of abuse without verbalizing the allegation to the child, naming a particular suspect, projecting adult judgments onto the alleged event, or implying that the child has been harmed (Pence & Wilson, 1994). In a study by Sternberg et al. (1997), 96% of alleged victims of CSA who had previously disclosed their abuse to someone other than a child protective investigator related their abuse to an investigator when asked the following prompt: “Now that we know each other a little better I want to talk about the reason you are here today. I understand that something may have happened to you. Please tell me everything that happened, every detail from the very beginning to the very end” (p. 1146). These children had been previously trained in answering open-ended questions to non-abuse-related questions. When asked open-ended questions, children’s accounts may be very brief and lack sufficient information from which the evaluator can draw conclusions regarding the allegations. As a result, the interviewer may introduce more focused questions. However, as noted by Poole and Lindsay (1998), children’s accuracy declines as questioning moves from free recall (e.g., “Please tell me everything that happened, every detail from the very beginning to the very end”), to more focused questions (e.g., “Tell me what the room looked like”), to questions about a specific detail (e.g., “What color was the bedspread?”), or to questions that offer the child limited options (e.g., yes–no, multiple choice). Lamb, Hershkowitz, Sternberg, Esplin, et al. (1996) found that child protective investigators who were not trained in the open-ended interview methods yielded an average of six details to the investigator’s first invitation for substantive information. After training, these same child protection investigators’ first substantive question yielded an average of 91 details from the children in

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the open-ended introduction condition. However, Sternberg et al. (1997) found that after the trained interviewers posed their first open-ended substantive question, they reverted to more focused questions, suggesting the need for the trainers to script further open-ended questions. These findings are consistent with previous research showing that interviewers seldom use the recommended open-ended invitations or after training revert to using more focused questions if their monitoring is discontinued (Lamb, Sternberg, Orbach, Esplin, & Mitchell, 2002; Sternberg, Lamb, Davies, & Westcott, 2001; Warren et al., 1996). Researchers at the National Institutes of Child Health and Human Development (NICHD) created an interview protocol that operationalized recommendations from research so that forensic investigators could conduct developmentally appropriate interviews with children (cited in Brown & Lamb, 2009: Hershkowitz, Fisher, Lamb, & Horowitz, 2007; Lamb, Orbach, Hershkowitz, Esplin, & Horowitz, 2009; Orbach et al., 2000; Sternberg, Lamb, Orbach, Esplin, & Mitchell, 2001). The NICHD interview protocol includes a sequence of nine nonsubstantive and substantive phases. This protocol uses the widely accepted funnel approach, in which interviewers begin with open-ended questions, proceed to more direct questions with caution, and then move the interview back to open-ended probes that again elicit narrative information. The interview concludes with a discussion of neutral events. A distinctive feature of the protocol is that it uses children’s responses as cues to elicit further information, resulting in a child-directed, rather than an interviewerdirected, interview (Brown & Lamb, 2009). Preliminary findings indicate that, as compared to investigators who improvise, child protective interviewers using the detailed protocol retrieve more information using openended questions, conduct better-organized interviews, follow focused questions with open-ended probes (pairings), and avoid more potentially dangerous interview practices (Lamb et al., 1998). Field studies comparing interviews conducted by investigators before and after training on the protocol show notable findings (cited in Brown & Lamb, 2009: Orbach et al., 2000; Sternberg et al., 2001; Sternberg, Lamb, Esplin, Orbach, & Hershkowitz, 2002). The majority of children who reported abuse when questioned using the protocol did so in response to open-ended prompts, protocol-guided interviewers adhered to recommended practices better than those not using the protocol, and, even with very young children 4 to 8 years old, these positive results held (Lamb et al., 2003).

CHILDREN’S TESTIMONY Children’s in-court testimony is an area of considerable concern for the courts. Statutes frequently require that the child either testify at trial or be found to be “unavailable” to testify before nontraditional hearsay evidence may be introduced. Reasons for “unavailability” include: (a) refusal to testify, (b) lack of memory, (c) incapacity, (d) mental disability, (e) physical illness, and (f) death (Myers, 1998). Some courts have ruled unavailability to include the child’s inability to communicate to a jury (e.g., State v. Giles, 1989) or experiencing trauma from testifying that would result in substantial, long-term emotional or psychological harm (e.g., People v. Newbrough, 1990; Thomas v. People, 1990). Associated with determinations of the child’s unavailability to testify are those of the child’s competence to testify. Historically, children below a certain age were not considered competent as witnesses on the assumption that they might be unable to comprehend the oath, or might have difficulty understanding the importance of telling the truth or distinguishing truth from fantasy (National Center for Victims of Crime [NCVC], 1999). Without the child’s testimony, however, prosecution of CSA is generally not possible. States resolve this dilemma with statutory provisions ranging from excepting CSA cases from the general prohibition against testimony by a child; permitting a child to testify with an instruction from the court that the jury should consider the child’s age and cognitive development in weighing the child’s testimony; or allowing the child’s testimony if the child can show an understanding of the difference between truth and lies. In federal courts (U.S.C. Code Collection, Title 18, Chap. 223, Sect. 3509, child victims’ and child witnesses’ rights) children are presumed competent to testify but this presumption can be challenged, and upon written motion the court may conduct a competency examination. Age alone is not considered a compelling reason for challenging the child’s competency. The court may question the child or may permit an attorney to do so if the court is satisfied that the child will not suffer emotional trauma as a result of the examination. The questions asked of a child are to be appropriate to the age and developmental level of the child, not related to the issues at trial, and focused on determining the child’s ability to understand and answer simple questions. The court may also, with a showing of compelling need, order psychological or psychiatric examinations to assess the competency of a child witness (see Otto, Saddoff, & Faniff, 2011, for an extended discussion).

Child Sexual Abuse Evaluations

Special Courtroom Provisions for Children The law allows for a number of provisions to enhance children’s ability to testify and make the experience less stressful. Even though modifications of the usual methods for testifying are available, prosecutors do not always elect to use them. In some instances this may be because of lack of familiarity with the options, but in other cases it may be out of concern for how the modification may impact jurors’ perceptions of the child’s truthfulness. A body of research is emerging on the effects of modifications on children’s testimony and how they are received by jurors (see Hall & Sales, 2008 for review). The courtroom modifications that most effectively diminish a child’s fear and anxiety tend to impinge on the defendant’s rights to confront the accuser (Ceci & Klemfuss, 2009). Mental health experts should be prepared, when appropriate, to provide a clear and concise account of the psychological factors to consider before and during the process of making modification assessments (Hall & Sales, 2008).

Out-of-Court Statements There is concern about inflicting further psychological harm on the child by subjecting him or her to the stress of repeating the experience of abuse in a courtroom with the alleged abuser present (Berliner & Barbieri, 1984). Several strategies have been developed by different states to prevent having a child testify in open court. One such strategy is to introduce evidence through hearsay testimony by a mental health professional, teacher, police officer, or child protective investigator who repeats the out-of-court statements offered by the child. Realistically, there may be good reason to be concerned about the accuracy of such testimony. As described earlier, notes may inaccurately reflect the child’s prior statements or the questions asked to elicit them. Reports of what children have said to others before court, including to therapists, parents, or investigators, may not be accurate. Even trained forensic interviewers make serious errors of omission, misattribution, and commission in their contemporaneous “near-verbatim” notes. Where trained interviewers or therapists rely on their notes, rather than on audio or video recording, to refresh their recollections about interviews, their testimony may be incorrect. A child’s videotaped statements may also be admissible under exceptions to the hearsay rule (see Myers, 1997a). Many states allow a child’s out-of-court statements,

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videotaped and nonvideotaped statements, about abuse to be admitted as evidence, especially where the person testifying is the first adult to whom the child made such statements. However, in a recent U.S. Supreme Court decision (Crawford v. Washington, 2004), the admissibility of out-of-court “testimonial” statements (e.g., statements made to law enforcement) was challenged, and in the future it may be increasingly necessary for children to appear live in court for video-recorded forensic interviews to be admitted. There are numerous exceptions to hearsay rules that result in children’s out-of-court statements being admitted at trial (Myers, Redlich, Goodman, Prizmich, & Imwinkelreid, 1999). Certain hearsay statements made for purposes of obtaining treatment or a diagnosis have been ruled to be sufficiently reliable to be admitted into evidence (e.g., People v. Meeboer, 1992; see Myers, 1997b). Although most court decisions have involved patient–physician communication, children’s statements to other mental health professionals have been admitted if the basis supporting the exception (i.e., statement pertinent to diagnosis or treatment) is present (e.g., McClain v. State, 1996; Morgan v. Foretich, 1988). States may also allow the deposition of a child victim or witness to be introduced into evidence. The Federal Rules of Evidence (FRE Rule 803, Rule 804, and Rule 807) permit such deposition testimony under certain circumstances. Upon a motion to request deposition testimony in lieu of in-court testimony, the court considers whether at the time of trial the child is likely to be unable to testify in open court in the physical presence of the defendant, jury, judge, and public. Reasons would include fear, a likelihood established by expert testimony that the child would suffer emotional trauma from testifying in open court, a mental or other infirmity affecting the child’s ability to testify in open court, or conduct by the defendant or defense counsel that causes the child to be unable to continue testifying. The defendant may be present in the deposition unless the child cannot testify in the defendant’s presence; in that case, the court orders that two-way closed-circuit television equipment relay the defendant’s image into the room in which the child is testifying, and the child’s testimony into the room in which the defendant is viewing the proceeding, with the defendant having a means of private, contemporaneous communication with the defendant’s attorney during the deposition. Then, if at the time of trial the court finds that the child is unable to testify, the court may admit into evidence the child’s videotaped deposition in lieu of the child’s testifying at the trial.

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Closed-Circuit Television Testimony A second strategy to protect the child from testifying in criminal court is to allow the child to testify outside the courtroom, using closed-circuit television (CCTV) technology. This process involves questioning of the child victim/witness in a separate room while the testimony is simultaneously viewed by the jury and others in the courtroom. The typical CCTV laws permit only a few people to be in the room with the child—including the prosecutor, defense attorney, and a support person for the child victim/witness. The defendant is permitted to view the child and communicate with his or her attorney but must be out of sight of the child. This strategy was upheld in a 1990 U.S. Supreme Court ruling that found closedcircuit testimony of a child witness in a sexual abuse case did not deprive the defendant of his Sixth Amendment right to confront witnesses against him (Craig v. Maryland, 1990). Federal courts, upon written motion, may order that the testimony of the child be taken by CCTV if they find that the child is unable to testify in open court in the presence of the defendant for any of the same reasons under consideration for deposition testimony, namely fear, risk of emotional trauma, mental or other infirmity, or conduct by the defense that causes the child to be unable to continue testifying in open court (Federal Rules of Evidence 801; U.S.C. Title 18, Chap. 223, Sect. 3509, child victims’ and child witnesses’ rights). In order to determine whether this use of CCTV in lieu of in-court testimony is necessary the court may question the child. Others present include the child’s attendant, the prosecutor, the child’s attorney, the guardian ad litem, and the defense counsel. If granted, the child is subjected to direct and cross-examination, and the child’s testimony is transmitted by CCTV into the courtroom for viewing and hearing by the defendant, jury, judge, and public. Extensive research has examined the relative persuasiveness of children’s testimony via CCTV and in-person presentation (e.g., Goodman, et al., 1998, 2006). Generally the findings are that the more remote the testimony, the less compelling it is. Goodman et al. (2006) found that when children’s testimony was presented to community member jurors either (1) live, (2) on videotape, or (3) via a social worker, children were perceived as less likely to provide false statements if they testified live, and live testimony invoked jurors’ sympathy toward the child, which then predicted jurors’ confidence in the defendants’ guilt. In another study Goodman et al. (1998) found that the use of closed-circuit technology led to decreased suggestibility for younger children, did not diminish fact finders’

abilities to discriminate accurate from inaccurate child testimony, and did not directly bias jurors against the defendant, but it did bias jurors against child witnesses. As Troxel, Ogle, Cordon, Lawler, and Goodman (2009) noted, Overall, children who testify live are seen more positively than children who testify via CCTV, with the latter children rated more positively than children whose statements are viewed on videotape. It is no wonder, therefore, that prosecutors are reluctant to utilize CCTV and typically, at least in CSA trials, have children testify live in court in addition to introducing hearsay evidence when possible. (pp. 161–162)

Altering the Courtroom A third strategy that has been employed is to alter the courtroom to make it easier for a child to testify in court (National Center for Victims of Crimes, 1999). Many states allow the courtroom setting to be changed by placing the defendant out of the child’s view, with a screen or with rearrangement of the furniture. Courts in some states may allow attorneys to sit near the child during examination or may permit young children to sit on the floor or in a trusted adult’s lap while testifying. Alternatively, children may be allowed to have a parent or other adult in the courtroom even though that individual would be otherwise excluded in the anticipation of testifying, a technique that preliminary research suggested had beneficial effects for children (Batterman-Faunce & Goodman, 1993). The parent or supportive person may also, in some circumstances, be allowed to accompany the child at the witness stand. The use of a one-way screen in front of the defendant that prevents the child from seeing the defendant while testifying was a basis for reversal in one case; the U.S. Supreme Court overturned a guilty verdict in an Iowa case using this strategy, ruling that the necessity of protecting the victims of sexual abuse did not outweigh a defendant’s Sixth Amendment constitutional right to confront his accusers face-to-face (Coy v. Iowa, 1988).

Permitting Special Forms of Questioning of Child Witnesses Courts may permit prosecutors to use leading questions when a child is on the witness stand if it is determined to be necessary and appropriate (NCVC, 1999). Judges may require that attorneys pose questions in a nonthreatening manner and in language easily understood by the child. Judges in some states may limit the amount of time a

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child spends on the witness stand, give comfort breaks to the child witness, or limit a child’s testimony to 1 hour at a time. Testimonial Aids States may allow children to use testimonial aids to help them describe the sexual acts (NCVC, 1999). These may include anatomically detailed dolls, mannequins, puppets, or drawings. Additionally, children may be allowed to take toys to the stand for comfort. Preliminary research on these techniques resulted in mixed findings regarding their effects on testimony (Batterman-Faunce & Goodman, 1993). Children may also be permitted to testify using familiar terms and language.

SUMMARY Researchers and clinicians have yet to agree on exactly what factors should be considered and how they should be weighed when forming an opinion in a specific CSA case. The event of sexual abuse interacts with a complex matrix of personality, family, environmental, and abusespecific characteristics, which elicits a wide variety of reactions rather than a syndrome or group of predictable symptoms. Research is robust in showing an association between children’s aberrant sexualized behavior and experiences of sexual abuse or exposure to a highly sexualized environment; however, all behaviors and symptoms are nonspecific and associated with a variety of other disturbing life experiences and stressors, including aberrant sexualized behavior. Reliance on the presence or absence of specific statement components to confirm or negate whether a child is a victim of sexual abuse is also problematic. Developmental limitations, personality factors, family and cultural contexts, characteristics of the abuse, interviewing techniques, and other factors may affect children’s narration of the abuse allegation. Further, some children, especially those who are very young, are susceptible to preand post-event suggestions and misinformation. External variables, including repetitious closed-ended questioning and interviewer’s style and bias, may increase children’s suggestibility, and internal factors such as children’s temperament, attachment, and self-confidence also appear to influence suggestibility. Although there does not exist a single standardized interview protocol consistently used by experts, there is agreement regarding the components of a soundly

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structured interview. The scientific community continues to work on the development of interview protocols to increase the quantity and quality of children’s narration of events when sexual abuse is alleged. The NICHD protocol has been subjected to extensive research and at this point is the protocol of choice because it is derived from a solid empirical base, is subjected to ongoing research, and proves to be effective in minimizing problematic questioning techniques and maximizing useful information. The search for ways to accurately distinguish sexually abused from non-sexually abused children has included examining the diagnostic potential of anatomical doll play, projective tests, and children’s drawings. Projective tools, including projective tests, drawing tasks, and doll play, do not discriminate sexually abused from non-sexually abused children. Children’s drawing of genitalia are not specific to trauma caused by sexual abuse. When providing information to the legal system, the evaluator must be cautious and make statements that can be supported by scientific data. In writing an evaluation or testifying to whether abuse has occurred, experts may want to take the approach of addressing the various possible explanations for and the weight to be accorded to a child’s statements and behaviors. This can be accomplished through the generation of multiple hypotheses (see Kuehnle, 1996), with factors presented that both support and weaken a given hypothesis. Using this approach, professionals are able to provide education to the court about the complexity of this determination and the current state of knowledge.

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PART V

Forensic Consultation

CHAPTER 25

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

THE MISIDENTIFICATION OF THOMAS BREWSTER 618 MEMORY FOR EVENTS 620

MEMORY FOR PEOPLE 624 CONCLUSIONS AND PROSPECTUS REFERENCES 627

A criminal trial is, among other things, an attempt to reconstruct a past event to aid the trier of fact in determining what happened. Physical trace evidence, such as fingerprints, fibers, or blood, are often used to assist this reconstruction because, when properly collected and analyzed, trace evidence can help determine the nature of the events and the identity of the perpetrator. Eyewitness evidence can be likened to other forms of trace evidence (Wells, 1995). In effect, a criminal event involving an eyewitness leaves a trace in the brain of the eyewitness. The “memory as trace evidence” metaphor has rich implications. Like physical evidence, memory trace evidence can be contaminated, lost, destroyed, or otherwise made to produce results that can lead to an incorrect reconstruction of the event in question. Like physical trace evidence, the manner in which memory trace evidence is collected can have important consequences for the accuracy of the results. The criminal justice system, however, has treated memory traces very differently from physical trace evidence. The collection of physical trace evidence is relatively well prescribed according to protocols that have a scientific foundation, grounded in what experts have suggested are the optimal ways to avoid contamination (Technical Working Group on Crime Scene Investigations, 1999). Police protocols for the collection, preservation, and interpretation of physical evidence are dictated largely by forensic scientists, and the practice of physical evidence collection and examination has tried to borrow as much as possible from science. Eyewitness evidence, on the other hand, is typically collected by nonspecialists who have little or no training in human memory. Police protocols for collecting, preserving, and interpreting eyewitness evidence have

not integrated the results of research conducted by memory experts. Hence, science has not been the backbone of police procedures for collecting, preserving, and interpreting eyewitness evidence. Whereas the justice system’s analysis of physical evidence, especially biological traces, has advanced rapidly in the past decade, the analysis of eyewitness evidence has languished. We believe that this gap is due in large part to the failure of the justice system to embrace the scientific model for eyewitness evidence while accepting the scientific model for physical evidence. Perhaps it is no surprise, therefore, that mistaken eyewitnesses account for more convictions of innocent persons than all other causes combined and it has been scientific analysis of biological evidence (forensic DNA) that has proven that these eyewitnesses were in error (Scheck, Neufeld, & Dwyer, 2000; Wells, Small, Penrod, Malpass, Fulero, & Brimacombe, 1998). As of the time of this writing (March 2011), there have been 267 DNA-based exonerations and 200 of those were cases of mistaken eyewitness identification (Innocenceproject.org, 2011). The idea of using a scientific model to collect, analyze, and interpret eyewitness evidence is readily apparent in the case of both memory for events and memory for people. Consider, for example, how social scientists collect data from people. In surveys about past events, great care is taken in constructing questions because of clear evidence that people’s reports are influenced by how the questions are worded (Loftus, Fienberg, & Tanur, 1985; Loftus, Smith, Klinger, & Fiedler, 1992). Scientific approaches to minimizing and detecting response biases and demand characteristics in surveys represent solid models for how law enforcement might go about the process of questioning eyewitnesses. 617

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In the case of eyewitness identification, the “lineup as experiment” analogy is a rich scientific model that law enforcement could follow (see Wells & Luus, 1990). According to this analogy, police conducting a lineup are like experimenters conducting research. Police have a hypothesis (that the suspect is the culprit); they create a design to test the hypothesis (embed the suspect among fillers); they provide instructions (e.g., “Don’t guess; the culprit might or might not be in the lineup”); they collect responses (e.g., selection, certainty); and they interpret the results. The same factors that can make the results of a scientific experiment uninterpretable can make the results of a lineup uninterpretable (e.g., confoundings, biased instructions, experimenter expectancy effects, selective recording of results). The failure of the criminal justice system to adopt a scientific model for memory trace evidence while embracing such a model for physical trace evidence is perhaps attributable to several related factors. We note, for instance, that eyewitness evidence was a staple in criminal investigations long before any scientific studies of eyewitnesses were conducted. The most scientific analyses of physical evidence (such as forensic DNA), on the other hand, were developed by scientists first and adopted by crime investigators later. Had the lineup been invented by scientists before it was ever used by the criminal justice system, law enforcement would be following a scientific protocol. This protocol would involve mock witness pretesting of fillers, double-blind testing procedures, carefully worded instructions, convergent measures, videotaping, careful documentation of records, and an interpretational framework for the identification responses. The failure of the criminal justice system to adopt a scientific model for eyewitness evidence may also be attributable to the criminal justice system not having a focused theory of memory. In fact, the justice system as a whole might have no theory at all and its members may be operating under several theories. It appears that the justice system is assuming implicitly that information stored in the brain remains largely unchanged as a function of post-event information and is relatively impervious to suggestion, and that memory failures are primarily failures to retrieve information. In fact, however, memory reports are readily influenced by post-event information, are very susceptible to suggestion, and can err in numerous ways, including memory reports of entire events that were never witnessed (Loftus, 1996). In this chapter, we review major developments in the scientific literature on eyewitness evidence. There are two main sections to this review. First, we review research and theory on eyewitness memory

for events. The primary lesson of the memory-for-events research is that memory for events is malleable. The process of recollection is reconstructive, and sources of information that are used to reconstruct are not only from the event itself but also from post-event information gleaned in various ways after the event has occurred. In some cases, mere imagination can have the power to make people believe that they witnessed or experienced an event that did not happen. The second main section reviews work on eyewitness memory for people, especially the ability of eyewitnesses to identify culprits from lineups. The primary lesson of the eyewitness identification work is that mistaken identification rates can be very high under certain conditions and many of these conditions could be avoided by the use of more scientific procedures for lineups. Before we begin our review, we describe a case that we believe illustrates many of the points that are central to this chapter.

THE MISIDENTIFICATION OF THOMAS BREWSTER It was December 14, 1984. Terry Arendt and Sherrie Gillaspey were parked in a remote area of Shasta County, California. Terry and Sherrie were friends, not lovers, and were enjoying each other’s company when a car drove by three times. After the third time, a bullet went through the driver’s side window, killing Terry. A male approached the car and forced Gillaspey a short distance from the car, where he sexually assaulted her. The killer then left. A few days later, Gillaspey worked with a sketch artist to develop a likeness of the killer. Thomas E. Brewster, a lifelong resident of the area, bore a resemblance to the sketch and thereby became a suspect in the killing. On December 19, 1984, Gillaspey was shown a photo lineup with Brewster’s photo in it. She could not make a positive identification. One day later, Gillaspey was shown a live lineup in which Brewster appeared. Again, Gillaspey could not make a positive identification. Brewster was not arrested. Nearly four years later, in August 1988, detectives again showed Gillaspey a photo lineup with Brewster’s picture in it. Once again she could not make a positive identification. In 1995, 11 years after the murder, two new detectives were assigned to the case. These detectives brought photos to a meeting with Gillaspey and, after interviewing her with the photos, she signed a statement saying that Brewster was the killer. Six days later, she identified Brewster from a live lineup. The prosecutor sought the death penalty and the trial did

Eyewitness Memory for People and Events

not commence until 1997 (California v. Brewster, 1997). Motions to suppress the identification were denied. After the trial had begun, a criminalist found a semen stain on the blouse that Gillaspey wore that evening and the stain was tested for DNA. The trial was in progress and Gillaspey was still on the stand after having positively identified Brewster in court when the DNA test results came in. Brewster was not the killer. Gillaspey was carefully debriefed and all charges against Brewster were dismissed. At least 200 people have been released from prison in recent years after DNA proved that they had been mistakenly identified by eyewitnesses (innocenceproject.org, 2011; Scheck et al., 2000; Wells et al., 1998). In many cases, there were multiple witnesses who misidentified the defendant, many were sentenced to death, and they served an average of about eight years before being freed based on the DNA tests. Although DNA tests eventually saved these individuals from the mistaken eyewitness identification problem, DNA can be used to exonerate only a small fraction of people from mistaken identification. Forensic DNA tests cannot prevent wrongful convictions in most eyewitness cases because the biological traces needed for DNA tests are not left behind by perpetrators in the vast majority of crimes. Most murders and nearly all robberies, drive-by shootings, burglaries, hit-and-run offenses, and other common crimes involve no biological trace evidence that can be clearly linked to the perpetrator or that can be used to exonerate an innocent person. It is no coincidence that nearly all of the DNA exoneration cases involve sexual assault, which have biological evidence (semen) that is unambiguously linked to the perpetrator, whereas most other cases do not. The Brewster case is somewhat unique in one respect: The new detectives who took over the case (13 years after the murder) tape-recorded their interview with Gillaspey. We think it is important to print excerpts from that interview because they illustrate some of the dynamics of the eyewitness problem. Keep in mind that the victimwitness, Gillaspey, had already viewed either photos or live lineups containing Brewster at least four times before the new detectives interviewed her in 1995. She had never made a positive identification of Brewster despite these numerous attempts prior to the 1995 interview. The interview itself is quite long, so we reprint only a small portion here. A full transcript of the taped interview was entered into evidence at a hearing on a motion to suppress the identification and can be obtained from the first author on request. Most of the interview involves Gillaspey recalling the events of the night of the murder.

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At some point, however, the detectives decided to show her a photospread that included yet another photo of Brewster. In the following transcript quotes from the tape, D1 is the first detective, D2 is the second detective, and SG is the witness, Sherrie Gillaspey: SG: Who is this guy? (apparently pointing to the photo of Brewster). D1: Why do you ask me that? SG: I don’t know, he looks familiar but (unintelligible). D1: Have you seen him before? [The conversation turned to a discussion of whether she could recognize the voice of the perpetrator. The detectives then turned the conversation back to the photos.] D1: And what photograph are you talking about? SG: Number three. D1: And that individual looks familiar to you, you don’t know in what respect? SG: Nobody else here does, all I know is he does for some reason. D1: Well, let’s go through a process of elimination. Is he somebody that you went to school with? SG: Uh-uh. D1: Is he somebody who works in a store where you shop? SG: No. D1: Is he somebody you bought a car from? SG: No. D1: Is he an old schoolteacher? SG: Nope. D1: Is he an old boyfriend? SG: No. D1: He work in a service station? SG: No, no. D1: Is he somebody that has hit on you? It is important to note at this point that the detectives were fully aware that Sherrie Gillaspey had been shown photos of Brewster and had viewed him in a live lineup at various times over the prior 13 years. Not once, however, did they ever ask during this questioning whether he looked familiar because he was the same person that other detectives had shown her previously. The interview continued: D1: Could he be the guy that assaulted Terry and you that night? SG: It’s possible. I mean, I would really like to hear, I would really like to hear him talk. D1: Well, I can arrange that.

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Gillaspey had already heard his voice in the 1985 lineup. Again, however, the detectives offered no information to her about that fact. Instead, the discussion turned to signing a statement. She was asked to indicate number three on the statement form and to write in the comments section. SG: So, what do you want me to put, just write . . . D1: Well, let’s think about that for a minute. . . . One of the things that I, that I probably rely on more than anything else is body language . . . and emotional reaction. I think it’s safe to say that you went to number three just like that. SG: Uh-huh, totally, yeah. D1: And my next question is you became flushed. Why did you do that? SG: I don’t know, well immediately, immediately in my mind, you know, in my mind thinks, is that the person, you know, kind of . . . D1: That’s the answer I’m looking for. Could that be the guy that did all this? SG: Yeah. Notice how the detective tells Gillaspey what her emotional reaction was and interprets her body language. Then, when she says something that agrees with the detective’s suspicions about the guilt of Brewster, he tells her that was the answer he was looking for. The interview continues. D1: Then what, see what, what I have to worry about now is if in fact you do come back over and we conduct a physical lineup and you identify this individual as absolutely unequivocally, without a doubt the guy that was there . . . SG: Uh-huh. D1: Then obviously the next thing that happens is somewhere down the line we have to think about what happens in court. And we don’t want to taint that with some, with a comment that you might inadvertently make on the back of that card. The taped interview then ended. Six days later, Gillaspey picked Brewster from a live lineup and was absolutely positive of her identification. The Brewster case illustrates much of what concerns psychologists about eyewitness testimony. First, it illustrates what seems to be a general misunderstanding about the nature of human memory, namely, that memory might get better (or at least not deteriorate) with time. Gillaspey had already viewed a photo of Brewster a mere 5 days

after the incident and viewed him again in a live lineup a mere 6 after the incident. In neither case could she identify Brewster. And yet, the police, the prosecutor, and the judge were willing to accept her identification of Brewster over 3,850 days later. Second, this case illustrates the detective’s lack of understanding of the processes and the power of suggestive procedures in shaping an eyewitness’s recollections. Presenting Brewster, both in photos and live, to the eyewitness several times over an 11-year period is not the only suggestive aspect of the case. The key interview in 1995, as noted in the transcript, included the detective interpreting the eyewitness’s behavior for her (“You went to number three just like that . . . you became flushed”). It included a suggestive prediction regarding how she might behave in the subsequent live lineup (“We conduct a physical lineup and you identify this individual as absolutely unequivocally, without a doubt the guy that was there”), and suggestions that she not say anything in her photoidentification card that would not play well later in court. Third, this case illustrates a problem of source monitoring. Gillaspey seemed to be unaware that Brewster’s familiarity was the result of her being exposed to him after the murder rather than his being the person she saw on the night of the murder. Fourth, this case illustrates how the certainty of an eyewitness is not only a poor indicator of whether the witness is accurate (Gillaspey was positive at trial even though she had mistakenly identified the defendant), but also how certainty is a product of variables other than the memory of the eyewitness. Finally, this case illustrates how the justice system fails to take advantage of what is known about human memory and social influence to develop appropriate safeguards against mistaken identification. There was a detailed and reasonable motion to suppress the eyewitness identification evidence. The suppression motion was denied in the Brewster case, as it is rather routinely in nearly all cases, even though the identification procedures were highly suggestive (Loftus, Doyle, & Dysart, 2007; Wells & Quinlivan, 2009). As previously stated, we believe that some members of the justice system seem to operate under a theory of memory that does not give much credence to the idea that post-event information can account for serious mistakes by eyewitnesses.

MEMORY FOR EVENTS As the Brewster case suggests, post-event viewings of a suspect’s likeness, either by photograph or in person, can

Eyewitness Memory for People and Events

help make someone look familiar later, and this enhanced familiarity can lead to a false identification of the suspect as the person who committed the crime. But decades of research has shown that post-event information, particularly when it is misleading, can also alter recollections of other details about key events. A typical finding is that after receiving new information that is misleading in some way, people make errors when they report what they saw. The new, post-event information is often incorporated into the recollection, supplementing or altering it, sometimes in dramatic ways. Misinformation Effects Current research showing how memory can become skewed when people assimilate new data uses a threepart procedure. Experimental witnesses first see a complex event, such as a simulated violent crime or an automobile accident. Subsequently, half of the witnesses receive new misleading information about the event, whereas the other half do not get any misinformation. Finally, all witnesses attempt to recall the original event. In a typical example of a study using this paradigm, witnesses saw a simulated traffic accident. They then received written information about the accident, but some people were misled about what they saw. A stop sign, for instance, was referred to as a yield sign. When asked whether they originally saw a stop or a yield sign, those given the phony information tended to adopt it as their memory; they said they saw a yield sign (see Loftus, 2005 for a review of this study and similar research). In these and many other experiments, people who had not received the misleading information provided much more accurate memories. In some experiments, the deficits in memory performance following receipt of misinformation have been dramatic, with performance differences as large as 30% or 40% (Belli, 1993). This degree of distorted reporting has been found in scores of studies, involving a wide variety of procedures. People have recalled nonexistent broken glass and tape recorders, a clean-shaven man as having a mustache, straight hair as curly, stop signs as yield signs, hammers as screwdrivers, and even something as large and conspicuous as a barn in a bucolic scene that contained no buildings at all. In short, misleading post-event information can alter a person’s recollection in a powerful, and often predictable, manner. The change in report arising after receipt of misinformation is often referred to as the misinformation effect. (See Brainerd & Reyna, 2005 for an excellent secondary source discussion of this phenomenon.)

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Even members of the military who experienced highly stressful interrogations form memories that are susceptible to post-event contamination. This has been repeatedly shown in studies of individuals who attended “survival schools” where they were trained to withstand the mental and physical stresses that they might experience if captured as prisoners of war. The survival school experience includes incarceration in a mock-POW camp, food and sleep deprivation, intense interrogation, physical threats, and assault. Their memories were susceptible to various forms of contamination, often leading to misidentification of the person who assaulted them and mistaken memory for other key details (Morgan et al., 2007, 2011). There are many questions that researchers have been interested in concerning the misinformation effect. One of them is whether there are certain types of individuals who might be particularly susceptible to the distorting effects of misinformation. We know that young children and the elderly are particularly susceptible to this type of memory distortion (Davis & Loftus, 2005; Otgaar, Candel, Smeets, & Merckelbach, 2010; Polczyk et al., 2004; Roediger & Geraci, 2007). Several other individual difference variables have been found to be associated with the greater or lesser susceptibility to misinformation. For example, people who have lower cognitive abilities are more susceptible (Zhu, Chen, Loftus, Lin, He, Chen, Li, et al., 2010) as are persons with certain personality characteristics, such as being high in cooperativeness (Zhu et al., 2010). Planting False Childhood Memories During the final decade of the 20th century, eyewitness researchers took things a step further. They turned their attention to the question: Just how far can we go with people in terms of distorting their memories with suggestion and misinformation? Rather than merely adding a detail to a previously acquired memory or tinkering with a detail here and there, researchers studied whether suggestive procedures can create entirely false memories for the past. Researchers devised procedures that could make people believe and remember that earlier in life they had been hospitalized when they had not (Hyman, Husband, & Billings, 1995), that they had been lost and frightened in a mall when they had not (Loftus et al., 1996), that they had been victims of vicious animal attacks as children even though they had not (Porter, 1998; Porter, Yuille, & Lehman, 1999), and even that they had witnessed demonic possession when they were very young (Giuliana, Mazzoni, Loftus, & Kirsch, 2001). This line

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of false memory research shows that it is indeed possible to create quite complex, elaborate, and “confident” false memories in the minds of research participants. To see how false memories of events can be created, we describe one method in some detail: planting a childhood memory for something that never happened. One goal of the research was to find a method for planting a memory that, if the event had actually occurred, would have been at least mildly traumatic. But the experience should not, of course, be so upsetting to the person that it would be unethical to create a false memory about it. Loftus and colleagues settled on the idea of trying to plant a very specific memory of being a 5-year-old lost in a shopping mall, being frightened, crying, and ultimately rescued by an elderly person and reunited with the rest of the family (see Loftus & Ketcham, 1994, for a description of the origin of the idea, and Loftus et al., 1996, for more details on this research). Here is how it was done: The participants, all adults, were asked to try to remember childhood events that were supplied by their mother, father, older sibling, or other close relative. Three of the events were true, and one was the research-crafted false event about getting lost in a shopping mall, department store, or other public place. In phase l, participants completed a booklet containing four one-paragraph stories about events from their childhood provided by their relative. Three events actually happened, and the fourth, always in the third position, was false. The false event was constructed from information provided by a relative of the participant who gave the researchers details about a plausible shopping trip. The relative informed the researchers (a) where the family would have shopped when the participant was about five years old; (b) which members of the family usually went along on shopping trips; (c) what kinds of stores might have attracted the participant’s interest; and (d) that the participant had not been lost in a mall around the age of 5. This information was then used to craft the false event, which always included the following elements: (a) lost for an extended period of time, (b) crying, (c) lost in a mall or large department store at about the age of 5, (d) found and aided by an elderly woman, and (e) reunited with the family. Participants read what their relative had told us about each event, and then completed the booklets by writing what they remembered about each event. If they did not remember the event, they were told to write “I do not remember this.” When the booklets were returned, participants were called and two interviews were scheduled approximately 1 to 2 weeks apart. Participants were told that the researchers were interested in examining how

much detail they could remember and how their memories compared with those of their relatives. The event paragraphs were not read to them verbatim, but rather, bits of information were provided as retrieval cues. In all, participants remembered something about 68% of the true events they were asked about. This figure did not change from the initial report through the two followup interviews. The rate of “remembering” the false event was lower, at about 25%. Statistically, there were some differences between the true memories and the false ones: More words were used to describe the true memories, and the true memories were rated by the participants as being somewhat more clear. But in many cases, if an onlooker were to watch the participant describe an experience, it would be difficult indeed to tell whether the report was of a true or a false memory. Other investigators used a similar procedure to plant false memories of even more unusual events. In one study, college students were asked to recall actual events that had been reported by their parents and one experimentercrafted false event (Hyman et al., 1996). The false event was an overnight hospitalization for a high fever with a possible ear infection, or a nonexistent birthday party with pizza and a clown. Parents confirmed that neither of these events had happened, yet participants were told that they had experienced one of the false events at about the age of 5. Participants tried to recall childhood experiences that they thought had been supplied by their parents, in the belief that the experimenters were interested in how people remember shared experiences differently. All events, both the true ones and the false one, were first cued with an event title (family vacation, overnight hospitalization) and an age. Hyman et al. (1995) found that participants remembered approximately 80% of the true events. As for the false event, by the end of the second interview, 20% of the participants reported remembering all or part of this creation. In a separate study, Hyman and collaborators created even more unlikely false memories, such as attending a wedding reception and accidentally spilling a punch bowl on the parents of the bride or having to evacuate a grocery store when the overhead sprinkler systems erroneously activated. This time, approximately 25% of the participants accepted all or part of the false memory by the end of the third interview (see Hyman & Billings, 1998; Hyman & Pentland, 1996). Another impressive research project planted false memories of serious animal attacks, serious indoor accidents, and serious outdoor accidents—events that would have been traumatic had they actually occurred (Porter,

Eyewitness Memory for People and Events

1998; Porter et al., 1999). These investigators reported that just over 25% of their participants created a rather complete false memory, and another 30% created a partial memory. In yet another study, subjects were led to believe that, as children, they had witnessed their parents have a physical fight (Laney & Loftus, 2008). These subjects rated their false memories as being rather emotional, using ratings of emotionality that were similar to those given by other subjects who had actually had the experience in childhood. While the study involving false memories of witnessing one’s own parents having a fight revealed similarities between the false memories and true ones held by other subjects, there is other research comparing false and true memories that does show statistical differences between the true and the false. For example, Marche, Brainerd, & Reyna (2010) showed that the true memories were richer in detail than the false ones. Clearly, suggestive interventions are capable of inducing false memories in a sizable percentage of people. Once planted, these false memories can seem as “real” for some people as true memories. In discussing their findings, Porter and colleagues (1999) were particularly impressed that fully 20% of the created memories were given with the highest possible confidence rating. At the end of their study, over 33% of the participants who had created a false memory were willing to wager money that the false event occurred. Moreover, the investigators reported that at the time the participants were debriefed, most of them appeared to be “genuinely astonished” when told about the parental reports and the fact that their memories were false. Many appeared amused and wanted to talk more with the researchers about the process of memory creation, in some instances, even requesting literature in the area of research. These features of the reaction helped convince the researchers that the participants had in fact recalled the false event, as opposed to responding to demand characteristics of the study. It seems evident from these findings that participants are actually “remembering” these false experiences in the sense that they have a genuine recollective feeling about the experiences. These whole events that are planted into memory are sometimes called rich false memories (Loftus & Bernstein, 2005). Imagination and Memory It should be kept in mind that these studies used a rather strong form of suggestion in which a source with some prestige or authority suggested that an event had occurred in the past. However, such heavy-handed methods are

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not needed to get people to increase their confidence that they had experiences in the past that they probably did not experience. Inducing people to imagine that they have had an experience can influence people to recall having had such an experience. To explore what happens to memory when people imagine events that did not occur, Garry, Manning, Loftus, and Sherman (1996) used a three-stage procedure. Participants were first asked to rate the likelihood that 40 different events happened to them during their childhood, on a scale of responses ranging from “definitely did not happen” to “definitely did happen.” Two weeks later, the participants were asked to imagine that they had experienced some of these events. The events included falling and breaking a window with their hand, getting in trouble for calling 911, finding a $10 bill in a parking lot, or being pulled out of the water by a lifeguard. Different participants were asked to imagine different events. Consider a typical 1-minute imagination exercise, one in which participants imagined breaking a window with their hand. They were told to picture that it was after school and they were playing in the house when they heard a strange noise outside. They were told to imagine themselves running toward the window, tripping, falling, reaching out, and breaking a window with their hand. While imagining the scene, the participants were asked several questions, such as “What did you trip on?” and “How did you feel?” After imagining several situations, the participants again, sometime later, were given the list of 40 childhood events to respond to. Comparison of the responses to the two questionnaires about possible childhood experiences revealed that a 1-minute act of imagination led a significant minority of participants to indicate that an event was more likely to have happened after previously identifying it as unlikely to have occurred. In the broken-window scenario, 24% of the participants directed to imagine the event showed an increase in confidence that the event had actually occurred. For those participants who did not imagine breaking the window, 12% showed a corresponding increase. In the “got in trouble for calling 911” scenario, 20% of the participants instructed to imagine the event showed an increase in confidence that the event had occurred when they were children. For those participants who did not imagine getting in trouble for calling 911, only 11% showed a corresponding increase. Numerous other investigators have used imagination to alter people’s beliefs about their past. Imagination can make people believe that they have had experiences in the distant past (Heaps & Nash, 1999), but it also can make people believe that they have had

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experiences in the recent past (Goff & Roediger, 1998; Thomas & Loftus, 2002).

Other Suggestive Procedures The power of suggestion to create false beliefs and false memories has been shown repeatedly. Suggestive dream interpretation has led people to believe that they were lost for an extended period of time, or that they faced a great danger from which they were rescued (Mazzoni & Loftus, 1998). Reading suggestive stories and getting false feedback about one’s fears has led people to believe that they witnessed demonic possession in the past or that they nearly swallowed an object and choked (Mazzoni et al., 2001). Suggestive false feedback about one’s visualmotor skills has led people to believe that they could remember experiences from the day after they were born (Spanos, Burgess, Burgess, Samuels, & Blois, 1999). Other “impossible memories” have been planted, such as a memory for a medical procedure that had not occurred (Mazzoni & Memon, 2003), or a memory for meeting Bugs Bunny at a Disney resort, which could not have occurred since Bugs is a Warner Bros. character and would not be seen at a Disney property (Braun et al., 2002). In their review of the literature on rich false memories Lindsay et al. (2004) noted that, across the studies conducted at that time, an average of 31% of subjects produced false memories. Sometimes the memory was “complete” and sometimes it was partial—a distinction that can be rather fuzzy. But taken together, these findings should give pause to investigators and others who think that they are extracting recalcitrant, accurate memories from witnesses and suspects by using techniques that resemble the ones that psychologists have studied. The danger lies in planting the seed of suggestion that then takes root and grows into a mighty false memory that has the power to convict an innocent person.

MEMORY FOR PEOPLE An eyewitness’s identification of a particular person as the one who committed a crime is a powerful form of evidence. An eyewitness who says “That’s the man I saw pull the trigger” is providing direct evidence of guilt. Even fingerprints are not direct evidence of guilt because they indicate only that a given person touched a given surface, and there might have been many innocent ways to have touched the surface. Hence, although most evidence

in courts of law is circumstantial, eyewitness identification evidence is direct evidence of guilt. Eyewitness researchers’ concern about the accuracy of eyewitness identification evidence is grounded in two broad observations. First, eyewitness experiments involving staged crimes show that rates of mistaken identification can be very high under certain conditions that are often present in real-life cases (Wells, 1993). Second, real-world cases in which people have been convicted of crimes that they did not commit show that mistaken identification was the primary evidence leading to their conviction (Huff, Rattner, & Sagarin, 1986; Scheck et al., 2000; Wells et al., 1998). Variables Affecting Identification Accuracy How do mistaken identifications happen? Like most important phenomena, there are multiple causes. The scientific approach to studying the causes of mistaken identification has generally been to isolate suspected variables in controlled experiments. The list of variables that have been shown to affect rates of mistaken identification is rather large. One common approach to organizing the findings has been to categorize the variables into witness characteristics (e.g., sex, intelligence), event characteristics (e.g., exposure duration, presence of a weapon), postevent variables (e.g., suggestions from other witnesses, exposure to a sketch), characteristics of the identification task (e.g., structure of the lineup, instructions to witnesses prior to viewing the lineup), and post-identification events (e.g., feedback to the eyewitness regarding the identification). We refer to this as the chronological approach because the categories are ordered in the temporal sequence in which they unfold. Another way to organize these variables is according to whether they are controllable by the criminal justice system in actual cases (e.g., the structure of a lineup) or are not controllable in real cases (e.g., exposure duration), which is known as the system-variable versus estimator variable distinction (Wells, 1978). Wells and Olson (2001) suggested yet another distinction among eyewitness identification variables: between suspect-bias variables and general impairment variables. A suspect-bias variable is one that can account for why an eyewitness, when presented with a lineup, selected the innocent suspect rather than one of the fillers in the lineup (or simply saying “I don’t know” or “None of these people”). A general impairment variable, on the other hand, cannot account for which person the suspect picked, but can account only for poor eyewitness performance more generally. Consider, for instance, the other-race effect: There is now rather good evidence that

Eyewitness Memory for People and Events

people have more difficulty identifying persons of another race than their own race (Meisner & Brigham, 2001). The other-race effect is a general impairment variable in the sense that it cannot account for why the witness would select the specific suspect in the lineup rather than one of the fillers in the lineup. (This example assumes, of course, that all members of the lineup are of the same race, and a race different from that of the eyewitness.) However, consider the problem of structurally biased lineups. In a structurally biased lineup, the suspect fits the description that the eyewitness had given of the culprit, whereas the fillers (known innocents, distractors, or foils) do not. Structural lineup bias is a suspect-bias variable rather than a general impairment variable because it can account for why the eyewitness selected the suspect rather than one of the lineup fillers. Table 25.1 lists a number of variables known to affect the accuracy of eyewitness identification. Although not exhaustive, this list includes the variables that have been studied most often. Each variable is then listed according to each of the three types of categorization. The last column of Table 25.1 lists one representative publication dealing with each variable. We recommend a meta-analysis by Shapiro and

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Penrod (1986), which included many of these variables, for information on estimates of effect size, a standardized statistical estimate of the impact that one variable has on another variable. Effect sizes are often used to compare the relative impact of one variable versus some other variable. We caution readers, however, against inferring too much from effect size estimates because effect sizes are very sensitive to the particular operationalizations that are used in manipulating each of the variables. It is apparent from Table 25.1 that chronological categorization and system versus estimator categorization are related. This is because system variables do not normally come into play until after the crime has been committed. The general impairment versus suspect-bias variables distinction, on the other hand, is not restricted to any particular chronological frame. In addition, the general impairment and suspect-bias variables can be either system or estimator variables. Finally, note that a few variables are not restricted to a single category. One variable is the period of time between the event and the person’s recollection, sometimes referred to as the retention interval , which is commonly construed as an estimator variable. However, there are times when the justice system has

TABLE 25.1 Eyewitness Identification Variables and Their Categories

Variable Witness intoxication Witness sex Witness intelligence Witness personality Face recognition skills Source confusion (familiarity unrelated to crime) View Culprit disguise Exposure time to culprit Witness and culprit same versus different race Stress/fear Weapon focus Retention interval Mugshot exposure prior to lineup Overheard descriptions Pre-lineup instruction warning that culprit might not be present Fillers do not fit description Simultaneous versus sequential procedure Suggestive behaviors during lineup administration Post-identification feedback

General System Impairment Versus Versus Chronological Estimator Suspect-Bias Category Category Category Example Citation WC WC WC WC WC WC EC EC EC EC EC EC PE PE PE ID ID ID ID PI

E E E E E E E E E E E E E E E E E E E E

GI GI GI GI GI SB SB SB SB SB SB SB SB SB SB SB SB SB SB SB

Dysart et al., 2002 Brigham and Barkowitz, 1978 Brown, Deffenbacher, and Sturgill, 1977 Hosch and Platz, 1984 Woodhead, Baddeley, and Simmonds, 1979 Read, 1994 Lindsay, Wells, and Rumpel, 1981 Cutler, Penrod, and Martens, 1987 Ellis, Davies, and Shepherd, 1977 Meissner and Brigham, 2001 Morgan et al., (2004) Steblay, 1992 Krafka and Penrod, 1985 Deffenbacher, Bornstein, and Penrod, 2006 Loftus and Greene, 1980 Clark, 2005 Wells, Rydell, and Seelau, 1993 Steblay, Dysart, and Wells, 2011 Clark, Marshall, and Rosenthal, 2009 Wells and Bradfield, 1998

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

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some control over the retention interval, such as when investigators show eyewitnesses a lineup that could have been conducted at an earlier point in time. Also, exposure to mugshots might normally be considered a general impairment variable because it generally interferes with the witness’s ability to keep the perpetrator’s face in mind later, when viewing the lineup. At other times, however, exposure to mugshots could be a specific-suspect-bias variable if it makes an innocent suspect seem familiar because he or she was seen in the set of mugshots. Each of the three ways of categorizing eyewitness identification variables has a different utility. The chronological categorization assists in developing a temporal understanding of the order in which these variables come into play in the witnessing experience. The system versus estimator categorization is useful for developing methods for increasing the accuracy of eyewitness identification evidence via system variable recommendations to the justice system. The general impairment versus suspectbias categorization is relevant to understanding how jurors might reason about eyewitness identification in a given case. The relevance of the general impairment versus suspect-bias distinction to jurors’ judgments of eyewitness identification evidence requires more explanation. Consider a case in which it is argued to the jury that the eyewitness had a very poor view of the perpetrator, was of a different race than the perpetrator, and did not view a lineup until two months after the crime. Wells and Olson (2001) argued that these variables might not matter much to jurors when they deliberate because they fail to explain why the eyewitness picked the suspect out of the lineup and did not pick a filler. If the other-race effect made the lineup members “all look alike,” then how was the witness able to pick out the suspect? The problem with general impairment variables is that they tend to beg the question for the jury as to why the eyewitness picked the suspect instead of one of the fillers. Suspect-bias variables, on the other hand, tend to answer that question. A structurally biased lineup, for instance, serves to explain why the eyewitness preferred the suspect rather than one of the fillers. Hence, the general impairment versus suspect-bias variable distinction may be very useful in terms of understanding why some variables might be more important to jurors than others in terms of their willingness to accept identification testimony. The Process of Lineup Identification One of the simplest and most useful ideas in understanding mistaken identifications from lineups is the relative

judgment conceptualization. According to this conceptualization, eyewitnesses tend to identify the person from a lineup who most closely resembles the eyewitness’s memory of the perpetrator relative to the other members of the lineup (Wells, 1984). This process of identification works reasonably well as long as the actual perpetrator is in the lineup. When the perpetrator is not in the lineup, however, there is still someone who looks more like the perpetrator than do the other lineup members, and eyewitnesses have a propensity to identify that person. There are several reliable phenomena that support the relative judgment conceptualization. For example, failure to give explicit instructions to the eyewitness that emphasize that the perpetrator might not be in the lineup leads eyewitnesses to pick someone from the lineup at high rates regardless of whether the perpetrator is present (Malpass & Devine, 1981). Even with these instructions, eyewitnesses tend to use relative judgments. For example, removing the perpetrator from a lineup without replacement leads most eyewitnesses who otherwise would have selected the perpetrator to instead select the “next best” person in the lineup rather than indicate that the perpetrator is not there (Wells, 1993). In addition, eyewitnesses who report that they used a relative comparison process (e.g., “I compared number three to number two”) or an elimination process (e.g., “I knew it wasn’t number one”) are more likely to have made a mistaken identification than are those who report that the face “just popped out” (Dunning & Stern, 1994). This makes sense to the extent that the relative judgment process is an effortful, deliberate elimination strategy whereas absolute judgments are automatic, rapid, true recognition responses. Perhaps the best evidence that relative judgments are involved in mistaken identification comes from research examining simultaneous versus sequential presentation procedures for identifications. Simultaneous lineups are ones in which all members of the lineup are shown to the eyewitness at one time, whereas a sequential procedure involves showing the eyewitness one lineup member at a time and forcing him or her to make a recognition decision (yes or no) before viewing the next lineup member. The sequential procedure prevents relative judgments because, even though the eyewitness can compare the lineup member being viewed to those who have already been shown, the eyewitness cannot be sure what the next lineup member looks like and cannot even be sure how many more lineup members there are to be viewed. The sequential procedure forces eyewitnesses to use a more “absolute” criterion for making an identification. (Cutler & Penrod, 1988; Lindsay, Lea, & Fulford, 1991; Lindsay & Wells,

Eyewitness Memory for People and Events

1985). The relative-judgment process is a rather loose or liberal criterion because it requires little in the way of an absolute match in order to make a positive identification. And, the available data suggest that the sequential procedure makes witnesses more conservative, which tends to reduce mistaken identifications more than it reduces accurate identifications (Steblay, Dysart, & Wells, 2011).

CONCLUSIONS AND PROSPECTUS We began this chapter with a metaphor in which human memory is likened to trace evidence. Although the legal system shows considerable concern and exercises caution to avoid contaminating physical traces at a crime scene (e.g., blood, fibers), similar cautions tend not to be exercised in avoiding the contamination of human memory in eyewitnesses. We have described research showing how suggestive questioning and suggestive lineup procedures can have immense effects on the testimony of eyewitnesses. Memories for events that never occurred are readily confused with memories for actual events, and mistaken eyewitness identifications are readily confused with accurate eyewitness identifications. Although there has been some recent success in getting many jurisdictions to make use of psychological science in its procedures for collecting eyewitness evidence (Wells, 2006; Wells et al., 2000), there remains a large gap between what psychological science advises for collecting eyewitness evidence and actual practices of criminal investigators in most jurisdictions. Finally, we return to the case of Thomas Brewster, which was described above. That case exemplifies much of the eyewitness problem. It exemplifies the tragedy of mistaken eyewitness identification. It exemplifies the way the justice system seems to hold a dangerously incorrect theory of memory, a theory that assumes that all memories are permanent and that repeated suggestive procedures do not contaminate the evidence. It exemplifies source misattribution error in which the witness attributed familiarity of Brewster’s face to the assault rather than the many times the witness had been shown Brewster’s photo. It exemplifies the failure of the investigators to accept earlier non-identifications of Brewster by the victim-witness. It exemplifies the failure of courts to suppress eyewitness identifications that were obtained under clearly suggestive procedures. Even more profound is that the Brewster case exemplifies a too-often-ignored fact about DNA exonerations: the assumption that the 200 mistaken-identification DNA exonerations are somehow a significant share of the

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mistaken identifications to be found. In fact, Brewster is not one of the DNA exonerations even though DNA proved him to be innocent. This is because the DNA test results were not known until the trial opened but, once known, the trial was halted and the charges were dismissed. The more than 200 DNA exonerations involving mistaken eyewitness identifications (innocenceproject.org, 2011) are cases in which the innocent person was convicted and imprisoned before DNA tests were completed. There is no way of knowing how many cases like Brewster’s have occurred. Moreover, estimates indicate that 5% or fewer cases involving eyewitness identification evidence have the potential to have DNA evidence that could “trump” the eyewitness (Smalarz & Wells, in press). Hence, for every one DNA-proven mistaken-identification exoneration discovered, there may be 20 undiscovered due to the absence of DNA to the innocence claim. The need for close collaboration between eyewitness researchers and the legal system is more apparent than ever.

REFERENCES Belli, R. F. (1993). Failure of interpolated tests in inducing memory impairment with final modified tests: Evidence unfavorable to the blocking hypothesis. American Journal of Psychology, 106, 407–427. Brainerd, C. J., & Reyna, V. F. (2005), The science of false memory. Oxford, UK: Oxford University Press. Braun, K. A., Ellis, R., & Loftus, E. F. (2002), Make my memory: How advertising can change our memories of the past. Psychology & Marketing, 19, 1–23. Brigham, J. C., & Barkowitz, P. (1978). Do “They all look alike”? The effect of race, sex, experience, and attitudes on the ability to recognize faces. Journal of Applied Social Psychology, 8, 306–318. Brown, E., Deffenbacher, K., & Sturgill, W. (1977). Memory for faces and the circumstances of the encounter. Journal of Applied Psychology, 62, 311–318. California v. Brewster, 95 F. 8703 (1997). Clark, S. E. (2005). A re-examination of the effects of biased lineup instructions in eyewitness identification. Law and Human Behavior, 29, 395–424. Clark, S. E., Marshall, T. E., & Rosenthal, R. (2009). Lineup administrator influences on eyewitness identification decisions. Journal of Experimental: Applied, 15, 63–75. Cutler, B. L., & Penrod, S. D. (1988). Improving the reliability of eyewitness identification: Lineup construction and presentation. Journal of Applied Psychology, 73, 281–290. Cutler, B. L., Penrod, S. D., & Martens, T. K. (1987). The reliability of eyewitness identification: The role of system and estimator variables. Law and Human Behavior, 11, 233–258. Davis, D., & Loftus, E. F. (2005). Age and functioning in the legal system: Victims, witnesses and jurors. In Y. I. Noy & W. Karwowski (Eds.), Handbook of human factors in litigation (pp. 11–11 to 11–53). New York, NY: CRC Press. Deffenbacher, K. A., Bornstein, B. H., & Penrod, S. D. (2006). Mugshot exposure effects: Retroactive interference, mugshot commitment, source confusion, and unconscious transference. Law and Human Behavior, 30, 287–307.

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Dunning, D., & Stern, L. B. (1994). Distinguishing accurate from inaccurate identifications via inquiries about decision processes. Journal of Personality and Social Psychology, 67, 818–835. Dysart, J. E., Lindsay, R. C. L., MacDonald, T. K., & Wicke, C. (2002). The intoxicated witness: Effects of alcohol on identification accuracy. Journal of Applied Psychology, 87, 170–175. Ellis, H. D., Davies, G. M., & Shepherd, J. W. (1977). Experimental studies of face identification. Journal of Criminal Defense, 3, 219–234. Garry, M., Manning, C., Loftus, E. F., & Sherman, S. J. (1996). Imagination inflation: Imagining a childhood event inflates confidence that it occurred. Psychonomic Bulletin and Review, 3, 208–214. Giuliana, A. L., Mazzoni, G. A. L., Loftus, E. F., & Kirsch, I. (2001). Changing beliefs about implausible autobiographical events: A little plausibility goes a long way. Journal of Experimental Psychology: Applied, 7, 51–59. Goff, L. M., & Roediger, H. L. (1998). Imagination inflation for action events. Memory and Cognition, 26, 20–33. Innocenceproject.org. (2011). Retrieved from www.innocenceproject .org Heaps, C., & Nash, M. (1999). Individual differences in imagination inflation. Psychonomic Bulletin and Review, 6, 313–318. Hosch, H. M., & Platz, S. J. (1984). Self-monitoring and eyewitness accuracy. Personality and Social Psychology Bulletin, 10, 283–289. Huff, R., Rattner, A., & Sagarin, E. (1986). Guilty until proven innocent. Crime and Delinquency, 32, 518–544. Hyman, I. E., & Billings, F. J. (1998). Individual differences and the creation of false childhood memories. Memory, 6, 1–20. Hyman, I. E., Husband, T. H., & Billings, F. J. (1995). False memories of childhood experiences. Applied Cognitive Psychology, 9, 181–197. Hyman, I. E., & Pentland, J. (1996). The role of mental imagery in the creation of false childhood memories. Journal of Memory and Language, 35, 101–117. Krafka, C., & Penrod, S. (1985). Reinstatement of context in a field experiment on eyewitness identification. Journal of Personality and Social Psychology, 49, 58–69. Laney, C., & Loftus, E. F. (2008). Emotional content of true and false memories. Memory, 16, 500–516. Lindsay, D. S., Hagen, L., Read, J. D., Wade, K. A., & Garry, M. (2004). True photographs and false memories. Psychological Science, 15, 149–154. Lindsay, R. C. L., Lea, J. A., & Fulford, J. A. (1991). Sequential lineup presentation: Technique matters. Journal of Applied Psychology, 76, 741–745. Lindsay, R. C. L., & Wells, G. L. (1985). Improving eyewitness identification from lineups: Simultaneous versus sequential lineup presentations. Journal of Applied Psychology, 70, 556–564. Lindsay, R. C. L., Wells, G. L., & Rumpel, C. (1981). Can people detect eyewitness identification accuracy within and between situations? Journal of Applied Psychology, 66, 79–89. Loftus, E. F. (1996). Eyewitness testimony (2nd ed.). Cambridge, MA: Harvard University Press. Loftus, E. F. (2005). Planting misinformation in the human mind: A 30-year investigation of the malleability of memory. Learning and Memory, 12, 361–366. Loftus, E. F., & Bernstein, D. M. (2005). Rich false memories: The royal road to success. In A. F. Healy (Ed.), Experimental cognitive psychology and its applications (pp. 101–113). Washington, DC: American Psychological Association Press. Loftus, E. F., Coan, J. A., & Pickrell, J. E. (1996). Manufacturing false memories using bits of reality. In L. M. Reder (Ed.), Implicit memory and metacognition (pp. 195–220). Mahwah, NJ: Erlbaum. Loftus, E. F., Doyle, J. M., & Dysart, J. E. (2007). Eyewitness testimony: Civil and criminal. Charlottesville, VA: Lexis-Nexis Press.

Loftus, E. F., Fienberg, S. E., & Tanur, J. M. (1985). Cognitive psychology meets the national survey. American Psychologist, 40, 175–180. Loftus, E. F., & Greene, E. (1980). Warning: Even memory for faces may be contagious. Law and Human Behavior, 4, 323–334. Loftus, E. F., & Ketcham, K. (1994). The myth of repressed memory. New York, NY: St. Martin’s Press. Loftus, E. F., Smith, K., Klinger, M., & Fiedler, J. (1992). Memory and mismemory for health events. In J. M. Tanur (Ed.), Questions about questions: Inquiries into the cognitive bases of surveys (pp. 102–137). New York, NY: Russell Sage. Malpass, R. S., & Devine, P. G. (1981). Eyewitness identification: Lineup instructions and the absence of the offender. Journal of Applied Psychology, 66, 482–489. Marche, T. A., Brainerd, C. J., & Reyna, V. (2010). Distinguishing true from false memories in forensic contexts: Can phenomenology tell us what is real? Applied Cognitive Psychology, 24, 1168–1182. Mazzoni, G. A. L., & Loftus, E. F. (1998). Dreaming, believing, and remembering. In J. DeRivera & T. R. Sarbin (Eds.), Believed-in imaginings (pp. 145–156). Washington, DC: American Psychological Association. Mazzoni, G. A. L., Loftus, E. F., Kirsch, I. (2001) Changing beliefs about implausible autobiographical events. Journal of Experimental Psychology: Applied, 7 (1), 51–59. Mazzoni, G. A. L., & Memon, A. (2003). Imagination can create false autobiographical memories. Psychological Science, 14, 186–188. Meisner, C., & Brigham, J. C. (2001). Twenty years of investigating the own-race bias in memory for faces: A meta-analytic review. Psychology, Public Policy, and Law, 7, 3–35. Morgan, C. A. III, Hazlett, G., Baranoski, M., Doran, A., Southwick, S., & Loftus, E. F. (2007). Accuracy of eyewitness identification is significantly associated with performance on a standardized test of face recognition. International Journal of Law & Psychiatry, 30, 213–223. Morgan, C. A. III, Hazlett, G., Doran, A, Garrett, S., Hoyt, G., Thomas, P., . . . Southwick, S. M. (2004). Accuracy of eyewitness memory for persons encountered during exposure to highly intense stress. International Journal of Psychiatry and the Law, 27, 265–279. Morgan, C. A. III, Southwick, S., Steffian, G., Hazlett, G., & Loftus, E. F. (2011). Misinformation can influence memory for recently experienced, highly stressful events (Under revision). Otgaar, H., Candel, I., Smeets T., & Merckelbach, H. (2010) “You didn’t take Lucy’s skirt off?”: The effect of misleading information on omissions and commissions in children’s memory reports. Legal and Criminological Psychology, 15, 229–241. Polczyk, R., Wesolowska, B., Gabarczyk, A., Minakowska, I., Supska, M., & Bomba, W. (2004). Age differences in interrogative suggestibility: A comparison between young and older adults. Applied Cognitive Psychology, 18, 1097–1107. Porter, S. (1998). An architectural mind: The nature of real, created, and fabricated memories of emotional childhood events (Doctoral dissertation). University of British Columbia, Vancouver, Canada. Porter, S., Yuille, J. C., & Lehman, D. R. (1999). The nature of real, implanted, and fabricated memories for emotional childhood events. Law and Human Behavior, 23, 517–538. Read, J. D. (1994). Understanding bystander misidentifications: The role of familiarity and contextual knowledge. In D. F. Ross, J. D. Read, & M. P. Toglia (Eds.), Adult eyewitness testimony: Current trends and developments (pp. 56–79). New York, NY: Cambridge University Press. Roediger, H. L. III, & Geraci, L. (2007). Aging and the misinformation effect: A neuropsychological analysis. Journal of Experimental Psychology: Learning, Memory and Cognition, 33, 321–334. Scheck, B., Neufeld, P., & Dwyer, J. (2000). Actual innocence. New York, NY: Random House.

Eyewitness Memory for People and Events Shapiro, P. N., & Penrod, S. (1986). Meta-analysis of racial identification studies. Psychological Bulletin, 100, 139–156. Spanos, N. P., Burgess, C. A., Burgess, M. F., Samuels, C., & Blois, W. O. (1999). Creating false memories of infancy with hypnotic and non-hypnotic procedures. Applied Cognitive Psychology, 13, 201–218. Steblay, N. M. (1992). A meta-analytic review of the weapon focus effect. Law and Human Behavior, 16, 413–424. Steblay, N. M, Dysart, J., & Wells, G. L. (2011). Seventy-two tests of the sequential lineup superiority effect: A meta-analysis and policy discussion. Psychology, Public Policy, and Law, 17, 99–139. Technical Working Group on Crime Scene Investigations. (1999). Crime scene investigations: A guide for law enforcement. Washington, DC: United States Department of Justice, Office of Justice Programs. Thomas, A. K., & Loftus, E. F. (2002). Creating bizarre false memories through imagination. Memory & Cognition, 30, 423–431. Wells, G. L. (1978). Applied eyewitness testimony research: System variables and estimator variables. Journal of Personality and Social Psychology, 36, 1546–1557. Wells, G. L. (1984). The psychology of lineup identifications. Journal of Applied Social Psychology, 14, 89–103. Wells, G. L. (1993). What do we know about eyewitness identification? American Psychologist, 48, 553–571. Wells, G. L. (1995). Scientific study of witness memory: Implications for public and legal policy. Psychology, Public Policy, and Law, 1, 726–731. Wells, G. L. (2006). Eyewitness identification: Systemic reforms. Wisconsin Law Review, 2006, 615–643. Wells, G. L., & Bradfield, A. L. (1998). Good, you identified the suspect: Feedback to eyewitnesses distorts their reports of the witnessing experience. Journal of Applied Psychology, 83, 360–376.

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Wells, G. L., & Luus, E. (1990). Police lineups as experiments: Social methodology as a framework for properly-conducted lineups. Personality and Social Psychology Bulletin, 16, 106–117. Wells, G. L., Malpass, R. S., Lindsay, R. C. L., Fisher, R. P., Turtle, J. W., & Fulero, S. (2000). From the lab to the police station: A successful application of eyewitness research. American Psychologist, 55, 581–598. Wells, G. L., & Olson, E. A. (2001). The other-race effect in eyewitness identification: What do we do about it? Psychology, Public Policy, and Law, 7, 230–246. Wells, G. L., & Quinlivan, D. S. (2009). Suggestive eyewitness identification procedures and the Supreme Court’s reliability test in light of eyewitness science: Thirty years later. Law and Human Behavior, 33, 1–24. Wells, G. L., Rydell, S. M., & Seelau, E. P. (1993). On the selection of distractors for eyewitness lineups. Journal of Applied Psychology, 78, 835–844. Wells, G. L., Small, M., Penrod, S., Malpass, R. S., Fulero, S. M., & Brimacombe, C. A. E. (1998). Eyewitness identification procedures: Recommendations for lineups and photospreads. Law and Human Behavior, 22, 603–647. Woodhead, M. M., Baddeley, A. D., & Simmonds, D. C. (1979). On training people to recognize faces. Ergonomics, 22, 333–343. Zhu, B., Chen, C., Loftus, E. F., Lin, C., He, Q., Chen, C., . . . Dong, Q. (2010). Individual differences in false memory from misinformation: Cognitive Factors. Memory, 18, 543–555. Zhu, B., Chen, C., Loftus, E. F., Lin, C., He, Q., Chen, C., . . . Dong, Q. (2010). Individual differences in false memory from misinformation: Personality characteristics and their interactions with cognitive abilities. Personality and Individual Differences, 48, 889–894.

CHAPTER 26

Voir Dire and Jury Selection MARGARET BULL KOVERA

VOIR DIRE 631 JURY SELECTION 632 TRADITIONAL JURY SELECTION 635

SCIENTIFIC JURY SELECTION 637 DIRECTIONS FOR FUTURE RESEARCH REFERENCES 643

At the beginning of a trial, before witnesses are called, before attorneys make arguments, and before a judge delivers any instructions, jurors are selected to hear the evidence, evaluate the witnesses, consider the arguments, apply the law, and render a verdict. Some attorneys believe that cases are won or lost during the process of jury selection. The primary purpose of jury selection is to ensure that the citizens who serve as jurors are impartial and can fairly consider the evidence in a case and apply the law as the judge gives it to them. It is difficult to establish empirically the contribution of jury selection to the outcome of cases in real trials because access to jury consultants is correlated with financial resources, resources that can also buy more accomplished legal counsel. Yet there is certainly anecdotal evidence that jury selection can influence verdicts. For example, both the prosecutors and defense attorneys in the O. J. Simpson case received advice from consultants who had conducted pretrial research showing that African Americans would be more persuaded by defense arguments that police misconduct created the evidence against Simpson than would jurors from other racial or ethnic groups (Davis & Loftus, 2006; Toobin, 1996). In particular, the research showed that African American women would be more sympathetic to Simpson than would jurors with different combinations of gender and

racial/ethnic characteristics (Kressel & Kressel, 2002). This empirical evidence was inconsistent with prosecutor Marcia Clark’s presumption that women, especially African American women, would be more likely to hold Simpson accountable because of his history of intimate partner violence. She fired her consultant and ignored his advice. At the end of jury selection, the jury consisted of 10 women, 8 of whom were African American as was one of the male jurors. As was predicted by the trial consultants’ social science research, this jury acquitted Simpson of the crimes with which he had been charged (Toobin, 1996). This chapter provides an introduction to the process of jury selection, including the legal proceeding in which it occurs and the rules governing the seating of citizens on a jury. The chapter also contrasts traditional jury selection as practiced by attorneys with the scientific jury selection practiced by trial consultants (illustrated in the Simpson trial example), and evaluates the empirical evidence related to the efficacy of both approaches. Finally, the chapter notes the limitations, based on relevant social psychological research on attitude–behavior relationships, of the extant research on jury selection that has almost exclusively investigated the relative value of different demographic, personality, and attitudinal characteristics for predicting verdict inclinations. It concludes with a preview of new research on jury selection that breaks from the standard paradigm for jury selection research by exploring factors that influence the social interaction that occurs between attorneys and potential jurors during the jury selection process and consequently influence the decisions made by both attorneys and jurors.

I am grateful for the contributions of Jason Dickinson and Brian Cutler to an earlier version of this chapter. Portions of the research presented in this chapter were made possible by support from the National Science Foundation (SES# 0136652, SES# 0520617, and SES# 0921408). 630

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VOIR DIRE The Sixth Amendment of the U.S. Constitution guarantees that juries will consist of citizens who can be impartial triers of fact. Jury selection is meant to protect this constitutional right to an impartial jury; thus before a criminal or civil trial begins, a pretrial legal proceeding known as voir dire (from the French idiomatic expression meaning “to speak the truth”) is held to question prospective jurors about relationships, opinions, or experiences that may bias them against a litigant. Before voir dire begins, the court summons citizens from the venue—the community in which the trial is being held—to report for jury duty. In an attempt to assemble a group of potential jurors who are representative of the venue, these citizens are selected from a variety of source lists that vary across jurisdictions, including lists of registered voters, holders of driver’s licenses or other state-sponsored identification, utilities customers, recipients of unemployment benefits, or submitters of tax returns. During voir dire the judge and/or the attorneys—depending on the jurisdiction—question groups of prospective jurors called venirepersons to determine whether they are fit for jury service. The length of voir dire can vary greatly, ranging from a couple of hours to many months. Prolonged voir dires are generally reserved for cases that have received extensive pretrial publicity that has severely prejudiced the venire (the population of citizens from which venirepersons are drawn) against the defendant. There are some standard questions that are asked of venirepersons in most voir dires. Usually the judge, but sometimes one of the attorneys, will ask venirepersons whether they know any of the trial participants, including attorneys, litigants, and witnesses. The examiner will also typically gather some basic demographic information, including marital status, number of children, and employment status. Inquiries are often made about the occupation of the venirepersons and their spouses and children if relevant. It is common for examiners to explore whether venirepersons have been involved in any litigation that is related to the case about to be tried. In criminal cases, these inquiries explore whether the venirepersons have been victims of crime, especially crimes that are similar to the one with which the defendant is charged. In civil cases, the questioners might explore whether the venirepersons have been involved in any civil litigation, either as a plaintiff or as a defendant. If the defendant is a business or corporation, the examiners will likely explore whether the defendant has a personal stake in the same industry. Finally, the examiners may explore

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whether the venirepersons hold any case-relevant attitudes that could conflict with their ability to follow the law. Who asks these questions and the latitude of the questioning is dependent on jurisdiction. The breadth of voir dire questioning differs by jurisdiction. Federal courts and some state courts (California, Delaware, Illinois, Massachusetts, New Hampshire, and New Jersey) practice limited voir dire (Rottman et al., 2000). In limited voir dire (also called minimal voir dire), it is common for the judge to be the sole questioner of prospective jurors. Under these conditions, the judge asks relatively few questions on a small number of topics, many of which may only require a show of hands from the venirepersons in response. Judges may pose even sensitive questions, such as whether the venireperson has been a victim of a violent crime, to the entire group of assembled venirepersons, requiring that the venireperson provide a response—and perhaps respond to follow-up questions—in open court. Other states are less restrictive in their voir dire procedures. In the courts in these states, attorneys may participate in the voir dire questioning. Only four states— Connecticut, North Carolina, Texas, and Wyoming— require that the voir dire be conducted entirely by the attorneys (Rottman et al., 2000). In the remaining state courts, both attorneys and judges ask questions of the venirepersons. In this expanded form of voir dire, attorneys typically guide the focus of voir dire, ask a wider array of questions, and are more likely to ask questions that require open-ended responses. Like minimal voir dire, expanded voir dire usually is conducted in open court but it is possible that the judge will allow venirepersons to answer sensitive questions at the bench, out of earshot of the other prospective jurors. It is also possible that these courts will permit the attorneys to use supplemental jury questionnaires to elicit more detailed information from prospective jurors before voir dire ever starts, allowing attorneys to focus their questioning on jurors who provided problematic answers on the questionnaire. When judges conduct the voir dire with limited or no input from the attorneys (i.e., minimal voir dire), attorneys are unlikely to gather information that they need to guide their decisions about which venirepersons are biased against their side (Moran, Cutler, & Loftus, 1990). Data from community surveys conducted to examine whether pretrial bias existed against defendants in several actual cases showed that the types of variables typically assessed under minimal voir dire conditions (i.e., age, gender, education, marital status, and occupation) explained only 8% of the variance in potential venirepersons’ ratings of

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the defendants’ culpability. In contrast, the combination of demographic variables and attitudinal variables (both case-specific attitudes and attitudes toward the legal system) explained 31% of the variance in culpability ratings (Moran et al., 1990). Similarly, data from field studies of voir dire in death penalty cases suggested that extended voir dire helped attorneys gather more information that would demonstrate bias in venirepersons (Nietzel & Dillehay 1982; Nietzel, Dillehay & Himelein, 1987). When judges allowed attorneys to conduct an extended voir dire, attorneys were more frequently able to convince the judge that a venireperson should be removed because of his or her bias. Moreover, more limited voir dire procedures seem to produce less honest responses from venirepersons. A comparison of venireperson responses given in open-court and in post-trial interviews illustrates some of the problems that may result from more limited voir dire procedures (Seltzer, Venuti, & Lopes, 1991). Almost half of the venirepersons reported in post-trial interviews that the defendant had to prove his innocence, yet none of them reported this belief during voir dire questioning by a judge in open court. Thirteen percent of venirepersons had relationships with members of law enforcement that they reported during post-trial interviews but not during voir dire. Half of the venirepersons who reported being a victim of crime during the post-trial interview failed to report this information during open questioning during voir dire. Similar results were obtained using a voir dire simulation methodology in which community members completed pretrial attitude assessments and then participated in a mock voir dire conducted by an actor who played the role of either a judge or an attorney (Jones, 1987). Mock venirepersons questioned by the judge were more likely to have inconsistencies between their pretest and voir dire responses than were mock venirepersons questioned by an attorney. Thus, for voir dire to elicit information from venirepersons that accurately reflects their attitudes and experiences and will predict significant variability in verdict preferences, judges need to allow attorneys latitude in their voir dire questioning (i.e., extended voir dire).

JURY SELECTION In reality, attorneys do not select venirepersons from the jury pool to serve on a jury. More accurately, attorneys use the information gleaned during voir dire to remove venirepersons from the jury pool. Instead of choosing

venirepersons whom they believe are predisposed to their side to serve on the jury, attorneys identify venirepersons whom they believe will be less receptive to the evidence that they will present. Once attorneys have identified venirepersons whom they wish to remove, they have two methods for removing them: challenges for cause and peremptory challenges. Challenges for Cause Attorneys will attempt to challenge a venireperson for cause if they believe they can demonstrate that the potential juror has a bias or prejudice that would interfere with his or her impartial evaluation of the evidence. Judges may also excuse a juror for cause sua sponte (i.e., at the judge’s discretion without a request from either of the parties; Lieberman & Sales, 2007). There are many potential sources of bias that may provide cause for dismissing a venireperson, including previous criminal victimization, exposure to pretrial publicity, familiarity with the parties, attorneys, or witnesses, or trial-relevant attitudes. When challenging a venireperson for cause, the attorney attempts to persuade the judge that the venireperson exhibited bias during voir dire and is unwilling or unable to ignore that bias when considering the trial evidence. The judge must agree with the attorney’s argument for a challenge for cause to be successful. Attorneys may eliminate a theoretically unlimited number of venirepersons using challenges for cause, assuming that they can successfully convince the judge of the venirepersons’ bias and that the venireperson will not or cannot set the bias aside when evaluating the trial evidence. In practice, judges’ decisions about whether venirepersons can ignore their biases rest on the confidence with which venirepersons state that they can be fair (Rose & Diamond, 2008). Death Qualification The law provides special consideration during voir dire to a particular type of attitudinal bias: attitudes about the death penalty. In capital trials in which the prosecutor seeks the death penalty for a defendant, the court must assess whether venirepersons’ attitudes toward capital punishment would interfere with their ability to be an impartial juror (Witherspoon v. Illinois, 1968; Wainwright v. Witt, 1985). Capital cases have two components: a guilt phase and a penalty phase. In the guilt phase, the attorneys present evidence relevant to the defendant’s guilt or innocence. If the jury finds the defendant guilty, then the trial proceeds to a penalty phase, in which the prosecutor presents evidence of aggravating factors that

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support sentencing the defendant to death and the defense attorney presents evidence of mitigating factors that argue against the imposition of a death sentence. Because of the decision in Witt, judges must exclude venirepersons for cause if their opposition to capital punishment would interfere with them imposing the death penalty or convicting the defendant because of the possibility that the defendant might receive a death sentence. Judges must also exclude venirepersons who indicate that they would automatically vote to impose a death sentence—ignoring any proven mitigating factors—because the jury had convicted the defendant of a capital offense. This special voir dire process in capital cases is known as “death qualification.” Voir dire in capital cases differs qualitatively from voir dire in most noncapital cases. Content analyses of four transcripts from capital trials showed that judges typically pose a standard set of questions to assess whether venirepersons hold attitudes toward the death penalty that would interfere with their ability to be an impartial juror (Haney, 1984a). The questions include a discussion of the possible penalty that the defendant could be facing if he or she is convicted, thereby implying the guilt of the defendant. They also ask venirepersons to imagine whether they could convict the defendant knowing that the conviction could result in a death sentence. Because imagining that you have engaged in a behavior makes it more likely that you will engage in that behavior in the future (Tversky & Kahneman, 1973), this exercise of imagining that you have convicted defendant could make capital jurors more conviction prone as a result of the death qualification process in voir dire. Indeed, watching a capital voir dire did make mock jurors more likely to believe that the defendant was guilty and that the court personnel also believed that the defendant was guilty (Haney, 1984b). However, this pretrial conviction proneness may not survive the presentation of trial evidence. In a conceptually similar study, mock jurors watched either a standard voir dire or a voir dire in which jurors were qualified to hear evidence against a juvenile defendant who was charged with murder in criminal court (Greathouse, Sothmann, Levett, & Kovera, 2011). The qualification voir dire contained many of the same elements of a death qualification voir dire (e.g., discussion of the conviction of the defendant, asking venirepersons to imagine convicting the defendant knowing that it would result in a juvenile serving time in an adult prison). Although the mock jurors who watched the juvenile qualification voir dire were more conviction prone before the trial (e.g., more

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likely to believe that the defendant was guilty and that the judge and attorneys believed that the defendant was guilty) than were those who watched a standard voir dire, they were no more likely to convict the defendant after hearing the trial evidence, irrespective of whether the evidence against the defendant was strong, weak, or ambiguous (Greathouse et al., 2011). Even if merely watching a qualification voir dire may not influence verdicts, there are differences between people who support the death penalty and those who oppose it, and juries that exclude jurors who oppose the death penalty are more likely to convict defendants than are juries that contain jurors with a mixture of attitudes toward the penalty (Cowan, Thompson, & Ellsworth, 1984). Juror Rehabilitation When venirepersons express an opinion, belief, or experience that appears to threaten their ability to be fair jurors, a judge may excuse the venirepersons for cause. Alternatively, either the judge or the attorneys may attempt to rehabilitate the venirepersons by educating them on the relevant law or eliciting commitments that they will set aside their bias and decide the case only on the evidence and the law (Cosper, 2003). Those jurors who promise to do so are deemed fit for jury duty (Studebaker & Penrod, 2005). Perhaps because of the inefficiencies of excusing large numbers of jurors who hold beliefs that may interfere with their responsibilities as jurors, rehabilitation is a common practice in voir dire (Giewat, 2001; Neises & Dillehay, 1987; Nietzel et al., 1987). Only a few studies have examined whether juror rehabilitation effectively remediates juror bias. In the first of these studies, community members participated in a simulated voir dire in which an actress who played the role of a judge questioned them (Crocker & Kovera, 2010, Experiment 1). Pretrial assessment established that half of the participants held biases against the insanity defense that would have precluded them as impartial jurors (i.e., they had expressed a belief that it was never appropriate to find a defendant not guilty by reason of insanity), whereas the remaining participants were not biased against the insanity defense. The mock judge questioned all of the participants individually but attempted to rehabilitate only half of them by instructing them about the insanity defense and extracting a promise to ignore any biases that they may have against the defense. Participants then viewed a videotaped simulation of a murder trial in which the defendant invoked the insanity defense. Rehabilitation made both biased and unbiased jurors more favorable toward the insanity defense and less likely to

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render a guilty verdict, even though the intended effect was to correct only for the bias among biased jurors. In another study investigators independently manipulated rehabilitative instructions and the solicitation of a commitment to be impartial. It was the instructions—not the commitment—that produced changes in verdict, and neither rehabilitation procedure increased juror sensitivity to evidence strength (Crocker, 2011, Experiment 1). In contrast, rehabilitative voir dire that encouraged jurors to suppress the influence of pretrial publicity on their verdicts did eliminate differences in their verdicts caused by pretrial publicity exposure, but a rehabilitative voir dire that encouraged jurors to concentrate on the evidence did not neutralize the effects of pretrial publicity (Crocker, 2011, Experiment 2). Thus, the attempted rehabilitation of biased jurors may be more successful when the bias comes from some external source—like pretrial media coverage—as opposed to an internal source such as prejudicial attitudes. Moreover, rehabilitation may cause an overcorrection in bias among biased jurors or a correction for bias that does not exist among unbiased jurors (Crocker, 2011; Crocker & Kovera, 2010). Peremptory Challenges In addition to challenges for cause, attorneys may excuse venirepersons from jury service using a peremptory challenge. Unlike challenges for cause, which will remove potential jurors only when a judge is convinced that they cannot be impartial, attorneys may exercise peremptory challenges to remove venirepersons without providing any justification for their removal, except under special circumstances to be discussed later in this chapter. Thus, attorneys may use peremptory challenges to strike venirepersons for whom a judge refused to grant a challenge for cause or any other venirepersons that the attorneys believe will be unfavorable to their side. Although the number of challenges for cause is theoretically unlimited, bounded only by the ability of an attorney to persuade a judge of a venireperson’s irremediable prejudice, each attorney receives a prescribed number of peremptory challenges. The number of peremptory challenges that an attorney may exercise varies by, among other factors, the jurisdiction, trial type (criminal versus civil), and the seriousness of the crime (Rottman & Strickland, 2006). Additional peremptory challenges may be granted in cases in which pretrial publicity has tainted the potential jury pool (e.g., Skilling v. United States, 2010). Attorneys do not need to provide a reason for why they are removing a venireperson from the panel using

a peremptory challenge, unless opposing counsel accuses the attorney of using his or her peremptory challenges to remove members of a protected group from the jury panel. The U.S. Supreme Court has held that it is improper to prevent “cognizable groups”—groups whose members are easily identifiable as belonging to that group—from serving on a jury (Strauder v. West Virginia, 1880). Despite this early prohibition against using peremptory challenges to remove members of identifiable groups from jury service, trial litigation manuals often included recommendations for removing venirepersons from particular groups for certain types of cases (Fulero & Penrod, 1990a, 1990b). Moreover, courts regularly accepted attorneys’ explanations for why they had removed every member of a racial group from the jury panel and required that there be a finding of systematic discriminatory removal of group members across cases (Swain v. Alabama, 1965). Thus, attorneys theoretically could exclude venirepersons based on race as long as they did not systematically do so across most if not all cases. In the landmark case of Batson v. Kentucky (1986), the Supreme Court ruled that evidence of systematic discrimination was not required and that a defendant could establish that the prosecution had exercised its peremptory challenges in a discriminatory fashion merely by relying on evidence of the prosecutor’s actions in the case at hand. The Court set forth a three-step process that must be followed when the defense objects to the prosecutor’s elimination of a cognizable group using peremptory challenges. First, the defense must demonstrate that the prosecutor used his or her peremptory challenges to eliminate potential jurors who shared racial group membership with the defendant, thereby establishing discrimination in the exercise of the challenges. In the second step, the burden shifts to the prosecution to provide race-neutral reasons for challenging the venirepersons in question. In the third step, the judge decides whether the evidence provided by both parties indicates that the prosecution’s challenges were based on race. The Supreme Court has subsequently upheld its decision in Batson. In Miller-El v. Dretke (2005), the defendant argued that the prosecutors’ challenge of 91% of the Black venirepersons provided evidence of discrimination. Although the trial judge—based on the race-neutral justifications provided by the prosecutors—held that the elimination of so many Black venirepersons was due to chance, the Supreme Court ruled that it was unlikely to be a chance occurrence. The Court determined that the prosecutors’ race-neutral explanations also applied to White venirepersons whom the prosecutors did not strike. In a

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more recent case, the Supreme Court similarly held that the race-neutral justifications provided by the prosecution for eliminating Black venirepersons were not credible because there was nothing in the record to support one justification, and the other justification was equally applicable to White jurors whom the prosecutors did not strike (Snyder v. Louisiana, 2008). In addition to the prohibition against prosecutorial discrimination in challenging venirepersons who share racial group membership with the defendant established in Batson, the Supreme Court has extended its prohibition against using peremptory challenges to eliminate members of cognizable groups in other circumstances. For example, it is also improper to excuse venirepersons of a particular race even if the defendant is from a different racial group, extending protecting against discrimination to venirepersons as well as defendants (Powers v. Ohio, 1991). Moreover, it is also improper for the criminal defense to strike members of a particular racial group (Georgia v. McCollum, 1992) as well as for civil litigants (Edmonson v. Leesville Concrete Company, 1991). Other cases have extended protections to other protected classes, including gender (J. E. B. v. Alabama, 1994), religion (State v. Fulton, 1992), and sexual orientation (People v. Garcia, 2000). Despite the legal prohibition against the discriminatory use of peremptory challenges, archival studies of jury selection provide evidence that discrimination occurs. Prosecutors are more likely to strike Black venirepersons than are defense attorneys (Baldus, Woodworth, Zuckerman, Weiner, & Broffitt, 2001; Clark, Boccaccini, Caillouet, & Chaplin, 2007; Rose, 1999). Moreover, appeals based on the protections provided by Batson are typically not successful (Gabbidon, Kowal, Jordan, Roberts, & Vincenzi, 2008), perhaps because attorneys are skilled at providing race-neutral justifications for their strike decisions (Sommers & Norton, 2008). In one experiment (Sommers & Norton, 2007), prosecutors reviewed the profiles of two venirepersons, one who was an advertising executive who distrusted statistics and the other who was a journalist who had written about police misconduct. In some versions of the materials, the executive was White and the journalist was Black and in other versions the race of the two venirepersons was reversed. Although prosecutors were more likely to strike the Black venireperson than the White venireperson, they were able to provide race-neutral explanations for their strike decisions. In a similar study (Norton, Sommers, & Brauner, 2007), college students playing the role of a prosecutor were more likely to strike a female venireperson than a male venireperson from a

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panel trying a woman for the murder of her abusive husband but were able to provide gender-neutral explanations for their decisions. Even when reminded about the prohibitions against striking venirepersons based on gender, participants still discriminated against women in their strike decisions. However, those participants who received a reminder were better able to generate gender-neutral justifications for their decisions than were those who were not reminded. Thus, if judges examined the explanations provided by attorneys for their strike decisions, it is unlikely that they would find evidence of discrimination in those justifications.

TRADITIONAL JURY SELECTION Traditional jury selection refers to any strategy that attorneys use to identify potential jurors who are favorable (or unfavorable) to their case. Historically, attorneys based their strike decisions on superstition, stereotypes, body language, implicit theories of attitude and personality, or other hypotheses that they have developed through trial experience. According to one compendium of jury selection folklore (Fulero & Penrod, 1990b), some attorneys advise that women should be avoided as jurors in criminal prosecutions but are desirable jurors for civil suits. Others argue that female jurors are advantageous in criminal cases unless the defendant is an attractive woman. Some advocates believe that wealthy individuals are convictionprone unless trying a white-collar crime. Some describe poor jurors as potentially advantageous for a civil defense because they are not used to the idea of large sums of money and are thus likely to deliver smaller rewards. Others believe that poor jurors should be avoided because they are bitter about their indigent status and are therefore likely to deliver exorbitant damage awards, much like Robin Hood who took money from the rich and gave it to the poor. The similarity-leniency hypothesis may lead attorneys to select jurors who are similar to their clients because of their presumed empathy for similar individuals (Blue, 1991; Kerr, Hymes, Anderson, & Weathers, 1995). In contrast, the black-sheep hypothesis may lead attorneys to reject jurors who are similar to their clients, strategizing that people may want to punish in-group members who reflect poorly on their group (Marques, Abrams, Paez, & Martinez-Taboada, 1998). From these examples, it is clear that attorneys’ common sense may lead to contradictory hypotheses about which potential jurors would be most helpful or most harmful to have on the jury.

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Beliefs About Nonverbal Communication In addition to the use of stereotypes and implicit personality theories, attorneys may rely on potential jurors’ nonverbal communication when selecting a jury (e.g., Dimitrius & Mazzarella, 1999; Starr & McCormick, 2000). For example, some consultants suggest that a trial consultant should scrutinize potential jurors’ clothing for hints about their ideology (e.g., antiestablishment) or personality (e.g., Starr & McCormick, 2000). By examining potential jurors’ posture, their willingness to express their opinions, and the amount of space they occupy in the courtroom, they argue that attorneys can identify which potential jurors are likely to be influential during deliberations. Some critics will undoubtedly contend that any individual who has participated in selecting a jury will immediately recognize the value of analyzing the venire’s verbal and nonverbal behavior. However, many of the tactics recommended by trial manuals are inconsistent. Some practitioners, for example, argue that attorneys should accept a smiling juror; others suggest striking those who smile (Bodin, 1954; Darrow, 1936; Harrington & Dempsey, 1969). Some practitioners argue that nonverbal behaviors such as pupil dilation, rising voice pitch, response latency, and fidgeting indicate that a prospective juror is providing deceptive responses (Blue, 1991). Although nonverbal behavior may be a useful predictor of favorable or unfavorable jurors, there is no published research examining the validity of these techniques in the context of legal decision making.

Effectiveness of Traditional Jury Selection There are few empirical tests of whether attorneys’ traditional jury selection strategies are effective at identifying and eliminating venirepersons who are unfavorable to the attorneys’ side. In one of the first studies of this type, panel members removed through peremptory challenges during one of 12 federal cases went on to hear the cases, not as jurors but as observers, and render verdicts at the conclusion of the trial (Zeisel & Diamond, 1978). These verdict data, coupled with data from post-trial interviews with the jurors who were seated in these cases, allowed for a comparison of the seated juries’ verdicts with the verdicts that would have been rendered had juries been seated without exercising peremptory challenges. In a few cases, the use of peremptory challenges significantly influenced the trial’s outcome. Overall, however, the results suggested that attorneys were not very accurate at predicting jurors’ decisions.

Another study compared the verdicts rendered by 10 actual juries, 10 juries whose members were randomly chosen from the venire, and 10 juries composed of challenged jurors (Diamond & Zeisel, 1974). Actual juries were less likely to convict than randomly chosen juries or challenged juries. Moreover, defense and prosecuting attorneys were rather effective in eliminating jurors who were more likely to vote contrary to their clients’ interests. Although there were several limitations to these studies that preclude a definitive conclusion about attorneys’ ability to identify favorable jurors (e.g., the reconstructed jury did not deliberate; the decisions made by actual juries were the only decisions with consequences), they represent classic investigations into the efficacy of jury selection. In another effort to evaluate attorneys’ jury selection abilities (Olczak, Kaplan, & Penrod, 1991), attorneys read various juror profiles and reported which characteristics and information they typically would seek during voir dire. These participants then read one of two transcripts from a felony trial and rated the jurors on their perceived bias toward the defendant and a variety of personality traits (e.g., leniency, intelligence, attractiveness). Attorneys generally relied on a very small number of demographic and personality dimensions when making inferences about prospective jurors, suggesting that attorneys use rather unsophisticated stereotypes and strategies in making their decisions. Using a similar methodology, Olczak et al. (1991) compared the performance of college students and attorneys and found that both groups engaged in similar, unsophisticated strategies in judging prospective jurors. Finally, law students and attorneys read a description of a manslaughter prosecution and subsequently rated the desirability of mock jurors who had rendered a verdict in the case. Law students and attorneys both performed poorly, with both groups rating mock jurors who had voted for conviction as more desirable from a defense perspective. In another investigation of the effectiveness of traditional jury selection, researchers studied the voir dire process in four felony trials (Johnson & Haney, 1994). The venirepersons for each of these trials reported their criminal justice attitudes by answering questions from the Legal Attitudes Questionnaire (Boehm, 1968). To examine the effectiveness of attorney-conducted jury selection, researchers compared the criminal justice attitudes of jurors who were retained to serve on one of the juries, jurors who were excused by the prosecution, and those who were excused by the defense. Moreover, they compared the collective attitudes of retained juries with the

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attitudes of juries who would have been seated if the first 12 jurors had been chosen or if jurors had been randomly chosen to serve. Consistent with the earlier research (Diamond & Zeisel, 1974; Zeisel & Diamond, 1978), prosecutors effectively used their peremptory challenges to eliminate more pro-defense jurors, and defense attorneys used their challenges to eliminate more pro-prosecution jurors. The attitudes of the seated jurors were no different, however, from the attitudes of a randomly chosen group of 12 jurors or the first 12 jurors called for service. Thus, although attorneys could identify the most biased jurors in the venire, the removal of these jurors did not alter the attitudinal composition of the seated jury. To summarize, the traditional approaches to jury selection used by attorneys generally involve the use of stereotypes, implicit personality theories, and anecdotal information to determine which venirepersons will be challenged. Laboratory and field studies that test the effectiveness of traditional methods demonstrate that predictions of the verdict inclinations of venirepersons using these methods are only slightly better than chance (Fulero & Penrod, 1990a, 1990b; Olczak et al., 1991; Zeisel & Diamond, 1978).

SCIENTIFIC JURY SELECTION In contrast to attorney strategies for jury selection that are based on untested hypotheses about the relationship of venirepersons’ characteristics to their verdict preferences, scientific jury selection applies social science methods to the practice of exercising challenges for cause and peremptory challenges. The first reported attempt to use social science methods to aid jury selection was in the trial of the Harrisburg Seven: priests, nuns, and students who were active antiwar protestors during the Vietnam era and were charged with conspiracy to kidnap National Security Advisor Henry Kissinger, bomb tunnels, and destroy draft records (Schulman, Shaver, Colman, Emrich, & Christie, 1973). Because of concern that the government had chosen a venue for their trial that was biased against the defendants, sociologist Jay Schulman organized a team of social scientists to survey community members with the goal of developing a profile of an ideal defense juror that the defense attorneys could use to inform their jury selection decisions. The trial ended with a hung jury, 10 to 2 in favor of acquittal. What began as a group of social scientists working to assist in the defense of political activists has morphed into a multimillion-dollar industry that is more likely to provide services in civil rather than

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criminal litigation (Seltzer, 2006; Strier & Shestowsky, 1999). The Practice of Scientific Jury Selection The tenets of scientific jury selection rest on the assumption that a person’s traits and attitudes will predict how he or she will evaluate a given case. Through the identification of correlates of verdict inclinations, scientific jury selection involves the use of social science methods to identify venireperson characteristics that are associated with a favorable (or unfavorable) evaluation of the case, and generalize these relationships to the selection of jurors. The question remains: Does scientific jury selection work, and if so, to what degree? The community survey is the primary tool of scientific jury selection practitioners (Kovera & Cutler, in press). The typical jury selection survey is tailored around the case in question and includes a summary of the evidence and questions designed to assess (a) case-specific attitudes, (b) attitudes toward the legal system in general, (c) defendant culpability or liability (depending on whether it is a criminal or civil case), and (d) basic demographic information. Typically, the consultant randomly selects citizens living in the venue in which the trial will be held—usually by using random-digit dialing techniques—to complete the survey. The respondents hear the case summary and then respond to the attitudinal, culpability, and demographic measures. The data from these surveys are analyzed to identify possible relationships between the various measures and culpability ratings. The results from such a survey, for example, might reveal that lower-income individuals are statistically more likely to acquit the defendant or that individuals who have been a plaintiff in a lawsuit are more likely to find a defendant liable. Based on the survey results, and assuming that the presiding judge grants sufficient leeway for questioning, counsel may then probe for more specific demographic characteristics and attitudinal dispositions that have been found to statistically predict culpability. In the following sections, we review the research addressing whether particular demographic variables, personality traits, and attitudes are predictive of defendant culpability. Demographic Predictors of Verdict The possibility that demographic variables may predict a verdict must be attractive to attorneys, as many of these variables (e.g., gender, socioeconomic status, occupation)

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are either easily observable or obtainable even in the minimal voir dires conducted in federal courts. Findings from several studies suggest that demographic characteristics are only weakly related to verdict and that the utility of these variables may be case-specific. In at least one study, juror age, gender, marital status, and occupation were unrelated to damage awards (Goodman, Loftus, & Greene, 1990; Vinson, Costanzo, & Berger, 2008). Results of other studies suggest that jurors who have higher incomes, more prestigious occupations, or higher educational levels are more likely to convict than are jurors with a lower socioeconomic status (Adler, 1973; Simon, 1967). Race Using race to predict juror verdicts is complicated. Findings from early research suggested that Black mock jurors were more likely to acquit defendants using an insanity defense than were White mock jurors (Simon, 1967). Race also affected community perceptions of O. J. Simpson’s guilt in the death of his ex-wife (Brigham & Wasserman, 1999). Before the trial, after the conclusion of the evidence presentation phase, and after the actual jury had returned a verdict, Blacks were less likely to believe that Simpson murdered his ex-wife than were Whites. There is some evidence, however, that upper-middle-class Black jurors may be more punitive than Whites toward other Blacks, especially those who commit violent crimes that would reflect poorly on the Black community (Nietzel & Dillehay, 1986). The relationship between juror race and verdicts is not straightforward; juror race interacts with defendant race to influence verdict in criminal cases. A recent metaanalysis of studies that examined the relationship between race and verdict found that jurors rendered more guilty verdicts and longer sentences when they did not share racial group membership with the defendant (Mitchell, Haw, Pfeifer, & Meissner, 2006). In a simulation study, Black jurors evaluated mitigation evidence in the sentencing phase of a capital trial more positively when the defendant was Black and the victim was White; White jurors similarly evaluated mitigation evidence the most favorably when the defendant was White but the victim was Black (Brewer, 2004). Salience of racial issues moderates White juror bias against Black defendants, with White jurors more likely to convict Black defendants only when race is not salient; when race is salient White juror bias against Black defendants disappears (Cohn, Bucolo, Pride, & Sommers, 2009; Sommers & Ellsworth, 2000, 2001).

Gender Juror gender—like juror race—is an unreliable predictor of trial judgments. Across a variety of types of civil litigation (e.g., product liability, personal injury), juror gender does not consistently predict punitive damage awards, with men sometimes awarding larger amounts of damages than women (Goodman, Loftus, Miller, & Greene, 1991; Hastie, Schkade, & Payne, 1999) and women sometimes awarding larger amounts than men (Kahneman, Schkade, & Sunstein, 1998). Moreover, in a number of simulation studies, gender was unrelated to damage awards (Bornstein & Rajki, 1994; Diamond, Saks, & Landsman, 1998; Goodman et al., 1991). Juror gender was also inconsistently related to liability judgments, with gender predicting verdicts in one type of case (tobacco) but not in others (Vinson et al., 2008). The only civil case in which juror gender differences reliably appear is hostile work environment cases, with women more likely to find defendants liable for sexual harassment than men (Kovera, McAuliff, & Hebert, 1999). However, juror gender predicted verdicts in cross-sex but not same-sex cases of sexual harassment (Wayne, Riordan, & Thomas, 2001). Like the findings regarding juror race, effects of juror gender in criminal cases reflect outgroup bias. In those studies in which juror gender predicted verdict, jurors were more punitive toward defendants of a different gender. Men were less likely to convict defendants of child sexual abuse (Kovera, Gresham, Borgida, Gray, & Regan, 1997; Quas, Bottoms, Haegerich, & Nysse-Carris, 2002) and rape (Brekke & Borgida, 1988) than were women. Men were more likely to convict women charged with murdering an abusive partner than were women (Schuller, 1992; Schuller & Hastings, 1996). Attitudinal differences between men and women may mediate this outgroup bias (Bottoms et al., 2011). Demographic information may provide useful data for practitioners of scientific jury selection when demographics are related to case-relevant attitudes, especially in cases in which the voir dire is limited in scope and unable to assess these attitudes directly. Death penalty attitudes are an example of a case-specific attitude that may be indirectly assessed using demographic characteristics. Community surveys (Fitzgerald & Ellsworth, 1984; Haney, Hurtado, & Vega, 1994; O’Neil, Patry, & Penrod, 2004) and surveys of impaneled felony jurors (Moran & Comfort, 1986) indicate that Whites, Republicans, and men are more likely to report pro-death penalty attitudes than are Blacks, Democrats, and women. These death penalty attitudes predicted verdicts in trial simulations

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of death penalty cases (Cowan, Thompson, & Ellsworth, 1984; O’Neil et al., 2004). Death penalty attitudes also predicted verdicts in actual cases, irrespective of whether they were capital or noncapital cases (Moran & Comfort, 1986). Similarly, those with less formal education tend to hold anti-libertarian attitudes, and jurors with antilibertarian attitudes are more likely to convict than those who do not hold anti-libertarian attitudes (Moran et al., 1990). Although demographic characteristics may have limited ability to predict verdict across a wide variety of cases, some characteristics may be useful to trial consultants for another reason. They may help predict which jurors will be influential during jury deliberations. For example, men are generally more influential than women during deliberations. Men speak more frequently during deliberations than do women (James, 1959). Jurors also select men as the foreperson more frequently than they select women (Dillehay & Nietzel, 1985; Strodtbeck, James, & Hawkins, 1957). Similarly, jurors are more likely to elect a foreperson with high socioeconomic status than with low status (Strodtbeck et al., 1957). Thus, trial consultants can maximize the likelihood that a particular viewpoint will be expressed during deliberation if they ensure that an upper-income male who holds that viewpoint is seated on the jury. Thus, there is evidence that some demographic characteristics may predict juror verdict in at least some types of cases; however, there is little evidence that any one demographic variable will prove useful in selecting jurors in a wide variety of cases. In federal courts or other contexts in which more detailed questions are prohibited, demographic characteristics may serve as a successful proxy for the measurement of case-specific attitudes that may be related to verdict. Although the power of juror demographics to predict verdicts is limited, demographics may be more useful in anticipating those jurors who are likely to dominate the deliberation process. Personality Traits as Predictors of Verdict If trial consultants or attorneys have the opportunity to gather more information than mere demographic characteristics during voir dire, some collect information about personality traits, with the hope of using this information to predict juror behavior. The research on the relationship of personality characteristics to juror verdict, not unlike the research examining the relationship between demographic characteristics and verdict, suggests that the relationship between these two sets of variables is weak

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and inconsistent at best. For example, there is no evidence that any of the Big Five personality traits (Openness to Experience, Conscientiousness, Extraversion, Agreeableness, Neuroticism; Costa & Widiger, 2002) predict juror ´ decisions (Alvarez, De la Fuente, Garcia, & De la Fuente, 2009). Moreover, judges and attorneys do not systematically strike jurors with the personality traits of low Openness and high Conscientiousness, a pattern of traits that is associated with authoritarianism (Clark et al., 2007). Personality traits that are more closely linked to patterns of judgments about others are also poor predictors of juror verdicts. For example, belief in a just world is a tendency to believe that if something bad happens to someone, it happened because he or she deserved the harm (Hafer & B`egue, 2005; Lerner, 1980). Although there is a positive relationship between belief in a just world and punitive attitudes toward offenders (B`egue & Bastounis, 2003) and a negative relationship between justworld beliefs and favorable reactions to mitigators in capital cases (Butler & Moran, 2007), the relationship between just-world beliefs and trial judgments is complex, with other juror characteristics moderating the relationship between just-world beliefs and verdicts, including gender (Ford, Liwag-McLamb, & Foley, 1998; Moran & Comfort, 1982) and socioeconomic status (Freeman, 2006). Another personality trait that would theoretically be related to trial judgments is locus of control. Some studies indicate that jurors who have an internal locus of control or a strong sense of personal responsibility are more likely to hold a defendant responsible for his or her ´ actions (Alvarez et al., 2009; Phares & Wilson, 1972). This trait may also be important for predicting juror behavior in civil cases; jurors with a keen sense of personal responsibility may hold plaintiffs responsible for their own injuries if they contributed in any way to those injuries (Hans, 1992). In contrast, results from other studies suggest an inverse relationship between locus of control and trial judgments, with an external locus of control associated with more guilty verdicts (Butler, 2010) and more favorable evaluations of statutory mitigators of a capital offense than an internal locus of control (Butler & Moran, 2007). Still other studies find no relationship between locus of control and trial judgments (Beckham, Spray, & Pietz, 2007; Villemur & Hyde, 1983). Authoritarianism has proven to be the most useful personality trait for identifying jurors’ verdict inclinations across a broad spectrum of cases. The construct of authoritarianism was originally developed in the context of a research program on the nature of prejudice (Adorno, Frenkel-Brunswik, Levinson, & Sanford, 1950).

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People with an authoritarian personality are more likely to endorse conventional values, respect authority, and act punitively toward people who defy authority or conventional norms. Other researchers have developed measures of authoritarian beliefs that are specifically relevant to the legal system, including the Legal Attitudes Questionnaire (LAQ; Boehm, 1968) and the revised LAQ (RLAQ-23; Kravitz, Cutler, & Brock, 1993). A meta-analysis of the studies examining authoritarianism as a predictor of juror verdict revealed that authoritarian participants are more likely to vote for conviction, especially when measured by the more specifically focused legal authoritarianism measures (Narby, Cutler, & Moran, 1993). Authoritarian jurors are more likely to recommend harsh sentences than are nonauthoritarian jurors (Bray & Noble, 1978). However, there are some situations that may lead authoritarian jurors to be less punitive, such as when the defendant is an authority figure (Nietzel & Dillehay, 1986). Despite this contradictory data, the findings supporting the predictive validity of authoritarianism are impressively consistent, given the inconsistency found using other personality predictors of verdict. Attitudinal Predictors of Verdict Both demographic characteristics and personality traits provide jury consultants with global information about jurors’ attitudinal beliefs and verdict inclinations. Scholars have constructed global attitudinal measures of bias against criminal defendants that are intended to predict verdict across a wide variety of criminal cases, including the Juror Bias Scale (JBS; Kassin & Wrightsman, 1983) and a revised version of the scale (Lecci & Myers, 2002; Myers & Lecci, 1998). Both the original and revised versions of the scale contain subscales assessing respondents’ beliefs about the probability that a defendant committed a crime with which he or she is charged (probability of commission; PC) and how confident the respondents would need to be of the defendant’s guilt to convict (reasonable doubt; RD). Whereas some studies find a positive relationship between JBS scores and more punitive trial judgments (De la Fuente, De la Fuente, & Garc´ıa, 2003; Tang & Nunez, 2003; Tang, Nunez, & Bourgeois, 2009), other studies find that the JBS predicts verdicts in some trials but not others (e.g., rape cases; Kassin & Wrightsman, 1983; Lecci & Myers, 2002). Due to the failures of the original and revised JBS to consistently predict verdicts, Lecci and Myers (2008) created a new measure of general pretrial bias: the Pretrial Juror Attitudes Questionnaire (PJAQ). This 29-item scale

has six subscales, representing the dimensions of conviction proneness, system confidence, cynicism toward the defense, racial bias, social justice, and innate criminality. There is some overlap between the PJAQ and the JBS, with the PJAQ subscale of conviction proneness and the JBS subscale of reasonable doubt sharing 64% of their variance and the probability of commission subscale of the JBS sharing over a third of its variance with the system confidence and cynicism toward the defense subscales of the PJAQ. In one validation study, five of the six subscales significantly predicted verdicts across different trial types, with only the social justice subscale failing to predict verdicts (Lecci & Myers, 2008). Moreover, this new scale explains variance in verdicts even after controlling for the influence of participants’ scores on the JBS and the RLAQ-23 (Kravitz et al., 1993), suggesting that it contributes unique information for predicting verdicts. Attitudinal measures, especially those that are tailored to assess beliefs that are specifically relevant to the case being tried, may provide more detailed and case-relevant information about jurors’ predispositions to vote in a particular way. In a series of four surveys, attitudes toward tort reform reliably predicted verdict inclination in one civil and three criminal cases. Individuals favoring tort reform were more likely to side with the prosecution in a criminal case and with the defense in a civil case (Moran, Cutler, & De Lisa, 1994). Similarly, survey research indicates that attitudes toward psychiatrists predict community members’ verdict inclinations in insanity defense cases (Cutler, Moran, & Narby, 1992); and attitudes toward drugs predict community members’ perceptions of defendant culpability in two controlled substance cases—one involving conspiracy charges, and the other drug trafficking (Moran et al., 1990). How these attitudinal predictors would have fared had the survey respondents rendered verdicts after hearing trial evidence is not known. Studies examining whether other case-specific attitudes predict verdicts have provided participants with the opportunity to hear evidence before rendering an opinion about the guilt of a defendant. In general, the findings from these studies suggest that case-specific attitudes are good predictors of verdicts in relevant cases. The Insanity Defense Attitudes–Revised scale (Skeem, Louden, & Evans, 2004), which measures the extent to which people believe that mental health is related to decision-making quality and legal responsibility and that the insanity defense is unjust and releases dangerous people into the community—predicted verdicts across several different trials and fact patterns (Crocker & Kovera, 2010; Louden & Skeem, 2007; Skeem et al., 2004).

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Similarly, attitudes toward the death penalty predict legal decisions in capital cases. Death penalty supporters view aggravating factors (e.g., characteristics about the crime that favor imposing a death sentence, such as killing a police officer) more favorably than do opponents and death penalty opponents evaluate mitigating factors (e.g., factors that argue against imposing a death sentence, such as a defendant who was abused or neglected as a child) more favorably than do supporters (Butler & Moran, 2002; Luginbuhl & Middendorf, 1988). The self-reported verdicts of impaneled jurors correlated with their attitudes toward the death penalty, with death penalty supporters more likely to convict than opponents, even if the case they had heard was not a capital case (Moran & Comfort, 1986). A validated measure of death penalty attitudes (Attitudes Toward the Death Penalty Scale) predicted death sentences in 11 different studies (O’Neil et al., 2004). A meta-analysis of the death penalty literature conducted before there were validated measures of death penalty attitudes demonstrated that death penalty attitudes predict verdicts and sentencing in capital cases, with attitudes being more strongly associated with sentences (Nietzel, McCarthy, & Kern, 1999). Taken together, these studies suggest that attitudes, especially when they are case-relevant, may provide some information about how a particular juror is likely to vote during jury deliberations. However, even case-specific attitudes often explain relatively little variance in verdicts. Even so, because attorneys may not perform much better than chance at identifying unfavorable venirepersons using their traditional strategies, any additional variance in verdict inclinations that could be explained by attitudinal or demographic predictors will bolster an attorney’s ability to select favorable jurors (e.g., Moran et al., 1994; Penrod, 1990). Comparison of Traditional and Scientific Jury Selection Techniques Most investigations of scientific jury selection have used one of two methodologies. Some studies are designed to establish the statistical relationships among demographics, attitudes, and verdict inclination, whereas other investigations extend this approach by testing the predictive strength of these variables in trial simulations. Although there are strengths and limitations to each of these approaches, studies that include a behavioral criterion (e.g., verdict) are more powerful for detecting the influence of scientific jury selection on a trial’s outcome (e.g., Horowitz, 1980; Narby & Cutler, 1994). Even if it

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were confirmed that the scientific approach is effective at identifying favorable (or unfavorable) jurors, such a finding would not necessarily establish that these methods are more effective than traditional approaches. To justify the expense associated with scientific jury selection, more studies are needed that directly compare the efficacy of scientific and traditional techniques in an experimental framework. Only one researcher has attempted a direct experimental comparison of the two methods. Horowitz (1980) trained law students in the use of either traditional or scientific selection methods and then evaluated their ability to predict mock jurors’ verdicts in four simulated trials. The results from this investigation were mixed. Although scientific jury selection was superior to traditional methods in two cases (a court martial and a drug prosecution), traditional methods were more effective at predicting verdict inclinations in a mock murder trial, and there were no significant differences between the two strategies for a fourth trial, a drunk driving case. For the two cases in which scientific jury selection outperformed traditional methods, there were strong relationships among the social science predictors and verdict. When the predictors were only weakly related to verdicts, traditional methods based on intuition outperformed the methods based on social science. Archival analysis of consultants’ performance in actual capital trials suggests that scientific jury selection may be more effective than traditional methods (Nietzel & Dillehay, 1986). When the defense hired a trial consultant only one third of the juries voted to execute the defendant. For trials in which there was no consultant, in contrast, two thirds of the juries voted for a death sentence. More research is needed to definitively answer the question of whether scientific jury selection outperforms traditional methods as the research conducted to date has severe limitations. The experimental examination of which method is better is limited to a small number of trials and relies on the performance of law students with limited training in using social science methods to select juries (Horowitz, 1980). Data from the archival study (Nietzel & Dillehay, 1986) are limited because trials were not randomly assigned to have a trial consultant and it is possible that defendants who had the resources to hire consultants also had the resources to hire more skilled attorneys who were better able to persuade jurors to save their clients from execution. Although direct tests of the relative benefits of jury selection as practiced by trial consultants are rare—in part because the exact nature of consulting activities is often proprietary, one consultant reported that

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across 27 community surveys that he conducted in the process of his consulting work, demographic and attitudinal predictors accounted for anywhere from 4% to 50% of the variability in verdict inclinations (Seltzer, 2006). With this level of explanatory power, it is likely that scientific jury selection could influence trial outcomes, especially in cases with ambiguous evidence (Diamond, 1990; Seltzer, 2006). Does the Jury Selection Process Improve the Quality of Juror Decisions? Most scientific jury selection research has focused on identifying variables that will help attorneys and consultants identify biased jurors. Why is the identification of biased jurors important? For advocates, the identification and elimination of jurors who are biased against their side will help them win cases. However, one of the main assumptions underlying jury selection is that prejudice will prevent jurors from appropriately weighing evidence. Researchers have operationalized the efficacy of jury selection, either traditional or scientific, as the elimination of jurors with bias. Perhaps efficacy should be operationalized as an increase in jurors’ ability to recognize variations in the quality or the strength of the evidence presented. Few investigators have explored whether jury selection results in higher-quality decisions, although some studies have provided data that can inform the debate. Research on felony voir dire suggests that a jury chosen using traditional methods is similar in composition to a jury that is randomly selected from the pool or a jury composed of the first 12 jurors called to service (Johnson & Haney, 1994). Given that the bias of jurors selected through traditional methods did not differ from juries seated using other methods, it is unlikely that traditional methods of jury selection will improve jury decisions. Although it does not alter the fundamental composition of the jury, perhaps there are other ways in which voir dire might improve juror decisions. For example, a nondirective voir dire might be used to educate jurors about due process and presumption of innocence, thereby improving jurors’ understanding and application of the law (Middendorf & Luginbuhl, 1995). There has been little research on whether the voir dire process influences the quality of juror decisions, and existing research suggests that the process of voir dire may do little to improve juror decisions. Pretrial publicity continues to influence juror judgments inappropriately, whether they are exposed to an extended voir dire in which the defense attorney reminds

jurors to ignore pretrial publicity or a minimal voir dire (Dexter, Cutler, & Moran, 1992). Thus, exposure to an extended voir dire does not eliminate prejudicial bias.

DIRECTIONS FOR FUTURE RESEARCH Jury selection research has concentrated on examining questions about the effectiveness of jury selection rather than on the process of voir dire. Moreover, most of this research has focused on a rather simple question: Do attitudes or traits predict juror judgments? Research on these issues has continued at a slow pace over the past decade, and little has been learned. Researchers have identified a few more situations in which case-specific attitudes predict verdict; however, there have been few advances in our understanding of jury selection and voir dire in the past decade. It is quite possible that the atheoretical nature of the research on jury selection and the simplicity of the questions asked by researchers led to the stagnation of this line of research. A similar stagnation occurred in the social psychological study of attitudes and behavior and the studies examining the links between traits and behavior in the 1960s. In both research traditions, researchers had been asking questions that are very similar to those being asked by the majority of researchers examining jury selection today. In the latter part of that decade, both attitude (Wicker, 1969) and personality (Mischel, 1968) scholars noted that, across a number of studies, attitudes and traits rarely account for more than 10% of the variance in people’s behavior. Similarly, demographics, personality traits, and attitudes account for only a small portion of the variance in jurors’ verdicts (Lecci & Myers, 2002; Moran et al., 1994). Attitudinal research in social psychology moved forward only when researchers began to ask new questions about the relationship among attitudes, traits, and behaviors. Similarly, jury selection research may move past its current plateau only if jury selection researchers begin to ask new and different questions about the relationship between juror characteristics and verdicts. A consideration of the social psychological research on attitudes and behavior may provide some clues about which avenues of study will prove most successful. For example, social psychologists responded to the criticism of the weak correlation between attitudes and behavior by investigating whether there are moderators of the attitude–behavior relationship (Kraus, 1995). That is, were there certain types of people, certain situations, or certain measurement techniques that exhibit stronger

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attitude–behavior relationships? Both social psychologists (Fishbein & Ajzen, 1975) and personality psychologists (Epstein, 1983) noted that attitudes and traits are very general constructs that are unlikely to correlate with specific behaviors because of their different levels of measurement. Attitudes and behaviors must be measured with a similar level of specificity if we are to expect strong correlations between the two constructs (Fishbein & Ajzen, 1975). Psycholegal researchers have addressed these measurement issues in the study of jury selection, noting that case-specific attitudes are more predictive of verdict (i.e., a very specific behavior) than are general demographics or attitudes (Moran et al., 1994). Although social psychologists have spent several decades examining the moderating role of situations and individual differences in the attitude–behavior relationship, jury selection researchers have not yet explored the situational and dispositional variables that may moderate the attitude–verdict relationship. For example, situationally induced self-awareness has been shown to strengthen the attitude–behavior relationship (Carver, 1975; Duval & Wicklund, 1972). Although the traditional social psychological manipulation of self-awareness (i.e., the presence or absence of a mirror when participants’ attitudes and behavior are measured) is not likely to be a factor in jury decision making, other situational factors may increase jurors’ self-awareness. Perhaps cameras in the courtroom would strengthen the relationship between jurors’ attitudes and their verdicts. Similarly, individual rather than group questioning in voir dire may cause prospective jurors to be more self-aware of their attitudinal positions. It is even more likely that potential jurors’ individual differences may help attorneys and consultants to identify jurors who are likely to have strong attitude–behavior relations. People who express confidence in their attitudes are more likely to act on those attitudes than those who do not (Fazio & Zanna, 1978). In contrast, people who are dispositionally motivated to look to the situation for cues about how to behave (e.g., high selfmonitors) typically have weaker attitude–behavior correlations than do people who look inward for guidance (e.g., low self-monitors; Snyder, 1974). People who are low in public self-consciousness or high in private selfconsciousness may also be more likely to act based on their attitudinal predispositions (Fenigstein, Scheier, & Buss, 1975). Finally, attitudes formed through direct experience tend to exert greater influence on behavior than attitudes formed in response to indirect experience (Fazio & Zanna, 1978; Regan & Fazio, 1977). Perhaps future

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research will discover that these moderator variables apply to the attitude–verdict relationship as well. More recently, attitude researchers have begun to look beyond moderators of the attitude–behavior relationship to the underlying psychological mechanisms that explain how attitudes guide behavior (Fazio, 1990). One of the primary mechanisms identified to date is attitude accessibility (i.e., the ease with which an attitude is activated from memory). Whether attitudes are chronically accessible or made accessible due to situational factors, attitudes that readily come to mind are more likely to predict behavior than attitudes that are less easily accessed (Fazio, Chen, McDonel, & Sherman, 1982; Fazio & Williams, 1986). Attorneys and consultants may use jurors’ response latency to attitudinal measures as a rough index of attitude accessibility. Attorneys also may wish to increase the accessibility of a set of favorable attitudes through repeated attitudinal references in their opening and closing arguments, as has been suggested by one set of trial consultants (Starr & McCormick, 2000), or by encouraging jurors to repeatedly express the favorable attitudes during voir dire (Schuette & Fazio, 1995). Whether these moderators and mediators of the attitude–behavior relationship also apply to the attitude–verdict relationship is a question that requires further empirical study to answer.

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CHAPTER 27

Trial Consultation ERIC Y. DROGIN AND CURTIS L. BARRETT

THE FORENSIC PSYCHOLOGIST AS TRIAL CONSULTANT 648 LEGAL AND ETHICAL CONSIDERATIONS 649

SPECIALIZED APPLICATIONS 653 CONCLUSION 660 REFERENCES 660

THE FORENSIC PSYCHOLOGIST AS TRIAL CONSULTANT

McCarthy, 1998), or “forensic consultation” (Drogin, 2001c, 2007b; Martindale, 2007), have received minimal emphasis in the professional literature of either law or psychology. To some extent, this may reflect widely held suspicions identified by Stolle, Robbennolt, and Weiner (1996):

The contributions of forensic psychological consultants (hereinafter trial consultants) “are increasingly recognized as a vital adjunct to legal and scientific practice” (Drogin, 2000d, p. 5). In this chapter, we place trial consultation in its appropriate professional and scientific context, review key legal and ethical considerations for practice in this area, and explore its specialized applications. In our experience, forensic psychologists often view trial consultation as little more than a novel twist to their familiar, customary activities: for example, performing an evaluation without having to testify about one, reviewing a report without having to compose one, or locating a specialized expert without having to be one. Adopting this perspective, senior practitioners may view themselves—after years of laboring to prove each point the hard way—as finally “getting paid for what I know, instead of getting paid for what I do.” In fact, modern trial consultation is not merely the selective application of isolated components of traditional service; rather it is a complex, dynamic, and freestanding activity with a distinct history, research base, and methodology. When compared to the well-established and frequently researched specialty of jury selection (Kovera, Dickinson, & Cutler, 2003), the other consulting contributions of forensic psychologists, variously styled as “trial consultation” (Boccaccini & Brodsky, 2002; Cramer, Neal, & Brodsky, 2009; Lecci, Snowden, & Morris, 2004; Posey & Wrightsman, 2005), “trial consulting” (Lieberman & Sales, 2007), “litigation support” (Friedman & Klee, 2001), “courtroom consultation” (Nietzel, Hasemann, &

Throughout the history of scientific trial consulting, many commentators—both lawyers and social scientists—have expressed skepticism regarding the ability of psychologist consultants to be of any real assistance in winning cases. Those skeptics from the legal community typically argue that trial preparation, including jury selection, is an art not a science, and that the instincts of a seasoned trial lawyer are superior to any social scientific approach. In contrast, skeptics from the social science community have typically argued that social scientific approaches are probably no worse than reliance on lawyers’ instincts but that any benefits of social scientific approaches may not outweigh the costs. (p. 143)

Agreeing that “credibility is of prime concern to consultants,” Glasser (2002) noted that “technical competencies of the consultant are often presumed or taken for granted on the basis of such proxies as years of experience or affiliation with a reputable firm” (p. 29), because “professional codes and certifications have yet to be developed” and “accepted indicators of competency” are still lacking (p. 40). According to a survey conducted by Blanton (2000), consultants, like psychotherapists, tend to make relatively little use of empirical research in their practice, at least in part because “we need more groundwork to operationalize our concepts and theories” (p. 240). Such phenomena appear, however, to reflect not a paucity 648

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of applicable research and marketable skills, but rather the lack of an optimally integrated and popularized professional identity. Some have argued that licensure for trial consultants should be a legislative priority, irrespective of whether a particular jurisdiction’s statutory scheme includes the term consultation in its description of regulated psychological or other professional services. Licensure proponents warn that the lack of defined standards for education, training, and ethical conduct may lead to dire and unforeseen consequences for litigants (Strier, 2001). Those who assert that licensure is unnecessary point to the established professional status of those persons providing the bulk of forensic consultation (in particular, psychologists), while suggesting at the same time that the impact of such services, be it positive or negative, has been overstated (Moran, 2001). Perhaps “psychologists who limit their practice to consulting for businesses and organizations should be allowed to do so in another state for ‘a reasonable period of time,’ such as 60 days, without having to obtain a license in that state” (Chamberlin, 2004, p. 88). Psychologists seeking to provide consultation in a novel jurisdiction should take special care to determine whether their contemplated duties run afoul of rules for utilizing out-ofstate forensic assistance, proper adherence to which may require them to procure legal representation (Drogin & Marin, 2008). Although the licensure woes of testifying experts will likely capture counsel’s interest when this problem raises the specter of inadmissibility of behavioral scientific evidence (Simon & Shuman, 1999), busy attorneys can otherwise afford little if any attention to the jurisdictional concerns of the nontestifying trial consultant. In the current litigation environment, counsel’s uppermost concern is not consultant exposure, but consultant overhead. Spiraling consultation fees for experts in every profession have compelled lawyers to take affirmative steps to contain costs (Hansen, 2005). Given a growing recognition that “one of the best ways to limit consulting costs is to team with your consultant and stay involved” (Bortolus, 2000, p. 41), trial consultants can expect fiscal scrutiny not only at the point of retention, but over the course of their entire involvement in the legal matter at hand. The financial imperatives of the modern litigation support marketplace add more pressure than ever before for trial consultants to enter into some manner of formal agreement with those seeking to retain them. Brown, Pryzwansky, and Schulte (2005, pp. 304–305) identified

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the following core components of the trial consultant’s contract: (1) statement of the terms of the agreement, including identification of the beginning and end dates of consultation; (2) description of the precise nature of the consultant’s activities during the period of consultation; (3) specification of consulting fees and parameters for the reimbursement of related expenses; (4) clarification of work facilities to be provided, such as offices, secretaries, and equipment; (5) identification of the content and boundaries of consultation reports and work product; (6) establishment of the consultant as an independent contractor; (7) provision for termination of the contract, either for cause or with an agreed-upon notice period; (8) confirmation that information gained over the course of consultation shall remain confidential; and, (9) delineation of details of the assignability, arbitration, integration, and closure of the contract.

LEGAL AND ETHICAL CONSIDERATIONS In Ake v. Oklahoma (1985), the Supreme Court of the United States addressed the role of trial consultation in criminal cases in which mental health concerns are at issue in the following fashion: By organizing a defendant’s mental history, examination results and behavior, and other information, interpreting it in light of their expertise, and then laying out their investigative and analytic process to the jury, the psychiatrists for each party enable the jury to make its most accurate determination of the truth on the issue before them. It is for this reason that States rely on psychiatrists as examiners, consultants, and witnesses, and that private individuals do as well, when they can afford to do so. In so saying, we neither approve nor disapprove the widespread reliance on psychiatrists but instead recognize the unfairness of a contrary holding in light of the evolving practice. (pp. 81–82)

Based on such reasoning, the Court then made it clear that the defined scope of this requisite assistance extends well beyond the mere provision of another forensic mental health evaluation, of a sort that would be distinguishable only in the sense that it was commissioned by the defense instead of the prosecution: The foregoing leads inexorably to the conclusion that, without the assistance of a psychiatrist to conduct a professional examination on issues relevant to the defense, to help

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determine whether the insanity defense is viable, to present testimony, and to assist in preparing the cross-examination of a State’s psychiatric witnesses, the risk of an inaccurate resolution of sanity issues is extremely high. With such assistance, the defendant is fairly able to present at least enough information to the jury, in a meaningful manner, as to permit it to make a sensible determination. (p. 82)

Ake thus laid the groundwork for the role of the trial consultant as an active, affiliated member of the defense or prosecution team, who not only seeks to develop the mental health “theory of the case” (Bocchino & Solomon, 2000; Pozner & Dodd, 2004) in a fashion approved by retaining counsel, but who also participates affirmatively in probing the weakness of the opposition’s arguments, methods, and expert personnel. Drogin (2001c) asserted that due to the potentially adversarial cast that distinguishes some activities of the consultant from those of the testifying witness, a separation of roles must be observed: Attorneys frequently wonder why the same mental health professional cannot assume both “witness” and “consultant” duties in the same proceedings. After all, they reason, the expert is a member of the legal team, and has been hired to espouse a particular point of view. Is it not disingenuous to suggest that, having professed an opinion and “chosen sides” in a case, the psychologist must hold back at some poorly defined point from offering the full benefit of his or her “knowledge, skill, experience, training, or education”? (p. 17)

Why professionals should not serve as both an expert witness and consultant—particularly when the Court in Ake appeared to suggest that this bundling of services was acceptable—is bound up in the way an expert arrives at and then conveys a valid and convincing opinion. This opinion must be the product of a two-stage process. The first stage requires the witness to approach the case with a tabula rasa or “blank slate” perspective, as free as possible of bias or preconception. An evaluation is then performed, resulting in a forensic conclusion. At the second stage, the expert is free to serve in an advocacy role. This “advocacy” is not for an examinee or a legal conclusion, but rather for the expert’s own opinion, which would not be presented if it did not serve the retaining attorney’s interests. Lawyers and experts occasionally seek to determine whether it is permissible to migrate from one role to another in the course of legal proceedings, for example, to become a consultant in the event that one’s anticipated trial testimony is seen as unhelpful, or even harmful, to

the party represented by retaining counsel. Brodsky (1999) has insisted that for psychologists, such a transformation is “a one-way street” that “works only to change their role from evaluating expert to trial consultant,” as “once committed to an advocacy role, the alliance with the attorneys includes a commitment to help win the case” (p. 134). Another applicable analogy may, of course, be that of the “slippery slope”—for example, helping counsel understand certain aspects of the opposing expert’s report presumably rests within the appropriate purview of the testifying witness, while drafting questions used to crossexamine the opposing expert is likely to be considered the function of a consultant. Four years after Ake, the American Bar Association Criminal Justice Standards Committee (1989) published its ABA Criminal Justice Mental Health Standards, which still obtain today despite occasional calls for revision. Seeking to convey the proper distinctions between the various “roles of mental health and mental retardation professionals in the criminal process,” these Standards assert that those serving in “evaluative roles” bear “an obligation to make a thorough assessment based on sound evaluative methods and to reach an objective opinion on each specific matter referred for evaluation” (§ 7–1.1(b)). By contrast: Consultative Role: When providing consultation and advice to the prosecution or defense on the preparation or conduct of the case, the mental health or mental retardation professional has the same obligations and immunities as any member of the prosecution or defense team. Nevertheless, the prosecutor and defense counsel should respect the professional’s ethical and professional standards. Any attempt to compromise the professional’s standards would constitute unprofessional conduct. (§ 7–1.1(c))

The most prominent source of freestanding ethical guidance in this area is the Professional Code of the American Society of Trial Consultants (ASTC, 2008). Reflecting the multidisciplinary diversity of a field that boasts the participation of specialists in “mass communications, behavioral science, linguistics and more,” the Code is “not intended to supplant the principles of any other profession” (p. 1). Informed by overarching “Ethical Principles” that address domains of “competence,” “integrity,” “professional responsibility,” and “social responsibility,” as well as “General Professional Standards” that address the “consultant–client relationship,” “training and provision of services,” “advertising and publicity,” “conflicts of interest,” and the “integrity of the jury pool” (pp. 4–5), the Code’s more specific

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“Standards, Guidelines, and Commentary” focus upon five distinct “practice areas” that include “venue surveys,” “witness preparation,” “small group research,” “jury selection,” and “post-trial juror interviews” (pp. 6–53). Brodsky (2009) characterizes the Code as “largely toothless since a consultant does not have to be a member of the American Society of Trial Consultants to practice” (p. 2). There are, however, a number of discipline-specific and variably enforceable guidelines and standards for mental health professionals. One such resource, under comprehensive revision since late 2002 (Fulero & Wrightsman, 2009), is the “Specialty Guidelines for Forensic Psychologists” (Committee on Ethical Guidelines for Forensic Psychologists, 1991). According to Guideline III (“Competence”), when aspects of the professional relations with counsel may threaten the integrity of their participation, “forensic psychologists are obligated to decline participation or to limit their assistance in a manner consistent with professional obligations” (p. 658). Guideline VI (“Methods and Procedures”) directs forensic psychologists to “take special care to avoid undue influence upon their methods, procedures, and products, such as might emanate from the party to a legal proceeding by financial compensation or other gains” (p. 661). The potentially quasi-adversarial review aspect of the consultant’s participation is addressed by Guideline VII, which directs that, “when evaluating or commenting upon the professional work product of another expert or party to a legal proceeding, forensic psychologists represent their professional disagreements with reference to a fair and accurate evaluation of the data, theories, standards, and opinions of the other expert or party” (p. 664). Concerning those matters to be addressed “during the initial consultation with the legal representative of the party seeking services,” forensic psychologists are charged by Guideline IV (“Relationships”) with reviewing a number of key issues, including “the fee structure for anticipated professional services,” “prior and current professional activities, obligations, and relationships that might produce a conflict of interests,” “their areas of competence and the limits of their competence,” and “the known scientific bases and limitations of the methods and procedures that they employ and their qualifications to employ such methods and procedures” (Committee on Ethical Guidelines for Forensic Psychologists, 1991, p. 658). The American Psychological Association’s (APA, 2002) “Ethical Principles of Psychologists and Code of Conduct” mandates in Standard 4.06 (“Consultations”) that information obtained in this context be disclosed

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“only to the extent necessary to achieve the purposes of the consultation” (p. 1066). Similar to the initial contact requirements described in the “Specialty Guidelines for Forensic Psychologists,” when it comes to defining the parameters of the consultant’s involvement at the inception of the professional relationship for the edification and benefit of all parties, Standard 3.07 (“Third-Party Requests for Services”) asserts: When psychologists agree to provide services to a person or entity at the request of a third party, psychologists attempt to clarify at the outset of the service the nature of the relationship with all individuals or organizations involved. This clarification includes the role of the psychologist (e.g., therapist, consultant, diagnostician, or expert witness), an identification of who is the client, the probable uses of the services provided or the information obtained, and the fact that there may be limits to confidentiality. (p. 1065)

Not only do such guidelines and standards protect the psychologist trial consultant; they also inform counsel where the boundaries lie when he or she seeks to protect the client from compelled, premature, or inadvertent discovery of the consultant’s work product. The potential for damage is significant in both criminal and civil cases, but the procedural rules in each context are quite different, and they require attorneys and trial consultants to pay attention to varying aspects of the designation, timing, and documentation of each of the professional services rendered. As a general matter, trial consultants will do well to bear in mind that an admonition to “provide services . . . in areas only within the boundaries of their competence” (APA, 2002, p. 1063) applies as much to those criticizing expert work product as to those who generate such work product in the first place. In criminal contexts, if a defendant requests disclosure of the prosecution’s mental health evidence in federal cases—or in state cases bound by similar rules—then prosecutors may have the opportunity to review mental health evidence developed by the defendants, as long as “the defendant intends to use the item in the defendant’s case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness’s testimony” (Fed. R. Crim. P. 16(b)(1)(B)(ii)). Properly styling and limiting the trial consultant’s role from the outset should cure the prospect of him or her being characterized by prosecutors as a witness. But what of those situations in which defense counsel, having originally retained the psychologist to testify in court, later decides that this would not be in the defendant’s interest, and intends from that point to utilize the

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forensic psychologist as a consultant only? Most jurisdictions adhere to the reasoning expressed in U.S. ex rel. Edney v. Smith (1976), espousing a negative view of what might be characterized as “expert shopping,” and a minority of jurisdictions identify instead with the perspective expressed in U.S. v. Alvarez (1975, p. 1047), that defense counsel should be free to choose the most appropriate means of presenting a case “without the inhibition of creating a potential government witness.” In civil litigation in federal courts (and in states that employ similar rules), counsel is steered toward early decision making by the pretrial disclosure requirements that he or she reveal “the name and, if not previously provided, the address and telephone number of each witness, separately identifying those the party expects to be present and those it may call if the need arises” (Fed. R. Civ. P. 26(a)(3)(A)). Additionally, “a party may depose any person who has been identified as an expert whose opinions may be presented at trial” (Fed. R. Civ. P. 26(b)(4)). Most ominously, a showing of “substantial need” may suffice in some cases for the disclosure of materials “prepared in anticipation of litigation” by a range of individuals, including “the other party’s . . . consultant” (Fed. R. Civ. P. 26(b)(3)). Although “piercing the work product privilege may be rare” (Martindale, 2007, p. 290), Shuman (2007) analyzed how in recent years disclosure issues have cast a pall over some aspects of forensic consultation:

transpired that the complaint was precipitated by the complainants’ review of a Web site for disgruntled policyholders that directed that there are “other doctors you can hold responsible.” Regarding lawsuits, there has been a steady erosion of the principle of expert witness immunity (Binder, 2002; Greenberg, Shuman, Feldman, Middleton, & Ewing, 2007), particularly—and ironically—when the plaintiff is the party that retained the expert in the first place. For example, in Boyes-Bogie v. Horvitz (2001), it was held that “the doctrine of witness immunity does not bar a claim for negligence against an expert privately retained to provide litigation support services by the party who retained the expert” (p. 4). In those situations in which expert witness immunity is available, trial consultants will find it a difficult matter to assert that on the one hand they should be deemed “experts” for purposes of immunity, while on the other their work product is privileged due to a lack of such status. In any event, “psychiatric and psychological consultants may be transformed into testifying experts. At times this is by design; other times it is not” (Shuman, 2007, p. 318). Noting that “disputes arising from one party’s attempt to get its hands on trial consultant material of an adversary seem to occur with increasing frequency” (p. 582), Davis and Beisecker (1994) cautioned civil litigators to observe a number of precautions in this regard, including that:

To enjoy the excitement of strategic planning and its financial rewards, without the risk of being terrorized on crossexamination, many psychiatrists and psychologists, and/or the lawyers who seek their counsel, choose to have some serve only as a consulting expert operating behind the scenes, at what appears to be a safe distance from the witness stand. But appearances may lack verifiable meaning and distances can be deceptive. What is a safe distance from the witness stand for a consulting expert? (p. 301)

(1) trial consultants should be retained by a written agreement with counsel, not with the party to the litigation; (2) the retainer should contain an explicit confidentiality provision under which the consultant agrees to share the work product only with counsel and her designee; (3) to the extent possible, counsel should be present during all research or witness preparation sessions with the trial consultant; (4) separate engagements should be entered for research projects likely to generate work product that will be placed “in issue” and projects designed to be used in confidence for trial preparation; (5) unless absolutely necessary, trial consultants not be used to prepare witnesses who are neither clients nor retained experts; and (6) the trial consultant should explicitly agree and understand that any relevant facts about the dispute uncovered in the research process must be shared with trial counsel. (p. 635)

Such concerns no longer extend only to “trial consultation” per se; nor are the dangers confined to crossexamination. A very real threat to consultants of all disciplines is that of board complaints (for those who are licensed) and lawsuits from disgruntled litigants in civil as well as criminal matters. We recently participated in a case in which a psychologist consultant employed by a large insurance firm was the recipient of a board complaint—filed by a person he had never even met, on the grounds that his review and analysis of another clinician’s testing was tantamount to the rendering of a forensic opinion without a requisite evaluation. It further

Ratcliff (2002, p. 39) encouraged attorneys in civil cases to “consider making a motion to preclude discussion

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about non-testifying experts by the other side,” although “jurors, who have become increasingly sophisticated, seem to expect the participation of [consultants] in important cases.” The significance of such advice is underscored by the observation of Myers and Arena (2001, p. 386) that “many attorneys would prefer to contract out many of their trial duties,” with the result that “they tend to ignore their true target—the jury.” Stolle, Robbennolt, and Weiner (1996) investigated the impressions of both civil and criminal mock juries and found that “in terms of procedural fairness, the presence of a trial consultant for the defense had no effect on the perceived fairness of the procedures utilized when the prosecution or plaintiff had a consultant,” yet it also appeared that “when the prosecution or plaintiff did not have a consultant, the procedures were thought to be more fair when the defense also did not have a consultant than when the defense alone had a consultant” (p. 161). Apart from issues of discoverability, ethics, and juror attitudes, Wilkins (2004) has identified a number of practical considerations for the separation of consultant and expert roles in medical malpractice and other personal injury claims, citing reasons that are, arguably, applicable to criminal cases as well: Why not use the eventual testifying expert to do the review? Being able to identify what kind of expert will eventually be needed is unrealistic. Testifying often requires specialists whose rates for such an initial review are prohibitive, even in this high-stakes game. It is difficult to assess availability of the testifying expert when the time from initial review until trial can be years. What’s more, many specialist reviewers focus only on their own backyard. . . . Other specialist reviewers may tend to justify the actions of their specialty group peers and place the blame on other specialists in other fields. Only later, when experts in these other fields are hired to review, at an additional expense, is misdirection suspected. (p. 43)

Uniting each of these considerations is the critical obligation and pressing need to reach a working understanding about the roles, rights, and risks of all parties as soon as feasible. When the mutual expectations of trial attorneys and trial consultants are clearly stated, it is far more likely that those expectations can be realized to the satisfaction of all concerned. If certain options prove unavailable, certain barriers prove insurmountable, or certain risks prove unavoidable, both counsel and consultants are infinitely better served by reaching this conclusion at the inception of a professional relationship, rather than at its premature and stressful termination.

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SPECIALIZED APPLICATIONS The role of the trial consultant is played out in myriad civil and criminal contexts, including case analysis and development, report and file review, identifying and retaining expert witnesses, assisting in the development of direct and cross-examination, and preparing witnesses for trial. Case Analysis and Development Retaining a trial consultant for the limited purpose of addressing another expert’s work product, or solely in response to the surfacing of a previously defined socialscientific issue, may be all the litigation team requires in some cases. In other cases, however, it may rob the client of an opportunity to benefit from that consultant’s input during the crucial, formative stages of case analysis and development. The unique training and experience of the forensic psychologist (Packer & Borum, 2003) can prove invaluable in grappling with the initial rigors of complex litigation as a slew of rudimentary, experimental theories of the case are quickly designed, quickly analyzed, and for the most part just as quickly discarded in the search for a winning strategy. The most popular modality for such work—if the profusion of legal training seminars incorporating the topic is to be believed—is the process of “brainstorming” (Dugosh & Paulus, 2005; Litchfield, 2009). In its most basic form, brainstorming consists of a group of persons contributing as many ideas on a given topic as possible, with the only requisite qualification for such ideas being that they bear some demonstrable relationship to the legal matter at hand. More evolved brainstorming models, however, incorporate more complex strategies for individual and group goal setting (Coskun & Yilmaz, 2009). Variations have included “brainsketching,” whereby participants literally draw their ideas on large pieces of paper attached to the walls (van der Lugt, 2002), and “brainwriting,” whereby ideas are written on sheets of paper and passed around the room using existing concepts as stimuli (Heslin, 2009; Paulus & Yang, 2000). One brainstorming technique with particular applicability to trial consultation involves the use of “generators”: basic visual models used to plot every conceivable connection between different parties, locations, or other factors in a particular case. Once all of the interactions have been examined, the generator is then “rewired” by the gradual introduction of additional factors (Drogin, 1997). Although initial studies tended to downplay the productivity of face-to-face and other interactive processes, more

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recent research has identified promising results with the proper uniformity of modeling and training (Faure, 2004; Kramer, Fleming, & Mannis, 2001; Putman & Paulus, 2009). Brainstorming can also be facilitated, either in group settings or on an individual basis, by employing a ninecelled diagram that portrays the foci of a jurisprudent science–based inquiry in a “considerably more accessible” fashion (Drogin, 2004, p. 48; see Table 27.1). By this device, multiple aspects of the same forensic issue can be analyzed in terms of their positive, neutral, or negative potential effects on the case at hand. For example, the trial consultant might conclude from a defense perspective that the mental health science of risk assessment has been suitably established from a demographic research perspective, thus offering a potentially positive (jurisprudent) effect. He or she may also conclude that mental health practice, as represented by clinical and actuarial instruments employed in cases of individual testing, lacks sufficient predictive utility for reliance in a legal context, thus offering a potentially negative (antijurisprudent) result. Regarding mental health roles, the trial consultant might conclude that existing ethical and practice guidelines serve to raise cautions but also enable the use of ultimately inadequate measures, thus offering a potentially neutral result. Jurisprudent science analyses have been applied to such diverse forensic topics as adolescent cyberbullying (Drogin & Young, 2008), child advocacy (Grover, 2002), child maltreatment (Clark & Sprang, 2008), diminished capacity (Drogin & Marin, 2008), federal sentencing (Drogin & Howard, 2001), guardianship (Drogin, 2007a), ineffective assistance of counsel (Drogin, 2002a), institutional consultation (Gutheil, Drogin, & Friedman, 2007), malingering (Drogin, 2002b), personal injury litigation (Drogin, 2000b), restorative justice (Drogin, Howard, & Williams, 2003), sex offender risk assessment (Drogin, 2008b; Glaser, 2003), sufficiency of witness licensure (Drogin, 2008a), sufficiency of witness training (Kushner & Drogin, 2010), testamentary capacity (Marson, Huthwaite, & Hebert, 2004), trial competency (Drogin, 2004),

TABLE 27.1

Jurisprudent Science Analytical Model Mental Health Science

Positive (Jurisprudent) Neutral Negative (Antijurisprudent)

Mental Health Practice

Mental Health Roles

and waiver of Miranda rights (Fulero & Everington, 2004). A structured and structural review of each basic category of forensic mental health involvement in a legal issue not only serves to generate ideas in order to alter or supplement retaining counsel’s theory of the case, but can also foster an evolving, mutual understanding of crossdisciplinary perspectives on issues germane to forensic psychology as well as to relevant aspects of legal practice (Drogin, 2000c). Report and File Review The report and the clinician who writes it will, or at least should, receive close scrutiny during adversary negotiations or proceedings. A well-written report may obviate courtroom testimony. A poorly written report may become, in the hands of a skillful lawyer, an instrument to discredit and embarrass its author. (Melton, Petrila, Poythress, Slobogin, Lyons, & Otto, 2007, p. 583)

The forensic psychological literature abounds with advice when it comes to the writing of psychological and psychiatric reports in forensic and other contexts (Babitsky & Mangraviti, 2002; Donders, 2001; Heilbrun, Grisso, & Goldstein, 2009; Karson, 2005). However, such advice is unlikely to be established in court as authoritative, and trial consultants have learned (sometimes in frustration, and sometimes with relief) that the various ethics codes and specialty guidelines, while emphasizing such issues as confidentiality and data preservation, afford comparatively little enforceable attention to the specifics of report content and structure. This is not to suggest that clinical and forensic reports do not merit a thorough and detailed consultative review whenever they surface in a criminal or civil case. On the contrary, it is difficult to imagine how such an important source of direct and cross-examination inquiry could be ignored or afforded merely an offhand reading. In addition to those described in more detail ahead, the trial consultant may initially wish to review the following basic aspects of the report in question: 1. Do the test results in the report comport with the data the consultant has obtained and rescored? 2. Are assertions in the report concerning the underlying scientific literature consistent with the consultant’s understanding and with assertions the report’s author has made in other reports and on the witness stand? 3. Does the report claim to represent a unanimous perspective on the part of its author and other

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multidisciplinary team members, whose individual reports or memoranda may or may not be attached? 4. Does the report bear more than one signature, suggesting the possibility that a graduate trainee performed some or all of the testing and interviews informing reported results, with the additional possibility that the testifying clinician never actually examined or even met with the examinee? In criminal cases, there may be specific statutory guidance regarding issues that a criminal responsibility, trial competency, or other forensic report must address, for example, the defendant’s potential for restoration of competency (Hubbard, Zapf, & Ronan, 2003; Miller, 2003; Samuel & Michals, in press; Stafford, 2003) or a direct statement as to the presence or absence of an insanity defense, irrespective of the clinician’s reservations about addressing the “ultimate issue” (Drogin, 2000b; Ewing, 2003; Tippins & Wittman, 2005). If the testifying clinician fails to provide HIPAA or other arguably mandated confidentiality warnings, the consultant may attempt to gauge the potential impact of such omissions and determine whether warnings are truly required by statute (Connell & Koocher, 2003; Drogin, 2001a). Specific to civil practice, Fed. R. Civ. P. 26(a)(2)(B) mandates that reports in federal cases (or in state cases bound by similar rules) must include the following components: (1) a complete statement of all opinions the witness will express and the basis and reasons for them; (2) the facts or data considered by the witness in forming them; (3) any exhibits that will be used to summarize or support them; (4) the witness’s qualifications, including a list of all publications authored in the previous 10 years; (5) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (6) a statement of the compensation to be paid for the study and testimony in the case.

The trial consultant, sufficiently armed with notes and data from the evaluation in question, is in a position not only to identify the presence or absence of such components, but also to determine how relevant issues could or should have been addressed—and, under some circumstances, why they may not have been addressed. For example, failure to include reference to the testifying expert’s participation in a prior case may be relevant to more than an inadvertent lapse of compliance with

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federal standards. The listing of “compensation to be paid” sometimes leads to the opportunity for a review of the testifying expert’s actual bill, which may yield important insight into such practices as outsourcing of evaluative functions, minimal time spent on review of records, and overcharging for travel. Martindale (2007) has provided the following stepwise approach for consultants to employ in assessing “evaluator methodology” in child custody disputes: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11)

(12)

(13) (14)

procedural safeguards; interview techniques with the parents; interview techniques with the children; the evaluator’s observation of interpersonal interactions between parents; the evaluator’s observation of interpersonal interactions between children and parents; the evaluator’s use of pertinent documents; the evaluator’s use of collateral source information; the evaluator’s assessment of the reliability of collateral course information relied upon; steps taken to corroborate information relied upon; the manner in which assessment instruments were selected; the manner in which assessment instruments were administered and, in particular, adherence—or lack thereof—to manual instructions; the manner in which assessment dates have been interpreted and whether there are indications of reliance upon computer-generated interpretive reports; respect for role boundaries; and the creation, maintenance, and production of appropriate records. (p. 288)

Concerning the last of these, trial consultants may find it useful to note the substantial changes reflected in the most recent edition of the APA’s Record Keeping Guidelines 2007—in particular, that “in the absence of a superseding requirement, psychologists may consider retaining full records until 7 years after the last date of service delivery for adults or until 3 years after a minor reaches the age of majority, whichever is later” (p. 999). As Drogin, Connell, Foote, and Sturm (2010) have indicated that “this recommendation stands in striking contrast to the one found in original Record Keeping Guidelines” (p. 239). In that now-superseded document, psychologists were advised that, absent any superseding legal authority, “complete records are maintained for a minimum of 3 years after the last contact with the client,” that “records, or a summary, are then maintained for an additional 12 years before disposal,” and that “if the client is a minor, the record period is extended until

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3 years after the age of minority” (APA, 1993, p. 985). Of course, “despite the revised Record Keeping Guidelines’ description of various factors that psychologists are free to take into account, its ‘may consider’ paradigm means that no psychologist can be penalized for running afoul of it” (Drogin, Connell, Foote, & Sturm, 2010, p. 240). In many cases, the review of ancillary documents serves a broader purpose than merely offering the opportunity to support or diminish the impact of the testifying clinician’s report and opinions. File review as a discrete function is particularly relevant to civil cases, not only in assisting counsel to prevail during litigation, but also as a method for evaluating likely benefits and potential damages when legal action has yet to be initiated. Hadjistavropoulos and Bieling (2001) identified the following factors for reviewing files in the potential adjudication of mental health and chronic disability claims: (1) Has a determination of impairment been made by a specialist? Determinations of specialists may sometimes be given more weight than determinations made by a general practitioner. (2) Are detailed descriptions of symptoms and their severity and frequency available? The mere presence of symptoms does not imply disability. (3) Are prescribed or otherwise recommended treatments intensive and thoroughgoing? A person who needs to see a treatment provider once every four months may be more likely to function independently than someone who needs to see a treatment provider weekly. (4) Are there descriptions of and a discussion of the patient’s subjective complaints in chart notes? Severe complaints are more likely to be the focus of many clinical sessions than are less severe ones. (5) Has a general practitioner made a referral to a medical specialist or psychologist? Such a referral may be taken to suggest that the general practitioner regarded the claimant’s condition to be of sufficient severity or complexity to warrant specialized treatment by a highly skilled practitioner. (6) Are there comorbid conditions (e.g., substance abuse) that may affect impairment or disability? There is increasing focus on the issue of diagnostic specificity and comorbidity, especially when functioning and symptoms are chronic or have not responded to standard therapeutic modalities. (7) Is corroborating information available from significant others? Such information can often be found in some medical-psychological reports and may serve to support the validity of the claimant’s complaints.

(8) Has hospitalization occurred? In most instances, hospitalization implies a severe problem. (9) What is the nature of the job? The specific characteristics of the claimant’s occupation need to be taken into account because many patients have symptoms that would cause significant problems in some but not all occupations. (pp. 56–57)

File review gains particular importance when it becomes the only data-oriented mode of investigation available to the trial consultant. In some cases, for example, a “psychological autopsy” is commissioned, typically when a malpractice action is based on patient suicide or institutional neglect, or when the next of kin is seeking to assert damages for pain and suffering in the aftermath of a catastrophic accident (Cavanagh, Carson, Sharpe, & Lawrie, 2003; Dattilio & Sadoff, in press; Drogin & Barrett, 2003). The advent of the electronic medical record, electronic mail communication of patient information, and other forms of “digital evidence” (Drogin, 2000b, Lange & Nimsger, 2009) will often require the development of substantial computer technical skills in addition to clinical insight.

Identifying and Retaining the Expert Witness How then is the contemporary trial lawyer to identify, retain, and utilize a forensic psychological examiner, while ascertaining the strengths and weaknesses of experts employed by opposing counsel? (Drogin, 2001c, p. 17)

How the trial consultant can be of assistance in identifying and retaining expert witnesses depends on counsel’s own combination of experience and educability. On the one hand, is the attorney even aware that a mental health expert is required or may be useful for the case in question, and if so, does he or she have a sense of even the basic differences among the various mental health professions? On the other hand, is the attorney willing and able to devote the time and resources necessary to learn and apply relevant distinctions, and is the attorney sufficiently skilled to make the most of this newly acquired knowledge? To play a comprehensive and effective supporting role, the trial consultant will need to obtain a detailed overview of the current or contemplated litigation in which the eventually designated expert witness will become involved. It is not enough to claim to be able to put counsel in touch with “the best psychiatrist in Cleveland”; rather, the consultant must begin, from the outset, to hone his or her expert short-list or begin to develop a wish list of attributes

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for an expert as yet unidentified based on the unique requirements of the individual case. Attorneys should be queried about the background, parties, venue, theories, records, lawyers, judges, and other experts involved in the current matter, with the same breadth and depth as if consultants were planning on serving as the expert witness themselves. As all of this is occurring, the trial consultant with a clinical orientation will begin to speculate about the sort of expert witness whose personality and work style will most effectively mesh with those of counsel. Does the attorney seem prepared, focused, patient, insightful, and sensitive, or do some or all of these qualities appear to be lacking? To what extent would he or she be able to tolerate—or to hold his or her ground with—certain experts known to the consultant, or with a certain type of expert? Daicoff (2004) provided an extensive overview of lawyer personality styles, and studies of the personality styles of mental health professionals have long been a staple component of the professional psychotherapeutic literature (Hersoug, 2004; Smith, 2003). The trial consultant may also have the opportunity to gauge counsel’s ability to interact effectively with the person he or she is representing (Drogin, 2000a), leading to the generation of further hypotheses regarding the attorney–expert relationship. In some cases, retaining counsel will already have an expert, a list of experts, or a type of expert in mind, and will request that the trial consultant assist in narrowing the available options. The consultant should be well versed in the range of available credentialing bodies and their actual and alleged strengths and weaknesses. Does the organization in question require a rigorous review of credentials, a written qualifying examination, submission of acceptable redacted samples of professional practice, and a peer-conducted oral examination, or is it instead a “vanity board” for which membership requires little more than the submission of a fee (Dattilio & Sadoff, 2002; Heilbrun & Otto, 2003; Otto & Heilbrun, 2002)? When the trial consultant has identified—or confirmed the potential utility of—an expert witness, it is just as important for that witness and counsel to enter into a mutual contract as it is for the consultant to do so. Shuman (1997, section 6.12) identified key components of the “expert psychiatrist or psychologist assistance agreement,” addressing: (1) phases of the case in which assistance will be rendered; (2) methods and procedures for evaluations and/or reports; (3) anticipated location of testimony and parameters of preparation;

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(4) compensation, in terms of fee caps and hourly rates; (5) retainers and timing of subsequent payments; (6) guarantees (if any) of payment of the expert’s compensation by the client; (7) recognition of confidentiality and forms of waiver; (8) notification to the attorney of the expert’s progress with various phases of assistance; and, (9) bases for termination of the service contract.

Involved parties may consider adding to this list a clause reflecting any ongoing role of the trial consultant, particularly concerning such issues as review of work product, observation of examinations, or assistance in the selection of interview protocols and assessment instruments. The trial consultant can often provide invaluable assistance in translating and contextualizing the professional and ethical concerns of both the attorney and the expert witness as the contract is negotiated.

Assisting in the Development of Direct and Cross-Examination A good narrative has the total package: essential information, how it made a difference, the interrelated nature of the character of the defendant or plaintiff with respect to the key events, and a lucid style of presenting. . . . As you describe the nature of the person you have evaluated, explain in a way that helps along the understanding of what happened at the central event, how the person reacted, and why. (Brodsky, 2004, p. 26)

The influence of narrative theory is well established in the fields of both law (Amsterdam & Bruner, 2000; Bruner, 2002) and psychology (Herman, 2001). People communicate and learn by telling stories. Patients find meaning in the context of the events of a life lived in an unbroken procession of days, weeks, months, and years. The courtroom perceptions of jurors are substantially impacted by exposure to thousands of hours of filmed entertainment, often with explicitly legal themes (Rogers, Shuman, & Drogin, 2008). On direct examination, the storytelling skills of the mental health professional must, in most cases, be poured into a quite specific mold: that of a seemingly—but not actually—spontaneous conversation between the expert witness and the attorney (Small, 2004), with the latter responsible not only for knowing the tale as well as its narrator (L´aszl´o, 2008), but also for anticipating how malicious interruptions and demands for retelling will be employed in an attempt to pervert its meaning (Gutheil, 2009).

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The salient contribution of the trial consultant to the development of cross-examination is to serve as a combination of translator and tour guide. What intended and unintended meaning and effect might the same words have for those speaking the distinctly different languages of psychology and the law? Where might following the path of certain psychotherapeutic and assessment notions lead, and what traps must be avoided on the return journey? Critical to this function is the trial consultant’s successful grasp and incorporation of the “assumptive world” (Cantril, 1950; Frank & Frank, 1993) of each significant party to the litigation. The added advantage is an ability to predict the opposing side’s narrative as well—a circumstance of incalculable advantage to retaining counsel. The trial consultant will often encourage the expert witness to style his or her own report in a fashion that lays out a compelling tale of a competently performed mental health assessment, both for its narrative value and as an easily referenced aid for effective delivery of critical information on direct examination, despite the inevitable interruptions and calls for repetition. Of course, such a story must be supported by available data and must not represent an attempt to oversimplify or camouflage an opinion. As noted by Gutheil and Simon (2002), “the direct examination should optimally have a theme or ‘story’ to permit understanding by lay audiences” (p. 28). Jurors are quite likely to forgive being subjected to some unavoidable social scientific jargon, in return for the opportunity to accompany the testifying witness on a vicarious journey through a day in the life of a forensic evaluator. There is, of course, a corresponding danger of smugness and self-absorption when assuming the combined statuses of healer, truth-teller, and even entertainer. Brodsky (1991) cautions against adoption of the “star-witness fantasy” and cautions that “a witness’s self-centeredness about the importance of personal testimony can serve as blinders that interfere with clarity, self-assurance, and nondefensiveness” (p. 181). What shall be our first mode of attack? Shall we adopt the fatal method of those we see around us daily in the courts, and proceed to take the witness over the same story that he has already given our adversary, in the absurd hope that he is going to change it in the repetition, and not retell it with double effect upon the jury? Or shall we rather avoid carefully his original story, except insofar as is necessary to refer to it in order to point out its weak spots? (Wellman, 1936, p. 39)

Sometimes it is not the expert witness whose work underlies that of the “original story,” but rather that of

a student trainee. Maintaining that “cross-examination under such circumstances can take on a decidedly unpleasant aspect,” Drogin (2007b) provided the following example: Attorney: Doctor, you’ve referred repeatedly to this document as “my report.” Please tell the court, then, who “Mary Smith, B.A.” might be. Witness: Ms. Smith performed the gathering and scoring of data for this assessment. Attorney: I see . . . “Ms.” Smith . . . “B.A.” . . . this person does not have a doctoral degree, is that correct? Witness: Yes, it is. Attorney: And, for this reason—and perhaps others—she is not a licensed psychologist, right? Witness: Right. Attorney: Because, in fact, she is a student, correct? Witness: That’s correct. Attorney: Under your supervision, true? Witness: Yes. Attorney: Why? Witness: I beg your pardon? Attorney: Why is she supervised? When she already knows how to administer and score these tests as well as you do, in this capital murder case, with my client’s life literally at stake? Witness: Mary—Ms. Smith is an advanced student, and her reports are reviewed in every instance by licensed supervisors with several years’ worth of experience. Attorney: Her reports . . . I believe we established earlier that these are your reports, are they not? Witness: Ms. Smith generates an initial draft, which is painstakingly analyzed in supervision, and then countersigned when finalized. Attorney: I see . . . and every time she administers a test, you’ll be sitting in the examining room next to her, and you’ll be jumping in every time she makes a mistake—not, of course, that she’d ever make a mistake—and if she were to make an mistake, that’s always something you could correct on the spot, without any effects on my client’s test results, is that a fact? Witness: Advanced students do not require that level of supervision. I have every confidence in Ms. Smith’s ability to administer tests appropriately. Attorney: Right . . . and if she ever made a mistake in scoring a test after she gave it, there’s still no problem, because you rescore every test she gives, don’t you?

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Witness: Not in every case. Advanced students with sufficient supervised experience are capable of administering these tests on their own. Attorney: Then why is she still a student? When she can administer and score a test just as well as—strike that. Doctor, you feel confident, then, that your student administered, scored, and interpreted each item, of each portion, of each one these tests in an entirely appropriate, error-free, and unassailably professional manner . . . and that if there were any mistakes, your own painstaking review would have identified them? (pp. 251–252) Scoring errors by students—or supervisors—are one sort of problem, while “canned,” vaguely cast, and onesize-fits-all scoring programs are another. As presciently noted by Otto and Butcher (1995) when such programs were just beginning to take hold, “there is a risk that mental health professionals will simply rely on computergenerated test interpretations and not take the time to assess whether there are factors specific to the examinee or the examinee’s case which render certain aspects of the test interpretation inaccurate or inappropriate” (p. 88). Whatever the source of error:

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This vital function cannot be supplied for counsel by the consultant whose sole talent is the identification and characterization of scoring errors, superseded test measures, and poorly drafted reports (Babitsky & Mangravati, 2003; Campbell & Lorandos, 2001). To educate counsel concerning what should have been done, the consultant must know what should have been done. Judges and juries alike will soon tire of cross-examination strategies and underlying case theories that seek only to undermine credibility and impugn integrity (Imwinkelried, 2004). It is axiomatic that two sides can play this game. A way must be found to convey both the spirit and the technique of the competent mental health professional, and to encourage the fact finder to mourn that individual’s absence from the field at that crucial juncture when injury occurred or when the opportunity to diagnose or heal effectively was irreparably lost.

Preparing Witnesses for Trial

When assisting in the development of crossexamination, the trial consultant not only informs counsel of the full range of affirmative errors allegedly committed by the adverse expert witness, but also participates in cataloguing sins of omission:

Witness preparation, though sometimes misunderstood and consequently misapplied, is nonetheless a scientifically proven means of amplifying confidence while at the same time reducing nervousness and any accompanying testimonial errors and omissions (Boccaccini, 2002; Boccaccini, Gordon, & Brodsky, 2003). Small (2004, pp. 37–82) provided several basic pointers for prospective witnesses, exhorting them, among other things, to “take your time,” “always remember you are making a record,” “tell the truth,” “be relentlessly polite,” “don’t answer a question you don’t understand,” “if you don’t remember, say so,” “don’t guess,” and “keep it simple.” There is little in our own contemporary observations of courtroom testimony to suggest that such advice should not be proffered at least as vigorously to experienced mental health experts as it is to the greenest of lay witnesses. Additionally, of course, the trial consultant will want to develop a case-specific checklist of attributes and exercises for the testifying expert, including some combination of the following components:

In both civil and criminal cases, the best method of crossexamination of the opposing expert is not to discuss the things the expert has done, but the things he has not done. First show the importance of the things to be questioned on, and then show that they were not done. By doing so, the lawyer may cast doubt on the credibility of the expert’s ultimate judgment and conclusions. By placing the things not done into groups, the lawyer can more persuasively argue them to the jury. (Pozner & Dodd, 2004, § 25.15)

(1) Helpful: Is the anticipated testimony of actual value for the client’s case, or does it subtly undermine the case? (2) Admissible: Do experts understand the evidentiary rules, case law, and statutes as applied in their jurisdiction, and have they considered how their conclusions meet this standard? (3) Relevant: Is the anticipated testimony pertinent to matters really at issue in this case, or is it instead inflammatory, harassing, or speculative?

One looming “mistake” is problematic enough in the face of such cross-examination. Should there be more than one error discovered by the trial consultant, an effective strategy for the attorney is first to field the supervisor’s fulsome apologies and voluble assertions that the botched item is irrelevant, and then to ask whether there might, in fact, be any other problems with the protocol in question. “Not that you know of, Doctor? I’m sure the court will be glad to provide you with a few minutes to check and make absolutely sure.” After an appropriate interval, counsel then trots out the next error for discussion. (Drogin, 2007b, pp. 252–253)

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(4) Consistent: For example, do proffered diagnoses comport with the relevant diagnostic criteria? (5) Ethical: Are all aspects of the conduct of the examination, reporting, characterizations, conclusions, and recommendations consistent with the ethical code relevant to the expert’s particular profession? (6) Accurate: Have the professional report and supportive test data been scanned for typographical errors, mathematical accuracy, and potentially misleading language? (7) Authoritative: Have experts satisfactorily documented relevant degrees, credentials, and experience, with the type of supporting documentation that underscores the appropriateness of these particular professionals addressing the forensic issues at hand? (8) Supported: Are experts prepared to provide copies of, and to cite at trial, research and other literature supportive of their methodology and positions? (9) Comfortable: Are experts aware of and comfortable with the ramifications of stating their opinions, in light of the potential reactions of various professional and public interest communities? (10) Oriented: Do experts fully understand where they are to be, when they are to testify, how early they are to arrive, where they are to park, in what order the case is expected to proceed, and for how long the case is expected to continue? (Drogin, 2000b, pp. 308–309)

More generally, Gutheil (1998, pp. 56–58) identified the “Six P s of Trial Preparation”: preparation, planning, practice, pretrial conference, [avoiding] pitfalls, and presentation. The trial consultant can assist counsel in running pretrial drills for direct and cross-examination, in addition to reviewing written drafts or outlines of anticipated responses. Perhaps unnoticed among all of these technical, even mechanical considerations is the simple ingredient of shared experience and companionship. For the expert witness to run the gauntlet of pretrial preparation in the company of a likeminded colleague adds a compelling dimension of mutuality, respect, and even enjoyment to the process.

CONCLUSION Forensic psychologists have extended their influence to the full range of civil and criminal proceedings, offering testimony that draws on every research and practice aspect of contemporary mental health science. Driven in equal measure by the expressed needs of the legal system and their own desire to enhance the profile and integrity of their parent discipline, trial consultants are increasingly venturing beyond the witness role. It cannot be

overemphasized that one should not serve simultaneously as both a testifying witness and a consultant in the course of the same legal matter, and we are confident that as trial consultation becomes more popular with attorneys and psychologists alike, such role-specific ethical issues will be addressed in the professional literature with increasing specificity. We hope that in the future even more of our colleagues will be encouraged to engage in this fascinating and vital mode of service, both inspired by the contributions it can offer and mindful of the responsibility it entails.

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Author Index

Aamodt, M. G., 250 Aaronson, J., 130 Abeles, N., 303 Abidin, R., 149 Ablin, D. S., 588, 590, 592, 594 Abramovitch, R., 372, 391 Abrams, A. A., 295 Abrams, D., 635 Abran, K., 365 Achenbach, T. M., 162, 364, 585 Ackerman, J., 146 Ackerman, M. C., 50, 76 Ackerman, M. J., 50, 76, 82, 96, 111, 115, 124, 132 Ackil, J. K., 589 Acklin, M. W., 81, 82 Acquaviva, G. L., 309 Adamson, K., 123 Addams, J., 360 Adkins, J. A., 301 Adler, D., 206 Adler, F., 638 Adorno, T. W., 639 Ageton, S., 364 Ahern, D., 579 Ahern, E. C., 582 Ahern, L., 149 Ahrons, C. R., 110, 116 Aichele, G. J., 63 Ainsworth, M. D., 146, 150 Ajzen, I., 643 Akiskal, H. S., 184 Akman, D., 584 Akman, D. D., 501 Albert, D., 375 Albrecht, G., 249

Alexander, J., 498 Alexander, K. W., 589, 591, 594 Alexopoulos, G. S., 302 Allaire, J., 582 Allaire, J. C., 302 Allard-Dansereau, C., 584 Allen, L. M., 215, 536 Allen, S., 246 Alley, D., 594 Allison, L. K., 276 Allman, T. Y., 300 Allnutt, S. H., 82, 83, 86, 95 Alpert, J. L., 18, 583, 590 Alterman, A. I., 559 ´ Alvarez, P., 639 Ames, M., 184 Amir, J., 585 Amos, N. L., 498, 502 Amsterdam, A. G., 657 Amsterdam, J., 497 Amundson, J. K., 110, 115 Anda, R. F., 583 Anderer, S. J., 302 Anders, T. F., 585 Andersen, J. H., 279, 282 Andershed, H., 559, 560 Anderson, A. B., 635 Anderson, C., 295 Anderson, C. F., 189 Anderson, D., 542 Anderson, P. L., 278 Anderson, S. D., 433 Andreoli, A., 563 Andrews, B. P., 564 Andrews, D. A., 348, 363, 365, 367, 368, 375 665

Anfang, S. A., 218, 261, 305 Angoff, W. H., 281 Aniakudo, P., 235 Antecol, H., 231 Anthony, C., 496–498, 501, 502 Anthony, W. A., 272 Anumba, N. M., 481 Aos, S., 146 Appelbaum, A., 11, 546, 548 Appelbaum, K. L., 85, 94 Appelbaum, P., 325, 419, 543, 544, 548, 550 Appelbaum, P. S., 295, 298–301, 305, 323, 480, 488, 562 Apperson, L., 544 Applebaum, P., 498 Araji, S. K., 580 Arbisi, P. A., 189, 525, 536 Archer, R., 364 Archer, R. P., 148, 149, 162, 429 Ardolf, B. R., 519 Arena, M. P., 653 Arenovich, T., 343 Arenzon, L., 330 Arieti, S., 557 Aristeiguieta, C. A., 276 Arkes, H. R., 49 Armesto, J. C., 299, 301 Aronson, J., 228 Arrigo, B. A., 557 Arroyo, W., 375 Arthur, L., 123 Asbjørnsen, A., 206 Asgeirsdottir, B. B., 405 Ash, P., 435 Ashburn-Nardo, L., 228

666

Author Index

Ashendorf, L., 211, 300, 464 Ashmore, R. D., 236 Asmundsom, G., 207 Astner, K., 536 Atkinson, J., 107 Atlis, M. M., 536 Aubry, A. S., 390 Augemeri, L. K., 365 Augusti, E. M., 594 Aumiller, G. S., 246 Austin, J., 498 Austin, W. G., 46, 114, 115, 121, 123, 124, 130 Avelenda, S. M., 262 Averbuck, D., 544 Axelrod, B., 211, 536 Axelrod, B. N., 531 Ayuso-Mateos, J. L., 206 Azam, O. A., 228 Azar, S. T., 144, 149, 153, 160, 161 Azrin, R., 530, 532 Azur, S. T., 112 Babcock, S., 506 Babitsky, S., 654, 659 Back, C., 530 Baddeley, A. D., 625 Baer, R. A., 43 Baerger, D. R., 46, 151, 154 Bagby, M., 427 Bagby, R., 423–425 Bagby, R. M., 189, 427, 525, 526 Bagenstos, S. R., 183 Bahrick, L., 591, 594 Bailey, J. M., 335 Bailey, N., 230, 231, 241 Baird, A., 303, 392 Baker, N. L., 227, 230, 231, 235 Baker, W. J., 208, 217, 533, 536 Baker-Ward, L., 594 Bakker, E., 585 Baldus, D. C., 635 Baldwin, M. L., 272, 276 Baltzley, D., 250 Bammer, G., 582 Bancroft, L., 130 Banich, M., 372 Bank, S., 18 Bank, S. C., 458 Banks, S., 11, 546, 548, 562

Baranoski, M., 94, 621 Barbaree, H. E., 336, 339, 341–344, 348 Barber, K., 290 Barbieri, M. K., 603 Barcus, E. H., 114, 115, 118 Bard, B., 496, 507 Bard, D., 147 Bard, J. S., 309 Bargh, J. A., 228 Barglow, J., 375 Barkley, R., 365 Barkoff, A., 389, 392 Barkowitz, P., 625 Barlow, A., 531 Barnard, G., 425, 433 Barnes, H., 366 Barnett, J. E., 56, 58 Barnoski, R., 333 Barnum, R., 112, 153, 366, 371, 372 Baron, I. S., 211 Baron, J., 49 Barreto, M., 231 Barrett, C. L., 295, 298, 302, 304, 305, 656 Barrett, C. S., 8 Barry, C., 368 Bartel, P., 365, 368, 375 Barth, J., 211 Barth, J. T., 91, 527 Barth, R. P., 144 Bartol, A. M., 3 Bartol, C. R., 3 Bascoe, S. M., 130 Basena, M., 144, 580, 582 Bass, A. E., 532 Bastounis, M., 639 Batchelor, E. S., 422, 425 Bates, A. T., 569 Bates, C. A., 236, 242 Bathurst, K., 118 Batra, L., 232 Batterman-Faunce, J. M., 604, 605 Battistoni, L., 585 Bauer, C. J., 340 Bauer, G., 596 Bauer, L., 531 Bauer, P. J., 589, 592 Baumrind, D., 147 Baur, K., 586

Bavolek, S. J., 149 Bean, R., 583 Beattie, J., 49 Beauchamp, T. L., 53 Beauregard, E., 582 Beazley, J., 259 Beck, A. L., 184 Beck, A. T., 162, 214 Beck, J. C., 480 Beck, J. G., 195 Becker, J. V., 335, 338, 346 Beckham, C. M., 639 Beckham, J., 506 Bedau, H. A., 402, 405, 501 Bedoya, L., 366 Beggs, S. M., 340 B`egue, L., 639 Behnke, S., 52 Beilke, R. L., 586 Beisecker, T. D., 652 Beitchman, J. H., 584 Belfi, B., 521 Bell, C., 271, 279 Bell, D., 21 Bell, L. C., 115 Bell, M., 593 Bellamy, R., 534 Belli, R. F., 621 Belongia, L., 273 Belsky, J., 110, 147 Ben-Aron, M., 496 Bender, S. D., 189, 521, 531, 533 Benedek, E. P., 458 Benjamin, G. A. H., 44, 52 Benjet, C. L., 160 Bennett, J., 207 Bennett, S., 279 Ben-Porath, Y., 215, 364 Ben-Porath, Y. S., 148, 149, 162, 189, 214, 250, 254–258, 288, 421, 427, 429, 524, 525, 536, 564, 565 Benson, T. B., 189 Benz, C., 347 Bercaw, S., 458 Berdahl, J. L., 232, 234–236 Berg, J. W., 298 Bergandi, T. A., 583 Berge, G., 77, 80, 423, 430 Berger, D. E., 638

Author Index

Berger, P., 563 Berglund, P., 184 Bergman, M. E., 230, 231, 236 Bergmann, B. C., 227 Berk, L. E., 146 Berliner, L., 333, 334, 336, 339–341, 348, 579, 580, 583–585, 598, 603 Berman, G. L., 23 Berman, L., 552, 553 Berman, L. M., 419 Berman, N. G., 530 Bernard-Bonnin, A.-C., 584 Berner, J. G., 253 Bernier, A., 146 Bernstein, D., 574 Bernstein, D. M., 623 Berrick, J. D., 144 Berrios, G. E., 557 Berry, D., 520, 530, 533, 536 Berry, D. T., 535 Berry, D. T. R., 43, 524, 525, 530, 535, 536 Bersoff, D. N., 17, 22, 23, 26, 55 Berven, H. M., 282 Berven, N. L., 290 Beszterczey, S., 508 Beyer, M., 156 Bianchini, K., 535 Bianchini, K. J., 530, 535 Bidrose, S., 588, 590, 592, 594 Biehl, J. L., 151 Bieling, P., 222, 656 Biernat, M., 228 Biffl, E., 297 Billings, F. J., 621, 622 Binder, L. M., 528, 531 Binder, R., 543, 552, 553 Binder, R. L., 325, 652 Binks, P. G., 532 Birch, R. A., 599 Birnbaum, H., 184 Birt, A., 340 Bishop, S. J., 145 Blackburn, R., 564 Blackshaw, L., 341, 348 Blackwood, H., 374 Blackwood, H. L., 386, 391–393, 397 Blair, K. S., 569

Blair, R. J. R., 561, 569 Blake, P., 496 Blanchard, E. B., 184, 186, 187, 191, 195 Blanchard, R., 347 Blanck, P. D., 279, 282 Blanton, J., 648 Blau, H. L., 250 Blau, T. H., 246 Blechman, E., 368 Blehar, M., 146, 150 Blois, W. O., 624 Bloom, H., 255 Bloom, L. J., 50, 76 Blue, L. A., 635, 636 Bluestone, H., 507 Blum, N., 287 Blume, J. H., 497, 506 Blumenthal, S., 545 Boals, A., 186 Boat, B., 595 Boat, B. W., 596 Boccaccini, M., 525 Boccaccini, M. T., 21, 29, 342, 343, 412, 427, 573, 635, 639, 648, 659 Bocchino, A. J., 650 Bodin, H. S., 636 Bodin, S., 368 Bodmer-Turner, J., 345 Boehm, V. R., 636, 640 Boer, D. P., 339, 340, 342, 343, 566 Boettcher, A. C., 530 Bogie, M. A., 108 Bohan, J. S., 227 Bomba, W., 621 Bonnie, R., 371, 372, 412, 413, 418, 419, 423, 424, 428, 429, 431, 433, 434 Bonnie, R. J., 10, 80, 412, 419, 423, 456, 487, 489, 490, 506 Bonta, J., 340, 348 Bonta, J. F., 367 Book, A. S., 559 Boone, K., 218, 530 Boone, K. B., 522, 528–532, 535 Borchard, E. M., 401 Borgida, E., 638 Borkowska, A., 206 Bornstein, B. H., 18, 337, 625, 638

667

Bornstein, G. K., 601 Bortolus, D., 649 Bortz, J., 530 Borum, R., 19, 49, 77, 78, 82, 90, 189, 190, 246, 250, 364, 365, 367, 368, 375, 545, 653 Borus, J., 563 Bosley, J. T., 350 Bottoms, B., 593 Bottoms, B. B., 594, 599 Bottoms, B. L., 594, 638 Boucher, R., 545 Bourgeois, M., 640 Bourgon, G., 348 Bourke, M. L., 346, 347 Bovin, M. J., 186 Bow, J. N., 50, 54, 76, 79, 90, 108, 109, 115, 130, 132 Bowden, S., 530 Bower, E. H., 301 Bowers, W. J., 497 Bowes-Sperry, L., 236, 242 Bowlby, J., 146 Bowman, Q., 502, 552 Boxer, P., 130 Boyer, S. N., 375 Boyle, P. A., 44 Bracker, J. S., 289 Bradfield, A. L., 619, 624, 625 Bradford, J. M. W., 349 Bradley, M. M., 569 Bradwejn, J., 189 Brady, J. P., 531 Brady, L., 250 Brady, L. M., 282 Braginaski, Y., 396 Braginsky, B., 396 Braginsky, B. M., 467 Braginsky, D. D., 467 Brainerd, C. J., 592, 621, 623 Brakel, S. J., 332, 333 Branaman, T. F., 344 Brandenburg, C. A., 422 Brandon, R., 401 Brault, M. W., 272 Braun, K. A., 624 Brauner, S., 635 Braver, S. L., 123 Bray, R. M., 640 Brejle, T., 433

668

Author Index

Brekke, N., 638 Bremner, J. D., 590 Brennan, A., 535 Breslau, N., 183 Brewer, D., 368, 493 Brewer, N., 12 Brewer, T. W., 638 Brewin, C., 207 Brewster, J., 246, 250 Bridges, A. J., 579 Briere, J., 162, 189, 214, 583 Briggs, M., 593 Brigham, J. C., 625, 638 Brill, R. M., 530 Brilleslijper-Kater, S. N., 587 Brimacombe, C. A. E., 18, 617 Brink, J., 569 Brinkley, C., 431 Broadhurst, D. D., 582 Brock, P., 640 Broderick, J., 186, 195 Brodsky, A., 210 Brodsky, S., 18, 370, 489, 490, 506 Brodsky, S. L., 44, 165, 196, 374, 648, 650, 651, 657–659 Broffitt, B., 635 Bromet, E., 192, 195 Bromley, D. L., 459 Brondolo, E., 236, 239 Bronfenbrenner, U., 110, 147, 163 Brooks, A., 313 Brooks, D., 144 Brooks, R., 186 Broughton, D., 126, 586 Brower, J., 246 Brown, D., 594, 598, 599, 602, 649 Brown, D. A., 596 Brown, D. R., 435 Brown, E., 625 Brown, E. J., 584 Brown, G. K., 162 Brown, J., 145 Brown, L. S., 18 Brown, T. A., 184, 185 Brubacher, S. P., 601 Bruce, C., 364 Bruch, C. S., 128 Bruck, M., 18, 126, 579, 581, 592–596, 598, 599 Brunello, N., 186

Bruner, J., 657 Brunet, A., 189 Bryant, F. B., 536 Bryant, R. A., 186, 187 Buchanan, N. T., 234–236 Buchheim, P., 563 Buckhalt, J. A., 585, 586 Buckley, J. P., 390, 403, 404 Buckley, T. C., 187 Buckner, C., 496 Bucolo, D., 638 Budd, E. C., 404 Budd, E. D., 404 Budd, K., 7, 363 Budd, K. S., 79, 82, 140, 149–156, 159, 163 Budhani, S., 569 Buehler, J., 522, 529 Buffington–Vollum, J., 496–498, 501, 502 Buffington-Vollum, J. K., 101, 108, 115, 148, 149, 429, 498 Bufkin, J. L., 496 Bull Kovera, M., 12 Bumby, K. M., 332, 338, 347 Burch, M. M., 592 Burd, M., 431 Burg, R., 346 Burgess, A. W., 335, 338, 341, 344, 348 Burgess, C. A., 624 Burgess, M. F., 624 Burgess, P. M., 191 Burgio, L. D., 302 Burke, M. J., 228 Burkhardt, B., 189 Burkhardt, B. B., 189 Burl, J., 21, 29, 362 Burnham, M. M., 585 Burris, S., 279 Bursztajn, H. J., 486, 487, 494, 496 Burton, C. L., 302 Burton, R., 530 Burton, R. A., 53 Bury, A. S., 189 Busch, K. A., 323, 324 Bush, N., 594 Bush, S. S., 188, 190, 527 Buss, A. H., 643 Bussiere, M. T., 336, 338–342, 348

Butcher, J., 364 Butcher, J. N., 51, 148, 162, 214, 281, 288, 427, 429, 536, 564, 659 Butler, B., 639 Butler, B. M., 639, 641 Butler, S. G., 596 Button, S., 375 Bylsma, W. H., 236 Byrne, D., 586 Cacciola, J. S., 559 Caillouet, B., 635, 639 Calfee, B. E., 277 Callaghan, J., 422 Callahan, L. A., 451, 453, 455–458 Calloway, G., 102 Campagna, V., 118 Camparo, L., 599, 600 Campbell, D., 549 Campbell, E., 335, 570 Campbell, J., 151 Campbell, L. R., 273 Campbell, T., 659 Campbell, T. C., 55 Campbell, T. W., 343 Candel, I., 621 Canter, R., 364 Cantor, J. M., 347 Cantrell, M. T., 631 Cantril, H., 658 Canyock, E. M., 218, 528 Cao, F., 232 Caperton, J., 343 Caplan, R. D., 289 Caporino, N., 375 Caputo, R. R., 390 Carbonell, J., 433, 434 Carleton, R. A., 151 Carlin, M., 532 Carling, P. J., 271, 279, 280 Carlsmith, K., 542 Carnes, C. N., 584 Carpenter, J., 364, 365 Carr, G. D., 149 Carrigan, 344 Carson, A. J., 656 Carter, B. D., 586 Carter, C., 593 Carter, G., 550

Author Index

Carter, M., 531 Cartwright, G. F., 127 Carver, C. S., 643 Cash, M. H., 271 Cashmore, J., 110, 117 Cassell, C. K., 401 Cassidy, J., 146 Castelli, P., 604 Castillo, D. T., 189 Catalano, R. F., 368, 493 Cauffman, E., 366, 371, 372, 374, 375, 393, 560 Cavanagh, J. T., 656 Cavanaugh, J. L., 332, 333, 349, 467 Cea, C. D., 299 Ceci, S., 589, 592, 595, 596 Ceci, S. J., 18, 126, 579, 581, 590, 592–596, 598, 599, 603 Chae, Y., 587–589, 594 Chaffin, M., 147 Chaiken, M. R., 493 Chakhssia, F., 574 Chamberlin, J., 649 Champine, P., 296 Champion, D., 545 Chan, W. S., 297 Chang, H., 206 Chang, L., 148, 530–532 Channabasavanna, S. M., 563 Chao, R., 147 Chaplin, W. F., 635, 639 Chaplow, D., 82, 83, 86, 95 Chapman, J. F., 375 Chapman, J. P., 50 Chapman, L. J., 50 Charlton, K., 117 Charney, D. S., 590 Chauhan, M., 412, 433 Chauhan, P., 456 Cheeseman, K., 485 Chen, C., 621 Chen, J., 643 Chen, K., 584 Chen, M., 228 Chibnall, J. T., 250, 256 Childress, J. F., 53 Chiles, J., 324 Chiodo, A. L., 49 Chiu, W. T., 184, 185

Choate, P. A., 459 Chou, S. P., 559, 561 Christie, R., 13, 637 Christy, A., 79, 81, 82, 90 Chung, S., 341 Cibula, J. E., 535 Cicchetti, D., 130, 146, 590 Ciccone, J. R., 301 Cicourel, A., 359 Ciota, M. A., 535 Cirincione, C., 451, 453, 455, 457, 458 Cisternas, M. G., 272 Citera, M., 282 Clare, I., 389, 392 Clare, I. C. H., 393, 405 Clark, D. A., 561, 562, 571 Clark, D. C., 324 Clark, D. M., 190 Clark, J., 151, 152, 363, 635, 639 Clark, J. A., 530, 535 Clark, J. J., 654 Clark, J. R., 7, 140 Clark, S. E., 625 Clarke, S. B., 192 Claycomb, L., 599 Cleckley, H., 339, 455, 557, 559 Clements, C., 496 Clements, C. B., 23 Clingerman, S., 532 Cloud, M., 389, 392 Cloutied, P., 584 Clubb, P., 594 Clubb, P. A., 594 Coan, J. A., 621, 622 Coates, D. L., 584 Cobb, S., 289 Cobb-Clark, D., 231 Cochran, C. C., 230, 231 Cochrane, R., 412, 420, 431 Cochrane, R. E., 249, 456 Cocozza, J., 420, 545 Cocozza, J. J., 364, 365 Cohen, J. A., 146, 147, 584 Cohen, L. L., 236 Cohen, P., 145 Cohen, Y., 207 Cohn, E. S., 638 Cohn, N., 423, 430 Cohn, N. B., 77, 80

669

Coid, J., 562, 573 Coker, K., 535 Cole, C. M., 349 Coles, F. S., 229 Colledge, A. L., 281 Collier, K., 207 Collins, S., 76, 78, 79, 82, 83, 88, 94, 288 Collinsworth, L. L., 231, 235 Colliver, J. D., 561 Colman, P., 118 Colman, R., 13, 637 Colom, F., 206 Colwell, L., 412, 433 Colwell, L. H., 373, 374, 391–393 Comfort, J. C., 638, 639, 641 Compton, W. M., 561 Conder, R. L., 215 Condie, L. O., 153, 159, 391–394 Condit, D. C., 218, 528 Conley, C., 151 Connell, M., 7, 126, 140, 299, 300, 363, 581, 655, 656 Connell, M. A., 188, 190 Conner, K., 297 Conners, C. K., 162 Conners, N. A., 149 Connor, D. F., 375 Connor, E., 118 Conover, E., 530 Conrey, F. R., 228 Conroy, M. A., 9, 19, 21, 29, 76, 79, 82, 83, 93, 95, 334–337, 342–345, 350, 499, 502 Constantinou, M., 211, 300, 464 Contrada, R. J., 236 Conway, K. P., 561 Conway, M. A., 588 Conwell, Y., 297 Cook, N., 375 Cook, T., 549 Cook, T. G., 559 Cooke, D. J., 347, 389, 392, 557, 558, 560–562, 571, 573 Cooke, G., 5, 429 Cook-Stanhope, Hon. L., 145 Cooney, G., 583, 584 Coons, D. J., 467 Cooper, A., 346 Cooper, D., 412

670

Author Index

Cooper, H., 117 Cooper, V. G., 371, 374, 393 Corbitt, E., 498 Corbitt, E. M., 559 Cordon, I., 589, 604 Corey, D. M., 246–249, 253, 254, 257–261, 263, 265, 266 Cormier, C., 545, 547, 549, 550 Cormier, C. A., 339, 341–343, 498 Cornwell, J. K., 336 Corrado, R. R., 364 Cortina, J. M., 250 Cortina, L. M., 230, 231, 234, 236 Corwin, D. L., 587 Cosentino, C. E., 583 Cosgrove, J., 148 Coskun, H., 653 Cosper, C. A., 633 Costa, G., 281 Costa, P. T., 560, 639 Costanzo, M., 497 Costanzo, M. A., 638 Costanzo, S., 497 Costello, R. M., 250 Cothern, L., 368, 493 Cott, M. A., 584 Cotter, E. M., 302 Coulter, M., 145, 153 Coups, E., 236 Courage, M. L., 588, 590 Courtney, J. C., 42, 43, 91 Courtney, M. E., 144 Courtois, C. A., 18 Cowan, C. L., 633, 639 Cox, D. N., 547, 548, 557, 563, 566, 567 Cox, D. R., 215, 246 Cragar, D. E., 535 Craig, R., 496 Cramer, R., 553 Cramer, R. J., 648 Crano, W. D., 49 Craw, S., 588, 590, 592, 594 Crayton, J., 591 Creamer, M., 186 Crim, D., 333, 334 Crist, P. A. H., 279 Crittenden, P. M., 146 Crocker, C. B., 633, 634, 640 Croghan, T. W., 277–279, 282

Cronin, M. E., 278 Crooks, C. V., 130, 145, 159 Crooks, R., 586 Crosby, R. D., 530, 532 Crouter, A. C., 110 Crowe, S. F., 302 Cruise, K., 375 Cruise, K. R., 373, 374, 387, 388, 391–393, 519, 560 Cruz-Katz, S., 375 Cue, B., 151 Cue, B. J. H., 149 Culhane, K. A., 392 Cullen, M. J., 250 Cumella, E., 536 Cummings, E. M., 130 Cummings, M. E., 585, 586 Cuneo, D., 433 Cunningham, J. A., 375 Cunningham, M. D., 340, 449, 455, 477, 488, 489, 491–503, 505, 506, 508 Cunningham, M. R., 253 Curtin, J. J., 569 Curtis, K. L., 535 Curwen, T., 346, 369 Cutler, B., 190 Cutler, B. L., 625, 626, 631, 632, 639–643, 648 Cutress, L. J., 150, 151, 160, 161 Cuttler, M., 246 Cuttler, M. J., 246, 255 DaCosta, G. A., 584 Dages, K. D., 253 Daggett, D., 429 Dahl, R. E., 586 Dahlberg, L. L., 145 Dahlstrom, L., 564 Dahlstrom, W. G., 148, 162, 214, 427 Daicoff, S., 657 Daignault, I. V., 584 Dailey, C. A., 49 Dalager, N., 236 Dale, M. D., 46, 101–106, 114, 115 Dalessandro, M., 333 D’Amico, E., 393 Dantzker, M. L., 254 Daoust, S., 493, 496

Darling, N., 147, 148 Darrow, C., 636 D’Attilio, J., 532 Dattilio, F. M., 29, 296, 297, 657 Datz, A. T., 335 Davidson, J. R. T., 186 Davidson, L., 324 Davies, C., 401 Davies, G. M., 18, 602, 625 Davies, M., 563 Davies, M. F., 49 Davies, M. G., 590 Davies, P. L., 392 Davies, P. T., 130 Davies, S., 586 Davis, A. D., 43 Davis, C. G., 191 Davis, D., 590, 621, 630 Davis, D. L., 435 Davis, G. C., 183 Davis, K., 21, 29 Davis, M. W., 296 Davis, P., 480 Davis, R., 148, 162, 214, 427, 523, 564, 565 Davis, R. D., 249, 250, 253, 258, 259, 261, 265 Davis, S., 412, 591, 594 Davis, S. A., 594, 599 Davis, S. D., 652 Davis, S. L., 591 Davison, H. K., 228 Dawes, R., 548 Dawes, R. M., 597 Dawkins, M., 259 Dawson, D. A., 559, 561 Day, D. M., 348 Deahl, M., 186 Dean, A. C., 530 Dean, R. S., 530, 532 Deaux, K., 228, 235, 238 Deblinger, E., 584 DeBow, D. M., 38–40, 44 DeClue, G., 343, 394, 405, 406 DeCoster, J., 562 Deere, D., 149 Deffenbacher, K., 625 Deffenbacher, K. A., 625 Deitchman, M., 506 Dekleva, K. B., 495

Author Index

De la Fuente, E I., 640 De la Fuente, E. I., 639 De la Fuente, L., 639, 640 de Laosa, M., 422, 425 del Carmen, R. V., 485 Delis, D. C., 532, 533 De Lisa, A., 640–643 DellaPietra, L., 530 Delmonico, D., 346 DeLoache, J. S., 595 DeLuca, R. V., 345 Demakis, G. J., 536 DeMatteo, D., 21, 29, 163, 189, 192, 193, 287, 362, 368, 370, 375, 394, 481, 505, 569, 570 Dembo, R., 368 DeMier, R., 431 Deming, A., 334, 344 Dempsey, J., 636 Denney, R. L., 188, 190, 519, 531, 536 Dennis, M. L., 366 Denno, D., 452 Denno, D. W., 569 DePaulo, B. M., 117 Derefinko, K. J., 562 Derogatis, L. R., 162, 214 de Ruiter, C., 561, 574 Derzon, J., 368 Desforges, D., 498 De Simone, J., 276 DeSouza, E. R., 290 Detrick, P., 250, 256 Dettmer, E. L., 324 Devine, P. G., 626 Dexter, H. R., 642 Diamond, J. M., 162 Diamond, S. S., 632, 636–638, 642 DiCataldo, F., 364, 367 Dickens, S., 427 Dickens, S. E., 429, 526 Dickey, R., 496 Dickinson, J. J., 596, 648 Diekman, A. B., 228 Dies, R. R., 119 Dietz, P., 412, 433 Dijksterhuis, A., 228 Dikmen, S., 207 Dillehay, R. C., 632, 633, 638–641 Dillon, C., 432

Dimitrius, J., 636 Dimsdale, J. E., 274 Dindo, L., 561 Dinkins, J. P., 42, 43 Dionysus, K. E., 536 Dix, G. E., 498 Dixon, E. B., 111, 113, 114 Dixon, J. F., 584 Dixon, T., 296 Djanogly, S. E., 190, 208, 216, 217 D’Mello, M., 593 Dobbin, S., 585 Doctor, J., 207 Dodd, D. E., 290 Dodd, R. J., 650, 659 Dodge, K. A., 148 Dodge, M., 235 Doherty, M. L., 250 Doll, E. A., 375 Dollmetsch, R., 467 Dolores, J. C., 552 Donders, J., 654 Dong, M., 583 Dong, Q., 621 Donnay, W., 333 Donohue, B., 346 Dorado, J., 593, 600 Doran, A., 621, 625 Dorfman, W. I., 189 Dorland, M., 497 Dorr, D., 523 Dostal, C., 599 Dougherty, E. J., 392 Douglas, A. C., 393 Douglas, K., 498, 545, 546 Douglas, K. S., 79, 81, 82, 90, 172, 192, 193, 195, 303, 369, 550, 560, 562, 566 Douglas, T. R., 374 Dovidio, J. F., 228 Doyle, J. M., 620 Dozier, M., 146 Drachman, D., 330 Drago Piechowski, L., 8 Drake, A., 207 Drake, E. B., 531 Drasgow, F., 230, 231, 233–236, 290 Drasin, R., 582 Drees, S. A., 250

671

Dressler, J., 441 Driver, E. D., 401 Drizin, S., 10 Drizin, S. A., 18, 401–405 Drob, S. L., 533 Droegemuller, W., 140, 144 Drogin, E. Y., 8, 295, 297, 298, 300–302, 304, 305, 315, 317, 391–393, 448, 505, 648–650, 653–660 Drozd, L., 130 Drozd, L. M., 129, 130 Drugge, J., 340 Drukteinis, A. M., 218, 258, 263–266, 305 Drzewiecki, T., 599 Dube, S. R., 583 Dubois, C. L. Z., 242 Duda, J., 372 Duda, R., 110, 115 Dugosh, K. L., 653 Duka, T., 207 Dulcan, M., 365 Duncan, S., 427, 524 Dunn, C., 426, 429, 431 Dunn, J. T., 216 Dunn, L. B., 303 Dunne, J., 127 Dunning, D., 43, 626 Dusanka, V., 207 Dutton, D. G., 130 Dutton, W. A., 344 Duval, S., 643 Duwe, G., 333, 348 Dvoskin, J., 7, 509 Dvoskin, J. A., 172, 192, 193, 195 Dwyer, J., 12, 402, 617, 619, 624 Dyer, F. J., 153, 156 Dysart, J. E., 620, 625 Dziuba-Leatherman, J., 584 Eagly, A. H., 228 Eakin, D. E., 189 Eaton, D. K., 586 Eaton, L., 108 Eaves, D., 369, 372, 422, 424, 451, 498, 546 Ebling, R., 102, 123 Edelstein, B., 299, 301, 302

672

Author Index

Edelstein, R. S., 587–589, 591, 592, 594 Edens, J., 372, 496–498, 501, 502 Edens, J. F., 101, 108, 112, 114, 115, 118, 119, 142, 149, 153, 155, 163, 368, 498, 521, 525, 560, 562, 566, 569, 570, 573 Edens, R., 423, 424, 428, 429 Edison, S. C., 588 Edwards, C., 530 Edwards, M. C., 149 Edwards, R., 273 Edwards, W., 9, 477 Efendov, A. A., 189 Egeland, J., 206 Egeth, J. D., 236 Ehlers, A., 190 Ehrlinger, J., 43 Eich, E., 590 Eidlitz-Markus, T., 585 Eidman, M., 123, 124 Eisen, M. L., 591, 594 Eisenberg, M., 423, 424, 428, 429 Eke, A., 347 Eke, A. W., 347 Ekland-Olson, S., 497, 499, 501 Ekman, P., 117, 404, 592 Elbert, T., 347 Elbogen, E. B., 295 Elhai, J. D., 189, 375 Eliasberg, W. G., 295 Eliason, M., 187 Elkins, J. R., 310 Elkovitch, N., 346 Ellemers, N., 231 Elliott, A. N., 584 Elliott, D., 364, 368 Ellis, H. D., 625 Ellis, M., 371, 560 Ellis, R., 624 Ellsworth, P. C., 633, 638, 639 Elman, N., 29 Elrod, L. D., 101–107, 114, 115, 123 El-Sheikh, M., 585, 586 Elwork, A., 76, 435 Emerick, R. L., 344 Emery, R., 582 Emery, R. E., 102, 105, 123, 125 Emory, L. E., 349

Emrich, B., 13, 637 Endrass, J., 347 English, K., 344, 349 English, L. T., 215, 287, 536 Ennis, B., 541 Ensom, R., 584 Epperson, D. L., 339, 343 Epstein, M., 566, 595 Epstein, S., 643 Erard, R. E., 102 Erdos, K., 242 Erickson, S. K., 314 Ericson, K., 431 Ericson, K. L., 404 Esplin, P., 597, 598, 601, 602 Esplin, P. W., 601, 602 Esses, V. M., 404 Eth, S., 218, 480, 489, 490, 497 Etherton, J. L., 535 Evanczuk, K., 544 Evankovich, K., 392 Evans, A., 542 Evans, A. D., 599 Evans, J., 640 Evans, J. R., 496, 507 Everington, C., 388, 389, 392, 394, 404, 426, 429, 431, 654 Everson, M. D., 595, 596 Ewing, C. P., 83, 332, 462, 497, 652, 655 Exner, J., 288 Eyde, L. D., 43 Fabian, J. M., 496 Faigman, D., 543, 544 Faigman, D. L., 48, 109, 132 Fairweather, D., 340 Fakhoury, T. A., 535 Faley, R. H., 242 Faller, K., 581 Faller, K. C., 596 Fanniff, A., 602 Fanniff, A. M., 295 Farkas, M., 218 Farkas, M. A., 333, 334 Farkas, M. R., 535 Farneti, J., 42 Farrell, D., 130 Farrington, D. P., 368, 493, 561 Faulkner, L. R., 261

Faure, C., 654 Faust, D., 76, 211, 464, 579, 597 Fawcett, D., 564 Fawcett, J., 323, 324 Fazio, K., 643 Fazio, R. H., 643 Fecteau, G., 195 Federoff, J. P., 349 Feeley, T. H., 117 Feely, T. H., 117 Feeney, T., 366 Feighner, J. P., 558 Feinauer, L., 583 Feinauer, L. L., 584 Feinstein, B. A., 192 Feiring, C., 583, 584 Fekkes, M., 585 Feld, B., 372 Feld, B. C., 387 Feldman, M., 496, 507 Feldman, S. R., 652 Feldman, S. S., 375 Felix, E. D., 79, 82, 151, 156 Felix, R. R., 507 Felkenes, G. T., 227 Felthous, A., 415 Feltti, V. J., 583 Fenigstein, A., 643 Ferguson, A. B., 393 Fergusson, D. M., 582, 584 Fernandez, K., 21, 29, 373, 374, 391–393, 498 Ferrier, I. N., 206 Ferris, R., 489, 490 Ferronato, L., 145 Fessel, F., 190 Festinger, L., 38 Feucht-Haviar, T., 423 Fico, J. M., 255, 256 Fiedler, J., 617 Fienberg, S. E., 617 Fine, C., 569, 570 Finkel, N. J., 458 Finkelhor, D., 580–584, 587 Finlayson, L. M., 582 Firestone, G., 145, 153 Firestone, P., 584 First, M. B., 287, 526, 563 Fischer, R. J., 281 Fischhoff, B., 49

Author Index

Fischler, G. L., 250, 254, 263–266 Fish, M., 110 Fisher, C. B., 53–57, 299 Fisher, J., 126, 586 Fisher, J. M., 211 Fisher, K., 230, 236 Fisher, M. A., 247, 248 Fisher, P., 365 Fisher, R. P., 599, 627 Fisher, S., 602 Fisher, W., 420 Fishhein, M., 643 Fiske, S., 231 Fiske, S. T., 228, 235 Fisler, R. E., 590 Fitch, W. L., 412, 420, 421 Fitzgerald, D. C., 236 Fitzgerald, L. F., 230–236, 241, 290 Fitzgerald, R., 638 Fitzpatrick, C. M., 564 Fivush, R., 588, 589, 591, 594 Flaherty, J. A., 290 Flanagan, C., 599 Flango, C. R., 631 Fleming, G. P., 654 Fleming, J., 582 Flens, J. R., 46, 115, 118, 123, 124 Fletcher, J. M., 392 Fletcher, K., 366 Floyd, M. Y., 462 Flynn, C., 246 Fogel, M., 367 Foley, K. M., 192 Foley, L. A., 639 Follmer, A., 594 Fong, C. T., 404, 405 Fontana, A., 290 Foo, M.-D., 187 Foote, W. E., 172, 183, 185, 190–193, 195, 273, 278, 279, 286–290, 300, 655, 656 Ford, J., 375 Ford, J. D., 375 Ford, T. M., 639 Ford, W., 427 Fordis, M., 43 Forehand, R., 148 Forsman, M., 559 Forth, A., 365, 368, 375, 570 Forth, A. E., 559, 566, 571

Fortier, L., 189 Foster, M. D., 494 Foster, T., 297 Foubister, N., 299 Fowler, K. A., 566 Fowles, D. C., 561 Francoeur, E., 593, 595, 596 Frank, G., 189 Frank, J. B., 658 Frank, J. D., 658 Frank, M. G., 117 Frank, R. G., 184, 191 Frantzen, D., 485 Franzen, M. D., 530–532 Fraser, R., 207 Frazier, P. A., 230, 231 Frazier, S., 600 Frederick, R., 288, 412, 420, 431, 466 Frederick, R. I., 215, 396, 427, 456, 530–532, 534 Fredriks, A. M., 585 Freedman, A. M., 489 Freedman, D., 496, 508 Freeman, D. B., 427, 525, 536 Freeman, J., 226 Freeman, J. B., 195 Freeman, N. J., 333, 345, 639 Freeman, W., 425 Fremouw, W., 149, 189, 535 Fremouw, W. J., 189 French, J. R. P., 289 Frenkel-Brunswik, E., 639 Freud, A., 142 Freund, K., 339, 342 Frick, J., 368 Frick, P., 365, 368 Frick, P. J., 560 Fricker-Elhai, A., 580, 582 Friedenberg, M. R., 42 Friedland, S. I., 336 Friedman, D. S., 101, 102, 124 Friedman, F., 433, 434 Friedman, H. J., 648 Friedman, R. D., 579 Friedman, R. S., 654 Friedrich, W. N., 126, 583, 585–587 Frierson, R., 435 Frierson, R. L., 416, 496, 508 Frizzell, K., 346

673

Frolik, L. A., 301 Fromme, K., 393 Fromson, J. A., 261 Frueh, B. C., 189, 375 Frumkin, I. B., 385, 390, 393–395, 397 Fugelsang, J., 392 Fuhrmann, G. S. W., 7 Fulero, S., 627 Fulero, S. M., 18, 388, 389, 392, 394, 404, 458, 617, 634, 635, 637, 651, 654 Fulford, J. A., 626 Fulton, L., 319 Funderburk, B., 147, 189 Furby, L., 341, 348 Gabarczyk, A., 621 Gabbidon, S. L., 635 Gabel, J., 427, 428 Gage, R., 532 Gagnon, N. C., 560 Gaines, R., 583 Galatzer-Levy, R., 46 Gallagher, S. N., 344 Gallemore, J. L., 507 Gandolfo, C., 232 Gansler, D., 530, 532, 535 Gansler, D. A., 427 Ganzini, L., 489, 490 Garb, H. H., 44 Garb, H. N., 44, 49, 149 Garca, J., 640 Garcia, J., 639 Gardner, R. A., 127 Gardner, W., 543–545, 547 Garmoe, W., 389, 392, 404 Garofalo, R., 545 Garrett, B. L., 400–402, 404 Garrett, S., 625 Garrick, T., 218, 571 Garry, M., 596, 623, 624 Gartner, S. L., 228 Garven, S., 594 Garvey, S. P., 497 Garvin, S., 597 Gary, A., 242 Gary, M. L., 236 Gass, C. S., 536 Gaston, L., 189

674

Author Index

Gatowski, S., 585 Gaughan, E. T., 564 Gauthier, C. M., 339, 342, 343 Gaylord, S. J., 104 Gazan, D. B., 231 Geer, T., 235 Geier, J., 391–394 Geimer, W., 497 Geiselman, R. E., 599, 601 Geisinger, K. F., 281 Gelfand, M. J., 230, 233, 235, 236, 290 Geller, J. L., 147 Gendel, M. H., 261 Gendreau, P., 339, 502 Genuis, M. L., 583 Geraci, L., 621 Gerard, J. B., 335 Gerbasi, J., 435 Gerber, P. J., 278 Gervais, R., 215 Gervais, R. O., 427, 536 Getz, M. A., 459 Gfeller, J., 528, 529 Ghetti, S., 589, 591 Gibbon, M., 287, 526, 563 Giedd, J. L., 231, 232 Gies, D., 425 Giewat, G. R., 633 Gigliotti, G. A., 299 Giles, W. H., 583 Gilfix, M., 296 Gilfix, M. G., 296 Gill, E., 110, 115 Gillard, N., 215 Gillard, N. D., 190, 288, 391–393, 396, 427, 519–522, 524, 526 Gillis, J. R., 429 Ginsburg, G. P., 585 Giorgi-Guarnieri, D., 462 Gitlin, L. N., 302 Giuliana, A. L., 621 Glaser, B., 654 Glaser, D., 586 Glass, A., 531 Glasser, J. K., 648 Glenn, W. J., 215, 536 Glisky, E., 591 Glomb, T. M., 235 Goff, L. M., 624

Goff, P. A., 144 Goggin, C., 339 Goggin, C. E., 502 Goikolea, J. M., 206 Gola, T., 533 Gold, L. H., 183, 185, 206, 209, 218, 246, 249, 259, 261, 265, 305 Gold, P. E., 590 Gold, S. N., 189, 584 Gold, Y., 230, 231, 241 Goldberg, J. O., 189 Goldberg, R., 206 Goldfinger, S., 544 Goldin, P. R., 586 Golding, S., 30, 49, 189, 190, 412, 418, 422, 423, 430 Golding, S. L., 29, 48, 77, 78, 80, 82, 83, 92, 423, 424, 433, 451, 467 Goldman, H. H., 287 Goldman, R. A., 348 Goldstein, A., 6, 11, 19, 28, 454 Goldstein, A. M., 56, 82, 83, 148, 152, 153, 164, 165, 189, 192, 193, 254, 256, 265, 369, 390, 391, 393–398, 406, 407, 431, 449, 462, 466, 467, 486, 487, 493, 494, 496, 518, 519, 654 Goldstein, B., 105 Goldstein, H., 531 Goldstein, J., 142 Goldstein, N., 370 Goldstein, N. E., 374, 385–387, 389, 391–395, 397, 404 Goldstein, N. E. S., 373–375, 390–395, 397, 398, 406, 407 Goldstein, R. B., 192 Goldstein, R. L., 455 Gollan, J. K., 44, 52 Gomez-Rio, M., 530 Gonzalez, A. M., 105 Goodman, G. S., 18, 587–595, 601, 603–605 Goodman, J., 638 Goodman-Delahunty, J., 8, 17, 23, 26, 172, 183, 185, 190, 192, 193, 195, 273, 286–290 Gordon, A., 340, 351 Gordon, B., 594

Gordon, M. K., 146 Gordon, R. M., 189 Gordon, S. M., 298 Gordon, T., 659 Gorman-Smith, D., 365 Gorsuch, R., 218 Goshko, M., 145 Gothard, S., 426, 428 Gottdiener, W. H., 420, 422, 423, 428–430 Gottfredson, L. S., 50 Gottfried, A. E., 118 Gottfried, A. W., 118 Gould, J. B., 476 Gould, J. W., 46, 101, 102, 104, 108–111, 113–119, 121–125, 130–132 Gouvier, W. D., 532 Grace, M., 145 Grace, R. C., 340 Graham, J., 364 Graham, J. R., 148, 162, 214, 427, 564 Graham, S., 371, 372, 375, 393 Grambsch, P., 586 Granacher, R. P., 519, 524, 530, 536 Grandjean, N., 428 Grandjean, N. R., 429 Grant, B. F., 192, 559, 561 Grant, I., 546 Graue, L. O., 535 Graves, K., 584 Gravitz, M. A., 62 Gray, A., 346 Gray, E., 148, 638 Gray, J. M., 206 Gray, N., 207 Grayston, A. D., 345 Greathouse, S. M., 633 Green, A. H., 345 Green, D., 21, 427, 521 Green, L., 49 Green, P., 215, 427, 536 Green, W., 480 Greenberg, A. S., 335 Greenberg, D. M., 349 Greenberg, P., 184 Greenberg, S., 40, 191, 210, 237, 287 Greenberg, S. A., 92, 652

Author Index

Greene, A., 144 Greene, E., 295, 625, 638 Greene, K., 580, 582 Greene, R., 189, 288 Greene, R. L., 524 Greenfield, D. P., 392 Greenhoot, A. F., 590, 591 Greenman, L., 476 Greenwood, P., 366, 370 Greer, A., 420 Greiffenstein, M. F., 208, 217, 533, 536 Greisberg, S., 207 Gresham, A. W., 638 Gresham, F. M., 560 Greve, K., 535 Greve, K. W., 530, 535 Griffin, P., 16 Griffin, P. A., 412 Griffin, S., 259 Griffith, E. E. H., 94 Grimes, R. D., 574 Grisso, T., 5, 6, 11, 16–19, 23, 26, 28–30, 77, 78, 80, 82, 83, 85, 86, 90, 96, 112, 148, 152–154, 163–165, 207, 208, 254, 256, 265, 299, 302, 323, 325, 361–375, 385–398, 400, 402–405, 412, 418–421, 423, 431, 434, 456, 462, 466, 467, 490, 548, 550, 568, 654 Gross, J., 596 Gross, S. R., 132 Grosse-Holtforth, M., 187 Grossman, S., 214, 564 Groth-Marnat, G., 91, 94, 95 Grove, E. T., 104 Grove, W., 545, 549, 550 Grove, W. M., 44, 338, 341 Grover, S. C., 654 Gruber, C., 215 Gruber, C. P., 162, 365 Gruber, M., 184 Gudjonsson, G., 532 Gudjonsson, G. H., 18, 389, 392, 393, 401–405, 407 Guenther, C., 428 Guiliano, A. J., 530 Guilmette, T., 433, 435 Guilmette, T. J., 505, 530

Guler, O. E., 592 Gullone, E., 586 Gupton, H., 246 Gurerra, R. J., 302 Guriel-Tennant, J., 189 Gurtner, A., 187 Gurwitch, R., 147 Gustaffson, S. B., 564 Gutek, B. A., 235 Gutheil, T. G., 210, 295, 296, 300, 301, 305, 654, 657, 658, 660 Guttmacher, M. S., 64 Guy, L., 374, 375 Guy, L. S., 373, 374, 391–393, 562, 566 Guze, S. B., 558 Ha, T. H., 207 Ha, Y.-W., 49 Hackett, M., 435 Hackney, A., 230 Hadfield, G. K., 196 Hadjistavropoulos, T., 222, 656 Hadzi-Pavlovic, D., 207 Haegerich, T. M., 638 Hafemeister, T., 301 Hafemeister, T. L., 22 Hafer, C. L., 639 Hagan, L. D., 505 Hagen, E. P., 162 Hagen, L., 624 Halfaker, D. A., 536 Hall, E. A., 271 Hall, G. C. N., 347 Hall, H. V., 498, 502 Hall, J. A., 458 Hall, S., 532, 553 Hall, S. R., 603 Halle, T., 582 Halleck, J., 249 Halleck, S. L., 498 Halligan, S. L., 190 Hallion, L. S., 375 Halperin, J. M., 392 Halpern, A. L., 489 Halter, S., 581 Hamblen, J. L., 195 Hamby, S., 580 Hamel, J., 130 Hamilton, J., 566

675

Hammell, C. L., 375 Hammer, H., 581, 582 Hammermeister, L. C., 347 Hamsher, K., 211 Handel, R. W., 148, 149, 429 Handy, L., 496 Hanes-Stevens, L., 366 Haney, C., 18, 492, 633, 636, 638, 642 Hankins, G., 425, 433 Hanlon, R. E., 493, 496 Hannah, M. T., 105 Hans, V. P., 17, 23, 26, 639 Hansen, D. J., 583, 584 Hansen, K. K., 148 Hansen, M., 29, 48, 649 Hansen, R., 631 Hansen, R. F., 580, 582 Hanson, R., 549, 550 Hanson, R. F., 582 Hanson, R. K., 336, 338–343, 348, 542, 550 Hantula, D. A., 280, 282 Harachi, T. W., 368, 493 Haran, S. J., 346 Hardman, L., 231 Hare, R. D., 12, 76, 339, 342, 345, 347, 455, 498, 547, 548, 557–563, 566, 567, 569, 571 Harkins, L., 343 Harley, K., 589 Harp, J. P., 535 Harper, C., 207 Harpur, T. J., 559, 569, 571 Harrell, A., 130 Harrell, E., 529, 532 Harrington, D. C., 636 Harris, A. H., 340 Harris, A. J. R., 339, 340 Harris, B., 346 Harris, G., 545, 547, 549, 550 Harris, G. T., 336, 338–344, 347–349, 498 Harris, I., 536 Harris, I. A., 536 Harris, L. S., 594 Harris, M., 467 Harris, W. A., 586 Harrison, J. A., 301 Harrison, K., 374

676

Author Index

Harrison, K. S., 373, 386, 392, 397, 427, 428 Harrison, R. V., 43 Hart, A., 368, 370 Hart, H. L. A., 456 Hart, K. J., 530, 584 Hart, S., 498, 546, 549, 550 Hart, S. D., 12, 76, 339, 342, 343, 369, 547, 548, 556–563, 566–568, 571, 572 Hartmann, J., 392 Hartsfield, A., 368 Hartstone, E., 412 Harvey, A. G., 187, 195 Harvey, V. S., 86, 91, 94–96 Harward, H., 392 Hasemann, D., 648 Hasey, G., 207 Hashimoto, E. J., 416 Hasin, D. S., 559 Haskett, M. E., 149 Haskins, R., 139, 145 Hasselton, D., 339, 343 Hastie, R., 638 Hastings, M. E., 569 Hastings, P. A., 638 Hathaway, S. R., 564, 565 Haugaard, J. J., 583, 586 Haverkamp, B. E., 49 Haw, R. M., 638 Hawes, S., 343, 525 Hawes, S. W., 427 Hawk, G., 412, 420, 421 Hawk, G. L., 462 Hawke, J., 375 Hawkins, C., 639 Hawkins, J., 586 Hawkins, J. D., 368, 493 Hawley, T., 582 Haycock, J., 429 Hayes, P. J., 569 Hayes, T. L., 282 Hayne, H., 596 Haynes, S. N., 563 Haywood, T. W., 349 Hazelwood, L., 374 Hazelwood, L. L., 373, 386, 392, 397 Hazlett, G., 621, 625 He, Q., 621

Heaps, C., 623 Heath, A. C., 186 Heath, V., 583 Heaton, R. K., 530 Hebert, K., 654 Hebert, K. S., 638 Hebert, M., 584 Hecker, T., 79, 82 Hedrick, M., 127 Heider, F., 49 Heilbronner, R., 211, 527, 530, 532 Heilbronner, R. L., 427, 525, 530, 532, 536 Heilbrun, K., 4, 6, 11, 19, 23, 28, 30, 71, 76–79, 82, 83, 88, 94, 108, 114, 115, 121, 148, 152, 153, 157, 158, 163–165, 189, 192, 193, 216–218, 220, 246, 249, 254, 256, 262, 265, 287, 288, 341, 367, 369, 370, 394, 396, 398, 433, 434, 462, 463, 466, 498, 502, 509, 550–553 Heilbrun, K. S., 3, 657 Heilbrun, T., 654 Hekimian, E., 149 Hellman, I., 298 Helmus, L., 340, 343, 348 Hembrooke, H., 590, 592 Hemenway, D., 496, 508 Hemphill, J. F., 339, 347, 556, 561, 562 Henderson, 412 Henry, D. B., 365 Herbert, P., 78, 82 Herman, D., 657 Herman, S., 579 Hernandez, A. E., 347 Herrenkohl, T. I., 368, 493 Hershkowitz, I., 593, 595, 598, 599, 601, 602 Hersoug, A. G., 657 Herv´e, H. F., 569 Herve, H., 340 Heslin, P. A., 653 Hess, D. T., 336 Hess, R. A., 530 Hettema, J. M., 184 Hewitt, J., 433 Hewitt, S., 599 Hiatt, K. D., 561, 569

Hibler, N. S., 255, 256 Hickling, E. J., 184, 186, 187, 191, 195 Hicks, R., 145 Hildebrand, M., 561 Hill-Fotouhi, C., 323 Himelein, M. J., 632, 633 Hirschfield, R. M. A., 184, 324 Hiscox, S. P., 346 Hitchcock, J. H., 253 Hjelt, S., 56, 58, 122 Hobbs, N., 37, 54 Hodgson, R. C., 186 Hodgson, S., 348 Hoek, H. W., 561 Hoelzle, J. B., 536 Hoffman, M. B., 444 Hofmann, D., 230 Hoge, R. D., 348, 363, 365, 368, 375 Hoge, S., 372, 419, 433 Hoge, S. K., 10, 412, 419, 423 Holdsworth, M. J., 155 Holmes, L., 596 Holt, K. D., 590 Holzbauer, J. J., 290 Honig, A., 246 Honig, A. L., 246 Hood, J. E., 584 Hoover, S., 405 Hordern, A., 49 Horowitz, A. V., 191 Horowitz, D., 593, 598, 602 Horowitz, I. A., 641 Horton, M. L., 426 Horvath, L. S., 91, 94, 95 Horwood, L. J., 582, 584 Hosch, H. M., 625 Hoskin, K. M., 302 Houston, C. M., 519 Houston, M., 126, 586 Houtenville, A., 272 Hovav, M., 601 Howard, C., 296 Howard, M. E., 654 Howe, M., 587, 588, 590, 592 Howe, M. L., 588 Howieson, D. B., 529 Hoyt, G., 625 Hubbard, K. L., 420, 655

Author Index

Hucker, S., 255 Hudson, J. A., 588, 589 Hudson, S. M., 340 Huff, C. R., 401 Huff, R., 624 Huffman, M. L., 600 Huffman, M. L. C., 592 Hughes, D., 235 Hughes, J. H., 206 Hughes, M., 192, 195 Huizinga, D., 364 Hulin, C. L., 230, 233, 235, 236, 290 Hull, J. G., 393 Hultsch, D. F., 302, 529 Humphreys, K. L., 192 Hung, E., 553 Hunt, E., 375 Hunt, J. S., 599, 602 Hunt, R. C., 402 Hunter, J. A., 346 Hunter, M. A., 302 Hunter Williams, J., 231, 236 Hursh, N., 273 Hurt, J. L., 230 Hurt, L., 18 Hurt, L. E., 230 Hurtado, A., 638 Husband, T. H., 621, 622 Huss, M. T., 22 Huthwaite, J. S., 654 Hwang, I., 184 Hyde, J. S., 227, 639 Hyers, L. L., 236 Hyman, I. E., 621, 622 Hymes, R. W., 635 Hynan, D. J., 118 Igelman, R., 146, 147 Illfelder-Kaye, J., 29 Imwinkelreid, E., 603 Imwinkelried, E. J., 659 Inbau, F. E., 383, 390, 403, 404 Inman, T., 530 Insabella, G., 102, 123 Insel, M. S., 296 Inwald, R., 254–256 Irvine, J. T., 296 Isaacs, B. J., 404 Isbell, L. M., 231

Isenor, J., 187 Ishii, E., 236 Ivanovski, B., 207 Iverson, G. L., 528, 530, 532–534 Jablensky, J. B., 206 Jackson, D., 365 Jackson, L., 496, 507 Jackson, M., 302 Jackson, R. L., 335, 336, 426–428, 571 Jackson, R. M., 392 Jacobs, D. G., 323, 324 Jacobs, W. J., 590 Jacobson, C. M., 295 Jacoby, J., 545 Jaeger, S., 184 Jaffe, D., 553 Jaffe, P. G., 130 Jalaludin, B., 536 James, R., 639 Jamieson, E., 582 Janet, P., 590 Janke, C., 573 Janofsky, J., 462 Jansen, M. A., 272 Janus, E. S., 333, 335–338, 570 Jayne, B. C., 403 Jeffries, J. C., 456 Jellinek, M., 145 Jellinek, M. S., 145 Jenkins, N. M., 282 Jensen, F., 545 Jensen, G., 423, 425 Jensen, M., 493, 496 Jensen, P., 375, 546 Jesness, C. F., 365 Jeste, D. V., 303 Jin, R., 184 Johansson-Love, J., 295 Johns, R. E., 281 Johnsen, M. C., 279 Johnson, C., 636, 642 Johnson, C. F., 12 Johnson, D. W., 566, 573 Johnson, J. G., 145 Johnson, J. K., 566 Johnson, J. L., 528 Johnson, J. T., 573 Johnson, K., 43

677

Johnson, K. M., 371 Johnson, M. B., 402 Johnson, N. E., 584 Johnson, R., 507 Johnson, S., 521, 533 Johnson, S. L., 497 Johnson, W., 423, 425 Johnson-Greene, D., 208, 217 Johnston, J., 103, 105 Johnston, J. R., 128, 129 Jones, B. L., 585 Jones, C., 290 Jones, D., 581 Jones, D. P., 591 Jones, J. W., 253 Jones, L. M., 580, 581 Jones, N. L., 276 Jones, S. E., 632 Jonker, C., 299 Jordan, K. L., 635 Kadela, K., 230 Kadue, D. D., 226 Kaemmer, 564 Kaemmer, B., 148, 162, 214, 364, 427 Kahn, B., 151, 152 Kahn, B. A., 151 Kahneman, D., 49, 633, 638 Kalbeitzer, R., 391–394, 493 Kalder, A. K., 638 Kally, Z., 536 Kaloupek, D. G., 192 Kalsekar, A., 184 Kamphaus, R. W., 162 Kanaya, T., 593 Kane, A., 210 Kane, A. W., 7, 42, 115, 124, 132, 172, 192, 193, 195 Kang, H., 236 Kann, L., 586 Kaplan, E., 532 Kaplan, L. V., 416 Kaplan, M. F., 636, 637 Kaplan, M. S., 345 Karau, S. J., 228 Karel, M. J., 299, 302 Karpman, B., 557 Karson, M., 654 Kasl, S. V., 289

678

Author Index

Kassin, S. M., 18, 390, 401–405, 640 Katner, D. R., 372 Katz, E., 393 Katz, L., 364, 365 Kaufman, A. S., 287, 505 Kaufman, G., 250 Kaul, J. D., 339, 343 Kavanaugh, A., 151, 152 Kavanaugh, A. E., 151 Kawakami, K., 228 Kay, H. H., 105 Kaye, D., 544 Kaye, D. H., 48, 109, 132 Kazdin, A., 364, 546 Kazmierski, S., 278 Keane, T. M., 189, 192 Keatinge, C., 532 Keene, R. G., 149 Keeney, M., 341 Keesler, M. E., 481 Keilin, A., 496–498, 501, 502 Keilin, W. G., 50, 76 Keilitz, I., 432 Keilitz, S., 432 Keith-Spiegel, P., 55 Keith-Spiegel, P. C., 45 Keller, P., 585, 586 Kelley, B. T., 493 Kelley, K., 586 Kelly, J., 349 Kelly, J. B., 101–104, 106, 123, 127–129 Kelly, K. I., 192 Kelly, R., 551 Kelly, R. F., 44 Kelly, T. M., 324 Kempe, C. H., 140, 144 Kempin, F. G., 296 Kendall-Tackett, K. A., 583, 584 Kendler, K. S., 191 Kennedy, C., 287 Kennedy, W., 506 Kennett, J., 570 Keram, E., 462 Kern, M. J., 641 Kerr, A. L., 300 Kerr, N. L., 635 Kessler, R., 546

Kessler, R. C., 184–186, 191, 192, 195, 559–561 Ketcham, K., 622 Ketring, S. A., 584 Keyes, D., 477 Khadivi, A., 258 Khanna, A., 348 Kiehl, K. A., 564, 569 Killgore, W. D. S., 530 Kilpatrick, D. G., 580, 582 Kim, M. S., 207 Kim, N., 532 Kim, S., 584 Kinchen, S., 586 Kinder, B. N., 189 King, G. D., 121 King, N. J., 586 Kinicki, A. J., 289 Kinsman, S., 250 Kiosses, D. N., 302 Kirkish, P., 218 Kirkland, K., 57, 108, 115, 121, 132 Kirkland, K. E., 121 Kirkland, K. L., 57, 108, 115, 121, 132 Kirkpatrick, H. D., 37, 46, 114, 115, 121, 123, 124, 597 Kirsch, I., 621, 624 Kish, G. B., 189 Klaczynski, P. A., 392 Klare, G. R., 404 Klassen, D., 545 Klaver, J., 342, 388, 393, 394, 560 Klayman, J., 49 Klee, C. H., 648 Kleespies, P. M., 324 Klein, O., 228 Kleiner, J. S., 207 Kleinman, T., 130 Klemfuss, J. Z., 126, 589, 592, 595, 596, 603 Klinger, M., 617 Knapp, D., 242 Knapp, S., 46, 56, 57 Kniesner, T. J., 277–279, 282 Knight, R. A., 339 Knoll, J. L., 297, 466 Knowles, D., 364 Knutson, J. F., 582 Ko, S., 364, 365

Koch, J., 458 Koch, W., 195 Koch, W. J., 172, 192, 193, 195, 303 Koegl, C. J., 365 Koffler, S. P., 527 Kohn, N. A., 296 Kolko, D. J., 584 Koocher, G., 45 Koocher, G. P., 55, 159, 295, 582, 655 Korbin, J. E., 147, 148 Koriat, A., 49 Korkman, J., 599 Kornfeld, A. D., 256 Kossoff, R., 586 Kosson, D. S., 347 Koszycki, D., 189 Kotchick, B. A., 148 Kotler, J. S., 559, 560 Kovacs, M., 162 Kovera, M. B., 633, 634, 638, 640, 648 Kowal, L. K., 635 Kowaz, A., 451 Kozol, H., 545 Kracke, K., 580 Kraemer, H., 546 Krafka, C., 625 Kramer, J. H., 532 Kramer, T. J., 654 Kraus, S. J., 642 Krauss, D., 497 Krauss, D. A., 21, 29, 362, 449, 502 Kravitz, D. A., 640 Kravitz, H. M., 349 Krehbiel, M. A., 530, 532 Kressel, D. R., 630 Kressel, N. J., 630 Kropp, R., 342 Krueger, J., 43 Krug, E. G., 145 Krug, S. E., 43 Kruger, J., 43 Kruh, I., 363, 370–372 Kruh, I. P., 371 Kruml, J., 255, 256 Krupp, B. H., 433, 435 Krystal, J. H., 590 Kuanliang, A., 502

Author Index

Kubany, E. S., 563 Kucharski, L., 524 Kucharski, L. T., 427 Kuehnle, K., 103, 105, 126, 145, 153, 579, 581, 583, 596–599, 605 Kugler, K. E., 412, 420, 422, 423, 428–430, 434 Kuhn, E., 186, 195 Kuhn, T. S., 49 Kuiper, J., 586 Kulkofsky, S., 126 Kunda, Z., 228 Kupfer, D., 546 Kurtz, R., 521 Kushner, D., 654 Kwon, J. S., 207 Kynan, S., 599 Lachar, D., 162, 365 Lachenmeyer, J. R., 207 Lackner, J. M., 195 Ladd, M., 66–68, 74 La Fond, J. Q., 9, 333–335 LaFortune, K., 412 LaFountain, N., 631 Lally, S. J., 148, 374, 429, 467 Lalumiere, M. L., 338, 342 Lamb, D., 530 Lamb, H. R., 309 Lamb, M., 596–598, 601, 602 Lamb, M. E., 101, 102, 106, 123, 401, 593–596, 598–602 Lambros, K. M., 560 Lamphear, V., 601 Lampl, A., 120 Landis, B. Y., 37, 54 Landrø, N. I., 206 Landsman, S., 638 Lane, K. L., 560 Lane, M. C., 559–561 Laney, C., 623 Lang, A. R., 561 Lang, J., 150, 151, 160, 161 Lang, P. J., 569 Lange, M. C., 656 Langevin, R., 496 Langhout, R. D., 230, 231, 236 Langkamp, K., 250 Langton, C. M., 343

Lansford, J. E., 148 LaPorte, D. L., 276 Laptisky, L., 206 Lardner, J., 249 LaRooy, D., 595 LaRooy, D. J., 599, 600 Larrabee, G., 211, 218 Larrabee, G. J., 527 Larrabee, G. L., 528, 529 Larrison, C., 422 Larsen, A., 366 Larsson, H., 559 Larsson, I., 587 Larus, D., 594 L´aszl´o, J., 657 Latas, M., 207 Latzer, B., 477, 478 Laubacher, A., 347 Laumann-Billings, L., 582 Laurens, K. R., 569 Lauretti, A. F., 112, 153, 160, 161 Lavender, T., 545 Law, M., 340 Law, M. A., 502 Lawler, M., 604 Lawrie, S. M., 656 Laws, D. R., 342 Lawsky, S., 462 Lazzaro, T., 118 Lea, J. A., 626 Lean, E. R., 236, 242 Lebow, B., 545 Lecci, L., 640, 642, 648 Leclerc, B., 582 Ledet, T., 149 Lee, A. F., 347 Lee, A. F. S., 339 Lee, G. P., 27, 211 Lee, K., 234, 236, 599 Lee, K. J., 207 Lee, S., 146 Lee, S. M., 49, 50 Lee, Z., 560 Leeper, R. W., 49 Lees-Haley, P. R., 42, 43, 91, 187, 189, 190, 208, 215–217, 287, 289, 528, 536 Lehman, D. R., 621, 623 Lehman, W., 207 Lehrmann, D., 132

679

Leibowitz, Z., 289 Leichtman, M. D., 579, 592–594, 599 Leistico, A., 562 Lelos, D., 422 Lemon, N. K. D., 130 Lenhart, A., 587 Lenzenweger, M. F., 559–561 Leo, R., 10 Leo, R. A., 18, 384, 401–405 Leonard, A., 569 Leonard, K., 396, 467, 518, 519 Leong, G. B., 480, 489, 490, 497 Lepore, S., 593, 594 Lerner, D., 206 Lerner, M. J., 639 Lesniak-Karpiak, K., 528 Lester, W. S., 560 Leukefeld, C., 562 Levene, K. S., 365 Levenson, J., 274 Levenson, J. S., 336, 571 Levenson, M. R., 564 Leverett, J. P., 189 Levesque, R. J. R., 148 Levett, L. M., 633 Levin, H. S., 392 Levin, S. M., 338 Levine, M., 18, 585, 593 Levine, S., 146 Levinson, D. J., 639 Levitt, G. A., 330 Levitt, M., 591, 594 Levy, A., 569 Lewandowski, M. J., 150, 151, 160, 161 Lewis, C., 596 Lewis, D., 496, 507 Lewis, D. O., 496 Lewis, J., 18 Lewis, M., 583, 584 Lewis, P. J., 145 Lewis, P. W., 507 Lexcen, F., 371 Lezak, M. D., 529 Li, N., 347 Li, S., 144, 580, 582 Libby, D., 236, 239 Lichtenberger, E. O., 287

680

Author Index

Lichtenstein, P., 559 Lichtenstein, S., 49 Liddle, P. F., 569 Lidz, C., 543–545, 547 Lidz, C. W., 298 Lieb, R., 333, 334, 336, 339–341, 348, 598 Lieberman, J. D., 18, 632, 648 Liebert, D. S., 494 Liff, C. D., 529, 532 Ligezinska, M., 584 Liles, S., 349 Lilienfeld, S. O., 149, 564, 566 Lin, C., 621 Lind, D. L., 531 Lindenberger, J. C., 111, 113, 114 Lindermann, B. T., 226 Lindhiem, O., 146 Lindsay, D. S., 593, 600, 601, 624 Lindsay, J. J., 117 Lindsay, R. C. L., 625–627 Link, B., 547 Lippman, J., 584 Lipsey, M., 368, 370 Lipsitt, P., 422 Lisak, D., 508 Litchfield, R. C., 653 Little, T., 339 Litwack, T., 541 Livesley, W. J., 561, 562 Liwag-McLamb, M. G., 639 Llamas-Elvira, J. M., 530 Llewellyn, G., 145 Llewellyn, M., 207 Loding, B. V., 112, 153, 160, 161 Loeb, P. A., 303 Loeber, R., 368 Loftus, E. F., 18, 579, 590, 592, 617, 618, 620–625, 630–632, 638–640 Logan, C., 342, 557, 558, 572 Lombardi, G., 506 London, K., 599 Longan, P. E., 296 Loo, C. M., 583 Loos, W. R., 187 Lopes, G., 632 Lorandos, D., 659 Loranger, A. W., 559–561, 563 Loring, D. W., 529

Losardo, M., 189 Losel, F., 348 Louden, J. E., 640 Lovas, G. S., 589 Loveless, L., 101, 102, 124 Loving, J. L., 370 Low, P. W., 456 Lozano, R., 145 Lu, P., 530, 532 Lucas, C., 365 Lucenko, B. A., 584 Lucia, V. C., 183 Luckasson, R., 426, 431 Luebbe, A., 21 Luebbert, M. C., 250 Luginbuhl, J., 641, 642 Lumsden, J., 569 Lund, A., 206 Lundervold, A. J., 206 Lundy, B., 591, 594 Lustman, P., 189 Luten, T. L., 592 Lutenbacher, M., 149 Luttrell, V., 496 Lutzker, J. R., 147 Luus, E., 618 Lynam, D. R., 560, 562, 564 Lynch, D. L., 583, 584 Lynch, K. G., 324 Lynch, M., 590 Lynskey, M. T., 582, 584 Lyon, A. D., 506 Lyon, D. R., 339, 560, 568–570 Lyon, T. D., 579, 582, 592, 593, 599, 600 Lyons, P., 5, 8, 10, 413, 415, 417, 430 Lyons, P. M., 76, 82, 83, 85, 86, 94, 265, 266, 286, 296, 297, 299, 300, 302, 654 MacCarthy, T. F., 335 Maccoby, E. E., 103, 147 MacDonald, J. M., 390 MacDonald, T. K., 625 MacDougall, E. A., 560 MacGregor, D., 552 Machamer, J., 207 Mack, J., 360 Mack-Allen, J., 163

MacKeith, J. A. C., 402 MacKinnon, C., 229 MacMillan, H. L., 582 MacQueen, G., 207 Macvaugh, G., 477, 505 Maddan, S., 9 Maddox, M. C., 332, 338, 347 Maes, M., 189 Magley, V. J., 230, 233, 235, 236, 290 Maguin, E., 368 Maguire, A., 339 Mahan, C., 236 Maier, G. J., 319 Malcolm, B., 348 Malcom, K., 21 Malhi, G., 207 Malle, B. F., 569 Malloy, L. C., 401, 592–594, 599, 600 Malone, K. M., 324 Malone, P. S., 148 Malone, T. D., 496, 508 Malpass, R. S., 18, 594, 617, 626, 627 Mamak, M., 422 Mancuso, L., 279 Maney, S., 366, 370 Mangraviti, J. J., 654, 659 Manion, I., 584 Mann, J. J., 324 Mann, R. E., 341 Mannarino, A. P., 146, 147, 584 Mannen, R. K., 18 Manni, M., 146 Manning, C., 623 Mannis, S. M., 654 Manor, T., 601 Maraczyk, G., 163 Marche, T. A., 623 Marcotte, D., 531 Marcus, S. C., 276 Marczyk, F., 505 Marczyk, G., 21, 29, 189, 192, 193, 362, 394 Marczyk, G. R., 287 Margulies, S., 287 Mariani, R. C., 262 Marin, R., 649, 654 Marine, E. C., 108

Author Index

Marquart, J. W., 497, 499, 501 Marques, J. K., 348 Marques, J. M., 635 Marriott, M., 207 Marshall, T. E., 625 Marshall, W. L., 336, 339–342, 346, 348, 349 Marson, D. C., 654 Martell, D., 496 Martens, T. K., 625 Martin, J. A., 147 Martin, M. A., 426, 427, 524 Martin, P. W., 404 Martin, R. C., 530, 531 Martindale, D., 595 Martindale, D. A., 42, 46, 48, 49, 54, 104, 105, 108–111, 113–115, 117, 118, 122, 130–132, 648, 652, 655 Martindale, J. L., 42 Martinez-Taboada, C., 635 Martinson, F. M., 586 Martnez-Ar´an, A., 206 Marx, B. P., 186, 192 Marzolf, D. P., 595 Mason, J. A., 149 Mason, M. A., 101, 142, 585 Masson, T., 151, 152 Matarazzo, J., 30 Mather, N., 286 Mathias, J., 530 Matthews, L., 207 Mattson, A. J., 392 Maver, J. A., 230 Maxmanian, P. E., 43 Maxson, L. S., 429 Mazzarella, M., 636 Mazzoni, G. A. L., 621, 624 McAuliff, B. D., 599, 638 McCabe, J. G., 502 McCabe, M. P., 231 McCaffrey, R. J., 211, 300, 464, 531 McCann, J. T., 118 McCarthy, D. M., 641, 648 McCarty, R. C., 590 McClaren, H., 509 McClellan, J., 371 McClelland, G., 365 McCloskey, L., 591 McClure, K. A., 599

McConaghy, N., 347 McConnell, D., 145 McCord, J., 557 McCord, W., 557 McCormick, C. T., 401 McCormick, M., 636, 643 McCoy, K. D., 530, 532 McCoy, W. K., 373, 374, 391–393 McCrae, R. R., 560 McCrimmon, S., 207 McCubbin, H., 366 McCurley, M. J., 46 McCutcheon, J. L., 247 McDonald, A., 424 McDonald, J., 569 McDonald, J. J., 289 McDonel, E. C., 643 McElroy, H. K., 263–266 McElroy, T., 228 McFadden, S., 502 McFarlane, A. C., 186 McGahee, C. L., 507 McGarry, A. L., 422 McGaugh, J. L., 590 McGraw, J. M., 581 McGreevy, M. A., 451, 453, 455–458 McIntyre, J., 584 McKay, D., 207 McKay, J. R., 559 McKay, K. E., 392 McKee, G. R., 371 McKenas, D. K., 184 McKinley, J. C., 564, 565 McKinzey, R. K., 530, 532 McLaughlin, J., 191 McLaughlin, T. J., 206 McLeer, S. V., 584 McMahon, B. T., 273 McMahon, R. J., 559, 560 McMain, S., 429 McMillan, E. L., 115, 121, 132 McMurran, M., 572 McNall, K., 401 McNiel, D., 543, 544, 552, 553 McNulty, J., 189, 433 McNulty, J. L., 536 McPherson, K., 144, 580, 582 McPherson, L. E., 559 McPherson, L. M., 562

681

McReynolds, L., 364, 365 McSherry, B., 568–570 Mealey, L., 562 Mecca, S. J., 235 Medalia, A., 303 Medoff, D., 148, 149 Meehan, K. B., 533 Meehl, P., 545, 549, 550 Meehl, P. E., 50, 338, 341, 597 Meeks, M., 342 Meir, H., 601, 602 Meisel, A., 298 Meisner, C., 625 Meissner, C. A., 638 Melinder, A. M., 593 Mellon, M. W., 585 Melloni, R. H., 375 Melnyk, L., 594 Meloy, J. R., 428, 435, 498, 562 Melton, G., 362, 369, 413, 415, 417, 430, 544 Melton, G. B., 5, 8, 10, 18, 22, 76, 82, 83, 85, 86, 94, 113, 140, 152, 153, 155, 160, 163–165, 196, 265, 266, 286, 296, 297, 299, 300, 302, 309, 310, 312–314, 317, 320, 321, 324, 327, 328, 335, 350, 390, 394, 451, 462, 467, 491, 568–570, 595, 654 Memon, A., 624 Mendlewicz, J., 186 Menon, S., 273, 282 Mensch, A. J., 530, 532 Menzies, R., 544, 545 Mercado, C. C., 337 Merckelbach, H., 621 Mercy, J. A., 145 Mericle, A., 365 Merideth, P., 462 Merikangas, K. R., 184 Merriam, S. B., 289 Messenheimer, S., 386 Messer, J. M., 189 Mettenburg, J., 144, 580, 582 Metzner, J. L., 218, 305 Meyer, D., 104 Meyer, R., 40 Meyer, R. G., 92, 296, 308, 521

682

Author Index

Meyer, W. J., 349 Meyer-Bahlburg, H. F., 583 Michael, T., 190 Michals, T. J., 435 Michaud, D. L., 390 Michaud, P., 344 Michie, C., 557, 558, 561, 562, 571, 573 Mickey, P. F., 282 Middendorf, K., 641, 642 Middleton, C., 652 Mikulincer, M., 186 Milford, J., 189 Miller, C., 295 Miller, D. J., 564 Miller, H., 534 Miller, H. A., 215, 428 Miller, H. R., 189 Miller, J. D., 562, 564 Miller, K., 290 Miller, K. P., 375 Miller, K. S., 76 Miller, L., 263–266 Miller, L. C., 586 Miller, M., 146, 498, 499, 638 Miller, M. W., 189 Miller, R. D., 349, 416, 655 Miller, S., 108 Miller-Perrin, C. L., 139, 144, 145 Millis, S. R., 527 Millon, C., 148, 162, 214, 427, 523, 564, 565 Millon, T., 148, 162, 214, 364, 427, 523, 564, 565 Milloy, C., 333 Millsaps, C., 530, 532 Milner, J. S., 149 Milton, C., 249 Minakowska, I., 621 Mindell, J. A., 586 Minden, J. A., 365 Minzenberg, M. J., 561 Mischel, W., 642 Mitchell, C., 532 Mitchell, D. G. V., 569 Mitchell, K., 587 Mitchell, P. B., 206, 207 Mitchell, S., 602 Mitchell, T. L., 638 Mittenberg, W., 218, 528, 530, 532

Mnookin, J. L., 48, 132 Mnookin, R., 103, 104 Mnookin, R. H., 103 Moan, S., 589, 595 Moan, S. F., 18 Moan-Hardie, S., 600 Moczynski, N., 530, 532, 535 Moczynski, N. P., 427 Modecki, K. L., 374 Moffitt, T. E., 364, 365, 367, 368 Mohr, J. J., 146 Monahan, B., 432 Monahan, J., 4, 10, 11, 325, 367, 372, 412, 419, 423, 424, 428, 429, 433, 488, 498, 499, 502, 542–546, 548, 550–553, 562 Monteith, M. J., 228 Montoya, L., 432 Moody, D. R., 189 Moore, C., 232, 234–236 Moore, J. D., 296 Moore, J. T., 422, 425 Moore, M. S., 335 Moos, B., 366 Moos, R., 366 Moran, G., 631, 632, 638–643, 649 Moran, G. P., 640 Moran, R., 452 Mordell, S. L., 374 Moreland, K. L., 43 Moretti, M. M., 149, 151 Morey, L., 288 Morey, L. C., 148, 162, 189, 214, 288, 427, 523, 525, 564, 565 Morgan, C., 523 Morgan, C. A., 621, 625 Morgan, D. W., 496, 508 Morgan, J. E., 527 Morgan, K., 596 Morgan, V., 206 Morin, J. W., 571 Morrell, M. A., 296 Morris, D., 648 Morris, D. R., 322, 416 Morris, G. H., 435 Morris, J., 412, 433, 456 Morris, N., 498, 499 Morrissey, J. P., 451, 453, 455, 457, 458

Morse, S. J., 40, 76, 444, 455, 456, 459, 462, 568–570 Morton-Bourgon, K. E., 341, 550 Moser, A., 584 Mosley, D., 422 Moss, K., 279 Moss, S. A., 191 Moss, S. C., 206 Mossman, D., 338, 434, 435, 462, 506, 544 Moye, J., 299, 301, 302 Moyer, D. M., 189 Mrad, D. F., 324 Mrtinz-Ar´an, A., 206 Muchinsky, P. M., 255 Mueller, C., 435 Mueller, R. A., 43 Muhlenbruck, L., 117 Mulford, J., 536 Mullahy, J., 207 Mullen, P. E., 191, 582 Mulligan, R., 278 Mullins-Sweatt, S., 564 Mulvey, E., 11, 325, 543–548 Mulvey, E. P., 364, 562 Mumley, D. L., 421 Munizza, J., 427, 428 Munoz, R., 558 M¨unsterberg, H., 3, 4, 13, 16, 62, 403 Murdoch, M., 189 Murphy, G. E., 189 Murphy, J. M., 145 Murphy, K. J., 46 Murphy, W. D., 335, 338 Murray, L., 375 Murray, L. K., 146, 147 Murrie, C., 481 Murrie, D., 412, 433, 499, 502, 595 Murrie, D. C., 342–344, 456, 573 Musick, J. E., 428 Muxen, M., 366 Myers, B., 640, 642, 653 Myers, J. E. B., 12, 139, 140, 579, 585, 600, 602–604 Mykletun, A., 206 Mylle, J., 189 Nabors, E., 324 Nachlis, L. S., 49, 50

Author Index

Nachman, D., 296 Nadel, L., 590 Nader, K., 591 Naik-Polan, A. T., 79, 82, 151, 156 Narby, D. J., 640, 641 Nash, M., 623 Nathanson, R., 601 Neal, T. M., 648 Neale, B., 117 Neale, M. A., 49 Nears, K., 149 Needell, B., 144 Neises, M. L., 633 Nelson, 520, 533, 536 Nelson, C., 348, 545 Nelson, C. B., 186, 192, 195 Nelson, F. R., 422, 425 Nelson, K., 588, 589 Nelson, N. W., 536 Nelson, S. E., 569 Nelson, T. D., 228 Nelson, W. M., 584 Nestor, P. G., 429 Neufeld, P., 12, 402, 617, 619, 624 Neugebauer, R., 300, 301, 561 Neumann, C. S., 562 Neumann, K., 401 Neuringer, C., 429 Newman, C., 569 Newman, J. P., 347, 561, 569 Newmark, L., 130 Nezu, C. M., 341 Nezworski, M. T., 149 Nguyen, A., 391 Nguyen, D. H., 231 Nicholaichuk, T., 340, 351 Nicholas, E., 18 Nicholas, G., 589, 595 Nicholls, T., 546 Nicholls, T. L., 172, 192, 193, 195 Nicholson, J., 147 Nicholson, R., 372, 412, 423–425, 428, 429, 433 Nicholson, R. A., 30, 77, 79, 90, 412, 420, 422, 423, 428–430, 434 Nicki, R., 195 Nies, K. J., 532 Nietzel, M. T., 632, 633, 638–641, 648

Nimsger, K. M., 656 Noble, A. M., 640 Noffsinger, S., 435 Norman, D. K., 145 Norris, A. M., 147, 150, 160, 161 North, C., 189 Northcraft, G. B., 49 Norton, L., 494 Norton, M. I., 635 Norwood, S., 30, 77, 79, 90 Notario-Smull, H., 426 Novaco, R., 547 Nowicki, D., 259 Nowrangi, M. A., 303 Numan, B., 532 Nunez, N., 640 Nussbaum, D., 422–425 Nye, S., 46 Nysse-Carris, K. L., 638 Oates, R. K., 583, 584 Ober, B. A., 532 Oberlander, L., 419, 433 Oberlander, L. B., 374, 385–387, 389, 390, 394, 395, 397 O’Brien, L., 372 Oburu, P., 148 O’Connell, C., 302 O’Connell, D., 123 O’Connell, M. J., 207, 389, 392, 404 O’Connor, M., 235 O’Connor, W., 545 Oddy, M., 207 Odgers, C. M., 364 O’Donahue, W. T., 105, 125 O’Donnell, M., 186 Offord, D., 546 Ofshe, R., 402, 405 Ogden, D. W., 18 Ogle, C., 604 Ogloff, J., 424, 433, 546 Ogloff, J. P., 339 Ogloff, J. R. P., 22, 560, 568–570 O’Hara, C. E., 390 O’Hara, G. L., 390 Olczak, P. V., 636, 637 O’Leary, K. D., 42 O’Leary-Kelly, A. M., 236, 242 Olesen, N., 130

683

Olesen, N. W., 129, 130 Olley, M. C., 393 Olson, A. M., 230, 231 Olson, D., 366 Olson, E. A., 624, 626 Olubadewo, O., 393 Olver, M. E., 340, 351, 566 O’Neil, K. M., 638, 639, 641 O’Neil, M. L., 502 O’Neill, M., 552 O’Neill, M. L., 172, 192, 193, 195 O’Neill-Laberge, M., 145 Ones, D. S., 250 Orazem, R. J., 189 Orbach, Y., 593, 596, 598, 600–602 Orchard, J., 369 Orcutt, H., 604 Ord, J., 535 Ord, J. S., 530 Orey, S., 530, 531 Ormrod, R., 580, 583 Ornstein, P. A., 18, 590, 594 Osborne, Y. H., 419 Osman, D., 391–394 Osman, D. A., 392 Ostler, T., 147 Ostrov, E., 259 O’Sullivan, M., 117, 404 Otgaar, H., 621 O’Toole, B. I., 583, 584 Otto, R., 189, 190, 218, 362, 372, 413, 415, 417, 430, 509 Otto, R. K., 4, 5, 8, 10, 23, 27, 29, 30, 49, 71, 76, 79, 81–83, 85, 86, 90, 94, 101, 105, 108, 112, 114, 115, 118, 119, 125, 140, 142, 149, 153, 155, 163, 192, 195, 265, 266, 286, 295–297, 299, 300, 302, 391, 394–396, 423, 424, 428, 429, 467, 602, 654, 657, 659 Oudekerk, B. A., 638 Pacheco, K., 368 Packard, R. L., 336 Packer, I. K., 16, 23, 29, 30, 451, 452, 456, 458, 460, 462, 463, 491, 653 Packer, I. R., 10

684

Author Index

Paden, R., 53 Paez, D., 635 Palac, C., 498 Palmer, B., 530 Palmer, B. W., 303 Palm´erus, K., 148 Palmieri, P. A., 230, 236 Paludi, M. A., 290 Pantle, M., 451 Panton, J. H., 507 Panton, M. A., 507 Paolucci, E. O., 583 Pape, D. A., 281, 288 Papierno, P. B., 126 Paradee, C., 531 Pardo, M., 282 Parent, N., 584 Paris, J., 561 Park, L., 144 Parker, G. F., 322 Parker, J., 591, 594 Parker, J. D. A., 162 Parker, L. S., 298 Parkin, C., 207 Parkinson, P., 110, 117 Parrila, R. K., 582 Parry, J., 295, 297, 299, 315–317, 404, 458 Parry, J. W., 271, 275, 276, 279, 283, 286, 288, 289 Parsi, H., 22 Pasewark, R. A., 451 Patapis, N. S., 370 Patel, N., 425 Patrick, C. J., 566, 569 Patry, M. W., 403, 638, 639, 641 Patterson, M. E., 422, 425 Patton, C., 218, 528 Paulus, P. B., 653, 654 Payne, J., 213, 215, 218 Payne, J. W., 189, 517, 536, 638 Payton, C. R., 55 Peacock, E. J., 343 Pearce, J., 150, 153 Pearce, M., 336, 337 Pearlson, G., 569 Pearse, J., 393 Peck, T. A., 536 Peloso, E., 146 Pence, D., 601

Pencille, M., 236, 239 Penk, W. E., 189 Penrod, S., 190, 617, 625, 636, 637 Penrod, S. D., 625, 626, 633–635, 637–639, 641 Penrod, S. J., 18 Pentland, J., 622 Pepler, D., 365 Peretz, P., 227 Perez-Garcia, M., 530 Perlin, M., 174 Perlman, N., 431 Perlman, N. B., 404 Perona, A., 638 Perrier, L. P., 43 Perrin, R. D., 139, 144, 145 Perry, G., 369 Perry, K. M., 21 Perry, N. W., 599, 602 Perske, R., 477 Peschardt, K. S., 569 Peters, J. M., 338 Peterson, C., 588–591, 593 Peterson, D., 365 Peterson-Badali, M., 372, 375, 391 Petrella, R. C., 77, 79, 458 Petrila, J., 5, 8, 10, 76, 79, 81–83, 85, 86, 90, 94, 113, 152, 153, 155, 160, 163–165, 196, 265, 266, 277, 286, 296, 297, 299, 300, 302, 309, 310, 312–314, 317, 320, 321, 324, 327, 328, 335, 350, 362, 369, 390, 394, 412, 413, 415, 417, 430, 451, 462, 467, 491, 498, 544, 568–570, 595, 654 Petta, I., 144, 580, 582 Peuschold, D., 366 Pezzot-Pearce, T. D., 150, 153 Pfeifer, J. E., 638 Pfohl, B., 287 Phares, E. J., 639 Philip, L., 389, 392 Philipson, J., 502, 552, 553 Phillips, M. R., 467 Philpott, L. M., 530 Picarello, K., 192, 193, 217 Pich, M., 505 Piche, C., 584 Pickering, R. P., 559

Pickrell, J. E., 621, 622 Piechowski, L. D., 202–206, 208–210, 212, 214, 216, 258, 263–266 Pietrzak, R. H., 192 Pietz, C. A., 639 Pijpers, F. I., 585 Pilgrim, R. L., 497, 500 Pincus, H. A., 287 Pincus, J., 496, 507 Pincus, J. H., 496 Pipe, M.-E., 588, 590, 592, 594–597, 600, 601 Pirelli, G., 420, 422, 423, 428–430 Pirie, J., 145 Pitchal, E. S., 387, 388 Pithers, W. D., 346 Platania, J., 23 Platt, A., 360 Platz, S. J., 625 Pleak, R. R., 301 Pleck, J. H., 102 Pliskin, N. H., 527 Podboy, J. W., 392 Podd, M. H., 530, 532 Poindexter, L. M., 79, 82, 151, 156 Poisson, S. E., 130 Poitrask, F. G., 145 Polczyk, R., 621 Polger, P., 550 Pollet, S. L., 280, 282 Pollock, C. B., 145 Poole, A., 596 Poole, D. A., 585–587, 592, 593, 595, 596, 598–601 Pope, K. S., 51, 55, 288, 429 Popkin, A., 491 Porter, S., 340, 621, 623 Posey, A. J., 648 Powel, J., 531 Powell, J. W., 162 Powell, M. B., 601 Powers, R. H., 277–279, 282 Poythress, M. G., 113 Poythress, N., 5, 8, 10, 18, 362, 369, 372, 412, 413, 415, 417, 419, 423, 424, 428–430, 433, 544, 568–570

Author Index

Poythress, N. G., 17, 23, 26, 76, 77, 79, 82, 83, 85, 86, 94, 152, 153, 155, 160, 163–165, 196, 265, 266, 286, 296, 297, 299, 300, 302, 309, 310, 312–314, 317, 320, 321, 324, 327, 328, 335, 350, 390, 394, 430, 451, 462, 467, 491, 521, 525, 566, 595, 654 Poythress, N. L., 462 Pozner, L. S., 650, 659 Pramuka, M., 207 Prentky, R., 347, 369 Prentky, R. A., 335, 338, 339, 341, 344, 346, 348 Price, H. L., 601 Price, L., 278 Price, L. A., 278 Price, M., 218, 305, 429 Prichep, L. S., 496 Pride, M., 638 Prigatano, G., 530 Prigitano, G. P., 279 Primoff, E. S., 43 Principe, G., 596 Prinz, R. J., 147 Prizmich, L. P., 603 Pronk, N. P., 184 Proulx, J., 344, 582 Provencher, K., 364, 367 Pruett, K. D., 102 Pruett, M. K., 102, 123 Pruss, H. C., 497 Prussia, G. E., 289 Pryor, E. S., 287 Pryor, J. B., 231, 232 Pryzwansky, W. B., 649 Przybeck, T., 559, 560 Putman, V. L., 654 Pynoos, R. S., 591 Qin, J., 591, 594, 604 Quas, J. A., 588–594, 599, 604, 638 Quattrocchi, M. R., 335 Quay, H., 365, 502 Quinlivan, D. S., 620 Quinn, D., 145 Quinn, J., 362 Quinn, M. J., 302 Quinn, N., 148

Quinnell, F. A., 76, 79, 90, 108, 115, 132 Quinsey, V., 545, 547, 549, 550 Quinsey, V. L., 333, 334, 336, 338–344, 348, 349, 498, 545 Racagni, G., 186 Rack, J. J., 147, 150, 160, 161 Radelet, M., 509 Radelet, M. L., 402, 405 Rae, H., 536 Ragins, B. R., 235 Raine, A., 561 Raisani, K., 425 Raisner, J. K., 125, 126 Rajki, M., 638 Ramos, A., 235 Ramos, G., 330 Ramsey, S. H., 44 Rand, D. C., 127 Rand, M., 246 Randall, W., 582 Randolph, C., 214 Ranseen, J. D., 535 Rappeport, J., 498 Rasmussen, L. A., 346 Ratcliff, D. G., 652 Rattner, A., 401, 624 Rauch, S., 230 Raven, J., 532 Ravid, R., 273, 282 Rawana, J. S., 150, 151, 160, 161 Razani, J., 530 Read, J. D., 624, 625 Reavis, J., 562 Redding, R. E., 462, 552 Redlich, A., 589 Redlich, A. D., 18, 402–405, 412, 591, 603, 604 Reed, L. J., 586, 601 Rees, L. M., 427, 530, 532, 535 Rees, M., 589 Reese, E., 589 Regan, D. R., 643 Regan, P. C., 638 Regan, W. M., 298 Regier, D., 563 Reich, W., 127 Reichmann, L. R., 105 Reid, J. E., 383, 390, 403, 404

685

Reidy, T. J., 340, 455, 492, 494–503 Reilly, N. A., 280, 282 Reilly, R. R., 281 Reinares, M., 206 Reinert, J. A., 301 Reinhardt, V., 518 Renfo, G. J., 121 Renick, A., 595, 596 Reppucci, D., 393 Reppucci, N., 371 Rescorla, L. A., 364 Resick, P. A., 192 Resnick, H. S., 580, 582 Resnick, P., 466 Resnick, P. J., 189,278, 286, 396, 467 Revheim, N., 303 Reyna, V., 623 Reyna, V. F., 592, 621 Reynolds, C. R., 162 Rhee, H., 586 Rhee, S. H., 561 Rhein, J. L., 296 Rice, M., 545, 547, 549, 550 Rice, M. E., 336, 338–344, 347–349, 498 Rich, P., 346 Richard, D. C. S., 563 Richards, H. J., 571 Richards, J. L., 506 Richards, M., 230, 231, 241 Richardson, E., 496 Richardson, J. T., 585 Richell, R. A., 569 Richey, C. A., 148 Richman, J. A., 290 Richman, W. L., 235 Ridenour, T. A., 530, 532 Rierdan, J., 189 Rigaud, M., 246 Riggs Romaine, C., 370 Riggs Romaine, C. L., 375, 392 Righthand, S., 346, 369 Ring, M., 388 Riordan, C. M., 638 Rippeth, J. D., 530 Ritzer, D. R., 564 Rizvi, S. L., 192 Robbennolt, J. K., 648, 653 Robbins, E., 78, 82

686

Author Index

Robbins, L., 425, 433 Robbins, P., 11, 412, 543, 546, 548, 550 Robbins, P. C., 451, 453, 455–458, 562 Robbins, R., 218, 535 Robbins, R. N., 530–532 Roberts, J. L., 635 Roberts, K. P., 601 Roberts, M. R., 255, 256 Roberts, R., 286 Robertson, G. J., 43, 162 Robertson, H., 423, 425 Robertson, P. J., 340 Robertston, A. G., 43 Robertston, G. J., 43 Robiner, W., 29 Robinowitz, R., 189 Robins, E., 558 Robins, L. N., 558–560 Robinson, D. R., 149 Robinson, E. S., 64 Robinson, R., 81, 82 Robitscher, J. B., 296 Roediger, H. L., 621, 624 Roesch, R., 10, 372–374, 388, 391–394, 418, 422–425, 430, 433, 451, 467 Roesch, R. G., 17, 23, 26 Roese, N. J., 190 Rogers, L., 604 Rogers, R., 83, 116, 188–190, 192, 213, 215, 218, 287, 288, 295, 339, 342, 347, 373, 374, 386, 391–393, 396, 397, 423–429, 462, 465–468, 502, 517–522, 524, 526, 527, 529, 531–533, 536, 562, 563, 657 Rogers, W. H., 206 Rogosch, F. A., 146, 590 Rogstad, J., 374 Rogstad, J. E., 391–393, 397 Roh, K. S., 207 Rohan, M., 391 Rohlehr, L., 521 Rohling, M. L., 427 Rohrbaugh, J. B., 113–115, 124, 132 Rohrer, J. M., 421 Rollie, M., 368

Ronan, K. A., 420, 655 Rooney, J., 348 Root, J. C., 530–532 Ropelato, J., 587 Rose, F. E., 532 Rose, J. D., 392 Rose, M. R., 632, 635 Roseby, V., 103, 105 Rosell, E., 290 Rosen, R. C., 586 Rosenbaum, A., 543 Rosenbaum, J., 560 Rosencheck, R., 290 Rosenfeld, B., 78, 218, 288, 295, 412, 420, 421, 427, 521, 535 Rosenfeld, J. P., 532 Rosenhan, D. L., 49 Rosenthal, R., 49, 625 Roskamp, P., 496–498, 501, 502 Rosler, A., 349 Rospenda, K. M., 290 Ross, C. A., 526 Ross, H. H., 373, 374, 391–393 Ross, J., 586 Rossegger, A., 347 Rossmo, K., 582 Rosso, M., 250, 256 Rostow, C. D., 249, 253, 258, 259, 261, 265 Rostow, C. R., 250 Roth, D. L., 302 Roth, L., 11, 325 Roth, T., 184 Rothstein, L. F., 275, 282 Rotter, M., 455 Rottman, D. B., 631, 634 Rotundo, M., 231 Rounsaville, B. J., 563 Rovine, M., 110 Ruan, W. J., 559, 561 Rubenzer, S., 522, 527 Rubin, J., 299 Rubin, L. H., 493, 496 Rubin, L. J., 235 Rubin, R. N., 253 Rudin, M. M., 345 Rudnick, A., 569 Rudy, L., 594 Ruff, R. M., 527 Ruggiero, K. J., 584

Ruiz, M. A., 531 Rumpel, C., 625 Rumrill, P., 273 Ruscio, A. M., 184, 185 Russell, B. L., 18 Ruther, N. J., 111, 113, 114 Rutherford, M., 559 Rutherford, M. J., 559 Rutter, S., 393 Ryan, C. M., 392 Ryba, N. L., 371, 374, 429 Rybakowski, J. A., 206 Rydell, S. M., 625 Rytina, N. F., 226, 227 Sachdev, P., 207 Sachsenmaier, T., 604 Sackett, P. R., 231 Saddoff, R., 602 Sadoff, R. L., 295, 297, 422, 430, 657 Sagarin, E., 401, 624 Saier, J., 530 Saks, E. R., 303 Saks, M., 544 Saks, M. J., 48, 109, 132, 638 Salamero, M., 206 Salazar, X., 530 Salekin, R., 562 Salekin, R. T., 339, 342, 347, 370, 396, 467, 518, 519, 560, 562, 574 Salem, P., 130 Sales, B. D., 18, 153, 301, 603, 632, 648 Sales, J. M., 589 Salguero, R. G., 506 Salmon, K., 596, 597 Salzinger, S., 145 Sampson, J. J., 105 Sampson, N., 184 Samra, J., 151 Samuel, D. B., 557, 564, 566 Samuel, R., 218 Samuel, S. E., 435 Samuels, C., 624 S´anchez-Moreno, J., 206 Sandberg, D., 543 Sanders, B. E., 580, 582 Sanders, J., 48, 109, 132, 544

Author Index

Sanders, M. R., 147 Sandifer, M., 49 Sandler, J. C., 345 Sandnabba, N. K., 599 Sandys, M., 497 Sanford, N., 639 San Miguel, C., 485 Santeramo, J. L., 492 Santiago-Ramajo, S., 530 Santtila, P., 599 Sareen, J., 184, 185 Sartorius, N., 563 Satel, S., 553 Sattlberger, E., 532 Sattler, J. M., 162, 599 Saul, A., 151 Saunders, B. E., 582 Savodnik, I., 218 Saxe-Clifford, S., 259, 263–266 Saywitz, K. J., 18, 589, 595, 599–601 Sbordone, R. J., 190 Scalise, R. J., 296 Scally, J. T., 151 Scalora, M., 346 Scalora, M. J., 336, 337 Scandura, T. A., 235 Schaaf, J., 593 Schaaf, J. M., 589, 593, 594 Schacter, D. L., 536 Scheck, B., 12, 402, 617, 619, 624 Scheid, T., 273 Scheier, M. F., 643 Schipper, L. J., 535 Schkade, D., 638 Schkade, D. A., 638 Schlanger, M., 183 Schlossberg, N. K., 289 Schmidt, F., 150, 151, 160, 161 Schmidt, M., 532 Schmitt, F. A., 535 Schmitt, N., 250 Schmitt, W. A., 569 Schneider, K. T., 235, 236, 290 Schneider, R. W., 232 Schneider, S. L., 250 Schoenberg, M. R., 523 Schoenfeld, L. S., 250 Scholin, S. E., 592 Schooler, J. W., 590

Schopp, R. F., 335–337, 568–571 Schram, D. D., 333 Schreiber, J., 422, 423 Schroedel, J. R., 227 Schroeder, K. G., 559 Schroeder, M. L., 559 Schuette, R. A., 643 Schuettler, D., 186 Schuller, R. A., 638 Schulman, J., 13, 637 Schulte, A. C., 649 Schuman, D. W., 92 Schumucker, M., 348 Schutz, B. M., 111, 113, 114 Schwab-Stone, M., 365 Schwartz, M., 42 Schwartz, R., 371, 372, 375, 393 Schwartz, S. T., 392 Schwartz-Kenney, B., 594 Schwartzmueller, A., 588 Schwartz-Watts, D. M., 496, 508 Scott, C. L., 433 Scott, D. C., 459 Scott, E., 18, 359, 371, 372, 374, 375, 393 Scott, E. S., 393 Scott, H., 338 Scott, S. S., 149 Scott, T., 340 Scullin, M. H., 593 Sechrest, L., 521 Sedlak, A., 582 Sedlak, A. J., 144, 364, 580–582 Seeberger, W., 368 Seelau, E. P., 625 Seelen, J., 51, 288, 429 Segal, S., 544 Seib, H., 230 Seidman, B. T., 340 Self-Brown, S., 580, 582 Sellbom, M., 189, 250, 254, 427, 429, 524, 525, 536 Sellers, A. H., 189 Seltzer, R., 632, 637, 642 Seman, W., 467 Sepejak, D., 545 Sepulveda, S., 146 Serafino, G. F., 254, 256 Serico, J. M., 392 Serin, R. C., 498, 502

687

Serpa, J. G., 522, 529 Sesco, B., 593, 594 Seta, C. E., 228 Seta, J. J., 228 Seto, M. C., 347, 348 Sewell, A., 236 Sewell, K., 215, 374, 426, 428, 562 Sewell, K. W., 190, 288, 339, 342, 347, 373, 386, 392, 396, 397, 426–428, 467, 518, 519, 522, 524, 526 Sewell, R. W., 467 Sewell, W., 466, 467 Shackleton, H., 532 Shaffer, D., 365 Shafran, C. R., 126, 586 Shah, S., 367, 370, 498, 551 Shamieh, E., 530 Shandera, A. L., 535 Shapiro, C., 604 Shapiro, C. J., 147 Shapiro, D., 394 Shapiro, D. L., 91 Shapiro, M., 497 Shapiro, P. N., 625 Sharfstein, S. S., 287 Sharland, M., 528, 529 Sharma, V., 392 Sharp, T. J., 195 Sharpe, M., 274, 656 Sharpiro, L. B., 594 Shaver, P., 13, 637 Shaver, P. R., 589, 594 Shaw, E., 547 Shaw, J. A., 404 Shaw, J. S., 594 Shaw, L. R., 273 Shaw, R., 458 Shea, S., 544 Shea, S. J., 371 Shear, L. E., 124 Sheidow, A. J., 365 Shemwell, M., 368 Shepherd, G., 389, 392 Shepherd, J. W., 625 Sherman, D., 530 Sherman, E. M. S., 528, 533 Sherman, J. W., 228 Sherman, M., 428 Sherman, S. J., 49, 623, 643

688

Author Index

Sherrod, C. B., 428 Shestowsky, D., 637 Shewan, C. M., 43 Shi, X., 147, 150, 160, 161 Shields, A., 146 Shin, M. S., 207 Shin, Y. W., 207 Shiperd, J. C., 195 Shipley, S., 557 Shivy, V. A., 49 Shlosberg, A., 374 Shoenrock, C. J., 404 Shores, A., 530 Showalter, C. R., 489 Shufelt, J. L., 364, 365 Shullman, S. L., 230, 231, 241 Shuman, D., 40, 210, 237, 599 Shuman, D. W., 116, 153, 173, 190, 206, 209, 246, 249, 259, 261, 265, 286, 295, 373, 386, 391–393, 397, 468, 519, 520, 531, 569, 649, 652, 657 Shuper, A., 585 Shur, J., 389, 392 Shuy, R. W., 402, 405 Sickmund, M., 369 Sieber, J. E., 55 Siegel, A., 435 Siever, L. J., 561 Sigelman, C. K., 404 Sigfusdottir, I. D., 405 Sigurdsson, J. F., 393, 401, 405 Silove, D., 186 Silva, J. A., 480, 489, 490, 497 Silver, C., 211 Silver, C. H., 527 Silver, E., 11, 325, 451, 546, 548, 562 Silver, H. K., 140, 144 Silverman, F. N., 140, 144 Silverman, J. G., 130 Silverton, L., 215 Simmens, S. J., 287 Simmonds, D. C., 625 Simon, G. E., 184 Simon, R. I., 183, 185, 295, 649, 658 Simon, R. J., 638 Simons, A., 189 Simpson, S. A., 206

Sinclair, L., 228 Sindelar, J., 207 Sirovatka, P., 287 Sitarenios, G., 162 Skafte, D., 111 Skeem, J., 30, 412, 423, 430, 550 Skeem, J. L., 77, 78, 80, 82, 83, 92, 424, 451, 467, 560, 562, 566, 640 Skilling, T., 375 Skov, R. B., 49 Slain, A. J., 570 Slick, D. J., 528–530, 532, 533 Slobin, C., 113 Slobogin, C., 5, 8, 10, 76, 82, 83, 85, 86, 94, 152, 153, 155, 160, 163–165, 196, 265, 266, 286, 296, 297, 299, 300, 302, 309, 310, 312–314, 317, 320, 321, 324, 327, 328, 335, 350, 362, 369, 390, 394, 413–415, 417, 430, 451, 462, 467, 491, 499, 544, 568–570, 595 Sloss, C. F., 151, 156 Slovenko, R., 335 Slovic, P., 552 Sluder, R. D., 506 Small, D. I., 657, 659 Small, M., 18, 22, 509, 617 Smart, C., 110, 116, 117 Smart, C. M., 536 Smart, D. W., 281 Smart, J. F., 281 Smason, I., 530 Smeets, T., 621 Smith, A. P., 206 Smith, C. A., 493 Smith, C. E., 507 Smith, E., 592 Smith, E. R., 235 Smith, G. A., 458 Smith, G. P., 215, 535 Smith, J. H., 299 Smith, K., 617 Smith, R. G., 250 Smith, S. M., 403 Smith, S. R., 296 Smith, S. S., 347 Smith, W. L., 657 Snitz, B., 545

Snowden, J., 648 Snyder, H., 369 Snyder, L., 601 Snyder, M., 49, 228, 643 Sobsey, D., 582 Sollman, M. J., 530, 535 Solnit, A. J., 142 Soloff, P. H., 324 Soloman, M., 536 Solomon, J. C., 345 Solomon, M. J., 536 Solomon, S. H., 650 Solomon, Z., 186 Sommers, S. R., 635, 638 Song, Z., 187 Sonnega, A., 192, 195 Sorensen, J. R., 497–502, 508 Sothmann, F. C., 633 Southwick, S., 621 Southwick, S. M., 192, 590, 625 Spaccarelli, S., 584 Spanhel, C. L., 404 Spanos, N. P., 624 Spataro, J., 191 Spaulding, S. J., 302 Spitzer, R. L., 287, 526, 563 Spivack, C., 298 Sprang, G., 654 Spray, B. J., 639 Sprehe, D. J., 300 Springer, C., 207 Springman, R. E., 155, 156, 159, 163 Sreenivasan, S., 218, 571 Stace, W. T., 53 Stafford, K. P., 295, 412, 421, 422, 427, 429, 430, 536, 655 Stahl, P. M., 111, 113–115, 123, 124, 132 Stahlhut, E. H. J., 276 Stalans, L. J., 350 Stang, P. E., 184 Stankovic, A., 94 Starcevich, V., 207 Starr, V. H., 636, 643 Starrett, B. E., 279 Stauts, H. C., 139 Stava, L., 338 Stavis, P. F., 309

Author Index

Steadman, H., 11, 325, 412, 420, 545, 546, 548, 550, 551, 553 Steadman, H. J., 412, 451, 453, 455–458, 562 Steblay, N. M., 625 Steel, P., 234, 236 Steele, B. F., 140, 144, 145 Steele, C. M., 228 Steer, R., 584 Steer, R. A., 162, 214 Stefan, S., 271–273, 277, 280, 291 Steffian, G., 621 Steffy, R. A., 338 Stein, M. B., 184, 185 Steinberg, A., 432 Steinberg, L., 18, 79, 82, 147, 148, 371, 372, 374, 375, 393 Steiner, B. D., 497 Steiner, H., 375 Stejskal, W., 412, 433 Stephens, D. N., 207 Stern, A. E., 583, 584 Stern, L. B., 626 Sternberg, K., 597, 598, 601, 602 Sternberg, K. J., 593, 595, 598, 601, 602 Stetler, R., 494 Steury, S., 206 Stevens, A. B., 302 Stevens, K. B., 287 Stevenson, M. C., 638 Steward, D. S., 595 Steward, M. S., 595 Stewart, C. O., 254, 257, 258, 263–266 Stewart, H., 602 Stinson, F. S., 559, 561 Stinson, V., 403 Stock, H., 250 Stock, H. V., 430 Stockdale, K. C., 340 Stockdale, M. S., 232, 235, 236 Stoffel, V. C., 279 Stolle, D. P., 648, 653 Stoloff, M. L., 250 Stone, A., 258, 259, 265, 412 Stone, A. V., 258, 265, 266 Stoolmiller, M., 368 Stordal, K. I., 206 Storey, J., 562

Storrie, D., 187 Strachan, M. K., 365 Strange, D., 596 Strasburger, L. H., 210 Strauss, E., 302 Strauss, E. H., 529 Stredny, R., 429 Stredny, R. V., 148, 149 Streiner, D. L., 189 Strickland, S. M., 634 Strier, F., 637, 649 Strodtbeck, F., 639 Stroessner, S. J., 228 Strohman, L., 552 Strohman, L. K., 502 Strohmer, D. C., 49 Stroshal, K., 324 Strunk, J., 535 Studebaker, C. A., 633 Stueve, A., 547 Stuewig, J., 569 Sturge-Apple, M. L., 130 Sturgill, W., 625 Sturgis, B. J., 335 Sturm, C. A., 300, 655, 656 Sturman, E. D., 302 Sturmey, P., 572 Sukel, H., 401 Sule, A., 192 Sullivan, L., 371 Sullivan, P. M., 582 Sumanti, M., 218 Summers, A., 405 Sun, S., 187 Sunstein, C. R., 638 Super, J., 246, 247, 252, 254 Super, J. T., 250 Supska, M., 621 Susser, E., 561 Sutherland, R., 596 Svedin, C.-G., 587 Swan, S., 230, 235, 236, 290 Swann, W. B., 49 Swanson, J. W., 295 Swartz, M., 367 Swartz, M. S., 295 Swecker, J., 230, 231, 241 Swedish, K., 231 Sweeney, C. D., 126 Sweeney, E. M., 147

689

Sweeney, L. T., 18 Sweet, J. J., 527, 532, 536 Sweet, S. C., 151 Swenson, J., 367 Swets, J., 548 Swim, J. K., 236 Szalda-Petree, A. D., 532 Tabat, G. H., 42 Talmadge, S. A., 402 Talwar, V., 593 Tam, P., 599 Tan, J. E., 529 Tanenhaus, D., 360 Tang, C., 640 Tang, C. M., 640 Tangney, J. P., 569 Tanur, J. M., 617 Taormina, S., 392 Tarvydas, V. M., 281, 288 Taska, L., 583, 584 Taska, L. S., 583, 584 Taska, L. X., 584 Taylor, A. E., 187 Taylor, C. G., 145 Taylor, J., 561 Taylor, S., 18, 195, 207 Teichner, G., 535 Tellegen, A., 148, 162, 214, 254, 288, 427, 524, 525, 564, 565 Tellegen, R., 364 Tellgen, A., 564 Temkin, M., 207 Tennant, J., 535 Tenney, J. P., 279, 282 Tenopyr, M. L., 281 Teplin, L., 365 Terracciano, A., 560 Terry, A., 366, 370 Tett, R. P., 249 Tewksbury, R., 334 Theroux-Fichera, S., 530, 532 Thomas, A. K., 624 Thomas, K. M., 638 Thomas, M. H., 281 Thomas, N., 582 Thomas, P., 625 Thomas, S., 604 Thompson, J., 425 Thompson, J. M., 206

690

Author Index

Thompson, L., 422, 425 Thompson, T. J., 583 Thompson, W. C., 633, 639 Thornberry, T., 545 Thornberry, T. P., 493 Thorndike, R. L., 162 Thornton, D., 341, 343 Thorpe, M., 43 Thyer, B. A., 422 Tiihonen, J., 559 Tillbrook, C., 428 Tillbrook, C. E., 421, 426, 427 Timbeck, R. J., 302 Tipp, J., 559, 560 Tippins, T. J., 83 Tippins, T. M., 43, 46, 55, 56, 106, 132, 162, 655 Titus, T. G., 583 Tobey, A., 372 Tobey, A. E., 604 Tolan, P. H., 365 Tombaugh, T., 288, 427 Tombaugh, T. N., 215, 529, 530, 532, 535 Tomkins, A. J., 22 Toobin, J., 630 Toomey, J., 524 Toomey, J. A., 427 Torrent, C., 206 Torrey, E., 552 Toth, S. L., 146 Townshend, J. M., 207 Trachsel, M., 187 Tranel, D., 91 Tremblay, C., 584 Tremblay, H., 422 Trinder, L., 123 Trombka, C. C., 530, 532 Troster, A. I., 527 Troxel, N., 604 Trueblood, W., 532 Tsethlikai, M., 590, 591 Tulsky, D. S., 530, 532 Tulving, E., 587 Tunzi, M., 302 Turano, M. V., 296 Turner, D., 342 Turner, D. B., 342 Turner, H., 580 Turner, H. A., 583

Turtle, J. W., 627 Tussey, C., 342 Tversky, A., 49, 633 Twentyman, C. T., 149 Tyler, K., 330 Ullman, D., 346 Ullman, M., 279 Underwood, L., 364 Unger, D. D., 273 Urbaniok, F., 347 Uy, M. A., 187 Vagnini, V. L., 530 Valle, L. A., 147 Van Abbema, D. L., 589 VandeCreek, L., 46, 56, 57 Vandecreek, L., 249 van der Auwera, J. C., 585 van der Hart, O., 590 van der Kolk, B. A., 590 van der Lugt, R., 653 Vandiver, D. M., 345 Van Gelder, J., 536 van Gool, J. D., 585 Van Gorp, W., 530–532 van Gorp, W., 218, 535 van Gorp, W. G., 531 VanHarrison, R., 289 Van Horne, B. A., 46, 57 van Knippenberg, A., 228 Van Leeuwen, E., 299 Vann, C., 76 van Ommeren, A., 348 Van Rybroek, G. J., 314 van Sprundel, M., 585 van Tilburg, W., 299 Vant Zelfde, G., 362 Vasquez, M. J. T., 55 Vasterling, J. J., 207 Vazquez, B, E., 9 Vega, L., 638 Vellet, S., 145 Vellinga, A., 299 Venuti, M., 632 Verdejo-Garcia, A., 530 Verdun-Jones, S. N., 568–570 Verhaagen, D., 19, 364, 367, 368 ver Halen, N. B., 236, 239 Verloove-Vanhorick, S. P., 585

Vernon, M., 432 Verona, E., 569 Vescio, T. K., 228 Vetter, V. A., 55 Veysey, B., 333 Vickery, C., 530 Victor, T., 532 Victor, T. L., 522, 529, 530 Vieira, T., 375 Vieta, E., 206, 207 Vieth, V., 596 Vigen, M. P., 493, 496, 497, 499–502, 506, 508 Viglione, D. J., 428 Vilar-Lopez, R., 530 Viljoen, J., 374 Viljoen, J. L., 346, 372–374, 388, 391–394, 425, 560 Villemur, N. L., 639 Vincent, G., 365, 366, 370, 375 Vincent, G. M., 364, 372, 560, 562 Vincenzi, N., 635 Vinson, K. V., 638 Violato, C., 583 Virkkunen, M., 559 Visio, M., 232 Viswesvaran, C., 250 Vitacco, M., 428 Vitacco, M. J., 314, 427, 428, 518, 524, 527 Vogels, T., 585 Voils, C. I., 228 Vollum, S., 485 von K¨anel, M. L., 187 Vora, I., 330 Vore, D., 184 Vrij, A., 594 Wade, K. A., 624 Wadsworth, E. J. K., 206 Wagner, A., 501 Wagner, M. T., 535 Wahl, O. F., 272, 277 Wahlstrom, C., 349 Waid-Ebbs, K., 273 Wakeman, E. E., 23 Wald, J., 207 Waldman, I. D., 561 Waldo, C. R., 232 Walfish, S., 265

Author Index

Walker, A. G., 580, 599 Walker, J. T., 9, 345 Walker, L., 4, 488, 542 Walker, M. E., 582 Walker, N., 452 Wall, B. W., 218, 261, 305, 433, 435 Wall, S., 146, 150 Wallace, D., 506 Wallace-Capretta, S., 348 Wallach, E. J., 279, 282 Wallerstein, J. S., 18, 103, 127 Walsh, C., 582 Walsh, J., 187 Walsh, M., 365 Walsh, S. M., 497 Walsh, T., 569, 570 Walsh, Z., 569, 570 Walters, G. D., 519, 536 Walters, S., 596 Wang, P. S., 184 Ward, J. T., 189 Warner-Chacon, K., 530 Warren, A. R., 598–600, 602 Warren, J., 78, 192, 193, 217, 412, 420, 421, 433, 552, 553 Warren, J. I., 288, 456 Warren, L., 230 Warshak, R. A., 105, 127 Wasserman, A. L., 341 Wasserman, A. W., 638 Wasserman, G., 364, 365 Wasti, S. A., 236 Wasyliw, O. E., 467 Waterman, J., 375 Waters, E., 146, 150 Waters, J., 78, 82 Waters, W. F., 532 Watkins, H. G., 301 Watkins-Clay, M., 521, 525 Watson, M., 544 Watson, R. J., 339, 342 Watson, S., 206 Watt, K. A., 342, 560 Watters, E., 402 Waugh, I. M., 236 Waxman, S. E., 533 Wayne, J. H., 638 Weathers, F. W., 189 Weathers, J. E., 635

Weaver, C. M., 308 Webb, M. B., 139, 145 Webster, C., 255, 544–546, 549 Webster, C. D., 365, 369, 422, 424, 498 Webster, R. A., 186 Wechsler, D., 162, 288, 504, 531 Weierich, M. R., 189 Weihofen, H., 64 Weinberg, S. L., 583 Weinberger, J., 44 Weinberger, L. E., 309, 571 Weinborn, M., 530 Weiner, I., 288 Weiner, N. A., 635 Weiner, R. L., 648, 653 Weinrott, M. R., 341, 348 Weinstock, R., 480, 489, 490, 497 Weiss, P. A., 253, 254 Weiss, R., 387, 388 Weiss, W. U., 250, 253, 254, 256 Weissman, H. N., 38–40, 44, 124, 187, 517, 528, 534, 536 Weitzman, L., 230, 231, 241 Wellman, F. L., 658 Wells, D. L., 191 Wells, G. L., 12, 18, 617–620, 624–627 Wells, K. C., 162 Wells, T., 402 Werlinder, H., 557 Werth, J., 323 Weschler, H., 586 Wesolowska, B., 621 West, S., 189 West, S. L., 273 Westcott, H. L., 599, 602 Westen, D., 44 Wetter, M. W., 43 Wetter, S. R., 533 Wettstein, R. M., 30, 76, 83 Wetzel, R. D., 189 Whalen, N., 591 Whipple, E. E., 148 Whipple, L. J., 298 Whitaker, J. D., 147 White, H. R., 191 White, L. T., 592, 593 White, P. A., 422 White, S. F., 368

691

White, T. L., 599 Whitebread, C., 414 Whiteside, S. P., 585 Whiteside-Mansell, L., 149 Whitfield, C. L., 590 Whitman, C. S., 62 Whittemore, D., 424, 433 Whitworth, D., 23 Wicke, C., 625 Wicker, A. W., 642 Wicklund, R. A., 643 Widiger, T. A., 498, 557, 559, 561, 562, 564, 566, 639 Widom, C. S., 191, 493 Widows, M. R., 215, 564 Wiederanders, M., 348 Wiederanders, M. R., 459 Wiener, R. L., 18, 230 Wigboldus, D. H. J., 228 Wiggins, J. S., 44, 565 Wigmore, J. H., 3, 44, 400 Wildman, R. W., 422, 425 Wiley, T. R., 638 Wilkins, S., 653 Wilkinson, G. S., 162 Willcock, E., 596 Williams, C., 364 Williams, C. J., 643 Williams, C. L., 162, 536 Williams, C. W., 190, 208, 216, 217, 287 Williams, J. B., 287, 526 Williams, J. B. W., 563 Williams, J. R., 654 Williams, K. B., 231, 232 Williams, L. M., 583, 584 Williams, R. W., 532 Williams, W., 76 Williamson, D. F., 583 Williamson, S. E., 569, 571 Willis, S. C., 531 Willis, S. L., 302 Willness, C. R., 234, 236 Willoughby, M., 149 Wilson, C., 601 Wilson, D., 145 Wilson, J. C., 600 Wilson, K. G., 639 Wilson, M., 366

692

Author Index

Wilson, R. J., 339, 342, 343 Wilson, S. R., 147, 150, 160, 161 Winer, J. L., 404 Winick, B. J., 309, 336, 509 Winokur, G., 558 Winter, M. A., 130 Witt, P. H., 19, 333–335, 337, 342, 343, 345–347, 350 Witt, P. W., 9 Wittman, J. P., 655 Wittmann, J. P., 43, 46, 83, 106, 132, 162 Witztum, E., 349 Wolak, J., 587 Wolber, J. G., 434 Wolbransky, M., 392, 551 Wolf, A. S., 467 Wolf, E. J., 189 Wolfe, D. A., 145, 146, 159 Wolfe, M. A., 585–587 Wolfe, P., 532 Wolters, R., 4 Wong, P. W., 297 Wong, S., 339, 347, 562 Wong, S. C., 562, 573 Wong, S. C. P., 340, 351 Wood, E., 301 Wood, J. B., 432 Wood, J. M., 149, 594, 597, 599 Wood, S., 301 Woodall, C. E., 598, 599, 602 Woodhead, M. M., 625 Woodruff, R. A., 558 Woods, C., 342 Woods, S. O., 497, 499–502, 508 Woods, S. P., 530 Woodworth, G. G., 635 Woolard, J., 371, 372, 393 Woolard, J. L., 371, 372, 375, 393 Wooley, C. N., 526 Worley, C., 574

Worling, I. R., 369 Worling, J. R., 346 Worrell, C. M., 497 Wortzman, G., 496 Wotherspoon, E., 145 Wothke, W., 368 Wright, P., 422 Wrightsman, L. S., 401, 402, 404, 405, 640, 648, 651 Wrinkle, R. D., 500, 501 Wulach, J. S., 413 Wulczyn, F., 139, 145 Wyer, M. M., 104 Wygant, D., 215, 427, 524 Wygant, D. B., 412, 421, 427, 525, 536 Wylie, A. M., 435 Wylonis, L., 305 Wyndaele, J. J., 585 Wynkoop, T. F., 530, 532 Yancey, C. T., 583, 584 Yanez, Y. T., 149, 535 Yang, H., 653 Yang, M., 562, 573 Yang, Y., 561 Yarvis, R. M., 496 Yasuhara, K., 367, 550 Yeager, C., 496 Yelin, E. H., 272 Yilmaz, O., 653 Yip, P. S., 297 Yoder, J. D., 235 Yoder, S., 207 Yonkers, K. A., 184 Young, A. H., 206 Young, J., 242, 536 Young, J. M., 536 Young, K., 654 Young, M. J., 117 Young, R. D., 393 Young, R. E., 583

Young, T. J., 297 Younggren, J. H., 58 Youngjohn, J. R., 528 Yudilevitch, L., 601, 602 Yuille, J. C., 18, 621, 623 Yutzy, S., 189 Zaitchik, M. C., 23, 364, 367 Zald, D., 545 Zalewski, C., 345 Zanna, M. P., 643 Zaparniuk, J., 18 Zapf, P., 10 Zapf, P. A., 371, 372, 374, 392, 393, 412, 420, 422–425, 428–430, 451, 467, 506, 509, 655 Zasler, N. D., 287 Zdanowicz, M., 552 Zeisel, H., 636, 637 Zelechoski, A. D., 392 Zelig, M., 247, 263–266 Zelle, H., 373, 374, 392, 397 Zervopoulos, J. A., 48, 149 Zevitz, R. G., 333, 334 Zgoba, K., 333 Zhu, B., 621 Zibbell, R. A., 7 Ziegler, E. A., 522, 529 Zielinski, R., 530, 532 Zigarelli, M. A., 231 Zimmerman, M., 287 Zimmerman, M. L., 392 Zimring, F., 361 Zinger, I., 570 Ziskin, J., 76, 464 Zohar, J., 186 Zonana, H., 435 Zonana, H. V., 218, 305, 459, 462 Zucker, K. J., 584 Zuckerman, D., 635 Zuriff, G. E., 281 Zwi, A. B., 145

Subject Index

Accident neurosis, 534 Achenbach System of Empirically Based Assessment, 364 Activities of daily living (ADLs), 184 Actual cause, 177 Actuarial methods, 367 Actuarial risk assessment, 545–548 Actus reus, 441, 569 Acute stress disorder (ASD), 290 ADA Amendments Act (ADAAA), 277 Adaptational model, 518 Addington v. Texas, 312 Adjudicative competence concepts, 371–372 legal standard, 370–371 methods, 372 Adjudicatory hearings, 143–144 Administrative Review Act, 248 Adoption and Safe Families Act (ASFA), 141 Adoption Assistance and Child Welfare Act (AACWA), 141 Adult-Adolescent Parenting Inventory (AAPI), 149 Affective symptoms, 184 Affinity, 128 Affirmative defense duress, 447 involuntary intoxication, 446–447 legal insanity, 446 Age Discrimination in Employment Act (ADEA), 226 Aggravating factors, 474 Agoraphobia, 207 Aid to Capacity Evaluation (ACE), 302 Ake v. Oklahoma, 38 civil litigation, 652 criminal contexts, 651 lawyers and experts, 650

mental health concerns, 649–650 practical considerations, 653 ALI standard, 455 Allard v. Hedgemoe, 415 American Academy of Clinical Neuropsychology (AACN), 527 American Academy of Psychiatry and the Law, 435 American Bar Association (ABA), 456 American Bar Association Criminal Justice Standards Committee, 650 American Bar Association’s Criminal Justice Mental Health Standards (1989), 542 American Board of Clinical Neuropsychology, 218 American Board of Forensic Psychology (ABFP), 5, 16 American Board of Professional Psychology (ABPP), 395 American Law Institute (ALI), 105, 455 American Psychiatric Association’s (1983), 542 American Psychological Association (APA), 108, 152, 210 American Psychology–Law Society (AP-LS), 16 American Sign Language (ASL), 432 Americans With Disabilities Act (ADA), 8 employment discrimination/harassment, 225 employment of disabled people discrimination impact, 272–273 impact, 273–274 litigation, 273 rate of disability, 272 litigation-related evaluations and consultations disability harassment and hostile work environment, 289–290 disparate treatment and impact evaluations, 288–289 failure to provide reasonable accommodation, 286–288 693

694

Subject Index

Americans With Disabilities Act (ADA) (continued) reports, depositions/court testimony, 290–291 reprisal for protected conduct, 289 mental/psychiatric/psychological disabilities ADAAA, 277 conduct issues, 275 definition of, 274–275 depression, 277–278 direct threat, 275–276 learning disabilities, 278–279 substance abuse disorders, 276 suicidal workers, 276 violence/threats of violence, 275–276 psychological consultations with employers/workers case example, return to work evalution, 283–285 conceptualization, 279–280 return to work evaluation, 280–283 Amicus brief, 65 Amnesia, 414 Anger, 547 Ankenbrandt v. Richards, 103 Antisocial features (ANT), 565 Antisocial personality disorder (APD), 339, 519, 557, 558 APA’s Commission for Recognition of Specialties and Proficiencies in Professional Psychology (CRSPPP), 16–17 Appropriation, 175 Artificial insemination (AI), 106 Assessment of Consent Capacity for Treatment (ACCT), 299 Assisted reproductive technology (ART), 106–107 Association for the Treatment of Sexual Abusers (ATSA), 344 Association of Family and Conciliation Courts, 108 Asylums, 310 Atkins v. Virginia, 482, 535 Attachment behavior, 146 Attachment domain, 557 Attention-deficit/hyperactivity disorder, 393 Atypical presentation, 532 Atypical Presentation Scale (APS), 426, 428 Austin’s model, 130 Authoritative treatise, 44 Autobiographical memory development, 589–590 Automatism, 442 Bad faith, 203–204 Barefoot v. Estelle, 11, 338, 480, 487, 541 Barnum’s 4-H model, 153–154

Base rates, 367 Baseline functioning, 216 Baskerville v. Culligan, 71 Batson v. Kentucky, 634 Battered child syndrome, 140 Baxstrom v. Herold, 320 Behavior syndrome, 585 Behavioral domain, 557 Behavioral-medicine models, 518 Belsky’s model, 147 Berghuis v. Thompkins, 384 Best interests of the child (BIOC) assisted reproductive technology, 106–107 Bort, In re, 102 child custody statutes, 103 child protection function of, 103 dispute-settlement task, 103 Finlay v. Finlay, 102–103 gender-neutral solution, 104 parenting plans, 105–106 relocation law, 107–108 state-specific presumptions and factors, 104–105 strengths and weakness/limitations, 104 U.S. Supreme Court support, 103 Bifurcated assessment model, 253 BIOC See Best interests of the child (BIOC) Bipolar disorder, 206–207 Board certification, 71 Bonding/attachment assessment, 150–151 Bootstrapping comparisons, 520–521 Boyes-Bogie v. Horvitz, 652 Breach of contract, 203–204 Bronfenbrenner’s ecological model, 147 Brosnan v. Provident Life & Accident Insurance Company, 205 Brown v. Mississippi, 382 Bruce v. Byrne-Stevens & Associates, 73 Budd’s model, 154–155 Burchard v. Garay, 105 Burden of production, 174 Burrus, In re, 103 Bystander recovery, 180 Caban v. Mohammad, 104 California Evidence Code Rule 721(b), 72 Section 720, 66 Section 721(a)(3), 69 Section 722(b), 71

Subject Index

California Peace Officer Standards and Training Commission, 251 California Psychological Inventory (CPI), 254 California v. Brewster, 619 California Verbal Learning Test (CVLT), 532 Canterbury v. Spence, 175, 298 Capacity Assessment Tool (CAT), 302 Capital cases competency to execution, 506, 509 competency to waive appeals, 506–508 expert testimony evaluating witness testimony, 504 teaching witness testimony, 503–505 forensic assessments evaluation parameters, 491 mental state evaluation, 491 mitigation, 491–496 pretrial evaluations, 490–491 mental retardation, 505 state postconviction and federal habeas cases, 505–506 violence risk assessment base-rate anchors, 499–502 common errors, 497–498 group statistical data, 502–503 past pattern, 499 risk management, 502 Capital punishment, 449 Categorical format, 553 Child Abuse Potential Inventory (CAPI), 149 Child Abuse Prevention and Treatment Act (CAPTA), 140, 582 Child alienation, 127–129 Child custody evaluation, 7 BIOC Finlay v. Finlay, 102 assisted reproductive technology, 106–107 child protection function of, 103 dispute-settlement task, 103 gender-neutral solution, 104 parenting plans, 105–106 relocation law, 107–108 state-specific presumptions and factors, 104–105 strengths and weaknesses/limitations, 104 U.S. Supreme Court, 103 changes in law, 101, 102 attachment hierarchies, theory of, 102 child development, father’s role in, 102 father-absent children, 102 Freudian theories, 101 mother-child relationship, 102

paternal presumption, 101 psychoanalytic theory, 101 research samples, 102 social policy, 101 women’s rights movement, 101 changes in practice, 108–109 complex issues child alienation, 127–129 gatekeeping, 123 never-married parents, 125–126 relocation analysis, 123–125 sexual abuse allegations, 126–127 short-lived parent relationship, 125–126 systemic processes, 129 domestic violence Austin’s model, 130 Drozd’s model, 130–131 professional practice guidelines AFCC Model Standards, 110–111 APA, 109–110 Griggs v. Duke Power Company, 111–112 Grisso’s competency-based model, 112–113 scientifically informed model clinical judgment, 113 collateral record review and interview, 121–122 Daubert criteria, 113 decision making, 113 evaluations, 113 expert testimony, 113 forensic model, 114–116 methodology, 114–115 parent and child behavioral observation, 120–121 peer-reviewed research, 122 psychological test, 118–119 questionnaires and self-report inventories, 119 semistructured interview format, 116–118 Child pornography, 346–347 Child protection context, 7 behavioral and social science research attachment theory, 146 bonding/attachment assessments, 150–151 cultural factors, 147–148 direct observation, 149–150 ecological systems theory, 147 forensic assessment practice, 151–152 maltreatment impact, 145 parenting style dimensions, 147 parenting-specific measures, 149 parents and children involvement, 144–145

695

696

Subject Index

Child protection context (continued) traditional psychological measures, 148–149 welfare services and limitations, 145–146 communication interpreting findings, 162–164 report writing, 164–165 sworn testimony, 165–167 contemporary conceptualization, 139 data collection areas of inquiry, 159 behavioral observations, 159 children and parents, interview, 158 collateral/third-party interview, 160 confidentiality limits, 158–159 multiple interviews, 159 parent-child observations, 160–161 rapport, 159–160 testing, 161 use of translators, 160 FMHA Barnum’s 4-H model, 153–154 Budd’s clinical practice model, 154–155 child custody evaluation contexts, 155–156 evaluations purpose and scope, 152 professional guidelines, 152–153 referral questions, 156–157 risk and protective factors, 155 legal framework best interest, 142 case law and federal legislation, 140–142 overview of, 142–144 maltreatment cases, 139 Child protective services (CPS), 140 Child sexual abuse (CSA), 12 abuse characteristics, 584–585 allegations categories, 581 assessment tools anatomical dolls, 595–596 body diagrams, 596 drawings, 596–597 behavior syndrome, 585 children’s behaviors children’s knowledge, adult sexual behaviors, 587 fears, 586 normative behavior, 585 sexual behavior, 586–587 sleep problems, 585–586 somatic complaints, 586 children’s testimony closed-circuit television testimony, 604

courtroom alteration, 604 out-of-court statements, 603 special courtroom provisions, 603 special forms of questioning, child witnesses, 604–605 testimonial aids, 605 declining rates, 580–581 definition, 579–580 effects, 583 events, 583 family factors, 584 forensic ethics, 39 incidence and prevalence, 580 interview structures building rapport, 599 child’s linguistic capacity, 599–600 ground rule establishment, 600–601 hypotheses, 597 improper interviewing techniques, 597 interview recording, 598 interview steps sequences, 598–599 open-ended questions, 601–602 practice interview on non-abuse-related questions, 601 skill and expertise, 597 truth-lie competency, 600 mandated reporting, 582 memory autobiographical memory development, 589–590 early memory, 587–590 personalization model, 588 repression and recovered memories, 590–592 sociocultural model, 588–589 trauma impact, 590 Tulving’s monohierarchical multimemory systems model, 587–588 moderating variables and outcomes, 583 risk factors, 581–582 suggestibility future research, 594–595 interview context, 593–594 interviewer’s questions, 593 research consensus, 592–593 victim attributions, 583–584 Child Sexual Abuse Accommodation Syndrome (CSAAS), 585 Child Welfare Information Gateway, 142 Children’s behaviors children’s knowledge, adult sexual behavior, 587 fears, 586

Subject Index

normative behavior, 585 sexual behavior, 586–587 sleep problems, 585–586 somatic complaints, 586 Children’s testimony closed-circuit television testimony, 604 courtroom alteration, 604 out-of-court statements, 603 special courtroom provisions, 603 special forms of questioning, child witnesses, 604–605 Christie Brothers Circus v. Turnage, 179 Civil commitments, 335 Civil competencies, 8 capacity to consent to treatment, 300 capacity to refuse treatment, 300 guardianship characteristics of, 305 Disability Court Psychologist’s Outline, 304–305 forensic assessment, 302–305 legal and historical background, 300–301 informed consent Canterbury v. Spence, 298 categories of, 299–300 goals of, 298 psychological tests, 299 retrospective assessment of durable power of attorney, 296 health-care surrogacy, 296 living will, 296 psychological autopsy, 297 Statute of Wills, 296 testamentary capacity, 297–298 undue influence, 298 video-recorded evaluations, 300 Clark v. Arizona, 443, 457 Classification of Violence Risk (COVR), 325–326, 548 Cleghorn v. Hess, 248 Clinical inference hierarchy, 43 Clinical jargon, 95 Clinical psychology, 64–65 Clinical risk assessment outcomes of, 545 process of, 544 Clinical variables, 546 Closed-circuit television testimony (CCTV), 604 Code of ethics. See Forensic ethics Coerced confessions, 383 Cognitive domain, 558 Cognitive functions, 207 Cognitive organization, 424

Cognitive psychology, 18 Cognitive symptoms, 184 Cognitive-behavioral therapy (CBT), 349 Coker v. Georgia, 478–479 Collateral source information, 121 Collins v. Hulick, 388 Colorado v. Connelly, 372, 384 Commission for the Recognition of Specialties in Professional Psychology (CRSPP), 40 Commission on Accreditation (CoA), 17 Committee for the Recognition of Specialties and Proficiencies in Professional Psychology (CRSPPP), 108 Commonwealth v. a Juvenile, 387 Commonwealth v. DiGiambattista, 389 Commonwealth v. Guyton, 387 Commonwealth v. King, 388 Commonwealth v. MacNeill, 387 Commonwealth v. Mandile, 389 Commonwealth v. Meehan, 389 Commonwealth v. Philips, 388 Commonwealth v. Roane, 387 Community Competency Scale (CCS), 302 Comorbid disorders, 186 Competency Interview Schedule (CIS), 302–303 Competency Screening Test (CST), 422–423 Competency to stand trial, 10 amnesia, 414 attorney opinions and decision making, 419 clinician opinions and decision making, 420 conceptualization, 418–419 definition, 413–414 early history, 413 empirical literature, 419–420 evaluation reports, 430 evaluation systems antisocial traits and substance abuse, 421 back-door possibility, 421 impaired capacity, 422 incompetence opinions, 420 inpatient vs. outpatient, 420 legal abilities, 421 Ohio jurisdiction, 421 psychiatric hospitalization, 421 FAIs CADCOMP, 425 Competency Screening Test, 422–423 defendants’ abilities, 422 ECST-R, 426–427 FIT, 424–425

697

698

Subject Index

Competency to stand trial (continued) GCCT, 425–426 Interdisciplinary Fitness Interview, 423 MacSAC-CD, 423–424 mental retardation, 426 incompetent defendants, treatment of commitment, length of, 417 involuntary medication, 417–418 insanity defense, 417 plead guilty, 414–415 psychological testing cognitive functioning, 428–429 malingering, 427–428 personality/psychopathology functioning, 429 special populations competency restoration, 433–434 defendants adjudicated incompetent, 434–435 interventions, 432–433 mental retardation, 431–432 permanently incompetent defendants, 435 psychosis, 430–431 speech and hearing impairment, 432 standard of proof, 416–417 waive counsel defense strategy, 416 due process, 415 Dusky competence standard, 415 federal dockets, 416 knowing and intelligent, 415 postconviction relief, 415 pro se defendants, 416 self-representation, 415 Supreme Court, 415 Comprehensive Assessment of Psychopathic Personality (CAPP), 557–558 Computer-Assisted Determination of Competency (CADCOMP), 425 Computer-based test interpretations (CBTIs), 51 Conceptual equivalence, 560 Conservatorship, 106 Conte v. Horcher, 258 Contextual variables, 546 Continuing education programming (CEP), 26 Cook County Juvenile Court Clinic (CCJCC), 152 Cooper v. Oklahoma, 416 Core duties, 207 Coyote v. U.S., 384 Crane v. Kentucky, 400–401 Cremer v. City of Macomb Board of Fire and Police Commissioners, 248

Criminal court, waiver assessment concepts and methods, 370 legal standard, 369–370 Criminal interrogation and confessions, 383 Criminal responsibility, 10 assessment of mental state at time of offense background information, 464 behavior in jail/hospital, 465 defendant’s version of offense, 465 defendant, description of, 465–466 demographic data, 464 forensic assessment instruments, 467–468 informed consent, 465 insanity case, 468–469 material reviewed, 465 model, 462–464 psychological testing, 466–467 social and medical history, 466 statement of facts, 465 doctrines of criminal liability act requirement and automatism, 442 affirmative defenses, 446–447 extreme emotional disturbance, 449–451 intoxication, illegal drugs and mens rea, 445–446 mens rea and mens rea defenses, 442–443 mental abnormality and mens rea, 443–445 partial excuse, 447–449 elements of, 441 ethical issues in evaluating mental state at time of offense evaluation, diagnosis and intervention, 461 informed consent, 460–461 multiple sources of data, 461–462 professionalism, 461 ultimate legal issue, 462 free will and causation, 459–460 insanity defense ALI’s Model Penal Code rule, 454–456 cognitive standard, 453 control tests, 453 Durham rule, 454 Hinckley verdict, 455–456 irresistible impulse test, 453 M’Naghten rule, 452–453 not guilty by reason of insanity, 451 policeman-at-the-elbow test, 453 reforms, 456–459 wild-beast test, 452 sibling rivalry, 440 Criminogenic needs, 375–376

Subject Index

Criminological model, 518 Cross-examination, 68–69 Cruzan v. Missouri Department of Health, 296 Culombe v. Connecticut, 390 Cultural facilitation, 561 Cultural factors, 147–148 Custody, 385–386 Cyproterone acetate (CPA), 349 Damascus v. Provident Life and Accident Insurance Company, 204 Data interpretation analysis collateral data, 217 psychological test, 217 self-report, 216–217 dissimulation, 217–218 formulating opinions, 218–220 Daubert v. Merrell Dow Pharmaceuticals, 67, 113, 153, 543 Davidson v. Midelfort Clinic, Ltd., 278 Davis v. United States, 384 Davis, In re, 322 Death penalty, 10 capital trials aggravating factors, 474 eligibility/sentencing phase, 475 habeas review, 475 hung jury, 475 mitigating factors, 474 Model Penal Code, 474 Ring v. Arizona, 475 special circumstances, 474 case law Atkins v. Virginia, 482–483 Barefoot v. Estelle, 480 Coker v. Georgia, 478–479 Eddings v. Oklahoma, 479 Ford v. Wainwright, 481 Furman v. Georgia, 477–478 Gregg v. Georgia, 478 Lockett v. Ohio, 479 Panetti v. Quarterman, 481–482 Rompilla v. Beard, 484–485 Roper v. Simmons, 485–486 Skipper v. South Carolina, 480–481 Wiggins v. Smith, 483–484 Woodson v. North Carolina, 478 competency to execution, 506, 509 competency to waive appeals, 506–508

death-sentenced population, 476 ethical issues capital cases, 487 competence, 486–487 informed consent, 487–489 team approaches, 487 testimony, 489–490 treatment, 490 executions, 476 expert testimony evaluating witness testimony, 504 teaching witness testimony, 504–505 federal habeas cases, 505–506 forensic assessments evaluation parameters, 491 mental state evaluation, 491 mitigation, 491–496 pretrial evaluations, 490–491 juveniles, 476–477 mental retardation, 477, 505 race, 476 state postconviction, 505–506 violence risk assessment base-rate anchors, 499–502 common errors, 497–498 group statistical data, 502–503 past pattern, 499 risk management, 502 women, 476 Deatherage v. State of Washington Examining Board of Psychology, 72 Deception, 519 Decision-Making Instrument for Guardianship (DIG), 302 Defenses affirmative excuses duress, 447 involuntary intoxication, 446–447 legal insanity, 446 insanity historical overview, 452–456 illustrative case, 468–469 not guilty by reason of insanity, 451 reforms, 456–459 partial excuse extreme mental/emotional disturbance, 447–451 imperfect self-defense, 448–449 provocation/passion doctrine, 447 sentencing practices, 449 Twinkies defense, 448

699

700

Subject Index

Delinquency cases, 9 adjudicative competence concepts, 371–372 legal standard, 370–371 methods, 372 clinical and dispositional assessments development, 363–364 family, 364 mental disorder, 364 personality and mental disorder, 364–365 personality and problem scales, 365–366 public safety, 366 race and gender, 364 social context, 366 systemic knowledge, 364 criminal court, waiver assessment concepts and methods, 370 legal standard, 369–370 forensic assessments criminogenic needs, 375–376 psychosocial maturity, 374–375 trauma-related disorders, 375 Miranda rights, youths’ capacities concepts, 373 legal standard, 372–373 methods, 373–374 psychological evaluations early juvenile court, 1899–1965, 359–361 juvenile forensic evaluation, 2000, 361–362 knowledge base, 362 organizational identity, 362 professional standards, 363 responsibility reform, 361 rights reform, 360 training, 362–363 risk of reoffending actuarial methods and base rates, 367 estimation, 367 factors, 367–368 long-range estimates, 367 methods and instruments, 368 research evidence, 367 sex, 368–369 social context, 367 Delusional disorder, 297 Delusions, 547 Department of State v. Washington Post Co., 41 Department of Youth Services v. a Juvenile, 461 Depression, 277–278 Developmental psychology, 18

Diagnostic and Statistical Manual–Fourth Edition–Text Revision (DSM-IV-TR), 336, 519–520 Dickerson v. U.S., 382, 383 Differential-prevalence design, 521 Dillon v. Legg, 180 Disability, 7 benefits private disability insurance, 202 social security disability, 203 worker’s compensation, 202–203 collecting data psychological testing, 214–215 records, 211–212 self-report, 212–214 third party sources, 215–216 conceptualization, 205, 279–280 data interpretation collateral data analysis, 217 communicating results, 220–222 dissimulation, 217–218 formulating opinions, 218–220 psychological test data analysis, 217 self-report data analysis, 216–217 disparate treatment and impact evaluations, 288–289 employment of people with ADA-related litigation, 273 discrimination impact, 272–273 impact of ADA, 273–274 rate of, 272 evaluation planning collateral source, 211 disability benefits, 211 EPPCC, 210 IME, 210 insurance company/agency, 210 psychological tests, 211 referral source, 210 failure to provide reasonable accommodation collateral interviews, 288 interviews, 287 psychological testing, 287–288 record review, 286–287 harassment and hostile work environment, 289–290 legal context bad faith litigation, 204 breach-of-contract litigation, 204 case law, 204 factual disability, 204 insurance company, 204 license revocation, 204

Subject Index

opioid addiction, 205 own occupation, 204 risk of relapse, 205 social disability, 204 mental/psychiatric/psychological and ADA ADAAA, 277 conduct issues, 275 definition, 274–275 depression, 277–278 direct threat, 275–276 learning disabilities, 278–279 substance abuse disorders, 276 suicidal workers, 276 violence and threats of violence, 275–276 psycholegal constructions condition, 205–207 legal competency, 208–209 occupational duties and functional abilities, 207–208 reports, depositions/court testimony, 290–291 reprisal for protected conduct, 289 return to work evaluation case example, 283–285 initial considerations, 280–281 psychological evaluation, 281–283 Disparate impact cases, 227 Disparate treatment claim, 227 Dispositional evaluation, 360 Dispositional variables, 546 Dissocial personality disorder, 557, 559 Dissociation, 590 District of Columbia, 105 Doe v. Superior Court, 461 Domestic violence (DV) Austin’s model, 130 Drozd’s model, 130–131 parental violence, 130 poorer supervisors, 130 Dominance domain, 558 Doody v. Ryan, 387 Drope v. Missouri, 414 Drozd’s model, 130–131 Durable power of attorney, 296 Duress defense, 447 Durham rule, 454 Durham v. United States, 454 Dusky standard, 80 Dusky v. United States, 413 Dysfunctional family, 584

Ecological systems theory, 147 Eddings v. Oklahoma, 479, 494 Edwards v. Arizona, 384 “Eggshell-skull” plaintiff, 175 Electroconvulsive therapy (ECT), 207 Elrod v. Dale, 104 Emerson v. Fireman’s Fund, 204 Emotional damages, 7 claims, NIED bystander recovery, 180 compensatory damages, 181 direct victim, 180 future damages, 181 general damages, 181 loss of consortium, 181 nominal damages, 181 physical injury, 179 punitive damages, 181 rules of civil procedure, 181–183 special damages, 181 zone of danger, 179 distress torts intentional infliction, 178–179 NIED, 178 evaluation model ADLs, 184 assessment matrix, 183 Five Stage Model, 185–187 hedonics, 185 interpersonal relationships, 185 symptoms, 184 use of matrix, 185 work settings, 185 evaluation process clinical interview, 190–192 collateral interviews, 192 data gathering and pre-evaluation steps, 189 depositions, 196 framing recommendations, 195 informed consent procedure, 190 initial referral, 187–188 psychological testing, 193 report, 195 trial testimony, 196 legal framework civil lawsuits, 173 common law and stare decisis, 173 historical resistance, 173–174 liability and damages, 174–175 monetary compensation, 173

701

702

Subject Index

Emotional damages (continued) settlement negotiations, 173 tort cases, 174 psychological evaluation, 183 tort categories defamation, 175 intentional torts, 175 negligence, 176–177 privacy torts, 175 strict liability, 175–176 vicarious liability/respondeat superior, 178 Emotional domain, 558 Emotional functions, 207 Employee Retirement Income Security Act of 1974 (ERISA), 202 Employer liability, sexual harassment, 232–234 Employer-paid disability insurance ERISA, 202 litigation, 202 proof of loss, 202 Social Security Disability, 203 worker’s compensation, 202–203 Employment discrimination/harassment, 8 Age Discrimination in Employment Act, 225 Americans With Disabilities Act, 225 Civil Rights Act of 1964 altering work environment, 230–231 discriminatory barriers, 226–227 disparate impact/treatment, 227 EEOC guidelines, 229–230 employer liability, 232–234 same-sex harassment, 232 sexual harassment, 229 stereotyping and prejudice, 228 Title VII, 226 employment advertisements, 226 genetic factors, 225 Lilly Ledbetter Fair Pay Act of 2009, 225 non-White workers, 226 psychological issues harm, 236 racial/ethnic minorities, 235 reporting, 236 role of organizations, 236 women in traditionally male jobs, 235 psychologists’ roles in court, 236–242 worker’s compensation claims, 226 Episodic memory, 587–588 Equal Employment Opportunity Commission (EEOC), 229–230

Equal Protection Clause, 104 Escobedo v. Illinois, 382 Estelle v. Smith, 460, 487 Estimate of Risk of Adolescent Sexual Offense Recidivism (ERASOR), 369 Ethical decision making, 45 Ethical issues capital cases, 487 competence, 486–487 criminal responsibility evaluation evaluation, diagnosis and intervention, 461 informed consent, 460–461 multiple sources of data, 461–462 professionalism, 461 ultimate legal issue, 462 high-risk occupations, forensic assessment confidentiality and access to results, 247–249 informed consent, 249 role definition, 247 sources, 246–247 informed consent, 487–489 Miranda rights waiver, 398 sex offenders evaluator, 350–351 treatment provider, 351 team approaches, 487 testimony, 489–490 treatment, 490 Ethical Principles of Psychologists and Code of Conduct (EPPCC), 210 Ethics Code Task Force (ECTF), 56 Evaluating witness testimony, 504 Evaluation of Competency to Stand Trial–Revised (ECST-R), 426 Everyday Problems Test for Cognitive Challenged Elderly (EPPCE), 302 Executions, 476 Expanded voir dire, 631 Expert testimony, 6 discredition, 71 evaluating witness testimony, 504 expert qualifications, 70–71 historical roots of amicus brief, 65 Brandeis’s claims, 63 clinical psychology, 64–65 legal realism, 64 M¨unsterberg’s claims, 62–63 sociological jurisprudence, 64

Subject Index

impeachment learned treatise method, 72 prior inconsistent statements, 71–72 limitations on cross-examination, 68–69 facts/data disclosure, 69–70 notice and discovery requirements, 68 proper basis for expert opinion, 69 sworn testimony, 68 ultimate issue/opinion, 70 voir dire, 69 Miranda rights waiver, 398 proper subjects for expert, 67–68 qualification as expert, 66 rules of evidence, 65–66 special rules, 66 teaching witness testimony, 504 witness immunity Bruce v. Byrne-Stevens & Associates, 73 Deatherage v. State of Washington Examining Board of Psychology, 72 LLMD of Michigan, Inc. v. Jackson-Cross Co, 73 Marrogi v. Howard, 73 Murphy v. A. A. Mathews, 73 Pollock v. Panjabi, 72–73 Extreme/outrageous conduct, 178 Eyewitness memory, 12 chronological approaches, 624 criminal justice system, 618 effect sizes, 625 events imagination, 623–624 misinformation effects, 621 planting false childhood memories, 621–623 suggestive procedures, 624 general impairment variables, 624 lineup experiment, 618 lineup identification, 626–627 other-race effects, 625 police protocols, 617 recollection process, 618 retention interval, 625 scientific model, 617 structural lineup bias, 625 system-variable vs. estimator variable distinction, 624 Thomas Brewster misidentification, 618–620 trace evidence, 617 Factual disability, 204 Fake Bad Scale, 535

703

False confession defendants intellectual factors, 404–405 psychopathology and personality factors, 405 situational factors, 403–404 forensic assessment and testimony interview, defendant, 406 psychological assessment, 406–407 third-party sources, 406 reported frequency, 401–402 types of compliant confession, 402 voluntary, 402 False light, 175 False memory, 621–623 Family & Medical Leave Act (FMLA), 260 Family dysfunction, 584 Family Preservation and Support Initiative of 1993, 141 Fare v. Michael C., 372, 387 Faretta v. California, 415 Fasulo v. Arafeh, 311 Fears, 586 Federal Criminal Code and Rules, 475 Federal habeas cases, 505–506 Federal Rule of Evidence 603, 68 611(b), 68 701, 65 702, 66 703, 69 704(b), 70 705, 69 Federal Rules of Civil Procedure (FRCP), 38, 182 Federal Rules of Evidence, 202 Feigned cognitive impairment AACN, 527 detection strategies atypical presentation, 532 FCT, 531 floor effect strategy, 529, 531 MOE, 531 performance curve, 531–532 psychological sequelae, 532 response time, 532 SVT, 531 effortful failure, 527 informed consent, 528 jurisogenic effects, 527–528 jurisogenic symptoms, 533–534 misrepresentations, 528

704

Subject Index

Feigned cognitive impairment (continued) MMPI-2 Symptom Validity Scale, 535–536 NAN, 527 rare symptoms, 527 response bias scale, 535–536 suboptimal effort, 528 TOMM, 535 VIP, 534–535 Female sex offenders, 345 Fetal alcohol syndrome, 399 Fitness Interview Test, 424–425 Fitness-for-duty evaluations (FFDEs) communicating results, 265–267 determining fitness, 265 examination and procedural issues assessment methods, 263–265 disclosure and informed consent, 263 principles of, 259 referral issues clarifying referral questions, 260–261 clarifying terms of referral, 262 fitness standard, 261–262 threshold analysis, 259–260 Flesch Reading Ease score, 96 Flesch-Kinkaid Grade Level score, 96 Floor effect strategy, 529, 531 Flowers v. Southern Regional Physician Services, Inc, 289 Forced-choice testing (FCT), 531 Ford v. Ford, 103, 116 Ford v. State, 388 Ford v. Wainwright, 481, 489, 506 Forensic Assessment Instruments (FAIs) CADCOMP, 425 Competency Screening Test, 422–423 defendants’ abilities, 422 ECST-R, 426–427 FIT, 424–425 GCCT, 425–426 IFI, 423 MacSAC-CD, 423–424 mental retardation, 426 Metropolitan Toronto Forensic Service Fitness Questionnaire, 422 Mosley Forensic Competency Scale, 422 Forensic ethics, 6 1992 code, criticisms of, 55 2002 ethics code, 55 adversarial roles, 38–39 advocacy, 39–40

authoritative treatise, 44 clarity and specificity, 46–47 clinical inference hierarchy, 43 confident incompetent, 43–44 data suppression, 42 discovering illegibility, 44–45 discrepant data, 41–42 documentation, 45 ECTF, 56 education/training, 41 Ethical Standard 9.01, 45 implications and applications aspirational goals, 53 bases, 52 best possible, 54 coaching/witness preparation, 50 ethic of reciprocity, 53 hard-core pornography, 53 informed consent and assent, 49 marketing, 48–49 multiple relationships, 49 obligatory beneficence, 53 parenting plan, 50 peanuts and psychologists, 53 preparation, 47–48 releasing test data, 52 reports and testimony, 51–52 spoliation of records, 52–53 striving for excellence, 54 use of assessments, 50 U.S. v. Carroll Towing Co., 54 work product doctrine, 50 inadequate professional preparation, 40 justice, 44 licensing boards, 57–58 privacy issues, 41 pursuit of excellence, 46 regulation, 47 self-assessments, 43 types of, 37 withholding data, 42–43 Forensic mental health assessment (FMHA), 152, 254 Forensic psychology area of specialization, 16 child sexual abuse (see Child sexual abuse (CSA)) civil proceedings, 7 clinical–forensic population, 32 criminal proceedings, 9 definition of, 3

Subject Index

education/training, 5 accreditation requirements, 25, 35–36 certification and credentialing, 26–29 continuing education programming, 26 doctoral programs, 21, 35 goals of, 25, 33–35 internship programs, 23–26, 35 joint degree programs, 22 legal psychology, 21 levels of, 20–21 master’s degree programs, 23 models, 29–30 postdoctoral programs, 23 sample case law reading list, 27–28 sample issues for clinicians, 20 sequential organization of, 25, 32 see also Training, forensic psychology ethics, 6 (see also Forensic ethics) expert testimony (see Expert testimony) eyewitness memory, 12 (see also Eyewitness memory) history of, 3–5 jury selection, 12–13 (see also Jury selection) legal population, 32 malingering (see Malingering) practice of, 19–20 psychopathy (see Psychopathy) report writing (see Forensic report writing; Reports, forensic) sample areas of, 19, 36 terminology, 17 trial consultation (see Trial consultation) violence risk assessment, 11 (see also Violence risk assessment) Forensic report writing, 6 achieving understanding, 83–85 common elements background information, 89 behavioral observations, 89–90 current mental status, 91–92 diagnosis, 92 notification, 87–88 psycholegal opinion, 92–93 psychological testing, 90–91 referral information, 87 sources of information, 88–89 content, analysis of, 77–79 early evaluations of, 76–77 essential elements, 82 impact of, 76

705

improving readability bias, 94–95 grammar, 94 jargon, 95 pat phrases, 96 reading levels, 96 word choice, 94 inclusion of irrelevant data, 94 length of, 79 potentially incriminating information, 93–94 quality analysis of, 79–82 referral questions, 76 structure, 85–87 transparency of reasoning, 82–83 ultimate issue opinions, 83 Foreseeability, 176 Foucha v. Louisiana, 318, 336, 459 Free will, 459–460 Freedom of Information Act (FOIA), 248 Frendak v. United States, 417 Frith’s Case, 413 Frye test, 67 Frye v. United States, 67, 153 Functional capacity, 207–208 Functional Independence Measure (FIM), 302 Furman v. Georgia, 477, 497 Gallegos v. Colorado, 387 Gatekeeping, 123 Gates v. The Prudential Insurance Company of America, 204 Gault, In re, 373, 386 Gender-neutral solution, 104 General Electric Co. v. Joiner, 67 General impairment variable, 624 Geographic Information Systems (GIS), 494 Georgia Court Competency Test (GCCT), 425–426 Godinez v. Moran, 415 Gonadotropin-releasing hormone (GnRH), 349 Good cause declaration, 182 Goodness of fit (GOF) model, 112 Goomar v. Centennial Life Insurance Company (1994), 204 Grave disability, 326 Gregg v. Georgia, 11, 478 Griggs v. Duke Power Company, 111–112 Grisso’s Competency-Based Model, 112 Guardian ad litem, 432 Guardianship, 300–305 Gudjonsson Suggestibility Scale (GSS), 407

706

Subject Index

Guidelines for Child Custody Evaluation in Family Law Proceedings, 108 Guilty but mentally ill (GBMI), 458

Humphrey v. Cady, 310 Hypermnesia, 190 Hypomania, 564

Haley v. Ohio, 387 Hallucinations, 547 Hand Rule, 54 Harris v. Forklift Systems, Inc., 230 HCR-20 risk assessment, 546 Health-care surrogacy, 296 Hedonics, 185 High-risk occupations, forensic assessment, 8 ethical issues confidentiality and access to results, 247–249 informed consent, 249 role definition, 247 sources, 246 fitness-for-duty evaluations assessment methods, 263–265 clarifying referral questions, 260–261 clarifying terms of referral, 262 communicating results, 265–267 determining fitness, 265 disclosure and informed consent, 263 fitness standard, 261–262 principles of, 259 threshold analysis, 259–260 preemployment screening background and collateral data, 255–256 bifurcation, 253 clinical interview, 255 combined screen-out and select-in criteria, 251–252 communicating results, 257 exclusionary/psychopathology-based criteria, 250–251 gender-neutral norming, 253–254 identifying standards, 250 inclusionary/suitability-based criteria, 251 instrument selection, 254 outcomes, 257–258 pass criterion, 252 physician screening, 252 procedural issues, 252–253 second-opinion appeals, 258 suitability analysis, 256–257 Historical variables, 546 Holzer v. MBL Life Assurance Corporation, 205 Homosexuality, 232 Hopemont Capacity Assessment Interview (HCAI), 299, 303

Illinois Juvenile Court Act, 142 Imagination, 623–624 Impeachment learned treatise method, 72 prior inconsistent statements, 71 Incompetence to stand trial ABA standard, 321 continued commitment, 330 grave disability, 322 Jackson v. Indiana, 321 Murphy Conservatorship, 322 permanently incompetent defendants, 330 Independent Living Scales (ILS), 303 Independent medical examination (IME), 201 Indiana v. Edwards, 416 Infantile amnesia, 588 Informed consent ACCT, 299 Canterbury v. Spence, 298 categories of, 299 criminal responsibility evaluations, 461, 464 forensic ethics, 50 HCAI, 299 high-risk occupations ethical issues, 249 fitness-for-duty evaluations, 263 Mac-CAT-T, 299 primary goals of, 298 Insanity defense, 417 historical overview ALI’s Model Penal Code rule, 454 cognitive standard, 453 control tests, 453 Durham rule, 454 Hinckley verdict, 456 irresistible impulse test, 453 M’Naghten rule, 452 policeman-at-the-elbow test, 453 wild-beast test, 452 illustrative case, 468–469 legal insanity, 446 not guilty by reason of insanity, 451 reforms, 456–458 Insanity Defense Attitudes–Revised scale, 640 Insanity Defense Reform Act, 456, 458 Intellectual disability, 388, 477

Subject Index

Intelligence quotient (IQ), 391 Intentional torts, 175 Interdisciplinary Fitness Interview (IFI), 423 International Association of Chiefs of Police (IACP), 246 International Personality Disorder Examination (IPDE), 564 Internet sex offenders, 346–347 Internships, 23, 35 Interview fitness-for-duty evaluations, 265 preemployment psychological screening, 255 structures building rapport, 599 child’s linguistic capacity, 599 ground rule establishment, 600–601 hypotheses, 597 improper interviewing techniques, 597 interview recording, 598 interview steps sequences, 598–599 open-ended questions, 601–602 practice interview on non-abuse-related questions, 601 skill and expertise, 597 truth-lie competency, 600 Intrusion, 175 Inventory of Legal Knowledge (ILK), 428 Involuntary hospitalization, 9 emergency commitment, 315 evaluation for dangerousness to others, 325–326 dangerousness to self, 323–325 grave disability, 326 incompetent to stand trial, 330 insanity acquittees, 327–328 mental illness, 323 mentally disordered criminal offenders, 328–330 need for treatment, 323 history of, 309–310 incompetent to stand trial, 321–322 insanity acquittees, 318–319 legal reforms, 310–312 long-term commitment, 315 outpatient commitment, 316–318 substantive criteria danger to others, 313 danger to self, 313 grave disability, 313–314 inability to make treatment decisions, 314

mental disorder, 313 need for treatment, 314 voluntary hospitalization, 316 Involuntary intoxication, 446–447 Inwald Personality Inventory (IPI), 254 Irresistible impulse test, 453 Item response theory (IRT), 561 Iterative classification tree (ICT), 548

J.D.B. v. North Carolina, 386, 387 Jackson v. Indiana, 310, 321, 417, 432, 433 Jargon, 95 Jenkins v. United States, 4, 65 Johnson v. Zerbst, 384 Joint degree programs, forensic psychology, 22 Jones v. United States, 458 Jurisogenic symptoms, 533–534 Juror rehabilitation, 633–634 Jury selection, 12–13 death qualification, 632–633 directions for future research, 642–643 juror rehabilitation, 633–634 peremptory challenges, 634–635 purpose of, 630 scientific attitudinal predictors of verdict, 640–641 gender, 638–639 personality traits as predictors of verdict, 639–640 practice of, 637 quality of juror decisions, 642 race, 638 vs. traditional techniques, 641–642 traditional effectiveness, 636–637 nonverbal communication, 636 similarity-leniency hypothesis, 635 Juvenile Adjudicative Competence Interview (JACI), 372 Juvenile dependency, 142 Juvenile forensic evaluations knowledge base, 362 organizational identity, 362 professional standards, 363 training, 362–363 Juvenile justice system, 360 Juvenile Risk Assessment Scale (JRAS), 346 Juvenile sex offenders, 346

707

708

Subject Index

Juveniles case law developments interested adult, 387–388 Miranda protections, 386–387 death penalty, 476–477 Kansas City Police Department (KCPD), 264 Kansas v. Hendricks, 313, 334, 542 Kendra’s Law, 317 Kent v. U.S., 386 Keoughan v. Delta Airlines, 278 Known-groups comparisons, 520 Kumho Tire Co. v. Carmichael, 67, 153 Laboratory of Community Psychiatry, 422 Lake v. Cameron, 314 Lassiter v. Reno, 262 Laucks v. Provident Companies, 205 Learning disabilities, 278–279 Least restrictive alternative, 314–315 Ledbetter v. Goodyear Tire and Rubber, 225 Legal disability, 204 Legal psychology cognitive psychologists, 18 developmental psychologists, 18 nonclinical doctoral programs, 21 social psychologists, 18 Legal realism, 64 Lehr v. Robertson, 104 Leonel v. American Airlines, 253 Lessard v. Schmidt, 310 Levy v. Louisana, 104 Liability, employer, 232–234 Libel, 175 Licensing boards, 57–58 Lilly Ledbetter Fair Pay Act of 2009, 225 Limited guardianship, 301 Living will, 296 LLMD of Michigan, Inc. v. Jackson-Cross Co., 73 Lochner v. New York, 63 Lockett v. Ohio, 479, 491 Los Angeles Police Department (LAPD), 227 Loving v. Virginia, 104 Luria Nebraska Neuropsychological Battery (LNNB), 532 M’Naghten rule, 452 MacArthur Competence Assessment Tool–Criminal Adjudication (MacSAC-CD), 423–424 MacArthur Competency Assessment Tool–Treatment (MacCAT-T), 299, 323

MacArthur Violence Risk Assessment Study, 546–547 Magnitude of error (MOE), 531 Malingered neurocognitive dysfunction (MND), 519, 533 Malingering, 11, 396, 427 conceptual issues, 517 explanatory models, 518–519 feigned cognitive impairment detection strategies, 529, 531–532 effortful failure, 527 guidelines, 532–533 informed consent, 528 jurisogenic effects, 527–528 jurisogenic symptoms, 533–534 misrepresentations, 528 MMPI-2 Symptom Validity Scale, 535–536 neurocognitive malingering, 528 rare symptoms, 527 response bias scale, 535–536 suboptimal effort, 528 TOMM, 535 VIP, 534–535 feigning incremental validity, 521–522 individual classifications, 522 forensic practice, 520 mental disorders amplified detection strategies, 523 MMPI-2 and MMPI-2-RF, 524–525 PAI, 525–526 SIRS and SIRS-2, 526–527 unlikely detection strategies, 522–523 misassumptions, 519–520 response style bootstrapping comparisons, 520–521 definitions of, 518 differential-prevalence design, 521 known-groups comparisons, 520 partial-criterion design, 521 simulation design, 520 Maltreatment, 581 Marrogi v. Howard, 73 Maryland v. Shatzer, 384 Master’s degree programs, forensic psychology, 23 Matrimonial Commission, 108 McDonald v. United States, 454 McGreal v. Ostrov, 248 McKenna v. Fargo, 252 Medroxyprogesterone (MPA), 349 Melendez-Diaz v. Massachusetts, 52

Subject Index

Memory autobiographical memory development, 589–590 chronological approaches, 624 criminal justice system, 618 early memory, 587–590 effect sizes, 625 events imagination, 623–624 misinformation effects, 621 planting false childhood memories, 621–623 suggestive procedures, 624 general impairment variables, 624 lineup experiment, 618 lineup identification, 626–627 other-race effects, 625 personalization model, 588 police protocols, 617 recollection process, 618 repression and recovered memories, 590–592 retention interval, 625 scientific model, 617 sociocultural model, 588–589 structural lineup bias, 625 system-variable vs. estimator variable distinction, 624 Thomas Brewster misidentification, 618–620 trace evidence, 617 trauma impact, 590 Tulving’s monohierarchical multimemory systems model, 587–588 Mens rea defenses, 442–443 definition, 442 intoxication and illegal drugs, 445–446 mental abnormality and, 443–445 Mens rea element, 569 Mental abnormality, 542 mens rea, 443–445 sex offenders, 336 Mental disorder, 568 amplified detection strategies, 523 MMPI-2 and MMPI-2-RF, 524–525 PAI, 525–526 SIRS and SIRS-2, 526–527 unlikely detection strategies, 522–523 Mental illness, civil commitment and involuntary hospitalization, 9 evaluation for criminal offenders, 328–330 dangerousness to others, 325–326

dangerousness to self, 323–325 grave disability, 326 incompetent to stand trial, 330 insanity acquittees, 327–328 need for treatment, 323 outpatient commitment, 326–327 legal aspects criminal offenders, 319–321 danger to others, 313 danger to self, 313 emergency commitment, 315 grave disability, 313–314 history of, 309–310 inability to make treatment decisions, 314 incompetent to stand trial, 321–322 insanity acquittees, 318–319 least restrictive alternative, 314–315 long-term commitment, 315 mental disorder, 313 need for treatment, 314 outpatient commitment, 316–318 reforms, 310–312 voluntary hospitalization, 316 Mental retardation, 426, 477, 505 Mentally disordered offenders (MDOs), 329 Merit Systems Protection Board, 267 Meritor Savings Bank v. Vinson, 230 Metric equivalence, 561 Metropolitan Toronto Forensic Service Fitness Questionnaire, 422 Miller-El v. Dretke, 634 Minimal voir dire, 631 Minnesota Multiphasic Personality Inventory (MMPI) MCMI-III, 565 MMPI-2, 564–565 MMPI-2-RF, 564–565 Minnesota Multiphasic Personality Inventory-2 (MMPI-2), 241, 254, 466 Miranda comprehension, research academic achievement, 392 adult comprehension, 391 children and adolescents, 390–391 criminal justice system, 393 developmental factors, 392–393 impairments, 397–398 intelligence, 391–392 mental illness, 393 race and socioeconomic status, 394 reading skills, 392 voluntariness, 390

709

710

Subject Index

Miranda Rights Comprehension Instruments (MRCI), 374, 397 Miranda rights waiver, 9, 385 coerced confessions, 383 coercive methods, 382 confessions, 389–390 constitutional law Dickerson v. U.S., 383–384 interrogation procedures, 383 U.S. Supreme Court cases, 384 custodial interrogation, 385 expert testimony and ethical issues, 398 Fifth Amendment, 382 forensic evaluation interview, defendant, 395 measures and procedures, 396–397 methodology, 394–395 psychological testing and assessment, 395–396 response style, 396 illustrative case, 398–400 impairments and Miranda comprehension, 397–398 inadmissible confession, 385 intellectual disabilities, 388–389 jurisdictional versions, 386 juvenile interested adult, 387–388 protection, 386–387 Miranda v. Arizona, 382 Miranda warning evolution, 382–383 objective reasonable person standard, 385 police custody, 386 police interrogation, 382 research, Miranda comprehension academic achievement, 392 adult comprehension, 391 children and adolescents, 390–391 criminal justice system, 393 developmental factors, 392–393 intelligence, 391–392 mental illness, 393 race and socioeconomic status, 394 reading skills, 392 voluntariness, 390 right to counsel, 382 self-incrimination, 382 totality of circumstances approach, 384–385 youths’ capacities concepts, 373 legal standard, 372–373 methods, 373–374

Miranda v. Arizona, 10, 372, 382 Miranda Vocabulary Scale, 374 Missouri v. Seibert, 385 Mitchell v. Rochester Railway Co., 173, 179 Mitigation assessments, 494–496 Model Penal Code, 454, 474 Modern Test Theory (IRT), 567 Molien v. Kaiser Foundation Hospitals, 180 Monell v. Department of Social Services, 252 Morgan, In re, 393 Mosley Forensic Competency Scale, 422 Mr. Big Technique, 403 Muller v. Oregon, 63 Multidimensional Functional Assessment Questionnaire (MFAQ), 302 Multiple formats, 553 Multiple relationships, 49 Murphy Conservatorship, 322 Murphy v. A. A. Mathews, 73 Narrative elaboration technique, 601 National Academy of Neuropsychology (NAN), 527, 528 National Center for Law and Deafness, 432 National Center for State Courts 1986, 542 National Children’s Advocacy Center, 143 National Institute of Child Health and Human Development, 140 National Research Council, 551 National Survey of Child and Adolescent Well-Being (NSCAW), 145 National Weather Service (NWS), 550 Negative Impression Management (NIM), 525 Negligence, tort cases breach, 177 causes, 177 duty, 176–177 Negligent infliction of emotional distress (NIED), 179–183 NEO Personality Inventory–Revised (NEO PI-R), 254 Neurocognitive malingering, 528–529 New York’s Court of Appeals, 107 No-fault system, 203 Nocebo effect, 533 Nonstatutory mitigating factors, 474 Nonverbal communication, 636 Normative behavior, 585 North Carolina v. Alford, 415 Not guilty by reason of insanity (NGRI), 451

Subject Index

Oakes, In re, 308, 310 Obsessive-compulsive disorder (OCD), 207 O’Connor v. Donaldson, 311 Olmstead v. L. C. ex rel. Zimring, 314 On the Witness Stand, 16, 62 Oncale v. Sundowner Offshore Oil, 232 Open-ended questions, 601–602 Oregon’s law, 63 Orozco v. Texas, 385 Outpatient commitment benefits, 316 conditional release, 317 evaluation, 326–327 Kendra’s law, 317 least restrictive alternative, 316 monitoring systems, 317 preventive commitment, 317 standards, 317 Palmore v. Sidoti, 103, 104, 116 Palsgraf v. Long Island Railroad Company, 179 Panetti v. Quarterman, 481–482, 489, 506 Panic disorder, 207 Parens patriae, 103, 360 Parent Opinion Questionnaire (POQ), 149 Parental alienation syndrome (PAS), 127 Parental responsibility, 106 Parenting access plan, 106 Parenting Stress Index (PSI), 149 Parham v. J. R., 312 Parole hospitalization, 320–321, 329–330 Partial-criterion design, 521 Pate v. Robinson, 414 Pathogenic model, 518 Penile plethysmograph, 344 Penry v. Johnson, 482 People v. Farnam, 389 People v. Higgins, 386, 389 People v. Lara, 372, 387 People v. Rittger, 455 People v. Rodney, 385 People v. Stress, 455 People v. Williams, 388 Performance curve strategy, 531–532 Peripheral duties, 207 Personality Assessment Inventory (PAI), 148, 189, 241, 254, 565 Personality disorder, 192 Personalization model, 588 Pettus v. Cole, 248

Philadelphia Geriatric Center Multilevel Assessment Inventory (MAI), 302 Physiological symptoms, 184 Plagiarism, 51 Police coercion, susceptibility, 9–10 confession, 401 Crane v. Kentucky, 400–401 false confessions compliant confessions, 402 intellectual factors, 404–405 interrogating officers, 402 interview, defendant, 406 psychological assessment, 406–407 psychopathology and personality factors, 405 reported frequency, 401 situational factors, 403–404 third-party sources, 406 voluntary, 402 Policeman-at-the-elbow test, 453 Pollock v. Panjabi, 72–73 Polygraph, 344 Postdoctoral programs, forensic psychology, 25 Posttraumatic stress disorder (PTSD), 207, 290 Pre/post sentence investigations (PSIs), 345 Preemployment psychological screening (PPS) assessment methods clinical interview, 255 instrument selection, 254 background and collateral data, 255–256 communicating results, 257 jurisdictional statutory standards bifurcation, 253 combined screen-out and select-in criteria, 251–252 exclusionary/psychopathology-based criteria, 250–251 gender-neutral norming, 253–254 inclusionary/suitability-based criteria, 251 pass criterion, 252 physician screening, 252 procedural issues, 252–253 outcomes, 257–258 second-opinion appeals, 258 suitability analysis, 256–257 Pretrial Juror Attitudes Questionnaire (PJAQ), 640 Price Waterhouse v. Hopkins, 228 Pride v. Estelle, 431 Prince v. Massachusetts, 140 Principles of due process, 414 Private disability insurance, 202

711

712

Subject Index

Professional practice guidelines AFCC model standards evaluative task, 111 interdisciplinary collaboration, 110 peer-reviewed literature, 111 Task Force Reporter, 110 APA binuclear family, 110 family/relational variables, 110 impartial evaluators, 109 larger family system, 110 operational definition, 109 Griggs v. Duke Power Company, 111–112 Grisso’s competency-based model, 112 Proximate cause, 177 Psychodynamic models, 518 Psycholegal concepts adjudicative competence concepts, 371–372 legal standard, 370–371 methods, 372 criminal court, waiver assessment concepts and methods, 370 legal standard, 369–370 Miranda rights, youths’ capacities concepts, 373 legal standard, 372–373 methods, 373–374 Psycholegal constructions condition bipolar disorder, 206–207 cognitive impairments, 207 depression, 206 ECT, 207 occupational functioning, 206 OCD, 207 private and group disability claims, 206 PTSD, 207 traumatic brain injury, 207 legal competency causality, 208–209 function, 208 interaction, 209 judgment, 209 occupational duties and functional abilities, 207–208 Psychological autopsy, 297 Psychological evaluation, 183 Psychological sequelae, 532 Psychological test cognitive functioning, 428–429

malingering, 427–428 personality/psychopathology functioning, 429 Psychopathic Personality Inventory-Revised (PPI-R), 565–566 Psychopathy, 11, 547 areas for future research incremental validity, 573 study clinical settings, 573–574 temporal stability, 573 treatment efficacy, 574 assessment procedures diagnostic interviews, 563–564 expert rating scales, 566–567 method-mode match, 563 self-report inventories and questionnaires, 564–566 legal relevance civil commitment, 570 impair cognitive/volitional functions, 568–569 individualized inquiry, 571–572 mental disorder, 568 mitigate culpability, 569–570 practice recommendations, 572–573 nature of assessment and diagnosis, 558–559 clinical features, 557–558 comorbidity, 561 course, 559–560 etiology, 561–562 gender, age, and culture, 560–561 personality disorder, 557 prevalence, 559 psychopathy and violence, 562 Psychopathy checklist: Screening Version (PCL:SV), 567 Psychopathy checklist–revised (PCL-R), 566–567 Psychosis, 430–431 Psychosocial maturity assessment, 374–375 Public disclosure, private facts, 175 Public safety, 366 Punitive damages, 175 Questionable validity generalization, 549 Quid pro quo sexual harassment, 232, 238 Quilloin v. Walcott, 104 Racism, 235, 476, 638 Reasonable Person Standard, 385–386 Record Keeping Guidelines, 655 Recross, 68 Redirect examination, 68 Relocation law, 107–108

Subject Index

Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), 214 Reports, forensic, 6 achieving understanding, 83–85 common elements background information, 89 behavioral observations, 89–90 current mental status, 91–92 diagnostic formulation, 92 notification, 87–88 psycholegal opinion, 92–93 psychological testing, 90–91 referral information, 87 sources of information, 88–89 content, analysis of, 77–79 early evaluations of, 76–77 essential elements, 82 impact of, 76 improving readability bias, 94–95 grammar, 94 jargon, 95 pat phrases, 96 reading levels, 96 word choice, 94 inclusion of irrelevant data, 94 length of, 79 potentially incriminating information, 93–94 quality analysis of, 79–82 referral questions, 76 structure, 85–87 transparency of reasoning, 82–83 ultimate issue opinions, 83 Repression, 590 Res ipsa loquitur, 177 Residential placement, 106 Respondeat superior, 178 Response Bias Scale (RBS), 535–536 Response styles defensiveness, 518 dissimulation, 518 empirical issues deficient research designs, 521 useful research designs, 520–521 feigning, 518 hybrid, 518 irrelevant responding, 518 malingering, 518 Responsibility reform, 361 Retention interval, 625

713

Rich false memory, 623 Riggins v. Nevada, 417 Rights reform, 360–361 Ring v. Arizona, 475 Risk communication categorical format, 553 definition, 551 judged probability, 552 likelihood and harm, 551 multiple formats, 553 Risk for Sexual Violence Protocol (RSVP), 342 Risk management, 502 Risk of relapse, 205 Risk-sophistication-treatment inventory, 370 Rogers Criminal Responsibility Assessment Scales (R-CRAS), 467 Rogers Discriminant Function (RDF), 525 Rompilla v. Beard, 484–485 Roper v. Simmons, 476, 485–486 Rorschach Inkblot Method, 148 Roulette v. Department of Central Management Services, 248 Sager v. County of Yuba, 261 Same-sex harassment, 232 Santosky v. Kramer, 140, 154–155 Schall v. Martin, 541 Schizophrenia, 424 Schroeder v. Detroit, 248 Scientific jury selection attitudinal predictors of verdict, 640–641 gender, 638 personality traits as predictors of verdict, 639–640 practice of, 637 quality of juror decisions, 642 race, 638 vs. traditional techniques, 641–642 Scientific testimony, 67 Scientifically informed model collateral record review and interviews, 121–122 forensic model, 114, 115 methodology, 114–115 parent and child behavioral observations, 120–121 peer-reviewed research, 122 psychological tests, 118–119 questionnaires and self-report inventories, 119 semistructured interview format clinical interviews, 116 custodial placement, 117 family events, 117

714

Subject Index

Scientifically informed model (continued) marital interactions, 116 parental discipline techniques, 117 parental/family functioning, 116 residential placement, 117 U.S. Supreme Court, 116 Selective serotonin reuptake inhibitors (SSRIs), 349 Self domain, 558 Sell v. United States, 418, 432 Semantic memory, 587 Sentencing practices, 449 Serious prison violence, 498 Setting, 158 Sex Offender Need Assessment Rating (SONAR), 340 Sex Offender Risk Appraisal Guide (SORAG), 342 Sexting, 587 Sexual abuse allegations, 126–127 Sexual behavior, 586–587 Sexual harassment EEOC guidelines, 229–230 employer liability, 232 harm, 236 organizational tolerance, 233 same-sex harassment, 232 women in traditionally male jobs, 235 Sexual offenders, 9 actuarial predictions, 338, 341 clinical prediction, 338 collateral information databases, 344 diagnosis issues civil commitments, 335 diagnostic practice, 336 Hendricks and issue of control, 336–337 legal vs. clinical mental disorder, 335–336 mental abnormality/personality disorder, 336 ethical issues evaluator, 350–351 treatment provider, 351 expert opinion, 350 false-positive predictions, 337 forensic assessment instruments, 342 future directions, 351–352 instruments actuarial techniques, 343 MnSOST-R, 343 PCL-R, 342 Risk for Sexual Violence Protocol, 342 Sex Offender Risk Appraisal Guide, 342 Sexual Violence Risk–20, 342

Static-99, 343 Violence Risk Appraisal Guide, 342 physiological assessment penile plethysmograph, 344 polygraph, 344 profiles, use and abuse of, 338 recidivism assessments base rates, 341–342 history, 339 offense type, 340 psychopathology, 339–340 substance abuse, 339 treatment compliance, 339 special populations ethnic minorities, 347 female offenders, 345–346 Internet offenders, 346–347 juveniles, 346 static vs. dynamic predictor variables, 340–341 statutes community notification, 333–334 Kansas v. Hendricks, 334–335 registration programs, 333–334 sexual psychopath laws, 332 sexually violent predator statutes, 334–335 treatment cognitive-behavioral therapy, 349 containment approach, 349–350 medical intervention, 349 meta-analyses of, 348 methodological problems, 348–349 Sexual orientation, hostility/harassment, 232 Sexual Violence Risk–20 (SVR-20), 342 Sexually Violent Predator (SVP) statutes, 334–335 Sexually Violent Predator Act, 542 Sieling v. Eyman, 414 Simon v. Maroney, 388 Simulation design, 520 Skipper v. South Carolina, 480–481, 497 Slander, 175 Slater v. Dept. of Homeland Security, 267 Social disability, 204 Social framework testimony, 4 Social psychologists, 18 Social Security Disability Insurance (SSDI), 201, 203, 220 Sociocultural model, 588–589 Socioeconomic status (SES), 394 Sociological jurisprudence, 64 Sociopathy, 455

Subject Index

Soffar v. Cockrell, 390 Somatic complaints, 586 Spano v. New York, 382 Special populations competence deficits, 432–433 competency restoration, 433–434 defendants adjudicated incompetent, 434–435 mental retardation, 431–432 permanently incompetent defendants, 435 psychosis, 430 speech and hearing impairment, 432 Specialty Guidelines for Forensic Psychologists (SGFP), 5, 37, 114 Stamford v. FOIC, 248 Standard error of measurement (SEM), 519 Standard of care, 176 Standards for Educational and Psychological Testing, 90, 114 Stanford v. Kentucky, 485 Stanley v. Illinois, 104 Stare decisis, 173, 384 State ex rel. Watts v. Watts, 142 State v. Champagne, 431 State v. Hahn, 431 State v. Jackson, 389 State v. Patton, 390 State v. Prater, 389, 393 State v. Swanigan, 389 Statute of Wills, 296 Statutory mitigating factors, 474 Structural equivalence, 560 Structured Assessment of Violence Risk in Youth (SAVRY), 365 Structured Interview of Reported Symptoms (SIRS), 288, 427 Structured professional judgment (SPJ), 255 Suboptimal effort, 518 Substance abuse disorders and ADA, 276 sexual offenders, 339 testamentary capacity, 297 Suggestibility future research, 594–595 interview context, 593–594 interviewer’s questions, 593 research consensus, 592–593 Suicidal workers, 276 Suicide, 323 Sworn testimony, 68 Symptom Checklist-90 Revised (SCL-90-R), 241

715

Symptom Validity Scale (SVS), 535–536 Symptom validity testing (SVT), 531 Tarasoff v. Regents of the University of California, 543 Teaching witness testimony, 504–505 Tender years, 102, 142 Test of Memory Malingering (TOMM), 288, 529, 535 Testamentary capacity, 297 Testimonial aids, 605 Thing v. La Chusa, 180 Thomas Brewster misidentification, 618–620 Thomas v. Corwin, 264 Thompson v. City of Arlington, 264 Thompson v. Keohane, 385, 386 Thompson v. Oklahoma, 485 Three Ratings of Involuntary Admissibility (TRIAD), 544 Tort cases categories of defamation, 175 intentional torts, 175 negligence, 176–177 privacy torts, 175 strict liability, 175–176 vicarious liability, 178 legal framework civil lawsuits, 173 common law and stare decisis, 173 historical resistance, 173–174 legal concepts, 174 liability and damages, 174–175 monetary compensation, 173 settlement negotiations, 173 Totality of circumstances approach, 384–385 Traditional jury selection effectiveness, 636–637 nonverbal communication, 636 similarity-leniency hypothesis, 635 Training, forensic psychology, 5 accreditation requirements, 25, 35–36 certification and credentialing, 26–29 clinical doctoral programs, 22 continuing education programming, 26 doctoral programs, 21, 35 goals of, 25, 33–34 internship programs, 23–26, 35 joint degree programs, 22 legal psychology, 21 levels of, 20 master’s degree programs, 23

716

Subject Index

Training, forensic psychology (continued) models, 29–30 postdoctoral programs, 23 sample case law reading list, 27–28 sample issues for clinicians, 20 sequential organization of, 25, 32 Trauma Symptom Inventory (TSI), 214 Trauma-related disorders, 375 Traumatic brain injury (TBI), 273 Trial consultation, 13 Ake v. Oklahoma civil litigation, 652 criminal contexts, 651 lawyers and experts, 650 mental health concerns, 649 practical considerations, 653 case analysis and development, 653–654 direct and cross-examination, 657–659 forensic psychologist components, 649 consultation fees, 649 licensure, 649 technical competencies, 648 identifying and retaining the expert witness, 656–657 report and file review basic aspects, 654 child custody disputes, 655 criminal cases, 655 federal cases, 655 mental health and chronic disability claims, 656 witnesses preparation, 659–660 Tropea v. Tropea, 107 Troxel v. Granville, 104 Truth-lie competency, 600 Tulving’s monohierarchical multimemory systems model, 587–588 U.S. ex rel. Edney v. Smith, 652 U.S. Industrial Revolution, 101 U.S. v. Bell, 390 U.S. v. Crocker, 383 U.S. v. Kontny, 389 U.S. v. Murdoch, 336 Ultimate issue testimony, 70 Uniform Marriage & Divorce Act, 1979, 105 Uniform Parentage Act, 104 United States v. Brawner, 454 United States v. Charters, 417 United States v. Duhon, 414

United States v. Marble, 417 United States v. Segna, 455 Validity Indicator Profile (VIP), 215, 288, 396, 532, 534–535 Vicarious liability, 178, 233 Vignette method, 299 Violence Risk Appraisal Guide (VRAG), 342 Violence risk assessment, 11 base-rate anchors, 499–502 clinical risk assessment outcomes of, 545 process of, 544 common errors, 497–498 dichotomy/continuum, 550–551 evidentiary issues, 543–544 group statistical data, 502–503 HCR-20, 546 law and policy Barefoot v. Estelle, 541 Kansas v. Hendricks, 542 Schall v. Martin, 541 Tarasoff v. Regents of the University of California, 543 MacArthur Violence Risk Assessment Study, 546–547 past pattern, 499 questionable validity generalization, 549 rare risk/protective factors, 549–550 risk communication categorical format, 553 definition, 551 judged probability, 552 multiple formats, 553 risk factors, 548 risk management, 502 Violence Risk Appraisal Guide, 545–546 Violent thoughts, 547 Virginia Sexually Violent Predator Act 2006, 542 Virtual allegation, 127 Visitation rights, 106 Vitek v. Jones, 319 Voir dire expert testimony, 69 jury selection, 631 (see also Jury selection) Voluntary false confessions, 402 Wade v. U.S., 455 Waive appeals, 506 Washington v. Harper, 417, 418 Washington v. United States, 122, 454

Subject Index

Waube v. Warrington, 180 Wechsler Abbreviated Scale of Intelligence (WASI), 392 Wechsler Adult Intelligence Scale–IV (WAIS-IV), 466 West v. U.S., 385, 387 Westbrook v. Arizona, 415 Whalem v. United States, 417 Who Is the Client?, 16 Wide Range Achievement Test, 148 Wieter v. Settle, 413 Wiggins v. Smith, 483–484 Wild-beast test, 452 Will, 296 Williams v. Taylor, 493

Wilson v. United States, 414, 433 Wisconsin’s Sex Crimes Act, 310 Woodson v. North Carolina, 478, 486, 492 Work product doctrine, 50 Worker’s compensation, 7, 202 Yarborough v. Alvarado, 385 Youth level of service/Case management inventory, 365 Youtsey v. United States, 413 Zinermon v. Burch, 316 Zone of danger, 179

717