Forensic Uses of Clinical Assessment Instruments

Robert P. Archer, Elizabeth M. A. Wheeler, Robert P. Archer, Elizabeth M. A. Wheeler

• Publisher: Routledge
• Year: 2013
• ISBN:
  9781136311383
• Edition: 2
• Topic: Psychology
• Subtopic: Forensic Psychology
• Index: Psychology

This book provides, in a single volume, an extensive, research-based evaluation of the most popular clinical assessment tools as applied in forensic settings. These widely used instruments often require important modifications in their administration and interpretation when used for forensic purposes, and it is vital that the clinician is intimately familiar with their correct application, as well as their limitations. The test instruments included are analyzed by senior figures in the field of psychological assessment who are uniquely qualified to discuss them because they have either had a crucial role in the development of the tests, or they have dedicated their careers to advancing our understanding of these clinical assessment measures. Each chapter begins with a summary of the development of the assessment instrument in its more traditional applications in clinical settings, and then considers its utilization in forensic settings. The types of forensic issues which have been addressed with that instrument are reviewed, and an illustrative case example is given which reflects the types of uses and limitations of the assessment technique when applied in a forensic context. New in this edition are a chapter on the MMPI-2-RF and separate chapters for the adult and youth versions of the Hare Psychopathy Checklist. Psychologists using assessment instruments in applied forensic settings will find this to be a valuable and practical source of information, as will attorneys wishing to gain an understanding of the application of these psychological assessment approaches in the courtroom.

1
Introduction to Forensic Uses of Clinical Assessment Instruments

Robert P. Archer, Rebecca Stredny, and Elizabeth M. A. Wheeler

What Is Forensic Psychology?

As defined in the 2011 edition of the American Psychological Association’s (APA) Specialty Guidelines for Forensic Psychologists, the term “forensic psychology” refers to “professional practice by any psychologist working within any sub-discipline 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” (p. 1).¹ Additionally, the APA Council of Representatives notes that the application of the term and the specialty guidelines provided by APA do not rely on the individual’s typical area of practice, but instead rely on the services that the professional is providing. However, the APA also states that simply being involved in a court-related matter does not mean that one is practicing forensic psychology. For instance, when a psychologist testifies solely on the basis of the “provision of psychotherapy,” this is not considered forensic practice (p. 1). A psychologist, in terms of the APA’s definition, is engaging in the practice of forensic psychology when they are providing a psycholegal opinion in a court-related matter, regardless of whether their typical practice consists of forensic work.

The Rapidly Developing Field of Forensic Psychology

Although still relatively young, the field of forensic psychology has developed rapidly since the landmark 1962 ruling in Jenkins v. United States that facilitated the ability of psychologists to testify as expert witnesses in the courtroom. The origins of forensic psychology, however, can be dated back at least to the early 20th century, when psychological science began contributing to an understanding of the limitations of eyewitness testimony. The scope of psychology’s role in the courtroom has expanded significantly since that time, and a number of court rulings have helped define and clarify what is considered admissible testimony from a psychological expert. Psychologists now provide expert testimony to the courts on a wide range of issues, including competency issues in both civil and criminal matters, issues concerning personal injury, and child custody issues. Furthermore, the growth of forensic psychology as a field has fueled the formation of professional societies, specialized journals, and advanced certifications. On the basis of these developments, forensic psychology has clearly emerged as a defined and well-established specialty practice area for psychologists.

Most of the development of forensic psychology as a field of practice occurred during the latter half of the 20th century. However, Hugo Münsterberg, a German immigrant to the United States in the early 20th century, was the first person to promulgate research into forensic psychology in the United States, and to call for an increased role for psychologists within the legal system (Vaccaro & Hogan, 2004). Münsterberg was an applied psychologist with wide-ranging interests in the areas of memory, fatigue, social influence, and the effects of advertising. He also provided clinical treatment to individuals with mental illness, primarily through the mechanism of autosuggestion. Münsterberg’s primary interest in forensic psychology was in the area of the reliability of eyewitness testimony, and his research demonstrated the malleability of memory, as well as individual differences in the perception of events. Münsterberg believed that individual experiences and biases played a role in recollection of events, and in 1908 he authored a book, On the Witness Stand, that called for increased research into the reliability of eyewitness testimony. The book also explored the phenomenon of false confessions, suggesting that people with strong needs for punishment or compliance were especially likely to admit to crimes they had not committed. Münsterberg also called for an increased use of applied psychological knowledge in the courtroom, and decried judges and lawyers for relying solely on “common sense.” However, his book was of minimal immediate impact (Vaccaro & Hogan, 2004). Research on psychological aspects of the legal process continued to be limited and tended to have little effect on the justice system. Moreover, psychologists did not begin to serve widely as expert witnesses until the 1960s. Prior to that time, physicians, predominantly psychiatrists, typically provided expert testimony regarding mental disorders.

Psychologists began to be qualified as expert witnesses as the direct result of a United States Court of Appeals decision in the Washington, DC, Circuit Court in 1962. In Jenkins v. United States, the defense of an individual on trial for housebreaking, assault, and intent to commit rape had originally involved the testimony of three psychologists in support of an insanity defense. At the trial’s end, the judge instructed the jury to disregard the psychologists’ opinions, ruling that psychologists were not qualified to provide expert opinions regarding mental functioning and disease. When the case was appealed, the Circuit Court reversed this instruction, stating specifically that individuals with training and expertise in mental disorders, including psychologists, were qualified to provide expert testimony on questions including a defendant’s mental condition. This decision provided an important basis for psychologists as expert witnesses, and since 1962 there has been an exponential rate of growth in the role of psychological science within the United States’ justice system, resulting in psychologists providing expert opinions across a widely varying spectrum of legal matters.

At the time of the Jenkins v. United States decision, the operable federal standard for the admission of scientific knowledge as evidence during legal proceedings (as well as the standard in many states) was the Frye standard, determined in the case of Frye v. United States in 1923. The standard specified in that case was that testimony was admissible only if “the principle it is based on is sufficiently established to have a general acceptance to the field in which it belongs.” This was a fairly restrictive standard that tended to limit the admission into evidence of new or emerging knowledge in a field of study, and efforts to revise or expand this standard occurred with increasing frequency in the 1980s and early 1990s. In the case of Daubert v. Merrell Dow Pharmaceuticals (1993), the U.S. Supreme Court stated that the Federal Rules of Evidence were applicable to scientific testimony and laid out several factors that could be used by the courts in making determinations about the admissibility of such testimony. These factors involved the extent to which:

• the theory or technique has been scientifically tested;
• the theory or technique has been subjected to peer review and publication;
• the technique has a known or quantified error rate;
• the theory or technique has acceptance in the relevant scientific community.

The identification of these factors was intended to create a more flexible test than the Frye standard afforded while still allowing the court to exclude testimony in those cases where the methodology underlying the opinion did not meet basic criteria for sound science. The Daubert test is now the standard in federal courts, although individual states are not required to apply it. However, many states have begun to employ this standard, although some continue to rely upon either the Frye standard or other standards in making decisions about the admissibility of expert testimony. The Daubert criteria have been further defined by a number of subsequent decisions. These include General Electric Company v. Joiner (1997), which permits the court to consider whether an expert has extrapolated inappropriately from an accepted premise to an unfounded conclusion. In Kumho Tire Co. v. Carmichael (1999), the U.S. Supreme Court further expanded the Daubert factors beyond “scientific” expert testimony to include expert testimony based on “technical” or “other specialized” knowledge, and it also stated that the criteria specified in Daubert are not required or exclusive in qualifying experts for testimony. Although the Daubert decision expanded the criteria so as to allow expert opinions to rely on new or evolving science, the specific factors identified, in conjunction with the Kumho Tire and Joiner decisions, directly imply that expert opinions must be based on sound science, thereby requiring forensic experts to be very familiar with the scientific underpinnings of their methods and testimony (Medoff, 2003).

For forensic psychologists, the potential admissibility and usefulness of their conclusions are crucially related to the scientific basis of their testimony. Furthermore, the Ethical Principles of Psychologists and Code of Conduct, published by the American Psychological Association (APA, 2010), underscores the central role of empirical knowledge in formulating professional judgments, and the importance of interpreting psychological assessment results within the context of research on the instrument’s psychometric properties. The Specialty Guidelines for Forensic Psychologists (APA, 2011) similarly emphasize scientific knowledge in the selection and utilization of methods and procedures in forensic evaluations. In fact, the most recent revision of the specialty guidelines provides more detail regarding what is expected in the use of assessment measures in forensic contexts. For instance, the guidelines state that practitioners should strive to use assessment measures with established validity and reliability in the population being assessed (forensic). When this is not possible, it is advised that the examiner describe the strengths and limitations of their findings and seek to make clear what differences may be seen between a more traditional assessment context and a forensic context (APA, 2011). Given these ethical standards, and in order to maximize the likelihood that data and opinions will be both accurate and admissible in court, it is especially important that forensic psychologists choose and utilize test instruments in a manner that is consistent with available scientific evidence and the instruments’ intended use, and with an understanding of the strengths and limitations of the use of these assessment measures in a forensic context.

Currently, forensic psychologists provide expert knowledge to the courts on a wide variety of criminal issues, such as competency to stand trial, and criminal law constitutes a large area of forensic psychology practice. A number of other competencies are relevant to criminal questions as well, such as competency to waive Miranda rights, competency to waive counsel and act as one’s own attorney, and competency to be executed. Beyond these competency issues, forensic psychologists working in the criminal arena may also conduct evaluations to assess potential mitigating factors in capital sentencing, offer recommendations for disposition in juvenile delinquency cases, determine mental status or diminished capacity at the time of the offense, or provide risk assessments for sex offenders and other potentially violent offenders. The assessment of malingering is an additional significant concern in criminal forensic psychology, as well as in most other areas of forensic practice (e.g., personal injury litigation and workers’ compensation).

There are a number of civil questions that forensic psychologists may also address. These include competencies to release information, consent to medication treatment, refusal of hospitalization, and managing one’s financial affairs. Other civil matters may involve personal injury or workers’ compensation cases, in which a psychologist may address such questions as the extent and proximate cause of psychological or neuropsychological deficits, including conditions like post-traumatic stress disorder. As in criminal forensic practice, personal injury and workers’ compensation cases usually involve individuals who are submitting claims that...