Foundations, Ethics, Precedents, Testing, Opinions Flashcards
Jenkins v United States
1962
DC Circuit Court ruled psychologists could provide expert opinions about mental illness at the time of an alleged event
Physicians were not uniquely qualified to offer testimony on matters of mental disorder
Brown v BOE
1954
First time psychological research was utilized in a major (SCOTUS) case
Clark doll studies
Dates for important organizations
APLS 1969
ABFP 1978
APA recognized forensic psychology as a subspecialty in 2001
Specialty Guidelines adopted by APA in 2011
How is “specialized knowledge” defined in the FRoE
An expert should provide re information about a subject than a lay person
Occupational status in and of itself is not sufficient
Kumho Tire v Carmichael
1999
Daubert criteria applied to scientific, technical, and specialized knowledge - Daubert applies to nonscientific testimony (soft sciences)
Mental health testimony needed to meet Daubert criteria to be admitted into court. Does the expert have sufficient specialized knowledge to assist the trier of fact?
Tippins and Wittmann Clinical Inference Hierarchy
Our observations
Inferences based on our observations
Implications for the inferences
Prescriptive recommendations
Steps to documenting ethical decisions
Identify the dilemma
Seek info and guidance from sources of professional authority
Seek info and guidance from professional journals
Seek info and guidance from professional workshops
Record steps taken to resolve the issue
Consult
Articulate the manner in which the final decision was made
Keith-Spiegel and Koocher’s ethical decision making process
Describe the dilemma and various related issues
Identify those who are likely to be impacted by the decision
Specify the considerations owed and basis for each
List applicable standards and professional guidelines
Outline alternative actions to include consequences and benefits
Delineate changes in circumscribed that could cause a different axn
Identify actions to take in the event of adverse consequences
Estelle v Smith
1981
Application of fifth (right to remain silent) and sixth (criminal protections) to forensic mental health
Limited use of competency evaluations, emphasized importance of notification of purpose, also included protections against the defendant participating with only defense-retained experts
Dilemma of bifurcating MSO trials…
MSO evaluations may include incriminating information
The first attempt to resolve this was to bifurcate trials
(Guilt, Sanity)
This limited the potentially prejudicial testimony of the expert solely to the second phase of trial
BUT this was ruled unconstitutional as it prevents the defendant from introducing all relevant testimony in their defense
Exceptions to Fifth Amendment protections
Juvenile cases - considered “quasi-criminal”
In re Gault remedied this and brought adult protections over
SVP cases - especially if the prosecution seeks commitment rather than criminal conviction
Child custody evals may yield incriminating information if it is not protected by attorney-client privilege
Right to Counsel in FMH Evaluations
Right to counsel doesn’t just apply to the trial phase of a case
However, most courts (supported by Estelle v Smith) have held that defendants do not have a right to counsel during evaluations
Can be useful for data collection, but can also present third party concerns
Ake v Oklahoma
1985
Guarantees indigent defendants the right to an evaluation and even a second opinion, but not necessarily the right to an evaluator of their choosing
Edney v Smith
1976
States (prosecutors) should have access to experts that the defendant has decided not to use in criminal cases once they have raised an MSO defense
Prevents the defense from “shopping” and taking unfriendly experts “off the market”
Duty to Protect and being privately retained
Disclosure of problematic information (e.g., past abuse of a child) may be protected by attorney-client privilege if you are privately retained
Disclosures of ongoing abuse should be guided by your own ethical compass
Ethical considerations in the evaluation process
Being both expert and consultant is not recommended
Role expectations and evaluation objectives are the most important matters to be sorted out with the attorney
Avoid pro bono and contingency work
Take steps to inform evaluee of your role, don’t do work on a previous psychotherapy patient or vise versa, advise the evaluee of reasonably foreseeable disclosures
Suggested information for a notification of purpose
Who the evaluator is conducting the evaluation for
Who will receive the report
Legal issue at hand
Reminder that you are not their doctor/treatment provider
Option to not answer questions (and consequences for doing so)
Expectation that they will do their best and be honest
May ask for breaks
Who is paying the examiner
Should an evaluee decline to participate in an evaluation…
Do not threaten them (-_-)
Advise them of any sanctions that may be imposed
Give them the opportunity to talk to their counsel for guidance
Advise on whether you’re required to offer an opinion anyway
In re Lifschutz
1970
A psychiatrist cannot assert privilege for information gathered in treatment when the patient has waived privilege
Jaffee v Redmond
1996
Federal courts upheld psychotherapist-patient privilege
Because the police officer wasn’t raising an MSO defense, her mental health records were protected and privileged
LCSWs were included in the definition of “psychotherapist”
The “Hand” Rule
We should consider the probability a negative event will occur, the gravity of the harm that would result, and the cost of taking steps to prevent the negative event
Named after Judge Hand (1947)
Fifth Amendment and Case Law
4 notable cases
Estelle v Smith (1981) - Forcing a defendant to sit for an exam solely for sentencing purposes violates the 5th and 6th Amendments // Can’t raise MSO and then refuse to cooperate
Buchanan v Kentucky (1987) - DA can use results of a court-ordered comp eval on any MSO defense raised by the defense without violating 5th Amendment (because mental state defenses forfeit this right)
Kansas v Cheever (2005) - No 5th Amendment protections when defense raises voluntary intoxication defense
In re Gault (1967) - 5th Amendment protections should apply to kids
Reciprocal Discovery
Controversial…may violate attorney-client privilege
The prosecution can gain access to the defense experts’s documents when the defense requests access to the prosecutor’s discovery
Allen v Illinois
SCOTUS found 5th Amendment protections did not apply to SVP commitment cases because commitment was seen as “treatment” and not punishment
Contradicts the opinion in In re Gault, which noted that 5th Amendment protections should apply in any situation that results in a “massive deprivation” of liberty (juvie cases being quasi-criminal)
Sixth Amendment
Right to the presence of counsel
Right to effective assistance of counsel
Pros and Cons to attorney presence during an eval
You get to observe the attorney-client relationship
Attorney presence could help to facilitate the interview
Third party observer effects
It’s not necessary
Could threaten test security
Impact of test validity (observer effects)
Pros and Cons to recording interviews
May be impractical or change the nature of the responses you get from the defendant
Weigh against the legitimate interest to have an accurate recording of the event and verbatim responses
Duty associated with Tarasoff
Duty to PROTECT
You can be held liable for failing to take action to protect future victims
Acquiring state and federal crimes
Some criminal charges have the potential to lead to both state and federal charges (armed robbery in a state, of a federally owned bank)
Both state and feds can prosecute because they are separate “sovereigns” (entities) and aren’t violating double jeopardy for that reason
Preemption doctrine - if state and federal laws exist, the federal law supersedes the state laws on whatever the issue is
Trial Courts v Appellate Courts v Federal Courts v State Judicial Systems
Trial courts ascertain facts of a case and apply the law to the facts via the adversarial judicial process
Appellate courts serve to determine if trial courts applied the rule of law correctly (no trial process, just analyze the facts of the case and transcripts)
Federal court systems are comprised of POTUS-nominated judges (life term) and hear cases that involve federal laws or regulations, OR claims that statutes or rules of law violate the US Constitution
State judicial systems contain judges that are elected, and often contain criminal and civil courts
Four major types of judicial proceedings
Criminal - Assess guilt in the commission of an act that is forbidden by statute and punishable by prison or fine (beyond a reasonable doubt)
Civil - Dispute between parties and the govt provides the forum to settle the dispute (typically with monetary damages being awarded) (preponderance)
Administrative - Whether the govt can take away or give property with a clear and convincing standard (burden is between criminal and civil)
Quasi-Criminal - Civil commitment and juvenile cases, traditionally civil cases that can result in loss of liberty (clear and convincing standard)
Therapeutic Courts
Judges and attorneys are collaborative
Collaboration between legal and non legal systems
Court attempts to intact outcomes that go beyond application of law
Attempts to resolve legal and nonlegal matters
Hears a range of issues (family probs, tx refusals, etc.)
Frye v US
1923
Evidence not accepted by the scientific community is not accepted in a federal criminal trial
Experts’ opinions must be “sufficiently established to have gained general acceptance in the particular field.”
“General acceptance test”
Daubert v Merrell Dow Pharmaceuticals
1993
Frye’s general acceptance test is no longer appropriate
Are the methods scientifically valid, has the theory been subject to peer review and publication, can or has the theory been tested, what is the theory of technique’s known potential error rate, are there related standards, is there wide-spread acceptance?
Differences between forensic assessment and therapeutic assessment
FA looks at narrowly defined questions, TA is broad
FA has well-being and perspective secondary, TA they’re primary
FA is not wholly voluntary, TA is voluntary
FA client has no input on assessment objective and procedures
FA comes with greater conscious and unconscious threats to validity
FA has more emotional distance, TA has more therapeutic alliance
FA has legal schedules and deadlines, TA is more leisurely
Three main types of assessment tools
Clinical assessment instruments - facilitates diagnosis and treatment planning, most researched, least often used in forensics
Forensically relevant instruments - tests that measure clinical constructs relevant to forensic work (response style, violence risk, psychopathy), tend to be less researched but can still be well-validated
Forensic assessment instruments - tests designed to tap directly into forensic questions (MacCAT, ECSTR, etc.), development reflects the understanding that CAIs and FRIs are of limited use in forensic contexts
Caveats to using Clinical Assessment Instruments and Forensically Relevant Instruments
Most haven’t been normed on forensic populations or their specific legal contexts
Test results are hypothetical and may not 100% represent the defendant
Can have substantial caveats when used retrospectively (sanity, past competencies, etc.)
Face validity may pose issues
Caveats to using Forensic Assessment Instruments
Tend to be face-valid
Valid instruments do not exist for most psycholegal questions that we need to answer (investigative interviewing is generally more appropriate)
Suggested process for systematically evaluating amnesia
Per Charles Scott
Evaluate for conditions known to cause memory impairment
Compare self-reported info to what is generally known about amnesia, dissociation, head trauma, etc.
Examine relationship of substance abuse to amnesties event
Consider if alleged event was planned or rehearsed
Compare to independent information sources
Testing if appropriate
Tests for feigned symptomatology
SIRS/ SIRS-2
MMPI
PAI
Tests for feigned intellectual impairment
TOMM
VIP
WMT
“Below chance” in symptom validity tests means…
Any score lower than that expected for 95% of random responding
Roger’s Response Styles
MALINGERING
Deliberate fabrication or gross exaggeration to fill an external goal or motivation
Rogers Response Styles
FEIGNING
Deliberate fabrication or gross exaggeration without any assumption about why
Rogers Response Styles
DEFENSIVENESS
Deliberate denial or gross minimization in the service of an external goal
Rogers Response Styles
IRRELEVANT RESPONDING
Disengagement from the assessment process by providing inconsistent (random) responses to test items or providing uninformative answers
Rogers Response Styles
DISSIMULATION
An inaccurate portrayal of symptoms, often used when “malingering” for “feigning” are not appropriate for the situation
Caveats to “secondary gain” or “suboptimal effort”
Secondary gain is imprecise and commonly confused with “malingering”
There could be bona fide reasons for suboptimal effort that is not malingering (head injury, fatigue, etc.)
Explanatory models of malingering
Pathogenic - a person is trying to cover up legitimate dysfunction
Criminological - primary motivation is characterological, general deceptiveness when opportunities arise
Adaptational - person perceives an adversarial environment and malingering is a situational response deemed to be viable
Percentage of malingering cases, based on research
15-17%
Not rare or common
Misconceptions about malingering
We CANNOT predict it, it depends on so many factors
It is NOT static, again, depends on so many factors
Cut scores on tests are NOT “laser accurate”
Useful research designs for malingering
Simulation design - participants randomly assigned to a control or simulation group (good internal validity, bad external validity)
Known-groups comparisons - independently classified malingerers are compared to genuine patients (good external, limited internal) (MMPI)
Bootstrapping - deviant scorers are compared to not deviant scorers, comparison of curves (VIP)
Deficient research designs for malingering
Partial-criterion comparisons - poor version of known groups design, may rely on one Dr. to separate out the groups
Differential-prevalence comparisons - assumes certain groups will have specific response styles (assumes forensic groups will feign), fundamentally flawed
Base rates for malingerer cognitive deficits
4-64%
It’s all over the place…
Detection strategies for malingering cognitive deficits
EXCESSIVE IMPAIRMENT DETECTION STRATEGIES
Floor effect - utilizes simple tasks that may seem difficult but can be done by most people (TOMM)
Symptom validity testing - looks at failure rate on the test based on statistical probability (tends to be effective ol pinky with extreme forms of malingering)
Forced-choice testing - lower than expected performance based on normative data (just comparing group norms, not usually validated)
Detection strategies for malingering cognitive deficits
UNLIKELY PRESENTATION DETECTION STRATEGIES
Magnitude of error - evaluates feigning based on unlikely errors that are uncommon among examiners with cognitive disorders
Performance curve - based on premise feigners don’t take item difficulty into account when choosing what items to do poorly on
Atypical presentation - unstructured clinical judgement mostly, comparing scores across tests and with observed behaviors
Psychological sequelae - when feigners claim bogus sxs as a result of their alleged cog impairment (found to produce high false positives upwards of 27%)
Response time measures - research is mixed, don’t use it
Types of detection strategies for malingered mental disorder
Unlikely detection strategies - endorsement of rare sxs, unlikely sx combinations, reported v observed sxs, etc.
Amplified detection strategies - endorsement of unbearable symptom severity, endorsing broad and indiscriminate array of sxs
Using MMPI for malingering
FBS correlated to feigners and genuine impairment
Fp may be promising
MMPI may not be ideal for civil litigation feigning
PAI and malingering
RDF lacks discriminant validity and shouldn’t be used by itself
Average NIM can be used to help rule-out feigning
SIRS-2
Excellent IRR and discriminant validity
Good convergent validity with the MMPI
Malingered Neurocognitive Dysfunction Model
Three categories
Definite malingering - below chance on SVT and presence of external incentives (too narrowly construed)
Probable malingering - requires at least two factors indicative of potential feigning (too broadly construed, what’s the lay understanding of the difference between definite and probable anyway)
Possible malingering - any major discrepancy between self-report and other data (most cases have discrepancies, so don’t even use it)
Jurisogenic Symptoms
Symptoms that would not exist were it not for the adverse effects of litigation (especially protracted, lengthy court cases)
May be due to frequent reexperiencing of injuries, emotional trauma, worsening of a vulnerable personality, etc.
VIP for malingering
Focused on unlikely presentation….response consistency is what is measured and performance curves are compared
(Expected to do worse on harder items, should clear first ten with no issue)
Don’t use on those with ID or an LD
TOMM for malingering
Utilizes floor effect and SVT
Use of the recognition trial improves sensitivity
Caveat: many studies on the TOMM used partial-criterion design, don’t use with MR sample, TOMM scores just generally appear to be lower for those involved in litigation
Griggs v Duke Power Co
1971
The use of testing must be directly related to the thing wanting to be assessed for decision making (employment, parenting, placement, promotion, etc.)
United States v Greer
1998
You can get enhanced sentences for malingering
Obstruction of justice enhancements
Hall v Florida
2014
It is unconstitutional to rely strictly on IQ score when determining intellectual disability for the purposes of death penalty proceedings
When the test score falls within the known margin of error, additional evidence is needed (regarding adaptive deficits)
Subpoena duces tectum
Formal discovery request for documents
Hospital records, test materials, etc.
Three components to credible testimony
Expertise - formal aspects of the witnesses experience and training (degree, positions held, honors and awards, etc.)
Trustworthiness - perceptions that listeners form regarding the honesty of the witness
Dynamism - style and charisma that serve to ensure the audience pays attention
What to know about giving a deposition
Because what you say can be used against you, give brief answers
Request the transcript and correct any errors
Less formal, but don’t let your guard down
Grisso’s six principles to guide forensic report writing
Use the forensic question to guide content
Include only what is necessary to answer the forensic question
Sequence and describe in a way that makes sense to the reader
Separate facts from inferences (and note what facts lead to your inferences)
Show why you are providing the explanations you are
Fully explain your rejections of competing conclusions or opinions
Talking about psychological testing in reports
Note what tests you used early in the report
Articulate rationale for why you used it
Acknowledge limitations (esp if any related to eval)
Detail any deviations made to standardization
Detail all findings that is free from jargon and understandable
Case law on witness immunity
Bruce v Byrne Stevens - witness immunity is not only for defamation cases, you can use it anywhere, no matter what side retains you
Murphy v A A Matthew’s - you’re not immune from negligent professional conduct
Budwin v APA - private, voluntary associations can censure you for making false statements as a court-appointed expert
Deathrage - witness immunity doesn’t apply to professional disciplinary proceedings
