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Wednesday, April 27, 2011


The fields of psychology and law are concerned with and focus on understanding and evaluating human behavior. The law exists to regulate human conduct; for this reason, psychologists are invited to participate in the civil and criminal justice systems. Because psychology is involved in studying behavior, in certain legal cases, findings and insights may assist the judge or jury in deliberations and decision making. However, there are significant differences between psychologists working in traditional settings and those conducting forensic assessments for the courts. Goldstein (1996) has summarized some of these significant differences. Greenberg and Gould (2001) consider role boundaries and standards of expertise of treating and expert witnesses in child custody cases. Roles of psychologists The major role of psychologists working in clinical settings, whether as psychotherapists or as psychological evaluators, is to help the client. What is learned about the patient is used to benefit the patient in terms of personal growth and support .However, in forensic psychology, the role of the expert is significantly different. Forensic psychologists are charged with using the results of their assessment to help or educate the court, without regard to the potential benefits to the examinee. In clinical psychology, psychiatric diagnosis serves a major function in treatment strategy. In addition, a diagnosis, based on criteria described in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV) or IV-Text Revision (DSM-IV-TR; American Psychiatric Association, 2000), is required for patients to receive insurance reimbursement. In forensic psychology, the role of psychiatric diagnosis is generally less critical an issue. Diagnoses are not required in many legal issues (e.g., child custody, Miranda rights waivers, personal injury). Although insanity statutes require a diagnosis as a prerequisite for its consideration by a jury, the psychiatric diagnosis does not, per se, define insanity. Rather, in forensic psychology, “diagnoses” are based on statutes, which define the relevant behaviors of concern to the court and, therefore, become the focus of the evaluation. For example, the question of a defendant’s ability to validly waive Miranda rights is defined as being able to do so knowingly, intelligently, and voluntarily—in legal, not psychological, terms. The job of the Forensic psychologist is to operationally or translate the legal terms into psychological concepts, which can be objectively evaluated (Grisso, 1986).

Conceptualization of Human Behavior
During Introduction to Psychology, college students are taught that behavior falls on a continuum. The normal distribution curve is the statistical and visual representation of the orientation of psychologists: Behavior is complex and cannot be readily categorized into discrete groups (e.g., intellectually gifted versus mentally retarded; normal versus psychotic). Unfortunately, the legal system most often considers behavior to be dichotomous. Typically, it requires the tried of fact to classify people and behavior into one of two categories (e.g., guilty versus not guilty; sane versus insane; liable versus not liable). With the exception of awarding monetary damages and instructing jurors to consider lesser charges in criminal proceedings, gradients rarely exist in the justice system. Ethical conflicts arise when those who view behavior as falling on a continuum are expected to sort individuals into discrete categories. Product of the Professional Relationship Clinical psychologists conducting traditional as Assessments seek to explain the client’s behavior. The underlying focus of the written report is typically cognitive functioning and psychodynamics. In forensic psychology, explanations of behavior and level of intelligence are generally irrelevant. Such explanations may be accurate, but they do not respond to the specific legal issue or question. To be valuable, forensic reports should address psycho legal behaviors, rather than focusing on explanations, psychodynamics, IQ, or “excuses” for conduct. Trust of the Client’s Responses Rarely do clinical psychologists question the truthfulness or motivation behind a patient’s statements or test responses. Inaccuracies are typically attributable to a lack of insight rather than a conscious effort to deceive. However, in forensic assessments, the motivation to consciously distort, deceive, or respond defensively is readily apparent. Consequently, forensic psychologists cannot take the word of the client unquestioningly. All information must be corroborated by seeking consistency across multiple sources of information (e.g., interview of third parties, review of documents). In addition, tests that objectively evaluate test-taking attitude are available to address the validity of claims of cognitive impairment and mental illness. Temporal Focus of the Evaluation Most clinical assessments are present-oriented; that is, they focus on the client’s state at the time of testing (e.g., his or her psychodynamics, level of intellectual function). Some forensic assessments have at least part of their focus on the present (e.g., which parent is best suited to address the current needs of the child), but most address either exclusively or partially past or future behavior. For example, insanity assessments focus on the defendant’s state of mind at the time a crime occurred: days, weeks, months, or years before. In personal injury cases, the court is interested in not only the plaintiff’s current impairments, but also in what he or she was like before the injury, whether there was a connection between the alleged wrong and the damage, and the prognosis for restoration to the pre incident state. Even in child custody assessments, developmental changes attributable to age require the evaluator to assess the parents’ ability to best serve that child’s interests. Level of Proof Because psychology is a science, the level of proof is based on the normal distribution. Empirical studies must demonstrate statistical significance to be considered interpretable; this level is typically set at the .05 level of probability. That is, the investigator must be 95% certain that the results of the study are attributable to the variables under investigation rather than to chance. In court, various standards of proof exist (e.g., beyond a reasonable doubt, clear and convincing evidence, preponderance of the evidence), the level dependent on the legal issue in question and which side bears the burden of proof. However, as expert witnesses, forensic psychologists typically are asked whether they were able to reach an opinion “to a reasonable degree of psychological certainty.” This level does not refer to the .05 level of statistical significance, nor does it relate to other legal levels of proof. Rather, it refers to the data on which the opinion is based: Can the expert describe the reasons for his or her opinion based on all the information considered, and, at the same time, can he or she explain why alternative opinions (such as malingering) can be ruled out?

Professional Accountability
The “Ethical Principles and Code of Conduct” govern the professional activities of psychologists (American Psychological Association [APA], 1992). As such, psychologists are answerable to their professional Organization (as well as to state boards in which they hold licenses) for complaints of unethical conduct. However, relative to the number of psychologists who are members of the APA, complaints are few. Without implying misconduct on the part of large numbers of psychologists, psychotherapy is Conducted behind closed doors with only the patient as witness. In traditional testing situations, the client is evaluated and a report is sent to the referring party. Because that party made the referral, a sense of trust in the psychologist’s competence exists; few people look over the psychologist’s shoulder. However, in forensic psychology, reports and testimony are carefully examined, dissected by opposing counsel, and subjected to close, probing cross-examination. Transcripts of the testimony are prepared. If an attorney, judge, opposing expert, or party in the litigation believes, justly or unjustly, that misconduct has occurred, an ethics complaint may result. Forensic psychologists are responsible not only to their profession, but, in some ways, they are answerable to all parties involved in the legal system, suggesting the need for a conservative approach to those issues and conflicts that arise in the legal arena. Who Is the Client? In clinical psychology, the client is readily identifiable: The person to whom professional services are offered is the client, the one owed the legal duty, the one to whom privilege belongs. In contrast, in the judicial system, forensic psychologists serve multiple clients. In his landmark book, Who Is the Client?, Monahan (1980) confronted a fundamental difference between forensic practice and clinical practice. He argued that the expert serves not only the person being evaluated, but many others as well. Because of the nature of the assessment, the nature of the oath (to tell the whole truth and nothing but the truth), and APA ethical principles, clients include the retaining attorney, the consumer of the product (e.g., the judge and jury), and those potentially affected by the expert’s opinion: society as a whole. Other Noteworthy Differences Greenberg and Shuman (1997) discussed several other irreconcilable differences between clinical and forensic evaluations. They described differences in the cognitive set of the clinical psychologist and the forensic expert. Clinical psychologists approach clients with supportive, empathic orientations; the unique requirements of forensic assessments necessitate detached, neutral, and objective approaches. In terms of the amount of structure and control in the relationship, patient-structured relationships have relatively less structure than forensic examiner-examinee relationships. These fundamental differences shape and determine the approach of forensic psychologists to conducting assessments, their methodology, and the structure of their opinions and testimony. Only by recognizing and addressing these major differences can forensic psychologists function in an effective, ethical manner.

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