Foundations, Ethics, Precedents, Testing, Opinions

Question 1

Jenkins v United States

1962

Answer 1

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

Question 2

Brown v BOE

1954

Answer 2

First time psychological research was utilized in a major (SCOTUS) case

Clark doll studies

Question 3

Dates for important organizations

Answer 3

APLS 1969
ABFP 1978
APA recognized forensic psychology as a subspecialty in 2001
Specialty Guidelines adopted by APA in 2011

Question 4

How is “specialized knowledge” defined in the FRoE

Answer 4

An expert should provide re information about a subject than a lay person

Occupational status in and of itself is not sufficient

Question 5

Kumho Tire v Carmichael

1999

Answer 5

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?

Question 6

Tippins and Wittmann Clinical Inference Hierarchy

Answer 6

Our observations
Inferences based on our observations
Implications for the inferences
Prescriptive recommendations

Question 7

Steps to documenting ethical decisions

Answer 7

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

Question 8

Keith-Spiegel and Koocher’s ethical decision making process

Answer 8

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

Question 9

Estelle v Smith

1981

Answer 9

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

Question 10

Dilemma of bifurcating MSO trials…

Answer 10

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

Question 11

Exceptions to Fifth Amendment protections

Answer 11

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

Question 12

Right to Counsel in FMH Evaluations

Answer 12

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

Question 13

Ake v Oklahoma

1985

Answer 13

Guarantees indigent defendants the right to an evaluation and even a second opinion, but not necessarily the right to an evaluator of their choosing

Question 14

Edney v Smith

1976

Answer 14

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”

Question 15

Duty to Protect and being privately retained

Answer 15

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

Question 16

Ethical considerations in the evaluation process

Answer 16

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

Question 17

Suggested information for a notification of purpose

Answer 17

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

Question 18

Should an evaluee decline to participate in an evaluation…

Answer 18

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

Question 19

In re Lifschutz

1970

Answer 19

A psychiatrist cannot assert privilege for information gathered in treatment when the patient has waived privilege

Question 20

Jaffee v Redmond

1996

Answer 20

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”

Question 21

The “Hand” Rule

Answer 21

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)

Question 22

Fifth Amendment and Case Law

4 notable cases

Answer 22

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

Question 23

Reciprocal Discovery

Answer 23

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

Question 24

Allen v Illinois

Answer 24

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)

Question 25

Sixth Amendment

Answer 25

Right to the presence of counsel | Right to effective assistance of counsel

Question 26

Pros and Cons to attorney presence during an eval

Answer 26

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)

Question 27

Pros and Cons to recording interviews

Answer 27

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

Question 28

Duty associated with Tarasoff

Answer 28

Duty to PROTECT You can be held liable for failing to take action to protect future victims

Question 29

Acquiring state and federal crimes

Answer 29

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

Question 30

Trial Courts v Appellate Courts v Federal Courts v State Judicial Systems

Answer 30

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

Question 31

Four major types of judicial proceedings

Answer 31

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)

Question 32

Therapeutic Courts

Answer 32

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.)

Question 33

Frye v US | 1923

Answer 33

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”

Question 34

Daubert v Merrell Dow Pharmaceuticals | 1993

Answer 34

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?

Question 35

Differences between forensic assessment and therapeutic assessment

Answer 35

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

Question 36

Three main types of assessment tools

Answer 36

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

Question 37

Caveats to using Clinical Assessment Instruments and Forensically Relevant Instruments

Answer 37

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

Question 38

Caveats to using Forensic Assessment Instruments

Answer 38

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)

Question 39

Suggested process for systematically evaluating amnesia | Per Charles Scott

Answer 39

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

Question 40

Tests for feigned symptomatology

Answer 40

SIRS/ SIRS-2 MMPI PAI

Question 41

Tests for feigned intellectual impairment

Answer 41

TOMM VIP WMT

Question 42

“Below chance” in symptom validity tests means…

Answer 42

Any score lower than that expected for 95% of random responding

Question 43

Roger’s Response Styles | MALINGERING

Answer 43

Deliberate fabrication or gross exaggeration to fill an external goal or motivation

Question 44

Rogers Response Styles | FEIGNING

Answer 44

Deliberate fabrication or gross exaggeration without any assumption about why

Question 45

Rogers Response Styles | DEFENSIVENESS

Answer 45

Deliberate denial or gross minimization in the service of an external goal

Question 46

Rogers Response Styles | IRRELEVANT RESPONDING

Answer 46

Disengagement from the assessment process by providing inconsistent (random) responses to test items or providing uninformative answers

Question 47

Rogers Response Styles | DISSIMULATION

Answer 47

An inaccurate portrayal of symptoms, often used when “malingering” for “feigning” are not appropriate for the situation

Question 48

Caveats to “secondary gain” or “suboptimal effort”

Answer 48

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.)

Question 49

Explanatory models of malingering

Answer 49

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

Question 50

Percentage of malingering cases, based on research

Answer 50

15-17% Not rare or common

Question 51

Misconceptions about malingering

Answer 51

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”

Question 52

Useful research designs for malingering

Answer 52

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)

Question 53

Deficient research designs for malingering

Answer 53

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

Question 54

Base rates for malingerer cognitive deficits

Answer 54

4-64% It’s all over the place…

Question 55

Detection strategies for malingering cognitive deficits | EXCESSIVE IMPAIRMENT DETECTION STRATEGIES

Answer 55

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)

Question 56

Detection strategies for malingering cognitive deficits | UNLIKELY PRESENTATION DETECTION STRATEGIES

Answer 56

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

Question 57

Types of detection strategies for malingered mental disorder

Answer 57

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

Question 58

Using MMPI for malingering

Answer 58

FBS correlated to feigners and genuine impairment Fp may be promising MMPI may not be ideal for civil litigation feigning

Question 59

PAI and malingering

Answer 59

RDF lacks discriminant validity and shouldn’t be used by itself Average NIM can be used to help rule-out feigning

Question 60

SIRS-2

Answer 60

Excellent IRR and discriminant validity Good convergent validity with the MMPI

Question 61

Malingered Neurocognitive Dysfunction Model | Three categories

Answer 61

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)

Question 62

Jurisogenic Symptoms

Answer 62

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.

Question 63

VIP for malingering

Answer 63

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

Question 64

TOMM for malingering

Answer 64

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

Question 65

Griggs v Duke Power Co | 1971

Answer 65

The use of testing must be directly related to the thing wanting to be assessed for decision making (employment, parenting, placement, promotion, etc.)

Question 66

United States v Greer | 1998

Answer 66

You can get enhanced sentences for malingering | Obstruction of justice enhancements

Question 67

Hall v Florida | 2014

Answer 67

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)

Question 68

Subpoena duces tectum

Answer 68

Formal discovery request for documents | Hospital records, test materials, etc.

Question 69

Three components to credible testimony

Answer 69

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

Question 70

What to know about giving a deposition

Answer 70

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

Question 71

Grisso’s six principles to guide forensic report writing

Answer 71

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

Question 72

Talking about psychological testing in reports

Answer 72

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

Question 73

Case law on witness immunity

Answer 73

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