Tamar Use of Secular Evals For Halacha (5 Files Merged)

"
This Post Includes Several Documents Authored By Top Mental Health

Experts That Should Raise Concerns About The Use Of Secular Mental Health
Evaluations For Halachic Matters.
Please Feel Free To Share!

The appended documents seem to point to very serious problems involved with basing any Halachic
whatsoever on mental health evaluations which are based on DSM diagnosis. According to these documents
authored by top experts in the field, this is so even when said evaluations are produced by specially trained
forensic experts and even when such experts follow all legal and ethical requirements. Evaluations done by
regular clinicians and / or not following a list of specific legal standards are not admissible in a courtroom and
surely not valid Halachically.
It is important to note that to the best of the writers knowledge there are absolutely no teshuvos extant that
show that Rav Moshe Zatzal ever relied on the evaluation of secular professionals to define mental illness. He
only used the experts to ascertain facts, which he then independently evaluated as signs of mental illness.
Indeed, the writer has personally spoken to a Talmid of Rav Moshe who received an Haskama from Rav Moshe
for a Sefer he wrote about mental health, and he recounted how Rav Moshe told him about his concerns
concerning the reliability of the stated expertise in the field of mental health.
Some of the Teshuvos of the "raise questions concerning the reliability of the purported
mental health evaluation that was used as the basis of the marriage annulment in the current case. Some
commenters have noted that similar methods seem to have also been used in the past, concerning other marriage
annulments.
I have therefore appended these documents to help clarify the concerns that top mental health experts have
regarding the methods used in these cases. This will IYH hopefully help raise awareness about this specific
problem, which seems to be all but unknown in the community at the present time.
The writers fervent hope is that Rabbonim who are currently straddling the fence regarding this and other
marriage annulments may find the documentation useful, as it may act as a springing board to further
investigate whether this and other claims of mental illness used in adversarial situations properly followed what
the law requires and whether such use should be Halachically permitted. Layman may find these resources
useful to raise awareness by their Rabbis, friends and families.
There can be no doubt that mental illness is an extremely serious matter, and that SOME people suffer from
serious illness that according to Rav Moshe would be reason for a marriage annulment. The issue here concerns
what criteria should be acceptable and the concerns the top experts raise concerning validity also clearly
increase the doubts in many minds about using mental health evaluations for Halachic purposes.
The writer is not qualified to offer legal advice and has no intention of doing so.
"
The first document appended here is titled Ethical Issues in Conducting Forensic
Evaluations written by Dr. Karen Kalmbach:
APA citation: Kalmbach, K. C., & Lyons, P. M. (2006). Ethical issues in conducting forensic evaluations.
Applied Psychology in Criminal Justice, 2(3), 261-290.
Among other things, this document includes information regarding the following areas of concern:
1) Forensic evaluations which can be used in any way to curtail a persons rights, require a much higher level
of attention to detail and expertise than what regular clinicians who are trained to offer therapeutic services are
qualified to offer.
2) Furthermore, the forensic evaluator needs to make every possible effort to personally interview the subject of
the evaluation. In cases where the evaluation is not court-ordered, informed consent is required. Where there is
a court order, a disclosure is required.
3) The court would require that the evaluator prove his or her professional competence. This includes proof of
continuing education and awareness of recent developments in the area of claimed expertise.
4) The evaluator must also prove his or her Cultural competence in forensic practice, meaning awareness of
how religious and / or cultural concerns may affect the outcome of the evaluation. This includes that the
evaluator Shifts lenses to see things from the subjects cultural view and understand how culture effects the
context, behavior & diagnosis of the subject.
5) Furthermore, the evaluator is required to maintain records showing how he reached said diagnosis.
6) Any possible dual relationships between evaluator and other parties that may cause a conflict of interest also
need to be disclosed.
7) The subject must be assured access to a competent mental health professional who will assist in his or her
defense. Subject or his or her legal counsel have the right to cross examine and question the evaluator to
ascertain the admissibility of the expert evaluation.
The second document appended here is titled Forensic Mental Health Evaluations:
Reliability, Validity, Quality, and Other Minor Details written by Dr. W. Neil
Gowensmith et al:
Retrieved from: http://www.thejuryexpert.com/2013/01/forensic-mental-health-evaluations-reliability-validityquality-and-other-minor-details/
"
Among other things, this document includes information regarding the following areas of concern:
1) Even under the best available conditions, professional forensic evaluators only agreed 55% to 71% of the
time, depending on the purpose of the evaluation. The best conditions, which were found in the state of Hawaii,
involved a total of three evaluators that were all hired by and paid for by the courts, thus assuring independence.
One can therefore assume that one evaluator hired by a party with a vested interest would offer a much less
reliable evaluation.
2) When questioning the validity of an evaluation Courts would very carefully examine the process that the
evaluator used to obtain the evaluation and carefully examine supporting documentation. Issues with the
aforementioned would cast doubt on the value of the evaluation.
The third and fourth documents appended here are written by Dr. Allen Frances, who
helped to prepare DSM III (published in 1980), DSM III R (published in 1987); and was
Chair of the Task Force that published DSM IV in 1994. It is probably fair to assume that
he as expert among experts because he is the main architect of the bible used to make
these evaluations.
Document #3 is written for the popular press and titled Is Expert Testimony in Court
Cases Really Expert? Document #4 is a scholarly document Dr. Frances wrote on the
subject, titled The Uses and Misuses of the DSM in Forensic Settings
Doc. #3 is Retrieved from: http://www.huffingtonpost.com/allen-frances/is-expert-testimony-in-court-casesreally-expert_b_6100124.html
APA citation for doc. #4 is: Frances, A., & Halon, R. (2013). The uses and misuses of the DSM in forensic
settings. Psychological Injury and Law, 6(4), 336-344
The writer hasnt had time to properly analyze these documents, but a quick perusal makes it clear that basing
any Halachic psak on mental health evaluations that are based on DSM diagnosis, is extremely problematic.
ETHICAL ISSUES IN CONDUCTING

FORENSIC EVALUATIONS
Karen C. Kalmbach
Phillip M. Lyons
Sam Houston State University
UNIQUE NATURE OF FORENSIC MENTAL HEALTH

PRACTICE
The role of the forensic mental health professional (MHP) often differs substantially from that of the typical clinician. These differences bear directly on the ethical
delivery of services (Canter, Bennett, Jones & Nagy, 1994; Heilbrun, 2001, 2003).
For the therapist, the client is the individual presenting for

treatment; in forensic evaluations this is rarely the case (cf. Greenberg & Shuman, 1997). This distinction carries with it important
ramifications for informed consent or disclosure as well as the control and use of information obtained during the course of the
evaluation. Additionally, the customary therapeutic alliance and
typical assurances of confidentiality do not exist in a forensic context. Pressure to assume an advocacy position, however subtle,
may pose an ethical dilemma for the forensic MHP. Unlike a
therapeutic relationship, the forensic evaluation involves limited
contact, an adversarial forum, an impartial stance, and a critical,
evaluative style that includes reliance on collateral and corroborated information rather than mere assertions by the examinee.
Correspondence concerning this article should be addressed to Karen Kalmbach, Ph.D.,

Sam Houston State University, Department of Psychology, P.O. Box 2210, Huntsville,
TX 77341-2210; Email: KCK004@shsu.edu
Applied Psychology in Criminal Justice, 2006, 2(3)
262 ETHICAL ISSUES
The content of the clinical forensic interview tends to be much

more circumscribed as it is focused narrowly on information pertinent to the relevant psycholegal question to be answered (e.g.,
mental state at time of offense, competency to stand trial), and
careful consideration must be given to the influence of multicultural factors at all stages of the evaluation process.
In this regard, it is worth noting that forensic evaluations
often will involve consideration of aspects of human behavior that
are not normative and may be quite disturbing. In cases involving
potential legal dispositions that are contrary to strongly held personal convictions (e.g., capital punishment), MHPs may find themselves with diminished objectivity (Brodsky, 1990; Weissman &
DeBow, 2003; cf. Heilbrun, 2001). To perform forensic evaluations competently it is necessary to approach assessments with as
much clinical impartiality as possible. On those occasions where
such objectivity appears compromised, the MHP may well consider whether to abstain from participating in the forensic evaluation (Bonnie, 1990; Brodsky, 1990; Specialty Guidelines for Forensic Psychologists, III[E], 1991).
Forensic MHPs practice in a unique niche and are obligated
to meet a high ethical standard. This requires special attention to
various issues including confidentiality, clarification of roles, and
the intended use and potential recipients of the opinion or evaluation ultimately rendered. Familiarity with legal standards and adherence to professional ethics codes and the forensic specialty
guidelines can be used as evidence of a professional commitment
to a standard of care, in the event ones opinion is challenged. Professionals who choose to participate in the legal forum must ensure
that their performance meets not only the standards of general
practice for their profession, but also those pertaining to the forensic specialty, if any (see American Academy of Psychiatry and the
Law, 1987; Committee on Ethical Guidelines for Forensic Psychologists, 1991 and the Appendix to this article). Equally important is a thorough knowledge of professional statutory regulations
and current legal standards upon which forensic testimony may be
KALMBACH & LYONS 263
based (as discussed elsewhere in this Issue; for Texas, see also
Shuman, 1997).
IDENTIFICATION OF CLIENT
In the practice of traditional clinical psychology, identification of the client is typically straightforwardgenerally, it is the
individual presenting for treatment. In a forensic context, it is rare
for the person being evaluated to be the client (Greenberg &
Shuman, 1997; Ogloff, 1999). The forensic practitioner may have
as a client (a) the individual (via his or her attorney), (b) the custodian of the individual (e.g., the Texas Department of Criminal Justice), or (c) the Court (by way of a court order for evaluation). It is
important to determine, as part of preparation for the evaluation, a
variety of issues including: (a) the specific referral question to be
answered (e.g., competency to stand trial), (b) who the client is,
and (c) who will have access to the final report. This information is
then shared with the examinee.
INFORMED CONSENT VS. DISCLOSURE
Informed consent is a long-held tenet of professional practice. In seeking to share information before decisions are made,
informed consent speaks to the importance of personal autonomy
and respect for the dignity of people. Disclosure, or notification, on
the other hand, seeks merely to inform, not to obtain the consent of
the participant.
Notwithstanding the foregoing, in the practice of forensic
evaluations, informed consent is often not legally required. Generally, informed consent is required unless the evaluation is (a)
court-ordered, and/or (b) statutorily required. Regardless of
whether an informed consent procedure or disclosure process is
used, the elements of notification should be similar. The following
are important points to be included:
(a) Name of person or agency requesting the evaluation,
and the intended recipient(s) of the final product
264 ETHICAL ISSUES
(b) Other professionals or agencies who will have access to

the report
(c) Limits of confidentiality, and the absence of privileged
communication
(d) Non-therapeutic nature of the relationship (i.e., evaluator is not a treatment provider)
(e) The psycholegal or referral question to be addressed in
the evaluation (e.g., competency to stand trial; mental
state at the time of offense)
(f) The type of material that will be collected, and the
methods by which the information will be obtained
(e.g., psychological tests, interview)
(g) The nature of the legal proceeding(s) at which the examiner may be required to testify (e.g., trial, post-trial
sentencing)
(h) The type of information which may require mandatory
reporting (e.g., child abuse)
(i) Whether the examinee has a right to decline participation in the evaluation and the possible consequences for
declining (adapted from Melton et al., 1997, p. 88)
Unlike non-forensic cases, In the case of court ordered
evaluations it is not imperative that the examinee fully understand
the disclosure providedindeed he or she may not be able to (e.g.,
acute psychosis); however, every effort should be made to facilitate that understanding. If it is clear, despite the evaluators efforts,
that the defendant does not understand the disclosure, this should
be noted in the final report. In the event that a defendant has refused to participate, the forensic MHP might wish to consult with
the examinees attorney to facilitate his or her cooperation. In instances where there is neither a court order nor a statutory mandate
for the evaluation, informed consent is generally required. In cases
where the examinee is not competent to provide such consent,
counsel should be consulted regarding the possibility of consent by
an authorized third party.
Written versus verbal notification
Debate exists regarding the necessity of offering written
consent or disclosure information as opposed to a verbal notifica-
tion. Some experts recommend providing a written form containing all pertinent details (Melton et al., 1997), whereas others note
that, although ideal, a written form is not necessary (Shapiro,
1999). In any case, the consent or disclosure process, whether written or verbal, should be noted and documented within the practitioners files. In general, given the importance of the doctrine of
informed consent in the mental health professions as well as the
potential legal ramifications should the examinee later argue nonnotification, it may be advisable to consider using a written form as
a matter of practice. Conscientious documentation may forestall
later problemsevidence of the consent/disclosure process can be
compelled by law (e.g., competence to stand trial or fitness to proceed hearings).
Special considerations: Mental illness, mental retardation, and
participation of juveniles
With all examinees, but especially with juveniles and individuals who have cognitive limitations, the precise nature of the
professional relationship should be explained carefully. It is useful
to state clearly, for example, I have been ordered by the judge in
your case to conduct this evaluation. My report will be given not
only to your attorney, but also to the judge and the District Attorney. She will have access to everything that I put in my report. Do
you understand? Some juveniles may require communication that
is simple and concrete, in keeping with appropriate levels of cognitive development. Juveniles also may exhibit more limited understanding of their rights (e.g., self-incrimination), and thus require
sensitive handling of ethical issues, and perhaps repeated reminders of important information.
With many forms of mental illness the ability to receive
and process information is impaired. For example, individuals who
are floridly psychotic or delusional may not possess the ability to
attend to and process information until he or she has been stabilized with medication. Although mental retardation is not a mental
illness, the impact of the condition on communication may be
equally problematic. Mental retardation manifests itself in a number of characteristic traits that interact to create certain vulnerabilities in examinees undergoing forensic evaluation. Furthermore,
266 ETHICAL ISSUES
individuals with mental retardation may not be easily identified as

many have learned to adapt by emulating their normal peers, and
often feign understanding so as to avoid stigmatizing labels; this is
the so-called cloak of competence. With such individuals there is
also a tendency to acquiesce in order to please authority figures,
and a heightened suggestibility to leading questions (see Melton et
al., 1997, p. 171).
The forensic practitioner bears an ethical responsibility to
be aware of the characteristics and vulnerabilities of individuals
with mental retardation, mental illness, and age-related cognitive
limitations during the course of conducting an evaluation.
PRODUCING A FORENSIC REPORT WITHOUT A
CLINICAL INTERVIEW
In the vast majority of cases, an integral part of the forensic
evaluation is a clinical interview with the evaluee; this is certainly
the preferred and optimal situation. However, in some instances an
interview is not possible because either the evaluee declines to participate, or circumstances do not so allow. Consider however, that
if MHPs refused to perform evaluations absent an interview, any
defendant could halt court proceedings simply by refusing to comply. Ethical guidelines for both psychologists and psychiatrists acknowledge the occasions where an interview is not feasible but
there is sufficient collateral information to formulate an opinion
with a reasonable degree of clinical certainty. In such circumstances, MHPs must state clearly in their work product (whether
oral or written) the limitations that this situation imposes.
Forensic psychologists avoid giving written or oral evidence about
the psychological characteristics of particular individuals when
they have not had an opportunity to conduct an examination of the
individual adequate to the scope of the statements, opinions, or
conclusions to be issued. Forensic psychologists make every reasonable effort to conduct such examinations. When it is not possible or feasible to do so, they make clear the impact of such limitations on the reliability and validity of their professional products,
evidence, or testimony. (Specialty Guidelines for Forensic Psychologists, VI[H], 1991)

While there are authorities who would bar an expert opinion in regard to an individual who has not been personally examined, it is
the position of the Academy that if, after earnest effort, it is not
possible to conduct a personal examination, an opinion may be
rendered on the basis of other information. However, under such
circumstances, it is the responsibility of the forensic psychiatrist to
assure that the statement of their opinion and any reports of testimony based on those opinions, clearly indicate that there was no
personal examination and the opinions expressed are thereby limited. (Ethical Guidelines for the Practice of Forensic Psychiatry,
IV, 1987)
CONFIDENTIALITY
In the forensic arena, MHPs may be well advised to assume
non-confidentiality as a general matter, and to conduct evaluations
accordingly. Although there are many instances in which the examinee is owed no duty of confidentiality (e.g., court ordered or
statutorily mandated evaluations), the doctrines of informed consent, the ethical standards of MHPs, or both may require that such
an individual be informed, at the outset, of the absence of confidentiality.
Where the defense has retained the forensic examiner, most
courts have found the results of the forensic evaluation to be protected by attorney-client privilege unless and until the defense
raises the issue of mental state, thus waiving privilege. However,
pretrial discovery provisions vary and, thus, it may be unadvisable
to offer complete confidentiality assurances under any circumstances (Melton et al., 1997). Finally, if the evaluation is court ordered, the examinee should be notified that no privilege exists, and
that copies of the final report will be given to the prosecutor and
judge as well as his or her defense attorney. One exception would
be a court order specifically appointing the evaluator to assist the
defense counsel (e.g., in response to an Ake motion; Ake v. Oklahoma, 1985).
268 ETHICAL ISSUES
LEGAL PRIVILEGE, LIMITS ON CONFIDENTIALITY,

AND ETHICAL GUIDELINES
In Texas, privilege is broad and extends to persons licensed or certified by the State of Texas in the diagnosis, evaluation or treatment of any mental or emotional disorder, or involved in the treatment or examination of drug abusers (Tex. Rule
Evid. 510(a)(1)). Despite the application of privilege to a wide
range of mental health professionals in Texas, privilege should not
be an issue for most forensic evaluators as it attaches mainly to
therapeutic encounters and not forensic assessments. Regardless, in
most forensic evaluations the issue of mental state has already been
raised and, thus, any existing privilege has been waived.
Civil Rights
Although all clinicians have a responsibility to be respectful of the rights of those to whom they provide services, the responsibility for clinicians doing forensic work is even more pronounced. Forensic MHPs have an ethical obligation to make themselves aware of and be sensitive to the civil rights of forensic examinees. This is because the evaluative context (i.e., criminal justice setting, crimes alleged) is such that the threats to those rights
are more substantial. Although other rights may be implicated as
well, rights secured under the Fifth and Sixth Amendments to the
Constitution (and their State constitutional counterparts) are at issue most often.
Fifth Amendment privilege against self-incrimination
The privilege against self-incrimination is a cornerstone of
our legal system. It reflects the belief that no person accused of a
crime should be forced to provide testimonial evidence against
himself or herself. In Estelle v. Smith (1981), the Supreme Court
held the defendants Fifth Amendment privilege against selfincrimination was violated because he was not advised prior to the
psychiatric evaluation (for competency) that he had a right to remain silent, and that any statement he made could be used against
him in a later sentencing proceeding.
Texas law specifically circumscribes the use of defendant

statements made during a mental health evaluation:
A statement made by a defendant during an examination or hearing on the defendants incompetency, the
testimony of an expert based on that statement, and
evidence obtained as a result of that statement may
not be admitted in evidence against the defendant in
any criminal proceeding, other than at: (1) a hearing
on the defendants incompetency; or (2) any proceeding at which the defendant first introduces into
evidence a statement testimony or evidence [regarding mental state.] Tex. Code Crim. Proc. Art.
46B.007 (Lexis 2005)
Defendants, however, are often very concerned that prejudicial information will be given to the court and/or the prosecutor, even
though the specific statements are inadmissible at trial.
Fifth Amendment implications are one reason for being
mindful of the uses to which defendants statements may be put; it
is important to exercise caution not only about obtaining information (i.e., through appropriate consent/disclosure procedures), but
also about communicating that information (e.g., by avoiding certain offense-related information of an irrelevant nature, in competence reports). Beyond Fifth Amendment concerns, forensic examiners also must be aware that much of what can be generally said
about an examinee may be prejudicial in the eyes of the fact finder.
Accordingly, forensic evaluators should exercise caution during
the interview and refrain from obtaining or recounting information
that is not relevant to the psycholegal issue at hand.
Sixth Amendment right to counsel
As a general matter, forensic practitioners make every effort to ensure the examinee has legal representation before performing an evaluation. This principle seeks to safeguard the individuals rights as well as shield the examiner should the evaluation
be contested later. One exception would be initial Sexually Violent
270 ETHICAL ISSUES
Predator (SVP) evaluations, which are conducted for triage purposes, prior to a petition for commitment.
The decision to perform evaluations without appointed
counsel is not clear-cut in all cases. In striving to ensure fairness
and accuracy in the evaluation process, forensic practitioners may
be called upon to inform the court of their ethical standards that
discourage providing services without legally appointed counsel.
In the event that the court indicates a pressing need to have the individual evaluated, the examiner should inform the judge of any
reservations he or she may have.
Forensic psychologists do not provide professional forensic
services to a defendant or to any party in, or in contemplation of, a legal proceeding prior to that individuals representation by counsel, except for persons judicially determined, where appropriate, to be handling their representation pro se. When the forensic services are pursuant to
court order and the client is not represented by counsel, the
forensic psychologist makes reasonable efforts to inform
the court prior to providing the services. (Specialty Guidelines for Forensic Psychologists, VI[D], 1991)
With regard to any person charged with criminal acts, ethical considerations preclude forensic evaluation prior to access to, or availability of legal counsel. (Ethical Guidelines
for the Practice of Forensic Psychiatry, III, 1987)
Presence of attorney during evaluation
In Estelle v. Smith (1981), the Supreme Court held that defendants have a constitutional right to the assistance of counsel,
who must be informed of the purpose(s) of the interview prior to
participation in a forensic evaluation. However, the Court did not
find a right to the presence of counsel during the evaluation. A
judge may so order. Some experts, for ethical and legal reasons,
recommend allowing defense counsel to be present in criminal
cases (Melton et al., 1997, p. 72). In cases where a court order
specifies the presence of counsel, or instances where a particular
attorney wants to be present during the interview, evaluators have

a number of options.
Practically, the presence of any third party may pose a
problem. Given the potential for the examinee to be distracted or
unduly influenced by the presence of counsel, most MHPs prefer
the attorney not to be physically present in the same room. Most
courts have supported this preference of MHPs (i.e., not upheld a
right to presence of counsel during an evaluation), although some
exceptions exist. However, if court-ordered or requested by the
defense, forensic evaluators must make the determination on an
individual basis. A number of options representing a compromise
have been suggested: (a) videotaping, (b) audiotaping, or (c) observation from a removed location (out of visual field of evaluee,
with no interruption etc.). When faced with an attorneys resolute
request to be present, one must weigh the costs and benefits of allowing counsel to be present. Ultimately, if the presence of counsel
is court-ordered and the forensic MHP is unwilling to comply, he
or she may refuse to conduct the evaluation.
PROFESSIONAL COMPETENCE
Developing specialized expertise
Mental health professionals are ethically obligated to be
competent in whatever area they practice. Although there is no
clearly delineated litmus test for ascertaining professional competence, a number of factors are generally considered indicative of
specialization in a given area. Demonstration of some combination
of the following can be offered as evidence of expertise:
(a)
(b)
(c)
(d)
(e)
education and training (e.g., graduate training,

continuing education workshops),
reading and research in the area of specialization,
supervision by a qualified MHP with relevant experience,
record of relevant work experience, and
publication of scholarly works in the area of specialization
272 ETHICAL ISSUES
Texas has adopted new statutory provisions relating to

competence to stand trial (or fitness to proceed in juvenile cases)
and those provisions specify the kind of training and experiences
that qualify one as an expert to conduct competence evaluations
(see Tex. Code Crim. Proc. Art. 46B.022 for provisions related to
establishing expertise for competency to stand trial evaluations and
Tex. Code Crim. Proc. Art. 46C.102 for provisions related to establishing expertise for sanity evaluations). However, most areas of
practice do not yet have such clearly delineated requirements.
Evidence of general competence in the area of forensic
mental health practice should be considered the first level of qualification. However, specific competencies are also required. Thus,
for example, an examiner with experience in conducting child custody assessments should not assume competence to perform sanity
or competency evaluations (Melton et al., 1997, p. 81). Finally, the
MHP is also required to make clear the boundaries of his or her
competence. This could include, for example, the number of similar evaluations conducted.
In addition to psychological expertise, the forensic examiner should also become well versed in the following:
(a) Legal standards and statutes for Texas: A thorough understanding of specific standards is imperative in determining whether legal criteria are met (for example,
awareness of the legal standard for Insanity which
stipulates that that the actor, as a result of severe mental disease or defect, did not know that his conduct was
wrong.)
(b) Rules of Evidence: Rules vary by jurisdiction; in Texas
for example, ultimate issue testimony on Sanity (i.e.,
testimony which answers the ultimate legal question,
for example, not guilty by reason of insanity) is permitted; in the federal system, it is not.
(c) Rules of Discovery: Legal rules govern the ability of
parties to request information that is not privileged and
is relevant to the matter at hand. The purpose of discovery is to allow all parties to obtain full knowledge of the
various issues and facts of the case prior to trial. The

Texas Rules of Civil Procedure were changed recently
in 1999; Rule 192 identifies the types of information
which is discoverable. Also, jurisdictional policies vary
across the state regarding open versus closed files maintained by prosecutors. In some jurisdictions, policies
exist which prohibit, for example, the disclosure of certain law enforcement reports to defense counsel. Forensic evaluators should be aware of any such discovery
rules that may impact their practice.
(d) General ground rules of an adversarial legal system.
(e) The process of plea bargaining and potential outcomes.
(f) For unique evaluations, it may be necessary to review
relevant case law in the area to have a clear understanding of the issues at handboth psychological and legal.
Appropriate test use
One area of forensic assessment that has sometimes generated controversy involves the use of psychometric tests (Borum &
Grisso, 1995). In the case of forensic assessment, important legal
decisions regarding such issues as parental custody, competency to
stand trial, criminal responsibility, personal liberty, and even capital punishment are influenced to some degree by the MHPs report
and recommendations; thus, the forensic MHP is urged to exercise
caution (Gray-Little & Kaplan, 1998). In many cases, there may be
no clearly identifiable reason to administer a psychological test to
an examinee. In such cases, testing should not proceed until or
unless a determination is made that a psycholegal issue can be directly addressed by the use of a particular test (see Heilbrun,
1992).
As with any testing endeavor, forensic clinicians must use
instruments appropriately. Indiscriminate administration of instruments may, at best, be time consuming and unnecessary, and, at
worst, expose prejudicial information. Ethical responsibilities begin with adequate training and continue through the selection, administration, scoring and interpretation of results (Butcher & Pope,
1993; Gray-Little & Kaplan, 1998).
274 ETHICAL ISSUES
Awareness of psychometric properties, norm groups, culturally influenced variability, and other idiosyncratic test interpretation issues is extremely important, especially if testimony is open
to cross-examination by opposing attorneys. Familiarity with typical questions posed to experts, and a thoughtful, accurate, and
ready answer, can assist forensic practitioners in developing a
comfortable and articulate courtroom style (see, for example, Pope,
Butcher & Seelen, n.d.).
In contemplating whether to use a forensic instrument,
MHPs may consider the following questions:
Is the test directly relevant to the psycholegal issue at

hand? (e.g., competency to stand trial)
Does the instrument match, exactly, the factor being
measured? (e.g., a test normed on persons with malingered psychosis should not be used to assess for malingered Post-Traumatic Stress Disorder)
Is the measure culturally appropriate, valid, and reliable?
Are the tests, and/or the results of the test, easily understandable? (i.e., will the court find the information useful)
For every test administered and reported, the MHP must

have a thorough knowledge of reliability and validity, norm group
composition, related multicultural issues (addressed in the following section), and awareness of conflicting evidence in the literature. Regardless of pressure to administer tests, the central issue
should remain one of relevance. If there is no clearly identifiable
reason to administer a psychological test, it should not be given.
One obvious exception to the foregoing occurs where testing is
statutorily mandated (e.g., all SVP evaluations in Texas must include a measure of psychopathy). Forensic MHPs are ethically obligated to be aware of such requirements, and to be adequately
trained in the administration and interpretation of appropriate tools.
MULTICULTURALISM
Cultural competence in forensic practice
In recent years greater attention has been paid to the influence of cultural factors on the evaluation process and outcome
(see, e.g., Dana, Aguilar-Kitibur, Diaz-Vivar, and Vetter, 2002;
Lopez, 2002). Multiculturalism refers to the wide range of human
experience and socialization that result in an individuals unique
way of perceiving and experiencing the world and others (see
Guidelines, APA, 2003). Originally concerned with race and ethnicity, the term multiculturalism now includes socioeconomic
class, sexual orientation, gender, physical ability, age, and religious preference (see Sue & Sue, 2003). Another culture familiar
to most forensic MHPs is the culture within the criminal justice
system and corrections more generally.
Most MHPs today have been trained within a system reflecting what is termed mainstream culture. This understanding
often tends to reflect largely White, middle class ways of thinking
and being in the world. In 2000, about 33% of Americans identified as non-White; Texas in particular is one of five high diversity states with many counties composed of 60-77% racial/ethnic
minority group members (see Guidelines, APA, 2003). As U.S.
population trends show evidence of dramatically diverse demographic shifts occurring, the forensic MHP would do well to consider becoming conversant with multicultural issues and pursue
training.
Many different cultures have prescribed ways of behaving
and interacting with others that can be quite different from mainstream culture, but are nonetheless equally valid. In forensic practice, as in general mental health arenas, examinees will behave,
think, and feel in ways that are influenced by the cultural context
of their lives. The astute and multiculturally competent evaluator
will be able to consider factors outside of traditional clinical training to arrive at a more accurate and representative picture of the
examinee (see Hicks, 2004).
276 ETHICAL ISSUES
Shifting the lens

Although clinical professional judgment and hypotheses
must be maintained (e.g., delusions), the forensic MHP should also
be able to shift the cultural lens (Kleinman & Kleinman, 1991)
and see the world from the examinees viewpoint (e.g., spirituality)
in order to interpret behavior (Lopez, 2002). Consider for example
an individual separated for some time from family while incarcerated; during evaluation he or she speaks of communicating with a
deceased grandmother. A multiculturally competent MHP is better
able to discern whether (a) a thought disorder, or (b) a culturally
accepted practice of spiritual communication with forbears, is the
more accurate interpretation of behavior. Deciding which hypothesis is a better explanation of behavior remains a sometimes challenging task; care must be taken neither to over-attribute cause to
culture, nor to avoid the implications of its influence.
Another important issue for the MHP to be aware of is that
even within a particular cultural group, great diversity can exist.
For example, the racial group referred to in the U.S. as Hispanic,
actually comprises at least a dozen very distinct ethnicities including Cuban, Puerto Rican, Mexican, and so forth. Care must be
taken not to make global assumptions about a cultural group without first investigating their accuracy.
Culture and context
Another example of cultural differences lies in child rearing
practices. Within some cultures child rearing is a task commonly
left to grandparents and/or extended relatives. Parents may be absent for a number of reasons (migrant work, incarceration, hospitalization), or may actually be in the home but not functioning as
parental authority figures. In such a case, collateral information
would most appropriately come from the individual in the role as
primary caretaker, and not necessarily a biological or legal parent.
In considering family members and roles, it may be wise to avoid
confusion of familial name labels with functional roles; in some
cases family members referred to as brother or sister may actually be biologically a cousin or other extended relative who has
been reared with the examinee.
Clinicians should also take care in the conceptualization of

such a living arrangement; it is not necessarily the case that an individual reared in such a manner has experienced abandonment
or other psychological trauma normally attributed to such a situation by mainstream culture. In order to understand and interpret
behavior, the competent MHP must understand the context from
which it arises.
Culture and behavior
For the forensic MHP, failing to become multiculturally
competent can lead to inaccurate and potentially misleading case
formulation. Consider for example, a culture that places a high
value on respect for elders; this deference may be exhibited by
avoidance of eye contact and slight bowing of the head. An unaware clinician may interpret this nonverbal behavior as a lack of
self-esteem, shame, failure to engage, or possibly even depression.
In other cultures (such as prison culture) prolonged eye
contact can be a sign of aggression or intimidation. Within the
same culture, respect is commonly the only currency one possesses
and it is often defended or obtained by violence. It is not uncommon for individuals to engage in violent behavior over seemingly
small slights. For an examinee with no prior history of violent or
aggressive behavior, consideration should be given to the circumstances surrounding apparently atypical behaviors.
Culture and diagnoses
A recent review of the literature (Gray-Little & Kaplan,
1998) reveals numerous studies suggesting that race and ethnicity
may influence a clinical diagnosis even where symptoms are controlled for (pp. 142- 145). In general, some evidence suggests
mood and personality disorders tend to be diagnosed more frequently in Whites than Blacks, and that Blacks are diagnosed with
serious thought disorders (e.g., schizophrenia) three or more times
as often than Whites. In terms of professional clinical judgment,
there is some evidence that, even with comparable symptoms, minority group members tend to be judged both as having more severe mental health problems in some cases, and less severe in others (p. 143). Other research indicates that Black adolescents with
278 ETHICAL ISSUES
aggressive and delinquent behavior are judged to be less psychopathological than White children who exhibit the same behavior
(Martin, 1993). Another area of concern involves the self-reporting
of symptoms: consistent findings indicate that Asian and Hispanic
group members tend to report somatic symptoms more when depressed than do Whites. In the case of bipolar disorder, Blacks and
Hispanics report more hallucinations than do Whites (see for review Gray-Little & Kaplan, 1998). Although there is great variability at the individual level, the evaluating MHP must be familiar
with literature addressing issues of culture and diagnosis in order
to remain aware of possible biases in the clinical assessment phase.
Guidelines for developing a culturally appropriate clinical formulation can be found in Appendix I of the DSM-IV-TR (APA, 2000).
Culture and tests
Recent advances in research have revealed the troubling
variability of tests normed on mainstream cultures but routinely
used with diverse populations (see for review, Gray-Little & Kaplan, 1998; Hicks, 2004). In some cases, cultural differences may
even extend to test-taking behavior. For example, many psychometric tests currently used have time limits. Some cultures value
accuracy over speed of completion; the performance of individuals
from such cultures may be poor as the result of non-completion,
and thus may not accurately reflect their actual abilities.
Care must be taken to choose assessment measures normed
on populations that accurately reflect the examinee. In one case,
the Wechsler Adult Intelligence Scale-Revised (WAIS-R), was
translated into Spanish by a bilingual translator for use with a Cuban immigrant who was being evaluated for competency to stand
trial; he obtained a fullscale score of 62. However, when the same
individual was reassessed with a proper Spanish version of the
WAIS-R, normed on a Spanish-speaking sample, his IQ scored
rose 43 points to a fullscale of 105 (Johnson & Torres, 1992, as
cited in Gray-Little & Kaplan, 1998). Using a measure whose
normative sample was so dissimilar to the examinee was not improved by simple translation into Spanish. Examiners should not
assume that simply employing the services of a translator will address any cultural or communication problems that exist. Extensive
research indicates that there exists significant variability in the validity of many commonly used tests when administered to individuals from other cultures. It is the responsibility of the practitioner to be aware of such issues prior to selecting or scoring a measure.
To become truly multiculturally competent requires a longterm commitment to learning about others lives and experiences,
and a willingness to consider ones own biases, attitudes and beliefs. It requires a thoughtful and open awareness of both the similarities and differences that are present in persons and groups
within the community, and how those factors may contribute and
influence the individual and the assessment process generally.
Continuing education classes, graduate training, as well as the local library can provide useful resources, but perhaps the best opportunity to learn is by seeking to work with individuals and
groups from diverse backgrounds. Especially in the case of forensic evaluations, where impartiality and the avoidance of undue bias
is critical, MHPs should actively pursue multicultural learning on
an ongoing basis.
DUTY TO PROTECT THIRD PARTIES
Absence of Tarasoff requirements in the State of Texas
A precedent-setting case in the late 1970s raised the question of whether a mental health professional has a responsibility to
warn a third party who has been threatened by a client in treatment.
In Tarasoff v. Regents of the University of California (1976), the
Supreme Court of California imposed a duty, on therapists in California, to take measures to protect identified victims, regardless of
confidentiality requirements.
In Texas, however, the Tarasoff duty does not apply. In
Thapar v. Zezulka (1999) the Supreme Court of Texas refrained
from imposing a duty on MHPs to warn third parties of a patients
threat to harm. The court chose instead to reiterate its commitment
to closely guard a patients communications with a mental health
professional (p. 638). Under these conditions, the MHP is, in fact,
prohibited from warning the victim as that would have violated the
280 ETHICAL ISSUES
patients right to confidentiality. Under Texas law there is an exception in the confidentiality statute that allows for disclosure to
appropriate medical or law enforcement personnel. However, the
court noted, [the statute] permits these disclosures but does not
require them (p. 639). In cases involving threat of harm to third
parties, forensic evaluators should review current legal standards
and consult with experienced colleagues to determine an appropriate course of action or consult with legal counsel (see Shuman,
1997, pp. 109-115).
Texas allows an MHP to disclose confidential information
obtained during the course of the therapist-patient relationship to medical or law enforcement personnel if the MHP
determines that there is a probability of imminent physical
injury by the patient to the patient or to others. Although
unjustified disclosure of confidential information may give
rise to a malpractice claim, the issue arises more commonly
in the case of a failure to disclose and resultant harm to a
third party. (Shuman, 1997, pp. 110-111)
KNOWLEDGE OF RELEVANT LEGAL STANDARDS IN
TEXAS
Forensic MHPs are required to have a thorough understanding of the legal doctrines and standards in the areas in which they
purport to be expert (cf. Heilbrun, 2001). Thus, a familiarity with
both state and federal requirements is necessary. A clear understanding of the differences among legal concepts, for example
competence and sanityis crucial, as even seasoned clinicians
have been known to confuse the two (for discussion see Melton et
al., 1997; Gutheil, 1999). Legal standards and related issues are
addressed elsewhere in this volume.
DOCUMENTATION
Maintaining accurate records is important in all professional practice. In this regard, forensic practice is held to a higher
standard than general practice. It is good practice to retain all
notes, documentation, recordings, tests, and any collateral materials used to form an opinion. In the creation of forensic evaluation
files, it is important to make no assumptions of privacy, privilege,
or confidentiality.
Contemporaneous notes, even if they have been rewritten, should
be retained.
Forensic evaluators should be aware that personal notes
may be subject to discovery. Given the higher level of scrutiny that
forensic MHPs must anticipate, professionals are well advised to
consider carefully the information included in those notes.
COLLATERAL SOURCES
Just as forensic MHPs must approach record maintenance
differently from their non-forensic counterparts, so must they approach data collection differently (cf. Heilbrun, 2001). As Weissman and DeBow observe, forensic contexts have a broader range
of goals. Ethical evaluations call on the expert to use multisource, multimodal methodologies for the task of answering such
complex psycholegal questions (2003, p. 41).
Collateral sources may include police or criminal history
reports, institutional records, personal correspondence, victim
statements, medical records, and employment records, to name a
few. Other sources of collateral information include the personal
reports of witnesses, friends, or family members. Before contacting
such individuals, it is best to consult with counsel and announce
any intention to interview collateral sources, thus, allowing counsel
to voice any concerns or prohibitions. When interviewing collateral sources, it is important to inform the reporting individuals that
nonconfidentiality must be assumed (i.e., what is reported will be
recorded with identifying information). The issue of how much to
reveal to collateral sources is best discussed with counsel prior to
the interview.
282 ETHICAL ISSUES
DUAL ROLES
Clarification of roles and avoidance of multiple relationships
The importance of clarifying roles and addressing the nontherapeutic nature of a forensic evaluation has been addressed previously and is discussed at length in the literature (see, for example, Greenberg & Shuman, 1997; Heilbrun, 2001; Melton et al.,
1997; Shapiro, 1999). Forensic MHPs have an obligation to refrain
from any activity that may be perceived as biased, or construed as
posing a conflict of interest (cf. Heilbrun, 2001). The importance
of maintaining a reputation of propriety and objectivity is paramount in the provision of forensic services. For this reason, professionals should avoid functioning as both therapist and forensic
evaluator of the same individual. The importance of avoiding dual
roles is premised upon a number of factors:
(a) Within a therapeutic relationship, assurances of confidentiality are paramount; in forensic evaluations these
same assurances do not standin fact, information reported usually must be conveyed in the report
(b) The role of therapist is often one of ally and advocate,
this role is naturally assumed to be the case in treatment
settings; forensic evaluators are required to act with objectivity and impartiality insofar as it is possible to do
so
(c) The forensic evaluator, once having engaged in a treatment relationship, is not able to forget the information gleaned in that capacity and proceed with the forensic evaluation in an unbiased manner. Information
derived during the therapy relationship may significantly color the forensic evaluation and be revealed in
the public forum.
(d) Finally, functioning in a forensic capacity with a therapy client (or former therapy client) very well may destroy the therapeutic relationship, thus, potentially resulting in harm to that individual.
Forensic psychologists recognize potential conflicts of interest in dual relationships with parties to a legal proceeding, and they seek to minimize their effects. (Specialty
Guidelines for Forensic Psychologists, IV [D], 1991)
Treating psychiatrists should generally avoid agreeing to be
an expert witness or to perform evaluations of their patients
for legal purposes because a forensic evaluation usually requires that other people be interviewed and testimony may
adversely affect the therapeutic relationship. (Ethical
Guidelines for the Practice of Forensic Psychiatry, IV,
1987)
The forensic MHP as consultant to counsel
The ethical tension between the role forensic evaluator and
that of attorney historically has been difficult to reconcile. In Ake
v. Oklahoma (1985), the Supreme Court broke ground in ruling
that the indigent defendant, Ake, had a right of access to a psychiatrist to assist in evaluation, preparation and presentation of the
defense. In effect, the Court ruled that criminal defendants have
the right to a psychiatric consultant who participates as a member
of the defense team, assisting in strategy and trial preparation. If
only one mental health professional is appointed to a case, she or
he will need to perform the evaluation as well as consult on strategies favoring the examinee. In light of longstanding efforts by
mental health professionals to avoid the appearance of bias or partisanship, this ruling left many stunned.
Nonetheless, other experts insist that Ake did not force
mental health professionals into an advocates rolemerely a consultants role. The difference, they argue, is that one (consultant)
merely proffers unbiased information and opinion, whereas the
other (advocate) decides what to make use of in support of the defense strategy (Appelbaum, 1987, p. 20).
284 ETHICAL ISSUES
Ake v. Oklahoma
[T]he State must, at a minimum, assure the defendant access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation,
and presentation of the defense.(Ake v. Oklahoma, 105 S.
Ct. 1087 (1985))
Awareness of covert influence and inappropriate requests
Following Ake, forensic practitioners were allowed (indeed, required) in some cases to function as an integral part of the
defense team. As such, questions of remuneration and client satisfaction were increasingly raised. Once appointed to assist the defense team, the forensic MHP was no longer a disinterested and
neutral participant. Many question whether MHPs can produce an
impartial and unbiased clinical forensic evaluation while simultaneously providing input to the legal team on defense strategy. Before agreeing to serve as both consultant and expert, an MHP
should think through carefully the ethical and practical implications of such a decision and explore any potential alternative options.
Contingency fees
Payments made on the basis of the outcome of a particular
case, or contingency fee arrangements, are strictly prohibited by
most professional guidelines (Ethical Guidelines for the Practice of
Forensic Psychiatry, IV, 1987; Specialty Guidelines for Forensic
Psychologists, IV[B], 1991). This prohibition speaks to the importance of the examiner maintaining a professional impartiality in
order to meet the goal of assisting the trier of fact.
Forensic psychologists do not provide professional services
to parties to a legal proceeding on the basis of contingent
fees, when those services involve the offering of expert
testimony to a court or administrative body, or when they
call upon the psychologist to make affirmations or representations intended to be relied upon by third parties. (Specialty Guidelines for Forensic Psychologists, IV[B], 1991)
Contingency fees, because of the problems that these create

in regard to honesty and efforts to obtain objectivity, should
not be accepted. On the other hand, retainer fees do not
create problems in regard to honesty and efforts to obtain
objectivity and, therefore, may be accepted. (Ethical Guidelines for the Practice of Forensic Psychiatry, IV, 1987)
The adversarial nature of our Anglo-American legal process presents special hazards for the practicing forensic psychiatrist. Being retained by one side in a civil or criminal
matter exposes the forensic psychiatrist to the potential for
unintended bias and the danger of distortion of their opinion. It is the responsibility of forensic psychiatrists to
minimize such hazards by carrying out his (sic) responsibilities in an honest manner striving to reach an objective
opinion. (Ethical Guidelines for the Practice of Forensic
Psychiatry, IV, 1987)
Modification of forensic reports
As a matter of practice, attorneys may legitimately reframe
or refocus the evaluation if the referral question was misidentified
originally. However, MHPs should carefully guard against allowing attorneys to dictate or modify the substance of reports. The importance of clarifying roles and defining the referral question at the
beginning of the process is paramount and can reduce the likelihood of subsequent problems (cf. Heilbrun, 2001).
The American Bar Association (ABA) has directed attorneys [to] not edit, modify, revise, or otherwise compromise the
integrity of the report (ABA Criminal Justice Mental Health
Standards, 7-3.7[c], 1989). Despite this, some have suggested
that, in fact, such alterations are routinely made:
[I]n practice, it is not at all unusual for an attorney to consider a report prepared by an expert he or she has retained
to be a draft which will be revised after further discussion
with the professional. Members of the legal profession have
admitted that an attorney almost always assists in the
preparation of expert witness reports (Easton, 2001).
286 ETHICAL ISSUES
Needless to say, this practice is completely at odds with ethical

standards addressing the preparation of forensic reports, and
should be actively discouraged.
CONCLUSION
As the foregoing discussion reveals, forensic mental health
practice can be a rigorous but rewarding undertaking; it is also an
extraordinarily challenging endeavor fraught with multiple ethicolegal concerns. Careful consideration of and familiarity with legal standards and ones professional ethics code are imperative.
Professional competence must go beyond traditional clinical training and experience to include forensic populations and the legal
system more generally. Given the stakes may be much higher than
in traditional practice, it is incumbent upon forensic MHPs to be
aware of and communicate the boundaries of their personal competences.
Ethical issues often cannot be resolved simply by consulting definitive standards of practice. Forensic MHPs must become
comfortable with resolving these issues for themselves by an informed, reasoned, and ethically sensitive process of personal deliberation and consultation with colleagues. Finally, throughout the
entire process, the forensic MHP must guard against cooption by
any party, acknowledging others legitimate interest in advocacy,
but striving to maintain personal objectivity and clinical impartiality. Ultimately, the only real currency the forensic MHP possesses
is his or her personal credibility; it should be guarded jealously.
The following summary points are offered for consideration and to assist in decision-making as the MHP seeks to navigate
the forensic arena:
Ensure personal competence and familiarity with legal

and ethical standards by a commitment to ongoing professional development, education, and consultation with
experienced colleagues
Attend to the development of multicultural competence;
be aware of and sensitive to the influence of cultural
factors on diagnoses, test interpretation, clinical and

other related interpersonal interactions
Be aware of personal boundaries of competence; accept only those forensic cases relating to areas in which
a level of personal expertise has been, or is being, attained
Upon acceptance of a case, immediately seek to identify the client and clarify the referral questions from the
requesting party
Provide for comprehensive informed consent or disclosure prior to evaluation; clearly explicate the role of forensic evaluator and the nontherapeutic nature of services to be rendered
Ensure that examinee is fully aware of limits of confidentiality, privilege, and whether s/he has a right of refusal
Be aware of the legal statutes and case law upon which
the psycholegal question turns; if uncertain, request
clarification from attorney or courts
Carefully and accurately document the evaluation process; be aware of the rules of discovery and assume nonconfidentiality as a rule and attempt to limit discoverable material that is not relevant
If it is not feasible to conduct an in-person interview,
clearly state this fact and the limitations it imposes
upon your findings
Be aware of subtle or overt attempts at cooption; strive
to maintain clinical impartiality and personal objectivity
Remain cognizant of the potentially significant influence of forensic mental health testimony on the court,
and its impact upon the examinee; wield that influence
cautiously and judiciously.
288 ETHICAL ISSUES
REFERENCES
Ake v. Oklahoma, 470 U.S. 68, 71 (1985)
American Academy of Psychiatry and the Law. (1987). Ethical guidelines for the practice
of forensic psychiatry. AAPL Newsletter, 12, 16-17.
American Bar Association. (1989). ABA Criminal justice mental health standards. Author.
American Psychiatric Association (2000). Diagnostic and statistical manual of mental
disorders, Fourth edition, Text Revision [DSM-IV-TR]. Washington, DC: Author.
American Psychological Association. (2003). Guidelines on multicultural education,
training, research, practice, and organizational change for psychologists. American Psychologist, 58, 377-402.
American Psychological Association. (1992, 2002). Ethical principles of psychologists
and code of conduct. [Electronic versions available on the web at:
http://www.apa.org/ethics/code.html]
Appelbaum, P. S. (1987). In the wake of Ake: The ethics of expert testimony in an Advocates world. Bulletin of the American Academy of Psychiatry and Law, 15, 1525.
Butcher, J. N., & Pope, K. S. (1993). Seven issues in conducting forensic assessments:
Ethical responsibilities in light of new standards and new tests. Ethics and Behavior, 3, 267-288.
Bonnie, R. J. (1990). Grounds for professional abstention in capital cases. Law and Human Behavior, 14, 99-104.
Borum, R., & Grisso, T. (1995). Psychological test use in criminal forensic evaluations.
Professional Psychology: Research and Practice, 26(5), 465-473.
Brodsky, S. L. (1990). Professional ethics and professional morality in the assessment of
competence for execution. Law and Human Behavior, 14, 91-97.
Canter, M. B., Bennett, B. E., Jones, S. E., & Nagy, T. F. (1994). Forensic activities. In
Ethics for psychologists: A commentary on the APA Ethics Code [pp.145-156].
Washington, DC: American Psychological Association.
Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines
for forensic psychologists. Law and Human Behavior, 15, 655-665.
Dana, R. H., Aguilar-Kitibutr, A., Diaz-Vivar, N., & Vetter, H. (2002). A teaching
method for multicultural assessment: Psychological report contents and cultural
competence. Journal of Personality Assessment, 79(2), 207-215.
Easton, S. D. (2001). Can we talk? Removing counterproductive ethical restraints upon
ex parte communication between attorneys and adverse expert witnesses, Indiana Law Journal, 76, 647.
Estelle v. Smith, 451 U.S. 454 (1981).
Gray-Little, B., & Kaplan, D. A. (1998). Interpretation of psychological tests in clinical
and forensic evaluations. In J. Sandoval, C. L. Frisby, K. F. Geisinger, J. D.
Scheuneman, & J. R. Grenier (Eds.). Test interpretation and diversity (pp. 141178). Washington, DC: American Psychological Association.
Greenberg, S., & Shuman, D. (1997). Irreconcilable conflict between therapeutic and
forensic roles. Professional Psychology: Research and Practice, 28, 50-57.
Forensic Evaluation of Juveniles
Gutheil, T. G. (1999). A confusion of tongues: Competence, insanity, psychiatry, and the
law. Psychiatric Services, 50, 767-773.
Johnson, M. B., & Torres, L. (1992). Miranda, trial competency, and Hispanic immigrant
defendents. American Journal of Forensic Psychology, 10, 65-80.
Heilbrun, K. (1992). The role of psychological testing in forensic assessment. Law and
Human Behavior, 16(3),257-271.
Heilbrun, K. (2001). Principles of forensic mental health assessment. New York: Kluwer
Academic/Plenum Press.
Heilbrun, K. (2003). Principles of forensic mental health assessment: Implications for the
forensic assessment of sexual offenders, Annals of the New York Academy of
Sciences, 989, 167-184.
Hicks, J.W. (2004). Ethnicity, race, and forensic psychiatry: Are we color-blind? Journal
of the American Academy of Psychiatry & the Law, 32(1), 21-33.
Kleinman, A., & Kleinman, J. (1991). Suffering and its professional transformation: Toward an ethnography of interpersonal experience. Culture, Psychiatry and
Medicine, 15, 275-301.
Lopez, S. R. (2002). Teaching culturally informed psychological assessment: Conceptual
issues and demonstrations. Journal of Personality Assessment, 79(2), 226-234.
Martin, T.W. (1993). White therapists differing perceptions of Black and White adolescents. Adolescence, 28, 281-289.
Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers
(2nd ed.). NY: The Guilford Press.
Ogloff, J. R. P. (1999). Ethical and legal contours of forensic psychology. In R. Roesch,
S. D. Hart and J. R. P. Ogloff (Eds.), Psychology and law: The state of the discipline (pp. 403-422). NY: Kluwer Academic/Plenum Publishers.
Pope, K. S., Butcher, J. N., & Seelen, J. (n.d.). Depositions & cross-examination questions
on
tests
&
psychometrics.
[Retrieved
3/1/03
from
http://kspope.com/assess/deposition.php].
Shapiro, D. L. (1999). Criminal responsibility evaluations: A manual for practice. Sarasota, FL: Professional Resource Press.
Shuman, D. W. (1997). Law and mental health professionals: Texas. Washington, DC:
American Psychological Association.
Sue, D.W. & Sue, D. (2003). Counseling the culturally diverse (4th ed.). New
York: John Wiley and Sons
Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)
Thapar v. Zezulka, 994 S.W. 2d 635 (Tex. 1999).
Weissman, H. N. & DeBow, D. M. (2003). Ethical principles and professional competencies. In A. M. Goldstein (Ed.), Handbook of Psychology, Vol. 11, Forensic
Psychology (pp. 33-53). New York: John Wiley & Sons.
Received: February 2006

Accepted: June 2006
Suggested Citation:
Kalmbach, K. C. & Lyons, P. M. (2006). Ethical Issues in Conducting Forensic Evaluations [Electronic Version]. Applied Psychology in Criminal Justice, 2(3), 261290.
290 ETHICAL ISSUES
Appendix A: Ethical Guidelines of the Professions

Ethical guidelines for practitioners in both psychiatry and
psychology are available online from the following:
Psychiatry:
American Academy of Psychiatry and the Law Ethical
Guidelines for the Practice of Forensic Psychiatry
http://www.aapl.org
Psychology:
Specialty Guidelines for Forensic Psychologists
http://www.abfp.com
Law:
Fitch, W. L., Petrella, R. C., & Wallace, J. (1987). Legal
ethics and the use of mental health experts in criminal cases. Behavioral Sciences and the Law, 5, 105117.
Note: This reference, although not to ethical guidelines per
se, nicely describes how attorneys conceptualize
their ethical responsibilities relative to mental health
experts.
from JANUARY/FEBRUARY 2013

Volume 25, Issue 1
A publication of the American Society of Trial Consultants Foundation
Forensic Mental Health Evaluations:

Reliability, Validity, Quality, and Other Minor Details
by W. Neil Gowensmith, Daniel Murrie, and Marcus T. Boccaccini
eliability is crucial to expert evidence. In cases

involving mental health, the court usually relies
on the opinions and testimony of forensic mental
health expert witnesses (those experts who specialize in the
intersection of mental health and the law). Even in adversarial
proceedings, independent forensic experts appointed by the
court are presumed objective and generally reliable. In other
words, an opinion from one neutral expert should be similar
to the opinion from another neutral expert when the two are
considering the same case details.
and readiness for release from a psychiatric hospital. Our goal

was to examine how often we might expect forensic evaluators
to agree on the most common psycho-legal questions the court
asks of them. We calculated evaluator agreement across these
cases, researched the eventual court dispositions, and explored
factors that increased or decreased evaluator agreement. We
present these indings later in this paper. First, we review how
the evaluations in our study were ordered and conducted.
But how reliable are these forensic experts? hat is, how often do
independent, court-appointed forensic experts agree with each
other? Further, what factors might inluence that reliability?
Do some types of cases lead to more disagreement than others?
Is agreement better for some questions (e.g., competence to
stand trial) than others (e.g., insanity)?
We studied evaluations from Hawaii, where state statutes

dictate a unique process that provides an excellent setting for
examining reliability. In felony cases, the courts order three
concurrent and independent evaluations of the defendant.
One of these evaluations must be conducted by an employee
of the state Department of Health. he other two evaluations
are conducted by independent certiied evaluators in the
community. One of these independent evaluators must be a
licensed psychiatrist, while the other may either be a licensed
psychiatrist or a licensed psychologist. All evaluators are
appointed by the court, not by the defense or prosecution.
To answer some of these questions, we reviewed nearly 350

real cases in which multiple forensic evaluators, in routine
practice, evaluated the same defendants to answer questions of
competency to stand trial, legal sanity (criminal responsibility),
January/February 2013 - Volume 25, Issue 1
The Forensic Evaluation
thejuryexpert.com
In this way, evaluators in Hawaii are independent, so any

disagreement we ind is not likely to be attributable to
adversarial allegiance, the tendency for experts to form
opinions that support the party who retained them (see Murrie
et al, 2008). All of the evaluators in this study had been certiied
by the state Department of Health through a series of trainings
on forensic evaluation. hese conditions allowed for a unique,
naturalistic study of the ield reliability of forensic evaluations;
because each case requires three independent and concurrent
evaluations, we could easily compute agreement rates across
each case and identify factors related to that reliability.
We reviewed opinions from the most common forensic
evaluations: competency to stand trial, legal sanity, and
readiness for Conditional Release (release from the state
hospital subsequent to placement after a verdict of insanity).
Competency to Stand Trial

In lay terms, competency to stand trial (CST) refers to a
defendants ability to understand his or her court proceedings
and work productively with his or her defense counsel. Like all
states, Hawaii uses the Duksycriteria for competency (Dusky v
United States, 1960). hat is, the defendant must demonstrate
a factual and rational understanding of the charges against
him, and must be able to assist defense counsel (see Drope v
Missouri, 1975).
How reliable are evaluations of a defendants competency to
stand trial? Previous results were mixed, with some showing
reasonable agreement among clinicians and others showing
poor agreement. Most previous research utilized artiicial
experimental conditions (such as hypothetical vignettes, or
studies in which evaluators use the same instruments in the
same hospital), which tended to reveal strong reliability but
may not translate adequately to real-world forensic practice.
hus routine reliability in the ield, has been largely unknown.
We coded data from a total of 716 CST reports, taken from
241 cases (full details available in Gowensmith, Murrie &
Boccaccini, 2012). Seven Department of Health psychologists,
15 independent psychologists, and 16 certiied independent
psychiatrists submitted the reports. In most cases, three
diferent evaluators saw each defendant. hus, evaluators could
show unanimous agreement in one of two ways: all could agree
that the defendant was competent to stand trial, or all could
agree that the defendant was incompetent.
How often did all three evaluators agree with each other? In
71% of cases involving initial evaluations of competency to
stand trial, all three evaluators unanimously agreed in their
opinion about the defendants competency. Most of those cases
(59%) involved unanimous agreement that the defendant was
competent, and fewer (12%) involved unanimous agreement
that the defendant was incompetent. For cases involving
repeated evaluations of competency (i.e., re-evaluation
after incompetent defendants received treatment to restore
competence), agreement rates fell to 61.0%.

When it came to the actual court decisions about a defendants
competence, judges typically followed the majority opinion
from evaluators. When judges ruled in the opposite direction
of the majority of evaluators, they usually did so to ind a
defendant incompetent to stand trial. his relects the courts
conservative stance towards competency; that is, they were
apparently reluctant to ind a defendant competent if there was
any doubt among evaluators. Judges were also far more likely
to rule against the majority recommendation of evaluators
when evaluators presented a split decision on competency (i.e.,
two say competent, one says incompetent).
We explored several factors that we believed might inluence
evaluator agreement: the age, gender, and ethnicity of the
defendant, the seriousness of the ofense, the location of the
evaluation, the referral court, the judge presiding over the case,
the professional discipline or employer of the evaluators, and
the defendants proiciency with the English language. None
of these factors signiicantly inluenced agreement among
evaluators. However, when evaluators agreed that a defendant
was psychotic (that is, demonstrated severe symptoms such as
hallucinations, delusions, or grossly disorganized behavior),
they showed better agreement about competence. Fortunately,
further analysis revealed that evaluators did not simply conlate
a psychotic diagnosis with the inding of incompetence, a
problem that has historically been common in competence
evaluations (Skeem & Golding, 1998).
Legal Sanity / Criminal Responsibility

We also investigated rates of agreement regarding legal
sanity (also known as criminal responsibility). Unlike
competency to stand trial, which is a dynamic condition
focused on a defendants current functioningwhich may
change from moment to moment legal sanity is a static,
historical condition that requires retrospectively determining
a defendants functioning at the moment of his crime. he
state of Hawaii uses a version of the two-pronged American
Legal Institute standard for legal sanity, which considers both
the MNaughten standard (whether the defendant understood
the criminal behavior was wrong) and the volitional capacity
standard (whether the defendant could resist the impulse to
commit the crime).
Very little previous research has been conducted on the
ield reliability of legal sanity evaluations. Indeed, no recent
literature examines evaluator agreement in real cases involving
legal sanity.
We coded 468 sanity evaluation reports across 161 cases (for
details, see Gowensmith, Murrie & Boccaccini, in press).
he proportion of psychologists (24) versus psychiatrists (12)
was similar to the pattern we found in CST evaluations.
How often did evaluators agree with each other regarding a
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defendants legal sanity? We found unanimous agreement

among evaluators in 55% of legal sanity cases. Evaluators
unanimously agreed that the defendant was sane in 38% of
cases, and they unanimously agreed the defendant was insane
in 17% of cases. When evaluators disagreed, two of the three
evaluators more often opined that the defendant was sane
rather than insane.
When these sanity cases went to trial, judges were more likely
to overrule the majority opinion of the evaluators in cases of
legal sanity than in cases involving competency to stand trial.
hey typically did so to ind defendants legally sane even when
two or three evaluators opined them as insane. In fact, in only
one out of 91 cases did a judge ind a defendant insane when
the majority of evaluators believed the defendant to be sane.
the motion for CR. None of the additional factors that we

examined in this study signiicantly inluenced the agreement
rates of evaluators on CR readiness evaluations.
Of all the psycho-legal questions that we studied, judges were
most likely to overrule the majority recommendation of
evaluators in cases involving readiness for CR. hat is, judges
appeared to err on the side of caution, by retaining a patient in
the hospital, even when the majority of evaluators opined the
patient was ready for release.
Unlike competency to stand trial evaluations, several factors

inluenced rates of evaluator agreement in cases involving legal
sanity. Evaluators were more likely to agree about sanity when
they agreed the defendant warranted diagnosis of a psychotic
disorder or when the defendant had been hospitalized in
a psychiatric facility sometime in the six months prior to
the evaluation. Evaluators were more likely to disagree with
each other when the defendant had been abusing substances
(making it diicult to disentangle the efects of mental illness
versus substance abuse) or when the defendant had committed
a violent felony.
Did evaluator agreement relate to case outcome? Of the 62

patients who petitioned for conditional release, the court
ultimately granted conditional release to 43 of them. We
followed all 43 of these cases for up to three years post-hospital
discharge and documented rates of rehospitalization. In cases
in which evaluators unanimously agreed that the person was
ready for CR, 34.5% were rehospitalized within three years.
his approximates a base rate for rehospitalization within
the Hawaii CR population, and is similar to other rates of
rehospitalization in similar populations across the United
States. In cases in which evaluators disagreed, however, 71.4%
of individuals granted CR were rehospitalized within three
years. In other words, the patients about whom evaluators
tended to disagree were indeed those patients who were more
likely to fail on conditional release (or at least to require rehospitalization).
Readiness for Cconditional Release
Decision-making in Forensic Evaluations
Finally, we investigated agreement rates for evaluators assessing

readiness for conditional release (CR). Conditional release
in Hawaii refers to the community placement of a person
previously acquitted by the insanity defense. Conditional
release procedures are typically required in every jurisdiction
that has an insanity defense. CR readiness evaluations typically
involve some form of violence risk assessment, a broader
category of evaluation that requires evaluators to measure and
comment on an individuals likelihood to act violently.
We also explored the rationale behind the conditional release

decision-making in the evaluators themselves. Previous work
along these lines has been done for competency to stand trial
evaluations; Skeem and Golding (1998) found substantial
diferences among competency reports, with many evaluators
documenting little to no rationale for their decision on
competency in their reports. Given the low rates of agreement
in CR evaluations, and the lack of statutory guidance for CR
readiness, we explored how evaluators make decisions on
hospital discharge.
Unlike competency to stand trial and legal sanity, there is little

statutory guidance for the CR evaluation. he statute requires
that evaluators form an opinion as to whether or not the
insanity acquittee can be safely managed in the community
once released from commitment status. However, the statutes
give no additional guidance on this issue, making the legal
question far less clear than competence or sanity.
We reviewed 175 real evaluation reports across 62 cases
(McNichols, Gowensmith, Murrie & Boccaccini, 2011).
Unanimous agreement rates were the lowest of all three
evaluation types we studied. Evaluators agreed unanimously on
a persons readiness for CR in only 53.2% of cases. Nearly 90%
of these cases involved all three evaluators agreeing that the
person was indeed ready for CR. When evaluators disagreed,
the two evaluators in most of the split decisions were just about
as likely to recommend against CR as they were to support
We gave 46 certiied forensic evaluators a list of 21 potentially

relevant factors to be considered in a CR evaluation. We
asked them to rank these factors, and we then asked them to
identify their understanding of the psycholegal question for
CR readiness. Evaluators showed substantial agreement on
the importance of past violence in determining readiness
for conditional release. However, evaluators disagreed on the
importance of all the other factors; no other factor was endorsed
by more than half of the evaluators, but two-thirds were listed
in individual evaluators top three lists. Also, evaluators were
nearly evenly split on how to interpret the statute ordering the
evaluation. Forensic evaluators seem to have no clear agreement
on what factors are important to consider in conditional release
readiness applications, or even what the question means in
the irst place likely causing the low reliability found across
these evaluations. In other words, Hawaiis ambiguous legal
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criterion for this particular type of evaluation apparently leaves

evaluators interpreting and measuring the relevant issues in
diferent ways.
What Do These Reliability Studies Mean for Attorneys

and Trial Consultants?
First, we should expect to see some disagreement among
forensic mental health experts, particularly in complex cases.
Attorneys and consultants who routinely handle cases that
require mental health testimony will inevitably encounter
some in which reasonable experts seem to disagree.
Does this mean that expert mental health testimony is worthless?
Not at all. he levels of agreement among evaluators in our
studies were signiicantly better than chance. For example,
using the base rates for sanity opinions found in our sample,
the likelihood that three evaluators will agree on a dichotomous
opinion of legal sanity by chance alone is 31%; our research
showed that evaluators agreed at a rate of approximately 55%,
which is well above chance. Agreement rates for competency
to stand trial were substantially higher (71%), far exceeding
chance levels. hus, experts agreed in most cases, particularly
when the legal question was more straightforward and welldeined (e.g., competence to stand trial).
Arriving at a unanimous decision on straightforward
forensic evaluationsthose that have clearly deined statutory
criteria and sound psychometric assessments easily available
to evaluatorsis itself a tall order. Expecting unanimous
agreement on evaluations that require retrospective decisionmaking (legal sanity) or interpreting fuzzy statutory criteria
(conditional release) is simply unrealistic. In addition,
the clinical data that evaluators must consider are rarely
unambiguous. Complicating factors abound: defendants may
misrepresent or malinger their symptoms, important records
may be unavailable, and it is inevitably diicult to infer mental
state in the past or present. Challenging and confusing cases

will always exist; this is the rationale behind requesting a
second opinion from a medical doctor or behind checking
that second weather report before holding your daughters
outdoor wedding in the backyard. Our indings of less-thanperfect agreement (even in non-adversarial contexts) suggest
that it may be worthwhile and reasonable to seek a second
opinion in complex cases.
Second, because disagreements among experts are not
common, it is important to consider an experts procedure
not just the experts inal opinion. Although judges do tend
to follow the evaluators ultimate opinion, we suggest that
the opinion itself is less important than the procedures and
data that underlie that opinion. When litigation features
disagreeing experts, consultants and attorneys should be ready
to scrutinizeand help the court scrutinizethe procedures
that an expert followed, and the data an expert considered,
to reach a particular conclusion. Often, the reasons for
disagreements become clear when evaluators are asked to detail
the information they considered (or failed to consider) or the
inferences they used to connect data and form an opinion.
Because many forensic evaluations are genuinely complex and
diicult, there are often decision points (e.g., Are additional
collateral records necessary?) and inferences (e.g., how does this
new data it with the existing records?) in evaluations during
which reasonable professionals might disagree. It is important
to identify these decision points and ambiguous data for careful
scrutiny. Ask forensic experts to show their work, not just
state their opinion.
Input from forensic mental health experts can be helpful
even essentialto answer certain legal questions. But, like any
expert opinion on complex matters, opinions from mental
health experts may vary, particularly on complex cases, and this
requires educated consumers to carefully consider the data and
procedure underlying forensic evaluations. je
W. Neil Gowensmith, PhD is an Assistant Professor in the Masters of Forensic Psychology Program at the University of Denvers Graduate
School of Professional Psychology. As a clinician, Dr. Gowensmith performs criminal forensic psychological evaluations and was previously the
chief of statewide forensic services for the state of Hawaii. His research program focuses on issues related to forensic assessment (particularly
field reliability, validity and quality) and the public forensic mental health system.
Marcus T. Boccaccini is an Associate Professor in the Psychology and Philosophy Department at Sam Houston State University. His recent
consulting work has focused on strategies for explaining psychological test results to judges and jurors. His research program focuses broadly
on the area of forensic assessment, with emphases in field reliability and validity.
Daniel Murrie, PhD serves as Director of Psychology at the University of Virginias Institute of Law, Psychiatry and Public Policy (ILPPP), an
Associate Professor in the School of Medicine, and an instructor in the School of Law. As a clinician, Dr. Murrie performs criminal and civil
forensic psychological evaluations. As a researcher, Dr. Murrie studies topics related to forensic assessment, particularly bias and quality
control. For details, see here or here.
References
Gowensmith, W., Murrie, D.C., & Boccaccini, M.T. (in press). How reliable are forensic evaluations of legal sanity? Law and Human
Behavior*. doi: 10.1037/lhb0000001
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Gowensmith, W.N., Murrie, D.C., & Boccaccini, M.T. (2012). Field reliability of competency to stand trial evaluations: How often
do evaluators agree, and what do judges decide when evaluators disagree? Law and Human Behavior, 36,130139. doi: 10.1037/h0093958
Murrie, D.C., Boccaccini, M.T., Turner, D., Meeks, M., Woods, C. & Tussey, C. (2009). Rater (dis)agreement on risk assessment
measures in sexually violent predator proceedings: Evidence of adversarial allegiance in forensic evaluation?Psychology, Public Policy, and
Law, 15,1953. doi: 10.1037/a0014897
Skeem, J., & Golding, S. (1998). Community examiners evaluations of competence to stand trial: Common problems and suggestions
for improvement. Professional Psychology: Research and Practice, 29,357367.
We asked two trial consultants to respond to this

paper. On the following pages, Doug Green and Roy
Aranda respond.
Doug Green responds:
Doug Green is the principal consultant with Douglas Green
Associates, Inc. which is based in greater New Orleans, but has a
national scope, working mostly in civil litigation. Doug has a Ph.D.
in Psychology from Tulane University is once again serving on the
board and is the President-Elect of the American Society of Trial
Consultants.
ecause my practice is focused almost exclusively on civil

litigation, the principal implications of this research
do not necessarily apply directly to my clients. But,
underlying these indings is a core concept that I believe
applies to expert testimony in any kind of case. While it is
generally accepted that experts are indispensable in most
kinds of civil litigation, in my experience jurors view experts
in a much diferent way today than they did 20 years ago.
his experience comes from conducting hundreds of mock
jury studies and interviewing actual jurors after verdicts. he
changing perception of experts has important implications for
trial lawyers.
When I started working as a trial consultant in the 1980s,
most of the work I did involved automotive, product liability
cases. At issue in these cases was typically an allegation of
design defect. Both sides hired experts in automobile design
who would opine on the ultimate question in the case: does
the design in question represent a defect. Along the way, the
experts would discuss design standards and practices. One side
or the other might conduct testing related to the case. And, the
presentation of the expert witness at trial always began with an
impressive presentation of his or her credentials. Ultimately,
there was the opinion that the design was or was not defective.
he same was true for injury causation and damages.
Back then, we counted a great deal on the credentials of the
expert and his or her ability to persuade the jury that he or
she was more experienced, more credentialed, and more of a
real expert in the ield. hese factors were very important
at the time and we focused mostly on getting the jury to trust
the expert for his or her expertise and therefore accept the
profered opinion.
hings slowly started to change towards the end of the 1990s.
At the time, I attributed the change to the collapse of Enron,
and still do to some extent. Perhaps my bias was that I did a lot
of work in Texas. But the Enron scandal exposed an ugly side
of American business. At the core of the scandal was unbridled
greed and arrogance, and the big losers were the average
workers who went to the oice every day and did their jobs for
nothing more than their middle class wages. hey stood to gain
nothing by the risks that their employers took, but they paid a
very heavy price.
At the same time, I saw a concerning escalation in the fees
charged by expert witnesses. When I irst started, expert fees
were in the range of $150 to $250 per hour. In that range,
jurors were impressed, but not shocked. But by the mid1990s,
some experts were charging as much as $500 to $650 per hour.
At those rates, jurors started to take serious note of the money
changing hands. hen, Enron came to light.
What the scandal stood for in the eyes of many people was
that when there was enough money to be gained, some people
would do, or say, almost anything. It also created tremendous
skepticism about corporations and corporate governance. he
role of government regulation in the scandal, or lack thereof,
did not become apparent for some time. But, the perception
of these events on the part of the average person, the average
juror, became a dominant theme in how they perceived cases
where individuals were pitted against corporations. Now, the
$650 an hour expert was viewed with great skepticism. For
that much money, many people believed, a person might say
just about anything. he perception of the hired gun became
very real. he idea of building trust in an expert became very
diicult.
Nothing much has happened to change these attitudes in the
intervening years. Around the same time, we saw the dot-com
bubble bust and more recently we have seen the sub-prime
mortgage crisis. here has also been a massive tort reform
movement set in motion largely by the insurance industry,
designed to question the motivation of anyone who iles a
lawsuit. Plaintifs, after all, have a lot to gain and everyone
knows about contingent fee lawyers.
thejuryexpert.com
So, what does all of this mean for the use of expert witnesses
today? What strategies do we incorporate in my practice to
deal with the increasing skepticism of anyone getting paid a
lot of money to give opinions? Well, I turn back to the authors
recommendations, which is how I got started on this line of
thought: it is important to consider an experts procedure not
just the experts inal opinion. Ask forensic experts to show
their work, not just state their opinion.
As an initial proposition, the philosophy I use when working
with experts is that their job is to educate the jury on the
relevant ield of study to the point where the jurors can examine
the evidence and reach their own conclusions. he expert is,
therefore, not someone who says, trust me, Im an expert, but
rather, let me teach you so you can become an expert.
If you start from this point of view, the qualiications of the
expert you choose become clear. I get a lot of calls on this
question and the client usually starts by telling me about the
potential experts qualiications. My response is usually, but
can he teach this to the jury? he precise qualiications of
experts, in my opinion, are less important than the individuals
ability to communicate and to present diicult concepts to the
jury in plain, simple terms. It is also tremendously helpful if
the expert is likable and friendly. I ind that lawyers tend to
parse the qualiications of experts much more inely than do
jurors. he gap between the knowledge and experiences of two
potential experts will always be far less than the gap between
either one and the jurors. When it comes to experts, one
should worry more about the ability of a potential expert to
communicate and relate to jurors and worry less about experts
speciic credentials.
Finally, I believe that the impact of experts on jury decision
making today has tremendously diminished compared to 20
years ago. I cant debate the conventional wisdom that experts
are essential to most cases. hey are often required as a matter
of law. But what impact is the expert going to have on the
jury verdict? My experience is that in most cases the impact
is not much. Jurors today want to hear from fact witnesses.
hey want to know the story of what happened. If there is a
design question in the case, they want to hear from someone
actually involved in the design at the time. If the issue is patent
infringement, they want to hear from the inventor of the
patent and the designer of the accused product. he weakness
of experts is that they were not involved at the time and are
only involved now because they are getting paid and usually
a lot of money. From this point of view, jurors look at experts
with great skepticism.
So, my advice to trial lawyers today is to choose experts carefully
and use them wisely. Build your case around people who were
there at the time whether they are your witnesses or the other
sides and rely on experts as little as possible. Build the record
you need to make your case and hold on to a verdict, but do
not expect the jury to care much about the opinions of your
experts.
Roy Aranda responds:

Roy Aranda, Psy.D., J.D. is a forensic psychologist with offices in N.Y.
and Long Island. He has been involved in several high profile cases
including traveling to Cuba and Puerto Rico and testifies frequently in
criminal and civil cases throughout New York State.
owensmith, Murrie, and Boccaccini have taken their

research about how often forensic experts agree with
one another in the ield up another notch. Drawing
upon earlier research (Gowensmith, Murrie, & Boccaccini,
2012) that examined ield reliability of competence to stand
trial (CST), Forensic Mental Health Evaluations: Reliability,
Validity, Quality, and Other Minor Details examines forensic
evaluations in three contexts: CST; criminal responsibility; and
conditional release from a state hospital.
Gowensmith, Murrie, and Boccaccini sought to answer several
questions: 1) How often do forensic evaluators agree with
another? 2) What factors might inluence their reliability? 3)
Do some types of cases lead to more disagreement than others?
4) Is agreement better in some contexts than others?
Gowensmith, Murrie, and Boccaccini reviewed nearly 350 cases
in Hawaii of multiple forensic evaluators who evaluated the
same defendants. Hawaiis unique process provided an excellent
setting for several reasons. First, three evaluators are used. his
adds a measure of validity that is lacking in settings that rely
on a single examiner and when it is assumed that evaluators
are interchangeable. Second, because precious little is known
about reliability in the ield, it provides a natural, real-world
setting as opposed to a research setting that employs artiicial
experimental conditions. hird, the impact of adversarial
or partisan allegiance is controlled because all evaluators are
independent in as much as they are appointed by the court, not
by the defense or prosecution.
Outcome:
CST: In 71% of cases there was unanimous agreement; 59%
found that the defendant was competent, and 12% found that
the defendant was not competent. Judges typically followed
the majority opinion. When they did not they usually took
a conservative stand inding that the defendant was not
competent to stand trial. Judges also were more likely to rule
against the majority when there was a split decision among the
evaluators.
Gowensmith, Murrie, and Boccaccini examined the following
factors:

Age of the defendant

Gender of the defendant
Ethnicity of the defendant
Seriousness of the ofense
Location of the evaluation
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Referral court
Presiding judge
Professional discipline
Employer
Defendants English-speaking proiciency
second opinion be sought in cases that are complex.

How applicable are the indings to other jurisdictions?
Evaluators comply with jurisdiction-speciic requirements.
What might reliability look like elsewhere?
Surprisingly, none of these factors signiicantly inluenced

agreement among the evaluators.
How are judges rulings inluenced by the reports of evaluators?

What other factors are weighed?
Analysis revealed that a psychotic diagnosis per se did not

result in a inding of incompetence suggesting that functional
abilities were looked at more closely.
How do evaluators go about performing an evaluation?

What factors do they consider to be important? What does
their assessment consist of? What are the best practices or
guidelines established by the profession?
Criminal responsibility: In 55% of cases there was unanimous

agreement; 38% found that the defendant was sane, and 17%
found that the defendant was insane. Judges were more likely
to overrule the majority opinion of evaluators than in CST, and
when they did, they found the defendant to be legally sane and
thus subject to criminal prosecution.
Factors that led to increased agreement among the evaluators
were 1) diagnosis of psychotic disorder, and 2) hospitalization in
a psychiatric facility within six months prior to the evaluation.
Factors that led to increased disagreement among the evaluators
were 1) when the defendant had been abusing substances, and
2) when the defendant had committed a violent felony.
Conditional release: Unanimous agreement rates among
evaluators were lowest of all three types of evaluations. In
53.2% of cases there was unanimous agreement; nearly 90%
found that the defendant was ready for conditional release.
Judges were most likely to overrule the majority opinion of
evaluators in these cases keeping the patient hospitalized,
apparently choosing to err on the side of caution.
Little statutory guidance in Hawaii makes the issue of
conditional release that involves whether or not the
respondent can be safely managed in the community much
less clear than CST or criminal responsibility.
Signiicantly, of the 21 potentially relevant factors that
Gowensmith, Murrie, and Boccaccini considered to be
important in a conditional release evaluation, substantial
agreement was found in only one: past violence. None of the
other factors were endorsed by more than half of the evaluators.
Moreover, evaluators were split on how to interpret the statute.
Judges tend to follow the evaluators opinions. he procedures

employed by evaluators may shed more light. hus, when there
is disagreement, it is advisable to scrutinize the procedures,
data employed, and to examine the evaluators work product.
How can the procedure(s) in conditional release evaluations,
the most problematic of three forensic contexts examined by
Gowensmith, Murrie, and Boccaccini, be improved?
In their earlier study, Gowensmith, Murrie, and Boccaccini
noted that a small percentage of evaluators (14.3%) used
formal competency assessment measures. Why do they or dont
they use measures? And when employed, which ones are used?
What weight can be attributed in diferent contexts to static
factors (more applicable in criminal responsibility cases and
providing a window into the past in conditional release)
and dynamic factors (more applicable in CST and current
functioning in conditional release)?
Do evaluators use risk assessment tools in conditional release
evaluations? Why or why not? Which ones when used?
Would reliability be improved by use of context-speciic
instruments?
Do evaluator characteristics and factors identiied by
Gowensmith, Murrie, and Boccaccini need to be examined
further? Would the conclusions extend to other jurisdictions
and settings?
What can be done to improve the evaluation on the part of
examiners in diferent forensic contexts?
he study raises the following questions and implications:

Would mandated training and oversight improve reliability?
Evaluators are not interchangeable. Expect to ind disagreement
among evaluators albeit levels of agreement were signiicantly
better than chance. Agreement was greatest in CST.
What policy implications can be drawn from this study in

diferent jurisdictions and forensic contexts?
Agreement is greater when the legal question is more

straightforward and well deined.
When evaluators are not court appointed, what is the likely

impact of adversarial allegiance? How can this be controlled?
Gowensmith, Murrie, and Boccaccini recommend that a
When mistakes are made, what are the consequences to the
thejuryexpert.com
defendant and to society in diferent jurisdictions and forensic

contexts?
For attorneys who rely on the work of forensic experts, it
behooves them to know their background, training, evaluation
methodology, and experience and knowledge of the applicable
law and statutes.
Forensic examiners need to remain up to date with the literature,
evidence-based practice, and know the applicable law and
statutes of the jurisdiction they work in. It also behooves them
to routinely self-assess potential biases.
It may be that describing evaluation procedures and
methodology more fully in forensic reports will add greater
clarity to the judge to assist in making a ruling.
References
Gowensmith, W., Murrie, D.C., & Boccaccini, M.T. (2012).
Field reliability of competency to stand trial evaluations: How often
do evaluators agree, and what do judges decide when evaluators
disagree? Law and Human Behavior, 36, 130139.
After reading the reactions to their paper, the authors

decided to issue a inal comment.
r. Aranda raises several insightful questions about our

research and the context for its indings. Although
space precludes us from answering each of his
questions, please allow us a brief moment to discuss some
additional research that addresses his major themes.
First, Dr. Aranda wonders about how well this data generalizes
to other jurisdictions and settings. he reliability values we
found appear comparable to one of only a few other real
world reliability studies (Skeem & Golding, 1998),
though far more studies of this sort are needed. We are also
researching additional settings and states to consider how our
results generalize. Speciically, we are conducting additional
research in multiple states on the decision-making of both the
judges and the evaluators in forensic psychological assessments.
What factors do mental health professionals prioritize in these
types of cases? Do those comport with the factors that judges
and attorneys view as most important? Does the state or setting
matter? Some early trends are emerging, and we look forward
to having more answers soon.
Second, Dr. Aranda poses questions about how to improve
reliability and validity in forensic mental health evaluations. Of
course there is no one easy answer. We have some evidence that
the overall quality of forensic evaluations themselves has room
for improvement (see Nguyen, Acklin, Fuger, Gowensmith,
& Ignacio, 2011 for more information). We suspect that
the largest improvements in reliability, validity and quality of
forensic evaluations are likely to come from simply following

the already-established standards in the ield. We are working
with several states to improve their evaluator certiication
processes and to ensure that best practices are infused into
training and education for forensic evaluators. We must also
work with the legal system as well to ensure that both legal
and mental health audiences are well-informed about the most
powerful factors to consider in various forensic cases, and the
best ways to scrutinize forensic evaluations.
Finally, Dr. Aranda mentions the subject of adversarial
allegiance. In contrast to our studies in Hawaii, where evaluators
are appointed by the judge and presumed to be neutral experts,
many jurisdictions let the defense and prosecution retain their
own experts. Of course this raises questions about whether
those experts can ever be impartial. his concept of adversarial
allegiance continues to be a focus of our research, and we
have found that opinions of mental health experts can difer
depending on the side from which they were retained (please
see Murrie et al, 2008; 2009 for more information).
We appreciate all of the reviewers commentary and questions.
As they suggest, a comprehensive understanding of forensic
evaluations requires examining the evaluations, the evaluators,
and the justice system in which they work. We have begun this
process, and we have found some provocative results, but there
is much work left to do.
References:
Murrie, D. C., Boccaccini, M. T., Johnson, J. T., & Janke, C.
(2008). Does interrater (dis)agreement on Psychopathy Checklist
scores in sexually violent predator trials suggest partisan allegiance in
forensic evaluations? Law and Human Behavior, 32, 352362. doi:
10.1007/s1097900790975
Murrie, D.C., Boccaccini, M.T., Turner, D., Meeks, M., Woods, C.
& Tussey, C. (2009). Rater (dis)agreement on risk assessment
measures in sexually violent predator proceedings: Evidence of
adversarial allegiance in forensic evaluation?Psychology, Public Policy,
and Law, 15,1953. doi: 10.1037/a0014897
Nguyen, A. H., Acklin, M. A., Fuger, K., Gowensmith, W. N. &
Ignacio, L. A. (2011). Freedom in paradise: Quality of conditional
release reports submitted to the Hawaii judiciary. International
Journal of Law and Psychiatry, 34, 341348.
Skeem, J. L. & Golding, S. G. (1998). Community examiners
evaluations of competence to stand trial: Common problems and
suggestions for improvement. Professional Psychology: Research and
Practice, 29, 357367.
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Professor E meritus, Duke University
I s E xper t T estim on y i n C our t C ases R eally E xper t?

Posted: 12/06/2014 12:05 pm E S T
Updated: 02/05/2015 5:59 am E S T
Dostoevsky's Brother's K aramazov cleverly spoofs the careless inexpertness of what often passes for expert legal testimony.
T hree medical experts are called to testify whether Dmitri K aramazov was sane or insane when committing the alleged murder of his father.
Naturally, the experts all disagree, with each completely convinced of the incontrovertible truth of his own opinion. E xpert 1 finds Dmitri
12/2/2015 2:51 PM
insane because he looked to the left as he entered the courtroom. E xpert 2 also finds Dmitri insane, but instead because he looked to the
right. E xpert 3 correctly finds Dmitri sane, but for the wrong reason that he stared straight ahead. And all three are absolutely sure Dimitri
did commit the murder-which in fact he did not. T hree blind mice.
Dostoevsky was recognized by F reud as the master of psychological thinking, but his love of psychology did not stop him from poking huge
holes in its reliability. "One can draw from psychology whatever conclusions one likes. It all depends on whose hands it is in. I am speaking
of excessive psychology, of a certain abuse of it."
H e then demonstrates vividly just how the this abuse of psychology plays out in courtroom situations. T he prosecutor on the case presents a
brilliant, completely plausible psychological profile of Dmitri that proves beyond any shadow of doubt that he must have committed the
crime. T hen, based on the very same traits and facts, the defense attorney presents an equally brilliant, but completely opposite,
psychological profile that proves beyond any shadow of doubt that Dmitri could not possibly have committed the crime. T here is no gold
standard that allows a jury to choose between the opposing speculations.
Dostoevsky uses a R ussian proverb to explain this situation -- that psychology is a stick with two ends (equivalent to our sword that cuts
both ways). H e knew better than anyone that speculative psychological theorizing can be just as easily used to disguise the truth as to reveal
it. A theory that seems completely plausible can be completely wrong.
Dostoevsky wrote 135 years ago, but his critique of forensic psychiatry and forensic psychology stands the test of time. The abuses he
described still occur often today in just the way he described them. My experience as expert witness in hundreds of legal cases does not
inspire much confidence in the way our legal system uses (and more often abuses) expert testimony.
Many factors contribute to experts generating heat, not light.
F irst off, many alleged experts are simply not really all that expert and say things that are just dead wrong. The filters meant to eliminate
errant opinion and junk 'science' don't work.
Second, the adversarial system cultivates expert allegiance bias. Consciously or unconsciously, expert opinions are strongly influenced by
who is paying the bill.
T hird, juries often have to decide questions that are far beyond their competence. Which of the dueling experts to believe is more often
determined by presentation skills and likability than the technical accuracy of the testimony.
F inally, the adversarial quality of the legal system demands that experts give black-and-white, yes-or-no answers to questions that often
require a shades-of-gray, nuanced response. E ven wise and unbiased experts mislead when they are forced to choose a yes or no when the
best answer would be maybe or a little bit of both.
As it stands now, the expert testimony in many trials is pretty worthless. E ach side presents an extreme set of opinions that in opposite ways
distort the complex reality. T he jury cancels them out or makes a pretty blind choice between them.
2 of 3
12/2/2015 2:51 PM
3 of 3
T he system may be too embedded to reform, but a few simple changes would make a world of difference. To achieve neutrality and preserve
nuance, experts should whenever possible be appointed by the court, not the warring sides. T here should be a more rigorous way of
establishing that they are indeed experts and are using methods of assessment that are reasonably reliable and well validated. R eports
should document how the existing literature pertains to the facts of this case and the degree of confidence with which each opinion is
rendered and why. E xperts should be instructed to be cautious in their judgments, staying close to the facts and to the literature. I don't
know is the most appropriate answer to many questions. Purely idiosyncratic speculation should be identified and treated as unreliable and
essentially worthless.
Doing it right would much reduce the role of expert testimony in the legal system- probably a very good thing.
Allen F rances is a professor emeritus at Duke University and was the chairman of the DSM-IV task force.
MOR E : F orens ic Psychiatry F orensic Psychology E xpert Witnesses Trial Testimony Bias
T hi s B l og g er 's B ook s a n d Other I tem s from...
E ssentials of Psychiatric
Diagnosis, R evised
E dition: R esponding to
the Challenge of
DSM-5
by Allen Frances MD
Saving Normal: An
Insider's R evolt Against
Out-of-Control
Psychiatric Diagnosis,
DSM-5, Big Pharma,
and the Medicalization
of Ordinary L ife
by Allen Frances
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Part of A OL Tech
12/2/2015 2:51 PM
Psychol. Inj. and Law

DOI 10.1007/s12207-013-9180-9
The Uses and Misuses of the DSM in Forensic Settings

Allen Frances & Robert Halon
Received: 28 September 2013 / Accepted: 23 October 2013

# Springer Science+Business Media New York 2013
Abstract The purpose of this paper is to present in broad

summary our viewsgained through experiences interacting
in the legal systemconcerning some of the more significant
issues that trouble the legal/psychiatric interface. Even when a
psychiatric diagnosis is the reliable and accurate result of
appropriate evaluation methods and proper documentation, it
may not be helpful in answering the questions posed to mental
health professionals by the legal system. The Diagnostic and
Statistical Manual provides explicit cautions that its clinical
descriptions of mental disorder do not always map well with
legal concepts of mental illness or abnormality. This is an
inherent tension that accurate psychiatric diagnosis can reduce, but not eliminate. The relationship between psychiatry
and the law continues to evolve and we hope will improve
with greater understanding of the possible misunderstandings.
Keywords DSM . Mental disorder . Statutory . Clinical .
Forensic . Diagnostic criteria . Clinical significance .
Daubert . Reasonable degree
Psychiatry and the law are separated by a deep chasm created
by their differing purposes, methods, histories, and philosophies. When they interact in criminal and civil cases, it is
usually without a common understanding of basic terms and
definitions. The inevitable result is misunderstanding and the
likelihood of bad legal decisions.
Perhaps the most obvious example is the confusion between
statutory concepts of mental abnormality or mental illness
and psychiatrys definition of mental disorder contained in
its Diagnostic and Statistical Manual (DSM). Legislators and
A. Frances
Department of Psychiatry, Duke University, Durham, NC, USA
R. Halon (*)
San Luis Obispo, CA, USA
e-mail: valhalon@pacbell.net
the courts need not abide by the DSM and are permitted to use
mental health concepts in any way they see fit (Kansas v.
Hendricks, 1997). They sometimes borrow loosely from clinical terms or coin their own diagnostic terms without accompanying them with precise definitions. The statutes are written
in vague language that specifies the types of dysfunction
addressed in the particular statute but fails to provide meaningful definitional links between what is meant legally by mental
abnormality or mental illness and DSM diagnostic criteria
for the various clinical dysfunctions described in the DSM.
The resulting vacuum of diagnostic definition is usually
filled by reference to the DSM which cannot avoid this responsibility, but is often ill suited to answer the questions
posed by the legal system. This is why the DSM since version
III has contained a prominently placed caution: the use of
DSM-5 should be informed by an awareness of the risks and
limitations of its use in forensic settings (DSM-5, p. 25;
American Psychiatric Association, 2013).
Before we go into considerable detail describing these
limitations, it is important to understand the necessary and
constructive role played by DSM in the courts. The DSM
criteria sets defining its specified mental disorders are a
useful guide to psychiatric diagnosis, providing the best available method for beginning the discussion of who is and who is
not mentally ill in a legal sense. Though the DSM diagnostic criteria are a necessary tool in any attempt to answer this
crucial question, they are rarely sufficient.
The definitions included in the DSM were not developed
for legal purposes. They were written with careful attention to
clinical detail, but are not nearly precise enough to meet the
different needs and outlooks of the legal system. Psychiatric
language often stands up poorly to the nitpicking scrutiny that
characterizes adversarial legal argument. Legal and psychiatric truths are very different animals. Whereas the legal system
requires black and white answers, clinical psychiatry and
psychology almost always deal in probabilities and shades
of gray. The inherent ambiguities of psychiatric diagnosis
often make it impossible to meet the legal demand that there

be an unambiguously dichotomous yes or no answer.
The legal combat inherent in the adversarial system also
adds yet another layer of obfuscation; it selects for expert
testimony that intended to prove a point, not to provide a
balanced and accurate perspective. The reliability and validity
of psychiatric diagnosis are most necessary and consequential
in legal proceedingsbut often these are sacrificed in the
rough and tumble of adversarial legal jockeying. An astute
lawyer can often find enough ambiguities in the DSM wordings and/or in the interpretations of the legal criteria to support
either side in any given case. Neutrality and accuracy are
especially vulnerable whenever diagnostic disagreements reflect the influence of the different sides that pay the bill.
Juries are often called upon to decide unclear questions that
have no correct answers and lack clinical meaningfulness.
They have to do so in the heat of a confusing legal battle,
usually without really understanding the mental health issues
or their relationship to the legal questions involved. Lay triers
of fact have no training in sifting through the technical issues
that separate the often diametrically opposed expert opinionswhich they, therefore, often dismiss and vote according
to their own logic and mores. No wonder jurors' judgments so
often seem arbitrary, puzzling, and lacking in rational assessment of the accuracy of the diagnostic information. Too often,
decisions are pivotally influenced by the relative legal skills of
the lawyers and the emotional impact of their presentations.
Cases are also won and lost more on the persuasiveness of the
experts than on the accuracy of their testimony. To top it off,
the layperson decision about the mental abnormality at issue
becomes a fact; something a clinical diagnosis never is.
We intend to present a broad summary covering a lot of
groundnot digging deeply into any one of the issues, each
of which merits much more extensive discussion than space
here permits. This is no more than an opinion piece expressing
our own views gained through experiences interacting in the
legal system. We recognize that others on both sides of the
legal/psychiatric interface might disagree with many of our
observations and conclusions and welcome the exchange of
ideas. The relationship between psychiatry and the law continues to evolve and we hope will improve with greater
understanding of the possible misunderstandings.
The Role of DSM in the Legal System

DSM has been employed for many uses and is used to serve
many masters (Kendell, 1975; Regier, Narrow, Clarke,
Kraemer, Kuramoto, Kuhl, & Kupfer, 2013; Sartorius, stn,
Costa e Silva, Goldberg, Lecrubier, Ormel, Von Korff, &
Wittchen, 1993). It provides a common language for clinicians,
a tool for researchers, and a bridge over the clinical/research
interface (American Psychiatric Association, 2000). DSM also
serves as a textbook for educators and students (First & Pincus,

2002) and provides is a coding system for statistical, insurance,
disability, and administrative purposes.
The creators of the various versions of the DSM have
always been fully aware of the important role it plays in legal
proceedings and have not ignored its forensic implications
(e.g., DSM-IV; American Psychiatric Association, 1994;
Melton, Petrila, Poythress, & Slobogin, 2007). But they could
not possibly give this one arena their highest priority. The uses
and possible misuses of DSM in forensic settings rate no
higher than a distant fourth on their list of priorities, following
well behind DSM's role in clinical care, in research, and in
education.
For the most part, the varied goals of the DSM system are
compatible, but inevitable difficulties arise when one manual
is used to do so many different purposes. DSM is a common
denominator that meets all its various responsibilities adequately, but none perfectly. Its criteria sets are too detailed
for the convenience of clinicians, not nearly detailed enough
for the needs of researchers, and far too dull to keep teachers
and students awake. DSM is framed in clinical language and
concepts that often do not map well with legal questions, and
DSM criteria are much less precise and definitive than they
need to be for laws, lawyers, and courts (Frances, Widiger, &
Pincus, 1989; Halon, 2009; Melton et al., 2007). Psychiatric
diagnosis is not based on any pretension of medical or scientific certainty. It is a descriptive and fallible art, informed by
research but relying heavily on subjective judgments and not
supported by objective biological tests.
The different diagnoses were included in the DSM by
historical accretion and vary in their scientific support and
inherent reliability. The reliability for any given diagnosis also
varies dramatically depending on the method used in making
the diagnosis. Semi-structured clinical interviews for DSM
disorders can provide a comprehensive and reliable starting
place that reduces information variance and increases agreement among raters. A useful substitute for semi-structured
interviewing is to systematically ask questions (and document
the answers) related to each of the items contained in the
criteria set for any diagnosis that will be considered in the
expert's report. The base rate of a condition also affects its
reliability since it is always harder for two raters to pull the
same needle out of a haystack than to find the haystack.
Clinicians who are more experienced in a given diagnosis, in
systematic interview methods, and in the proper use of DSM
are more likely to be credible. Impressionistic, unsystematic
diagnosis is usually unreliable and inaccurate.
DSM is not and does not aspire to be any sort of bible of
psychiatry. It is no more than a guide to psychiatric diagnosisbut it is also no less than a useful guide. Despite its
imperfections, when used appropriately, DSM remains the
best (really the only) means to achieve reliable and accurate
diagnosis in the clinic and in forensic settings. However, DSM
is only useful when it is followed closely and applied well.

Unfortunately, it is our experience that the diagnoses offered
as expert testimony are often poorly done, idiosyncratic, and
display a disheartening lack of attention to the careful evaluation and documentation of the presence or absence of the
specific, pertinent DSM criteria. Often an expert's report consists of a very lengthy chronology of largely irrelevant events
bearing little diagnostic information. The diagnostic conclusion is typically a very short and uninformative paragraph
bearing little evidence of having flowed from a systematic
diagnostic evaluation and providing little or no rationale for
the diagnostic decisions that have been made. Rarely is there
adequate consideration of differential diagnostic alternatives
that might have led to different conclusions. Appropriate
diagnostic cautions and recognition of uncertainty are usually
lacking.
Forensic usage should set the highest standard for accurate
diagnosis in expert testimony; however, we have seen too
many cases in which it fails to meet even the lowest. Jurors
have enough trouble making sense of technical psychiatric
terms. It gets impossibly muddied when experts arrive at their
diagnoses carelessly using only their clinical judgmentabsent data gathered in systematic and comprehensive diagnostic interviews, without consideration of opposing possibilities,
without supporting documentation, without adequate analysis
of the relationship between the DSM diagnostic criteria and
the legal question at hand, and with the obvious appearance of
attempting to support one side or the other in an the adversarial process.
In our experience, neither the Daubert v. Merrell Dow
Pharmaceuticals, Inc. (1993) nor the Frye v. United States
(1923) admissibility standards, which are meant to filter out
junk expert testimony, provide sufficient filtering. Judges do
not always seem to exercise their prerogative to rule out even
clearly inexpert testimony, probably because they are so concerned about being reversed on appeal. They also often seem
to be unfamiliar with the standards used to evaluate scientific
evidence and opt for the safe play of passing the burden of
filtering onto a jury that is even less well equipped to handle it.
What passes for expert testimony on psychiatric diagnosis is
more often than it should be blatantly incompetent diagnosis.
Are there any solutions to this quagmire? A few come
immediately to mind. Expert testimony on the presence or
absence of psychiatric diagnosis should be proffered by professionals who have considerable experience in the diagnosis
of that disorder. Being a general practitioner of psychiatry or
psychology does guarantee such expertise. At a minimum,
forensic evaluations should always require: recording the
methods used in gathering the information; a systematic format including either a semi-structured interview or detailed
questioning on each pertinent DSM item; and specific explanations on how the information gathered addresses, pro or
con, the diagnostic criteria. Affirmative support for the
diagnosis should be detailed by examples that illustrate how

each item of the DSM criteria set has been met. Differential
diagnosis should be well documented with a listing of potential alternative diagnoses and explanations of how and why
these have been ruled out. Diagnoses that have failed to earn a
place in the official DSM system should not be dignified or
validated by acceptance in the courts for decision-making
purposes. Exotic diagnoses and theories, if allowed as evidence, should be labeled and described as such and accompanied by an extraordinarily high threshold of certitudewhich
the poorly defined and loosely applied reasonable degree of
medical (psychological) certainty does not reach.
DSM recommends granting wide latitude to clinicians for
clinical purposes, encouraging them to exercise their own
clinical judgment in considering the particularities of each
patient. However, the use of idiosyncratic clinical judgment
is not appropriate for decision-making in forensic cases. The
gain in clinical flexibility has too great a cost in the loss of
forensic reliability. The forensic situation should prize reliability over creativity and discourage anything but the tightest
adherence to the diagnostic criteria listed in the DSM. The
default position in doubtful situations should be no diagnosis or detailed descriptions of the uncertainties.
It also needs to be understood that reliability is a necessary
precondition to validity, but is by no means a guarantor of it.
While semi-structured and systematic DSM interviewing can
reduce information variance and increase agreement among
raters, using an appropriate method of gathering the clinical
diagnostic information and improving reliability does not address further issues of its interpretations, relevance, and validity.
How Clinical and Forensic Evaluations Differ

Being labeled with a psychiatric diagnosis can be a lifechanging moment, especially in forensic settings. But, despite
the great importance of diagnosis, it is far too often done
carelessly in ways that cannot possibly yield reliable and
accurate results. For example, a single diagnostic interview
usually does not capture the essence of a person's past course
of symptoms or their likely evolution in the future. Accurate
diagnosis requires adequate time in each individual visit and
often multiple visits over an extended period of time in order
to get a longitudinal perspective that will increase the reliability and validity of the diagnostic conclusions. While it is
important to review diagnoses made in previous evaluations,
they cannot be followed slavishly because previous diagnostic
judgments are often incomplete and/or wrong and/or may no
longer be applicable given changes over time. A diagnosis
cannot be judged reliable or accurate when it is not accompanied and justified by descriptions of the criteria used in making the diagnosis, by the data from which fitness to the criteria
was determined, and by descriptions of alternative diagnostic
explanations that have been ruled out and how they were ruled
out.
Impressionistic, unsupported diagnosis are often inevitable
in the rush of ordinary clinical practice, but such sloppy
diagnostic practice should have no role whatever in forensic
work where the stakes are much higher and there exists time
and resources for a thorough evaluation. Once a court of law
makes a decision about a person (on presumably reliable
probative diagnostic evidence), that person often has little if
any chance of later changing the decision and the impact on
his life may be profound and enduring. In the clinic, wrong
diagnosis can also have tragic consequences, but decisions are
more often reversible and subject to correction. Forensic mistakes can destroy lives and threaten the credibility of the legal
system. If the forensic mistakes were made by expert mental
health witnesses, the credibility of psychiatry and psychology
is also diminished.
In clinical practice, because the definitions and diagnostic
criteria cannot possibly encompass the vast heterogeneity of
individual presentations, practitioners are encouraged to exercise a great deal of latitude in applying clinical judgment. In
the forensic arena, that latitude should be superseded by
rigorous diagnostic methodology, strict adherence to criteria,
careful documentation of every conclusion, and admission of
uncertainty whenever certainty is not possible. Strict adherence to criteria sets is not required in clinical situations but
should be required in the courtroom.
Let's take up an illustrative example. Suppose the DSM
criteria set requires the presence of five of nine items, but the
patient presents instead with only four symptoms. In everyday
practice, DSM instructs the clinician to use his judgment
whether the patient should qualify for the diagnosis even if
the strict criteria are not met. Perhaps there are only four
symptoms, but each of these is present at the highest level of
severity, the patient is suicidal, and urgent treatment is obviously needed. DSM encourages the clinician to use his judgment and make the diagnosis, rather than follow the rules in
rote fashion. This reduces diagnostic reliability, but makes
clinical common sense and is the best guide to the patient's
treatment.
But the forensic situation is quite different. The forensic
experts' task is to present triers of fact with the most objective
and reliable evidence available (Melton et al., 2007). The DSM
diagnostic rules should be followed closely to avoid the arbitrariness and unreliability that is inherent whenever experts are
allowed to give undue weight to subjective judgment.
Unfortunately, the legal test for admissibility of mental
health expert testimony (i.e., to a reasonable degree of
medical/psychological certainty) does little to guarantee the
reliability or validity of proffered information. The concept
has no empirical meaning and is simply a mantra repeated by
experts for purposes of legal decision-makers who similarly
have no idea what it means (Faigman, 2010). In some states,
reasonable degree is legally defined as better than chance,

hardly much of an improvement.
DSM Cautionary Statements

DSM-III placed this short forensic caution in a prominent
place at the front of the book:
The purpose of DSM-III is to provide clear descriptions
of diagnostic categories in order to enable clinicians and
investigators to diagnose, communicate about, study
and treat various mental disorders. The use of this manual for non-clinical purposes, such a determination of
legal responsibility, competency or insanity, or justification for third-party payment, must be critically examined in each instance within the appropriate institutional
context. (DSM-III, p. 12, American Psychiatric Association, 1980)
This caution focused on the nonequivalence of DSM clinical definitions and the requirements of the legal system. In
order to provide more explanation concerning more specific
issues, the cautionary statement has been lengthened and
included as a separate section starting with DSM-III-R
(American Psychiatric Association, 1987). The cautionary
statement in DSM-5 (American Psychiatric Association,
2013) is significantly expanded (Table 1).
It would be useful for everyone involved in any legal case
that includes psychiatric diagnosis to read this caution before
making decisions about mental health and diagnostic issues. It
would be especially important for expert witnesses to keep the
cautions in mind as a check against speculations that go
beyond the range of valid application of DSM. Experts
should, in their reports and testimony, address and describe
in detail the factors that affect the reliability and validity of any
diagnosis proffered.
Whatever its failings, the DSM is an extremely useful guide
to what otherwise would be pretty much random forensic
diagnosis. However, it is not equivalent to legal criteria or
concepts (DSM-5, p. 25, American Psychiatric Association,
2013). The presence of a DSM-diagnosed mental disorder
does not imply that the disorder has caused the individual to
do any particular thing or that the disorder has impaired or does
now impair one's cognition, volition, emotion, perception, or
behavior in any particular way or degree. Awareness of these
DSM cautions should inform its every use in the courtroom.
The Significance of Clinical Significance

There are three requirements that must be satisfied before a
DSM mental disorder is diagnosed: (1) the requisite number of

Table 1 Cautionary statement in using the DSM-5 forensically
Paragraph Excerpt paraphrased
1
The primary aim of DSM-5 diagnostic criteria and text is to

assist in conducting clinical assessment, case formulation,
and treatment planning. Because it can also be used for
court and by attorneys in determining the forensic
consequences of mental disorders, it is important to note
that the DSM-5 definition of mental disorder was not
meant to meet all of the needs of court and attorneys.
When used appropriately, the DSM-5 provides diagnoses and
diagnostic information that can assist court and attorneys
in their work. For example, if the presence of a mental
disorder is required in legal determination (e.g.,
involuntary civil commitment), the DSM-5 provides an
established system of diagnosis that enhances the value
and reliability of the determination. Through its review of
the relevant clinical and research literature, DSM-5 may
help legal decision-makers to understand better the
pertinent characteristics of whatever mental disorder is at
issue. This literature also serves as a check on ungrounded
speculation in diagnosis and functioning for a case at hand.
Finally, the longitudinal course in a case may provide
information that helps improve decision-making when past
or future mental functioning is the legal issue.
However, users of the DSM-5 should be prudent about the
risks and limitations of using it forensically. In forensic
settings, it could be misused or misunderstood because the
DSM-5 is, first, a clinical manual and might not necessarily
fit the ultimate concern to court in a case at hand. The
clinical diagnosis of a DSM-5 mental disorder is not meant
to imply that the person involved (a) meets any legal
criteria for the presence of a mental disorder or (b) a
specified legal standard. Usually, what is missing in a
DSM-5 diagnosis pertinent in these regards is information
about the individual's functional impairments/particular
abilities in question. Any impairments, abilities, and
disabilities that might be associated with any DSM-5
diagnostic category are not meant to address a specific
legally relevant issue.
Use of the DSM-5 should not be used by insufficiently
trained individuals to assess for the presence of a mental
disorder. No DSM diagnosis informs sufficiently about (a)
the etiology or causes of the individual's mental disorder or
(b) the person's degree of control over behaviors that might
be associated with the disorder at issue. In cases in which
diminished control over one's behavior is a feature of the
disorder diagnosed, this does not in and of itself
demonstrate that the person involved is (or had been)
unable to control her or his behavior at a particular time.
Adopted from American Psychiatric Association (2013)
items included in the criteria set for that disorder must be

present; (2) these must not be better accounted for by
another condition (this requirement is meant to differentiate
this disorder from other possible mental disorders that might
present with similar symptoms and from human experiences
that are not disordered); and (3) the symptoms must cause
clinically significant disturbance in an individual's cognition,
emotional regulation, or behaviour that reflects a dysfunction

in the psychological, biological, or developmental processes
underlying mental functioning (DSM-5, p. 20, American
Psychiatric Association, 2013). The third caveat establishes
the boundary between mental disorder and normality and is
included because all of us sometimes have troubling experiences or symptoms that are not considered to be sufficient
evidence of mental disorder.
Although clinical significance is a key diagnostic concept, DSM provides only a general and tautological description of what is intended, without operational definition or a
specific criteria set to pin it down. It is, thus, left to the
individual clinician to use his own judgment in determining
whether the person's symptoms are at such level and causing
sufficient impairment to cross the fuzzy threshold from the
normal problems of everyday life to highly troubling problems to mental disorder. This is a subjective and, at the
borders, not a reliable determination, left deliberately vague
to allow the flexibility needed to deal with the bewildering
heterogeneity of diverse presentations encountered in clinical
practice.
The requirement that there be clinically significant distress
or impairment is a necessary but very fallible restriction
against overdiagnosis. It contains within it the circular argument that the clinician gets to decide arbitrarily what levels of
distress and impairment are severe enough to be considered
clinically significant. This seems to be a tolerable and necessary compromise in clinical work, but introduces idiosyncrasy
and imprecision in forensic determinations that should not
depend so heavily on what may be the arbitrary and unreliable
judgment of any given expert.
We must recognize and accept that there is no simple bright
line separating a normal presentation of distressful experience
from a very mild mental disorder. This uncertain state of
affairs is problematic enough even when diagnosis is used
only for planning treatment in the clinical situation. It is a
profound handicap in the forensic arena in which proof of
objectivity and appropriateness to the triable issues govern the
probative value of the proffered information.
The solution? There is no completely satisfying solution,
but the best bet is this: before making a diagnosis of mental
disorder that will be used for forensic decision-making, a high
threshold should be established for what constitutes reliable
and valid diagnostic evidence of clinically significant distress
or impairment. The distress and impairment should be so
extensive and obvious that most or all observers would agree
upon it. Ambiguous cases of possible disorder might qualify
for a clinical diagnosis to permit and facilitate treatment but do
not necessarily satisfy what should be a much more rigorous
forensic standard. Also, the expert should describe how his
threshold for clinical significance was met in the case at hand,
along with specific examples drawn from the items in the
DSM criteria set.
reliably determine what precisely was sexually arousing (i.e.,

the aggressive behavior, per se, or the sexual contact obtained
through the aggression).
Hundreds of evaluators have followed Doren's error,
resulting in the inappropriate psychiatric incarceration of thousands of rapists who have no real psychiatric diagnosis.
Uncritical adoption of Dorens invention was initially understandable since Doren was considered an authority in their
field. However, there should have been a bit more critical
analyses of the issue before adopting it in their forensic testimony as if it were a valid diagnosis. It is much more understandable that judges and jurieslaypersonswould accept
the supposedly expert testimony even though it is far off the
mark. While ignorance of the fine points of paraphilia diagnosis
might have been understandable at the start of implementation
of the SVP laws, there is no excuse for the continuing unreliable and unsupported use of Paraphilia NOS in SVP cases.
Many papers, blogs, and presentations have corrected
Doren's misinterpretation and the California Department of
Mental Health has enjoined evaluators to be much more
careful in following DSM diagnostic rules. This has improved
but not corrected the problem of forensic misdiagnosis. Some
evaluators continue to diagnose Paraphilia NOS in rapists just
because they have raped. They consistently proffer incompetent diagnostic information lacking in rationale or
supporting documentation. The rubric expert is awarded
to them by trial judges on the basis of broad strokes
concerning education and experiencenone of which includes examination of the reliability or validity of the
information to be proffered as expert. Their reports and
testimoniesfrom which layperson triers must make their
decisionsare filled with incorrect, idiosyncratic opinions
offered as definitively clinically diagnostic and as directly
addressing the statutorily defined SVP criteria. More often
than not, the result is the involuntary hospitalization as
mentally disordered of simple criminals who have already
served their apportioned prison terms.
How can such diagnostic errors be controlled? Attempting
to do so case by case with triers of fact who are not sufficiently
informed about the technical issues is unreliable, expensive,
time-consuming, and usually inaccurate. The process is also
unduly influenced by the descriptions of crimes committed
against innocent victims, and the common, erroneous belief
that only sick people do such crimes. If ever a rigorous
application of Daubert v. Merrell Dow Pharmaceuticals, Inc.
and what constitutes a relevant scientific community were
needed, it is here.
Use/Misuse of DSM in Child Custody Cases

DSM has the potential to be a double-edged sword in child
custody evaluations. The positive edge is that DSM provides
uniform criteria that increase the reliability of diagnoses and

improve estimates of how diagnostic features translate into
parenting. The negative edge shows itself especially in conflictual child custody disputes where diagnostic labels can
become little more than weapons in a sophisticated form of
name-calling. Court discussion often morphs into a futile
dispute about the meaning of the labels, shifting attention
away from the specific behavioral, emotional, and relational
issues that impact the child. Often enough, as soon as one side
says parent A has this, the other side brings in an opposing
expert to say it is not so, but that parent B has that. The
diagnoses (even inaccurate ones) tend to endure and take on a
life of their own long after any useful function may have been
served
Custody battles can become the most painful, disorienting,
and distressing of human experiences. The diagnostic evaluations typically take place at the worst period in the lives of the
principals and often bring out the worst in them. Breakup of a
family is a tremendous stress to all concerned and causes
symptoms that may not be typical of the individuals' past or
future functioning. By the time a court has to order a child
custody evaluation, the parents and children are typically
experiencing psychological distress and personal and interpersonal dysfunction. Even those who are usually resilient during
times of great difficulty may now become anxious, sad, angry,
scared, erratic, on a rollercoaster of emotions and impulsivity,
and less able to appropriately tend to the needs of their
children (or themselves). Whatever are their usual cognitive
and behavioral tendencies will be exaggerated as they strive to
right themselves. They may also exaggerate their usual parenting patterns or make frantic efforts to modify them.
Evaluators must take into account that participants are often
presenting at their worst as they try to present their best.
DSM terms have become so familiar to the mainstream
population that they can serve as convenient slurs, subject to
ongoing misinterpretation and misuse in the service of whatever current bone the principals are chewing on. The labels
sometimes themselves become the bones. The diagnostic
argument joins and aggravates all of the other arguments and
the children suffer as the discussion drifts ever further away
from the issues that really count (Bricklin, 2013).
Careless overdiagnosis is also often applied to children
who may in fact be experiencing no more than an expectable
reaction to family conflict and future uncertainties. Even
under the best of circumstances, children are always hard to
diagnose accurately because their symptoms may be no more
than transient manifestations of developmental blips, environmental stress, or drug/medication use. Labels, on the other
hand, tend to stick around, sometimes because one side or
both find it useful to preserve them as an ace up the sleeve.
Diagnosing children in the heat of a fierce marital battle (and
under the distorting light of an adversarial legal conflict) is
usually uninformative and often harmful. Children should be
protected from shotgun diagnoses, not saddled, perhaps permanently, with inaccurate and stigmatizing labels.
Whenever a custody battle hits the courtroom, the law
favors open access to all records and the privacy of all the
principals is lost. Everything the evaluators have written is
discoverable for trial purposes and, once included in the court
record, becomes part of the permanent public record. The
parties lose control over access and are not allowed to agree
among themselves to seal parts of the court file (Hogoboom &
King, 1998) even when such privacy would be in the best
interests of all concerned. The most reasonable assumption to
make is that psychiatric and psychological diagnostic information will likely have no privilege and potentially may cause
embarrassment and harm. The DSM's caveat that there are
significant risks that diagnostic information will be misused
or misunderstood is nowhere more apropos than in custody
battles.
All this said, psychiatric diagnosis done well and for the
right reasons (and not in an adversarial spirit) is often necessary, sometimes essential in the custody situation and can be
of immense value in the lives of everyone involved.
criteria sets for pertinent diagnoses. Everything should be

documented: the diagnostic method used, the data gathered,
and how the data fits and does not fit the diagnostic criteria.
All affirmative evidence supporting the presence or absence of
each DSM criterion item should be illustrated with convincing
examples; all pertinent alternative differential diagnoses that
might account for the same symptoms and behaviors should
be considered and the rationale for ruling them out clearly
described. Exotic, rare diagnoses and diagnostic theories
should arouse skepticism and require extraordinary supportive
evidence. Not Elsewhere Classified, Other Specified, and
Unspecified diagnoses are provided in the DSM only to
allow for clinical flexibility; they are without fitness criteria
and are inherently unreliable, hence, of no validity and, therefore, unsuitable for forensic cases.
Even if a psychiatric diagnosis is the reliable and accurate
result of appropriate evaluation methods and proper documentation, it still may not be helpful in answering the questions
posed by the legal system. DSM provides explicit cautions
that its clinical descriptions of mental disorder do not always
map well with legal concepts of mental illness or abnormality.
This is an inherent tension that accurate psychiatric diagnosis
can reduce, but not eliminate.
Conclusions
Legal proceedings often require that experts conduct evaluations and render psychiatric diagnoses. The DSM criteria sets,
with all their imperfections, provide the best tool for experts to
achieve a reliable and accurate judgment on the presence or
absence of specific mental disorders, but the evaluations must
be carefully done. The DSM must be closely adhered to and
the limitations of psychiatric diagnosis in the legal setting
must be understood, factored into diagnostic considerations,
and clearly described. In our experience, many witnesses
qualified by courts as mental health experts offer psychiatric
diagnoses that are inaccurate and very far from expert.
DSM offers clinicians a good deal of leeway to exercise
flexible clinical judgment, allowing them to tailor diagnosis
and treatment to the particular needs of the individual patient.
The standards for systematic diagnostic assessment and adherence to DSM diagnostic rules, rigor, and reliability must be
set much higher in forensic than in clinical settings. There is
no place for idiosyncratic, impressionistic diagnostic opinions
that express the views of that expert but do not follow the rules
of the diagnostic manual. Without close adherence to the
DSM criteria sets, there can be no reliability. Without reliability, there can be no validity, and the psychiatric diagnosis may
actually be worse than worthless since inaccurate psychiatric
diagnosis is very misleading in legal decision-making.
Semi-structured DSM clinical interviews are useful in reducing information variance about clinical diagnosis and in
increasing reliability. If these are not used, there should be a
systematic evaluation of each of the items that make up the
References
American Psychiatric Association. (1980). Diagnostic and statistical
manual of mental disorders (3rd ed.). Washington, DC: American
Psychiatric Association.
manual of mental disorders (3rd ed., rev.). Washington, DC:
American Psychiatric Association.
manual of mental disorders (4th ed.). Washington, DC: American
Psychiatric Association.
American Psychiatric Association. (1999). Dangerous sex offenders: A
task force report of the American Psychiatric Association .
Washington, DC: American Psychiatric Association.
manual of mental disorders: DSM-IV-TR (4th ed., text rev.).
Washington, DC: American Psychiatric Association.
manual of mental disorders: DSM-V (5th ed.). Washington, DC:
American Psychiatric Association.
Bricklin, B. (2013). The custody evaluation handbook: Research based
solutions & applications (e-book). New York: Routledge.
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786 (1993).
Doren, D. M. (2002). Evaluating sex offenders: A manual for civil
commitment and beyond. Thousand Oaks: Sage.
Faigman, D. (2010). Evidentiary incommensurability: A preliminary
exploration of the problem of reasoning from general scientific data
to individualized legal decision making. Brooklyn Law Review, 75,
11151136.
First, M., & Pincus, H. (2002). The DSM-IV text revision: Rationale and
potential impact on clinical practice. Psychiatric Service, 53, 288
292.

Frances, A., Widiger, T., & Pincus, H. (1989). The development of DSMIV. Archives of General Psychiatry, 46, 373375.
Frye v. United States, 293 F. 1013, 34 ALR 145 (D.C. Cir. 1923).
Halon, R. L. (2009). Clinical versus forensic psychology: The twain
never meets. Critical book review of Mental Disorder and
Criminal Law: Responsibility, Punishment and Competence by R.
Schopp, R. L. Wiener, B. H. Bornstein, & S. L. Willborn (Eds.).
PsycCRITIQUES, 54(37).
Hogoboom, W., & King, D. (1998). California practice guide: Family
law. Eagan: Thomson Reuters.
Kansas v. Hendricks, U.S. 521 US 346 (1997).
Kendell, R. E. (1975). The role of diagnosis in psychiatry. Philadelphia:
Blackwell Scientific.
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: Guilford.
Regier, D. A., Narrow, W. E., Clarke, D. E., Kraemer, H. C., Kuramoto, S. J.,
Kuhl, E. A., & Kupfer, D. J. (2013). DSM-5 field trials in the United
States and Canada, part II: Testretest reliability of selected categorical
diagnoses. American Journal of Psychiatry, 170, 5970.
Sartorious, N., stn, T. B., Costa e Silva, J.-A., Goldberg, D.,
Lecrubier, Y., Ormel, J., ... Witchen, H. U. (1993). An international
study of psychological problems in primary care: Preliminary report
from the World Health Organization collaborative project on psychological problems in general health care. Archives of General
Psychiatry, 50, 819824.

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ETHICAL ISSUES IN CONDUCTING

UNIQUE NATURE OF FORENSIC MENTAL HEALTH

For the therapist, the client is the individual presenting for

Correspondence concerning this article should be addressed to Karen Kalmbach, Ph.D.,

Applied Psychology in Criminal Justice, 2006, 2(3)

262 ETHICAL ISSUES

The content of the clinical forensic interview tends to be much

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 263

Applied Psychology in Criminal Justice, 2006, 2(3)

264 ETHICAL ISSUES

(b) Other professionals or agencies who will have access to

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 265

Applied Psychology in Criminal Justice, 2006, 2(3)

266 ETHICAL ISSUES

individuals with mental retardation may not be easily identified as

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 267

evidence, or testimony. (Specialty Guidelines for Forensic Psychologists, VI[H], 1991)

Applied Psychology in Criminal Justice, 2006, 2(3)

268 ETHICAL ISSUES

LEGAL PRIVILEGE, LIMITS ON CONFIDENTIALITY,

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 269

Texas law specifically circumscribes the use of defendant

Applied Psychology in Criminal Justice, 2006, 2(3)

270 ETHICAL ISSUES

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 271

attorney wants to be present during the interview, evaluators have

education and training (e.g., graduate training,

Applied Psychology in Criminal Justice, 2006, 2(3)

272 ETHICAL ISSUES

Texas has adopted new statutory provisions relating to

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 273

various issues and facts of the case prior to trial. The

Applied Psychology in Criminal Justice, 2006, 2(3)

274 ETHICAL ISSUES

Is the test directly relevant to the psycholegal issue at

For every test administered and reported, the MHP must

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 275

Applied Psychology in Criminal Justice, 2006, 2(3)

276 ETHICAL ISSUES

Shifting the lens

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 277

Clinicians should also take care in the conceptualization of

Applied Psychology in Criminal Justice, 2006, 2(3)

278 ETHICAL ISSUES

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 279

Applied Psychology in Criminal Justice, 2006, 2(3)

280 ETHICAL ISSUES

Applied Psychology in Criminal Justice, 2006, 2(3)

KALMBACH & LYONS 281

Applied Psychology in Criminal Justice, 2006, 2(3)

282 ETHICAL ISSUES