Psychological Assessment in Forensic Settings Research Paper

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On the cusp of the new millennium, the American Academy of Forensic Psychology and the American Psychology Law Society/Division 41 of the American Psychological Association (APA) prepared a petition to have forensic psychology recognized as a specialty area (Heilbrun, Bank, Follingstad, & Frederick, 2000). At the meeting of the APA Council of Representatives in August, 2001, the council voted to recognize Forensic Psychology as a specialty area of psychology. Although this recognition is timely, psychology’s first entrance to the courts occurred in the early 1900s (Ogloff, 2000). At that time, expert witnesses in psychology appeared in court in their capacity as experimental rather than clinical psychologists (Ogloff, Tomkins, & Bersoff, 1996). This is because clinical psychology as a discipline did not exist at that time. In the 1940s, following the end of World War II, there was an enormous growth in clinical psychology (Ogloff et al., 1996). It was then that clinical psychologists began to make their way into the courts.

Although clinical psychologists gave evidence sporadically in cases in the United States as early as the 1940s (e.g., People v. Hawthorne, 1940), it was in 1962 that the U.S. Court of Appeals for the District of Columbia clearly recognized clinical psychologists as experts in courts. In Jenkins v. U.S., the trial court judge instructed the jury to disregard a psychologist’s testimony, holding that psychologists were not qualified to diagnose mental illness. The U.S. Court of Appeals, sitting en banc, held that a psychologist’s lack of medical training could not, in and of itself, be used to justify an automatic disqualification of psychological testimony. Instead, it asserted that consideration of whether a psychologist could testify required the court to look at the knowledge and experience of a particular witness and the probative value of his or her opinion.

Following Jenkins, courts around the United States began to recognize clinical psychologists as expert witnesses in a variety of cases (Ogloff et at., 1996; Melton, Petrila, Poythress, & Slobogin, 1997).Although the road to recognition was long and often bumpy, psychologists are now generally seen by the courts and others in the legal system as competent, independent mental health professionals (Melton et al., 1997).

As psychologists were recognized as experts by the courts, the field of forensic psychology emerged. The development of forensic psychology included the emergence of doctoral training programs in forensic psychology, as well as numerous journals and professional associations (Grisso, 1987, 1991; Ogloff, 1990, 2000; Ogloff et al., 1996; Otto & Heilbrun, 2002; Otto, Heilbrun, & Grisso, 1990). By 1987, Melton (1987) wrote that law and psychology—and forensic psychology—was “psychology’s growth industry” (p. 681). Although it was written some15 years ago, Melton’s prognostication has been realized.

Driven largely by the inherent challenge in the work, and partly out of economic necessity due to factors like managed health care, increasingly more psychologists find themselves conducting forensic assessments (see Otto & Heilbrun, 2002, for a review of many important developments that have occurred in forensic psychology since the 1980s).

The term forensic in forensic psychology and, in particular, forensic psychological assessments implies that these tools will be employed in the legal system. Given its very serious nature, many unique issues arise in clinical forensic work (Ogloff, 1999a). A review of the field of forensic psychology, or the many issues that arise in forensic assessments, is beyond the scope of this research paper. Many of the issues that we discuss in this research paper are covered in a more general context in volume 11 of this series, a volume dedicated entirely to forensic psychology. However, due to the growth of forensic psychology, and because of the large number of mainstream clinical psychologists who are conducting forensic assessment, we shall provide some foundational information about forensic psychology and highlight some of the contemporary issues that exist in this field. Finally, we shall also look to the future to identify possible issues that will arise.

By way of background, we shall define forensic psychology and discuss where forensic psychology fits within clinical psychology. We shall also note the interface between forensic psychology and law and outline criminal and civil topics addressed by forensic psychologists. Because forensic assessments are grounded in law, it is important to review the legal contours of forensic assessments as well as the legal admissibility of forensic assessments into evidence.

Among the contemporary issues in forensic psychological assessments that will be reviewed in this research paper are clinical versus actuarial prediction models in assessments of risk for violence, the legally informed practitioner model, the roles and limits of general psychological testing in forensic contexts, legal specificity, and training and credentialing in forensic psychology.

Defining Clinical Forensic Psychology

Historically, forensic psychology has evolved as a broad field that includes any application of psychology to the legal field (Brigham, 1999; Ogloff, 2000). This broad construal of the field includes everything from psychological research into legal matters such as eyewitness memory or jury decisionmaking to applied clinical areas including psychological assessment of defendants for court. For the purposes of this research paper, we shall rely on a narrower definition: “Forensic psychology will be defined as the professional practice by psychologists within the areas of clinical psychology, counseling psychology, neuropsychology, and school psychology, when they are engaged regularly as experts and represent themselves as such, in an activity primarily intended to provide professional psychological expertise to the legal system” (Heilbrun et al., 2000). Although it is still broad, this working definition focuses on the applied clinical aspects of forensic psychology. Therefore, the definition does not include the work done by experimental psychologists who work in the field of psychology and law. Because we are discussing forensic assessment, the definition focuses on assessments conducted by professional psychologists for the courts, or for the legal system more broadly construed. This definition does not encompass the practice of those neuropsychologists or clinical, counseling, or school psychologists whose work only occasionally makes its way into the legal system.

Where Forensic Psychology Fits Within Clinical Psychology

Generally speaking, forensic assessments can be construed as specialized clinical psychological assessments (Melton et al., 1997; Otto & Heilbrun, 2002). As such, forensic assessments build upon the foundational training, knowledge, and experience of clinical psychology. Given the range and depth of specialized knowledge in forensic psychology, however, we must emphasize that a significant degree of expertise is required to competently conduct forensic assessments (Ogloff, 1999a). Others have noted, correctly, that forensic evaluations that were conducted by psychologists in the past did not differ from general clinical assessments (Grisso, 1987; Heilbrun, Rogers, & Otto, 2002). As the field of forensic psychology has evolved over the past 20 years, though, the methods, instruments, and general skills of forensic psychologists have emerged as differing significantly from those employed in general clinical assessments (Heilbrun et al., 2002).

The development of forensic psychology as an area of specialization within psychology has been evidenced, for example, by the development of Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991), which were promulgated by the American Psychology-Law Society and the American Academy of Forensic Psychology. In addition, with the 1992 version of the Ethical Principles of Psychologists and Code of Conduct, the APA (1992) recognized the need for specific provisions in the code for forensic psychology (see Ethical Standards 7.01–7.06; see Ogloff, 1999a, for a review of the ethical issues in forensic psychology). Moreover, as noted at the outset, the APA Council has recently recognized forensic psychology as a new specialty area within psychology.

Psychological assessments make their way into the courts or the legal system in one of two general ways. First, psychological assessments may be drawn into a legal context unexpectedly. For example, a clinical psychologist may have conducted an assessment on an individual for employmentrelated purposes. At some point in the future, the assessment could be subpoenaed or otherwise compelled by the court after the individual is in an automobile accident and the assessment is relevant as evidence of premorbid cognitive functioning. Such assessments cannot properly be referred to as forensic assessments because they are completed for some purpose outside the forensic context. Therefore, the psychologist conducting the assessments would not be held to the standards of the Specialty Guidelines for Forensic Psychologists. The APAhas promulgated two sets of aspirational practice guidelines of particular relevance to forensic psychology. In 1994, the APA adopted the Guidelines for Child Custody Evaluations in Divorce Proceedings (American Psychological Association, 1994). Then, in 1998, the APA adopted the “Guidelines for Psychological Evaluations in Child Protection Matters” (American Psychological Association Committee on Professional Practice and Standards, 1998). Although such guidelines are described as being merely aspirational, courts can look to them to help provide an indication of the standard of practice within the field.

Second, psychological assessments can be ordered by courts or otherwise requested specifically for legal purposes. These assessments—in which the psychologist specifically sets out in an assessment to address some legal question—can be properly referred to as forensic assessments. The psychologist conducting them would be required to adhere to the requirements of the APA Ethical Principles of Psychologists (American Psychological Association, 1992), including those that pertain to forensic psychology. In addition, to the extent that the Specialty Guidelines for Forensic Psychologists (Committee on Ethical Guidelines for Forensic Psychologists, 1991) are seen as establishing a standard of care in forensic psychology, those doing forensic assessments are advised to follow them (Ogloff, 1999a).

The Need for Professional Competence in Forensic Psychology

Regardless of their role, forensic psychologists are still obligated to comply with general ethical guidelines, principles, and standards. For example, the Ethical Principles of Psychologists and Code of Conduct (American PsychologicalAssociation, 1992) provide that “psychologists who perform forensic functions, such as assessments, interviews, consultations, reports, or expert testimony, must comply with all other provisions of this Ethics Code to the extent that they apply to such activities” (APA Standard 7.01). In addition, though, the ethics code further requires that “psychologists base their forensic work on appropriate knowledge of and competence in the areas underlying such work, including specialized knowledge concerning special populations” (APA Standard 7.01).

The Specialty Guidelines “provide an aspirational model of desirable professional practice by psychologists, within any subdiscipline of psychology (e.g., clinical, developmental, social, experimental), when they are engaged regularly as experts and represent themselves as such, in an activity primarily intended to provide professional psychological expertise to the judicial system” (p. 656). Thus, psychologists are obligated to adhere to the standards provided in the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association, 1992), whereas the Specialty Guidelines are aspirational in nature and “do not represent an official statement of the American Psychological Association” (p. 656). Nonetheless, the Specialty Guidelines can be seen as contributing to the establishment of a standard of care in forensic psychology. Canadian readers are referred to the revised Canadian Code of Ethics for Psychologists (Canadian Psychological Association, 2000). Psychologists from other countries or jurisdictions must consult the codes that are relevant in their areas.

Although a review of the ethical principles that govern forensic psychology is not necessary here, it is important to emphasize that those psychologists who conduct forensic assessments are obligated to ensure that they are competent in their work (Ogloff, 1999a). Although this might appear obvious, in our experience it is surprising how many clinical psychologists begin doing forensic assessments without proper training or experience, only to find themselves experiencing difficulties either by virtue of their lack of appropriate experience or by becoming the subject of an ethics complaint. Of course, psychologists are ethically obligated to be professionally competent in any realm in which they work. For example, the APA Ethics Code requires that “psychologists provide services, teach, and conduct research only within the boundaries of their competence, based on their training, supervised experience, or appropriate professional experience” (APAStandard 1.04; see alsoAPAStandard 7.01). Therefore, psychologists who work in the legal arena must have professional competence in forensic psychology generally. Furthermore, if the psychologist engages in psychological services that require more specialized training, the psychologist must also demonstrate professional competence in that area of subspecialty (e.g., assessment and treatment of sexual offenders, forensic neuropsychological assessment).

As noted in the ethics code of the APA (Standard 1.04; see also Specialty Guideline III), generally speaking, professional competence in an area of specialization may be obtained and demonstrated by a combination of education and training, supervised experience by a registered psychologist with expertise in the area of specialization, and reading and research in the area of specialization. There is no clear rule about what constitutes professional competence in any given area; however, if challenged, the psychologist bears the burden of demonstrating his or her competence.

In addition to matters concerning the boundaries of their professional competence, forensic psychologists are obligated to have afundamental understandingof thelegal and professional standards in their area (Specialty Guideline III[C]), and they must understand the legal rights of the parties with whom they come into contact to ensure that they do not unwittingly abrogate those rights (Specialty Guideline III[D]). Although it is certainly not necessary for a forensic psychologist to have a law degree, forensic psychologists are ethically obligated to ensure that they become thoroughly familiar with the law that is relevant to their areas of practice.

The Scope of Forensic Psychological Assessments

Given that every law, no matter how simple or complex, has but one purpose—to control human behavior—it should come as no surprise that the range of topics in which forensic assessments can be requested is broad (Ogloff, 2001). We shall present the major divisions of law here and briefly discuss the topics in which forensic psychologists might be retained to conduct assessments. Most readers will have some familiarity with the general areas of law; therefore, this review will focus on the areas most relevant to forensic psychology. Law is generally divided into several areas defined by the nature of issues that emerge (see Rose, 2001, for a discussion of the divisions of law relevant to forensic psychology; see Melton et al., 1997, for a comprehensive review of these areas that are relevant to forensic psychology). The most common division in law is between criminal law and civil law. Criminal law is an area of law that is considered to be public law because crimes are considered to be acts against the public good. In the United States, for example, when one is charged with committing a crime, the case is referred to as “the people,” “the state,” or “the commonwealth” against the defendant. In countries within the Commonwealth of Nations, such as Britain, Canada, or Australia, cases are referred to as “the Queen” or “Regina” against the defendant because Queen Elizabeth II is the head of state of nations in the Commonwealth.

Within criminal law, there are many matters regarding which a forensic psychologist could be requested to conductan assessment. The types of assessment that might be requested include presentence court assessments, pretrial assessments— such as evaluations of competence or fitness to stand trial and mental state at the time of the offense—sentencing evaluations, and other court-ordered or quasi-legal assessments. In criminal matters, psychologists can be retained by the prosecution, the defense, or, in some cases, the court itself. Criminal matters can involve either adult or juvenile defendants, although the specific legal issues that arise and the relevant legal standards will probably differ between these populations.

Beyond criminal law, there is a large area of law known as civil law. Unlike criminal law, civil law is an area of private law because it has developed to resolve conflicts between private parties or companies. Civil law includes the enforcement of contracts and the resolution of private wrongs between individuals or companies. Such wrongs can include matters such as trespass, personal injury, libel or slander, false imprisonment, conversion, and so on. In such matters, the legal dispute is between two or more people or companies who have turned to the courts to resolve the dispute in a fair and impartial manner. Unlike criminal law, then, civil lawsuits name the two or more parties or companies that are in dispute (e.g., Jones v. Gonzales). Forensic assessments can be required in these areas for establishing the extent of personal injury (e.g., cognitive impairment or emotional harm), worker’s compensation, capacity to make a will, and other matters.

The final major area of law in which forensic psychologists are routinely called upon to conduct assessments is family law. Family law concerns marriage and divorce, custody of children, division of assets, and financial maintenance for the support of family members (or former family members). Psychologists are retained most commonly to conduct assessments to assist courts in deciding matters like the custody of and access to children or matters related to the apprehension of children from their parents by child protective service agencies. Less frequently, psychologists may be asked to conduct assessments of parties in family disputes for matters such as capacity to marry.

Legal Parameters of Forensic Assessments

The Legal Contours of Forensic Assessments

The primary purpose of most forensic assessments is to assist legal decision-makers to come to a legal decision. Of course, as reviewed above, there are myriad legal decisions to which forensic psychological assessments may contribute relevant information. The common thread that runs throughout these diverse areasof law and, subsequently, forensic assessment, is that legal decisions must be made. The legal decision-maker may be judicial (e.g., a judge or jury) or quasi-judicial (administrative tribunal) in nature, and the source of authority may arise from statute, quasi-statute (regulations, bylaws), or common law.

Regardless of the nature and source of the legal decision that must be made, there are specific legal criteria that will be the basis for the decision. In avery real sense, the legal criteria may be considered the referral questions that underlie the request for forensic assessment. For example, a statute may require that in order to be found incompetent to stand trial, defendants, due to mental impairment or mental disorder, must be unable to understand the nature of the charges against them, to understand the outcome and implications of the case, or to communicate with and instruct their lawyers. In this case, the psychologist conducting an assessment of competence to stand trial must address each of the legal criteria to provide the court with the information necessary to decide whether the defendant is competent to stand trial. As this example shows, the forensic assessment must be linked to the elements of the law that requires the assessment to be completed.

Like any referral question, then, it is ultimately the legal criteria that the forensic psychological assessment must inform. Given this reality, forensic assessments may be considered inherently legal in nature. In many situations, such assessments are mandated by the same legal source (i.e., statute or regulation) that gives the legal decision-maker jurisdiction to decide the issue. In others, the authority is permissive: For example, litigants may choose to offer expert evidence to the court, although such evidence is not required by statute.

As discussed earlier in this research paper, the legal context of forensic psychological assessment is largely what sets it apart from other types of psychological assessments. The practical implication of this situation is that the law dictates, to a lesser or greater degree depending upon the issue, the areas that must be addressed in a forensic psychological assessment. This places some constraints on the freedom that clinicians have in determining what their assessments should cover. Moreover, assessments that either do not address the legal criteria or stray too far beyond the legal questions being asked are not helpful to the courts. The goal for any forensic assessment is to provide an optimal fit between the legal requirements and the corresponding psychological assessment, such that the findings of the assessment optimally map onto the legal criteria that will guide the decision-maker’s conclusions.

For forensic clinicians and researchers to provide legally informed assessments and clinical research, it is necessary for them to be knowledgeable about the law that is relevant to their assessments. As discussed earlier, ethical guidelines from both the APA (1992) and the Canadian Psychological Association (2000) require that psychologists have knowledge of the context in which they practice. For forensic psychologists, this context is the law.

Psycholegal Content Analysis: A Method and an Example

Forensic assessment is advanced through a procedure that may be called psycholegal content analysis (Douglas, 2000; Ogloff, Roberts, & Roesch, 1993). Assessment questions are derived from legal standards and requirements, and, to the extent that these legal standards vary, so too may the assessment questions. Further, to the extent that these legal-assessment questions vary, so too ought the research corpus vary in order to be responsive to the legal-assessment task. This is especially important according to a scientist-practitioner approach, as will be described below.

A psycholegal content analysis requires the following steps. First, the source of the legal authority governing the forensic assessment question—typically a statute—is identified. Statutory principles or requirements provided by that authority that are relevant for the assessment should then be distilled. If there are other legal mechanisms that expand upon the original legal authority—typically legal cases that interpret the statute—these are analyzed for, again, principles that are relevant to the assessment task. Once these assessmentrelevant legal principles are distilled and organized, the psychological knowledge or strategies that map onto these legal principles can be discerned. Concerning assessment-related research, study questions can be devised that inform the assessment questions, which themselves have been informed by assessment-related legal principles. In essence, this method combines traditional legal research with psychological traditions of clinical assessment and empirical study. Here, the clinical assessment procedures and research study questions are informed, shaped, or determined by the legal parameters or principles.

Melton et al. (1997) provide numerous illustrations of how clinical-forensic assessments ought to be informed by prevailing relevant legal standards. They have provided both legal and psychological analysis throughout their comprehensive analysis of psychology’s application to law. Their book, Psychological Evaluations for the Courts (second edition), discusses the legal context, as well as psychological tasks, for numerous applications of psychology and psychiatry to law (e.g., competence, family law, criminal responsibility, civil commitment, violence prediction). In general, they reasoned that it is essential for forensic tests and assessment measures to inform the specific legal judgment that is called for; tests that were not developed or validated within legal contexts and according to legal principles, they argued, should be used with great caution in forensic assessment arenas. As well, in places they highlight the difficulties for clinical practice posed by varying legal definitions and standards across jurisdictions and settings.

The area of violence risk assessment is illustrative of the parameters set by law on forensic assessment. Melton et al. (1997) point out that “dangerousness,” legally, can been satisfied in various settings and jurisdictions by extremely diverse outcome criteria. For instance, harm to property or emotional harm may satisfy criteria in some settings and in some jurisdictions (e.g., involuntary civil commitment), whereas in other settings (e.g., death penalty cases or dangerous offender cases; Heilbrun, Ogloff, & Picarello, 1999) the outcome criterion is serious physical violence. These differing legal criteria have implications for the forensic assessment that is carried out and the research that can be used to support theassessment procedures.

Heilbrun (1997) discussed in some depth how different legal contexts have different implications for the most appropriate clinical and scientific approaches to violence risk assessment. For instance, in some settings, such as involuntary civil commitment, the immediate goal may be to maximize the accuracy of the prediction, whereas in others, such as graduated release of those found not guilty by reason of insanity, the goal may be ongoing management. Clearly, the legal questions that arise under these two legal contexts call for different assessment strategies and, correspondingly, different research strategies to inform the clinical endeavors.

As Heilbrun (1997) explains, clinicians faced with management-related legal questions (e.g., can this person’s risk reasonably be managed in the community, and under what circumstances?) may be faced with a somewhat different task if the legal question is more heavily weighted toward pure prediction. Similarly, researchers interested in evaluating risk assessment strategies that pertain to one or the other legal context will probably chose different approaches (e.g., the use of survival analysis with time-dependent covariates in the former case and receiver operating characteristic analysis in the latter).

As previously noted, Heilbrun’s (1997) analysis used two legal contexts to illustrate his points (civil commitment and release of insanity acquittees). There are literally dozens of others from which he could have chosen (see, for example, Lyon, Hart, & Webster, 2001; Shah, 1978). An additional level of complexity is introduced when one makes cross-jurisdictional comparisons of legal context on top of such legally substantive comparisons. For instance, does the legal setting for civil commitment in, say, California, mirror that in Florida? How similar is either of these to the regimes in the Canadian provinces of Ontario or British Columbia? Douglas and Koch (2001) have described how the statutory criteria for involuntary civil commitment vary tremendously across Canadian jurisdictions alone in terms of risk-relevant requirements. In turn, this means that the nature of forensic assessment of violence risk across these jurisdictions will also vary. In the United States, there are 50 states across which statutory and case law requirements for civil commitment may vary.

The main points to be taken from this discussion are that(a) the law either shapes or sets the parameters of forensic assessment, and (b) both clinical-forensic assessment and assessment-related research need to be informed by the differing legal requirements that bear upon an assessment question (e.g., violence risk assessment), with respect to both different legal areas (e.g., civil commitment versus release of insanity acquittees) and different legal jurisdictions.

The Admissibility of Forensic Assessments Into Evidence

Although a comprehensive review of the admissibility of psychological evidence is beyond the scope of this research paper, it is important to highlight the relevant legal criteria that courts consider when deciding whether the evidence of a psychologist will be admissible as expert opinion evidence. The specific rules of evidence vary across states and in federal court. Although the Federal Rules of Evidence (FRE) is federal law, many states have incorporated at least some portion of the FRE into their evidence legislation. As with any law that relates to their work, readers should determine the specific local laws that are relevant to the admissibility of expert testimony. In interpreting the FRE, we will take note of Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993) and Kuhmo Tire Co. v. Carmichael (1999), two of the United States Supreme Court decisions that have considered the standard of acceptance for the admission of scientific evidence.

To be admissible, the psychological evidence must first be found by the court to be relevant. That means that the information provided by the psychological assessment must be related to some matter at issue in the case. Second, the court must be assured that the probative value of the psychologist’s evidence is not outweighed by its prejudicial value. This means that the value of the expert’s testimony will not be unduly outweighed by the expert’s influence on the jury.

After the court has determined whether the expert testimony is relevant and that its probative weight outweighs its prejudicial value, the court can turn to a direct review of the expert testimony itself. The relevant provisions of the FRE governing expert testimony include FRE 702 (testimony by experts), FRE 703 (basis of opinion testimony by experts), FRE 704 (opinion on ultimate issue), and FRE 705 (disclosure of facts or data underlying expert opinion).

For expert testimony to be admissible under FRE 702, three requirements must be satisfied: (a) the judge or jury must require the assistance of the expert’s testimony; (b) the expert must be qualified to offer an opinion; and (c) if the expert relies on scientific facts or data, the facts or data must be “reasonably relied upon by experts in [the] particular field.” In addition, FRE 702 specifies that the expert’s testimony may be in the form of an opinion. Unlike all other witnesses who give evidence in trials, only experts are permitted to state their opinions about matters at issue in the case. Other witnesses must only report fact-based information—that is, information about which they have first-hand knowledge (i.e., what they have seen or heard). Due to their expertise and the fact that their evidence is required to assist the judge or jury, experts are permitted to provide both fact-based information and opinion evidence.

Considerable controversy has surrounded the question of how a court determines whether the information presented by experts was “reasonably relied upon by experts in [the] particular field. ”Prior to the adoption of the FRE, and in some states even following their adoption, courts relied on the Frye Test (Frye v. U.S., 1923) to determine whether the scientific evidence on which expert testimony is based should be admitted into evidence at trial. To satisfy the Frye Test, an expert witness who offered opinion evidence had to demonstrate not only that the methods relied upon are generally accepted, but that they are used in the relevant areas of the expert’s area of expertise and that the techniques he or she employed comported with the state of the art in the field.

The Frye Test enjoyed widespread use and endorsement by federal and state courts until Congress adopted the FRE in 1976. From that time, considerable controversy arose regarding the extent to which the test for the admissibility of novel scientific evidence in Frye remained applicable, with different courts arriving at different conclusions. In 1993, the U.S. Supreme Court resolved the controversy by holding in Daubert v. Merrell Dow Pharmaceuticals (1993) that the Frye Test’s general acceptance requirement “is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence” (p. 597). In Daubert (1993), two infants and their parents brought a lawsuit against a pharmaceutical company, arguing that the mothers’ prenatal ingestion of the drug Bendectin caused serious birth defects in the infants. During the trial, the testimony of an expert concluded that the corpus of scientific test results on the drug did not show that it was a significant risk factor for birth defects.As a result, the trial court decided in favor of the drug company. On appeal, the U.S. Court of Appeal for the Ninth Circuit relied on the Frye Test and affirmed the lower court’s decision. In overruling the decision, the U.S. Supreme Court held that nothing in the FRE incorporated Frye’s general acceptance rule and that “a rigid ‘general acceptance’ requirement would be at odds with the ‘liberal thrust’ of the Federal Rules and their ‘general approach of relaxing the traditional barriers to ‘opinion’ testimony” (p. 588).

Some states still employ the Frye Test to ensure that the expert testimony is based on principles that are generally accepted by the field in which it is offered. Other jurisdictions have adopted the approach set out in Daubert. As with other points of law, psychologists should acquaint themselves with the standard of the admissibility of expert evidence that is in force in their jurisdiction.

In footnote 11 of their decision, the Supreme Court in Daubert provided further guidance that an assessment of scientific knowledge, as is mentioned in FRE 702, “entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid” (p.592). In addition, the court noted that scientific validity asks the question “does the principle support what it purports to show?” (p. 590). Finally, in 1999, the United States Supreme Court explicitly expanded its ruling in Daubert to federal judges’ consideration of all expert evidence (Kuhmo Tire Co. v. Carmichael, 1999).

Once the court has ensured that the techniques on which the proposed expert testimony is based are valid, the court must decide whether the proposed witness is qualified as an expert in the area in question (FRE 702). Awitness may qualify as an expert based on his or her training or education, knowledge, skill, or experience. Typically, it is not difficult for psychologists to qualify as experts, providing that they demonstrate sufficient training and knowledge about techniques that are employed in a particular area.

The final FRE specifically governing the admissibility of expert testimony involves the expert’s opinion on the ultimate issue (FRE 704). Ultimate-issue opinions directly address the legal question being asked (e.g., whether the deceased was competent to make a will, or whether the deceased died as the result of an accident or committed suicide). Authorities from the legal and mental health disciplines have debated whether experts should offer opinions that are similar, or parallel, to the ultimate legal issue (Melton et al., 1997). Regardless of this debate, FRE 704 provides that “testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” There is one major exception to allowing expert testimony on ultimate-issue testimony. In 1984, Congress amended FRE 704(b) in response to the verdict in the case United States v. Hinckley (1981) in which the would-be assassin of President Reagan was found not guilty by reason of insanity. The amendment precludes experts in a criminal case from testifying whether they believe the defendant had the mental state or condition required to satisfy an element of the crime or a defense to the crime. This section remains in force despite the U.S. Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals (1993) and Kuhmo Tire Co. v. Carmichael (1999).

In summary, to be admissible, expert psychological testimony must be relevant to the issues in the case, and its probative value must outweigh its prejudicial impact. If these two general requirements are met, expert psychological testimony will be admissible if it can be demonstrated that (a) an issue at question is beyond the understanding of the judge or jury and the decision reached by the judge or jury would benefit as the result of special expertise, (b) the technique or methods employed in the assessment are accepted by the field, and (c) the proffered witness has expertise with respect to the question at issue. Additionally, the FRE allow experts to base their testimony on their observations (in and out of court) or information introduced outside of court. Experts need only reveal the underlying sources for their opinion if requested to do so upon cross-examination. Finally, the psychologist must be aware of the standard for the admissibility of expert opinion evidence that is employed in the jurisdiction in which he or she practices psychology.

Contemporary Issues in Forensic Assessment

Clinical Versus Actuarial Predictions Revisited

The clinical-actuarial prediction debate has a long and heated history in the fields of clinical, counseling, educational, industrial/organizational, military, and other branches of psychology. We will discuss its manifestation within forensic assessment, in part because it has some unique aspects in this field and in part because it remains the topic of lively debate in some areas of forensic assessment. We will use the area of violence risk assessment to illustrate our points.

There is little doubt that actuarial prediction tends to outperform unstructured clinical prediction in terms of validity indices. Of course, the early work of Meehl (1954) and his more recent work with colleagues (Grove & Meehl, 1996; Grove, Zald, Lebow, Snitz, & Nelson, 2000) has supported this position consistently. In the field of violence risk assessment, the debate continues with respect to violence risk assessment instruments. Some instruments adopt pure actuarial decisionmaking procedures, citing Meehl’s and colleagues’ work in their support (e.g., see Quinsey, Harris, Rice, & Cormier, 1998). Other instruments are developed that require structured clinical decision-making (see, e.g., Webster, Douglas, Eaves, & Hart, 1997). More recently, Douglas and Ogloff (2001) have proposed the structured professional judgment approach to clinical decision-making in violence risk assessment (see also Douglas & Webster, 1999).

In the latter case, there is warranted concession that unstructured clinical opinion that “relies on an informal, ‘in the head,’impressionistic, subjective conclusion, reached (somehow) by a human clinical judge” (Grove & Meehl, 1996, p. 294) has little evidence, empirical or conceptual, to support its use. However, some commentators have argued that a structured approach to risk assessment can perhaps overcome some of the weaknesses (i.e., low interrater reliability and validity) inherent in the impressionistic nature of global clinical opinion (Douglas, Cox, & Webster, 1999; Hart, 1998). Further, as Hart (1998) describes, particularly in the field of risk assessment, the clinical task is much broader than prediction, including issues related to prevention and management of violence risk. For this reason, the clinical task has come to be called, in recent times, violence risk assessment, rather than violence prediction per se.

The argument is that structured clinical assessment can achieve a more individualized and comprehensive assessment than can actuarial prediction, while still achieving a respectable level of interrater reliability and validity. Furthermore, instruments that adopt structured professional judgment procedures tend to have been developed rationally or analytically, rather than empirically. In theory, this method of developing the instruments should enhance their generalizability to the numerous contexts in which risk assessment is required and minimize the problems of validity shrinkage inherent in the application of empirically derived actuarial instruments to novel settings or purposes.

Research on three such violence risk assessment measures has supported the predictive validity of the clinical opinions that they call for. In a recent study, Douglas and Ogloff (2001) tested the interrater reliability and predictive validity of violence risk judgments made with the HCR-20 violence risk assessment scheme (Webster et al., 1997). Like all structured professional judgment risk measures, the HCR-20 is an analytically or logically developed guide intended to structure professional decisions about violence risk through encouraging the consideration of 20 key violence risk factors dispersed across three scales: historical (H), clinical (C), and risk management (R). The risk factors identified by the HCR-20 have been found in the literature to relate to an individual’s likelihood to engage in violent criminal behavior. The H scale focuses on past, mainly static risk factors, the C on current aspects of mental status and attitudes, and the R on future situational features. Using a sample of 100 forensic psychiatric patients, Douglas and Ogloff (2001) found that the interrater reliability of structured professional judgments regarding the patients’ risk for violence risk was good or substantial.

Violence risk judgments were also found to be significantly predictive of postrelease community violence. A direct comparison of the structured professional judgment approach and an actuarial approach, both using the HCR-20, showed that the structured professional violence judgments added incremental validity to the HCR-20 scored actuarially. These results showed that clinical judgment, if made within a structured context, can contribute in meaningful ways to the clinical practice of violence risk assessment.

Similar results have been found for two additional violence risk instruments. Investigating the predictive validity of the SVR-20 (Boer, Hart, Kropp, & Webster, 1997), Dempster (1998) completed the SVR-20 on a sample of 95 sentenced sexual offenders. The SVR-20, modeled on the HCR-20, provides a list of the factors that have been found to predict risk for sexual offending and sexual violence. Dempster (1998) compared the summed total of items (i.e., actuarial prediction) and the ratings of high, medium, and low risk (i.e., structured professional judgment). She found that the structured professional judgment approach provided incremental validity over the scored items on the scales of sexual violence risk. Finally, Kropp and Hart (2000) evaluated the structured clinical judgments produced by the Spousal Assault Risk Assessment guide (SARA; Kropp, Hart, Webster, & Eaves, 1999), a further example of the structured professional judgment model of risk assessment. Kropp and Hart (2000) used a sample of 102 male probationers who had been convicted of offenses involving spousal assault and referred by the courts to attend domestic violence treatment. Kropp and Hart (2000) found that structured professional judgments based on the SARA summary risk ratings of low, moderate, and high risk outperformed the summation of SARA items (actuarial prediction) in terms of their respective relationships to spousal assault recidivism. Kropp and Hart also reported good interrater reliability indexes for the final risk judgments.

Taken together, research investigating the structured professional judgment based on the HCR-20, the SVR-20, and the SARA supports both the interrater reliability and predictive validity of the instruments. There is some emerging support, therefore, for the supposition that a structured professional judgment approach to violence risk assessment, if carried out in a structured, operationalized, and measurable manner, can be reliable and valid, as well as potentially more comprehensive and responsive to idiographic concerns than is actuarial prediction.

Legally Informed Practitioner Model

As is well known, clinical psychology adopted the scientistpractitioner “Boulder” model of training and practice over a half-century ago. This model of practice does have its critics, and it is a persisting source of professional disagreement and argument to this day (Beutler, Williams, Wakefield, & Entwistle, 1995; Fensterheim & Raw, 1996; Goldfried & Wolfe, 1996; Hayes, 1996; Kanfer, 1990; Nezu, 1996; Singer, 1990; Sobell, 1996; Stricker, 1992; Stricker & Trierweiler, 1995; Webster & Cox, 1997). The details of this debate cannot be addressed adequately in this research paper, but it is an operating assumption of this research paper that the scientist-practitioner model remains the theoretical cornerstone of doctoral training in clinical psychology. Consequently, clinical-forensic psychology, as a subfield of clinical psychology more broadly, subscribes to its tenets. Therefore, forensic assessment, as a particular activity within clinical-forensic psychology, also rests upon the scientist-practitioner model.Although we favor the scientist-practitioner model as the choice for those who conduct forensic assessments, we should note that we recognize at the outset that those trained in the scholar-practitioner tradition can become competent forensic psychologists.

Both scientist-practitioner and scholar-practitioner doctoral training programs require students to obtain systematic training and supervised experience in psychological assessment and psychological intervention. Training programs subscribing to the scientist-practitioner model, typically leading to the PhD degree, require students to complete a doctoral thesis or dissertation consisting of an empirical research project. By contrast, training programs based on the scholar-practitioner model that lead to the PsyD degree do not require students to complete empirical research. Instead, these programs require that students obtain expertise in reading, interpreting, and critically analyzing empirical research. Our emphasis here is that, particularly due to the inherently technical nature of forensic assessments, a strong background in experimental methods is an asset to those who conduct forensic assessments. Therefore, rather than focusing on the particular doctoral degree a psychologist has, consideration of a psychologist’s suitability for practicing forensic psychology should be based on the individual’s ability to understand the empirical research and to incorporate it into his or her work.

There are some modifications to and limitations of the scientist-practitioner and scholar-practitioner models in forensic assessment. First, the models must be conceptualized to be situated within a legal context. In essence, this makes the optimal model of training and practice in forensic psychology a legally informed scientist or scholar-practitioner model. This reality has implications for the meaning of the science employed in clinical-forensic psychology. Some of these implications are similar to the issues discussed with respect to the psycholegal content analysis presented earlier. That is, we discussed how practice must be conducted to inform legal criteria.

Similarly, if science is to inform clinical decision-making, it too must find some inspiration within the law. In other fields of psychology, a scientist’s questions may be limited only by his or her imagination. In forensic psychology, there is an overriding limiting factor: the law and the legal standards that can be derived from the particular legal question being asked in an assessment. This is not to say that all forensic psychological science must always line up exactly with legal issues. We would not advocate constraining scientific inquiry in such a manner. In fact, there is abundant nonforensic, primary research that is very applicable and of great benefit to the forensic field. For instance, research on the effects of trauma, on violence, and on major mental disorders is of import to forensic psychological science and practice. However, it is imperative that, in addition to maximizing the utility of this research as it pertains to forensic assessment, researchers also design studies that map as closely as possible onto quite strict legal criteria or standards. This necessity explains the existence, for example, of research on the psychometric properties of competence measures whose items are defined largely by the legal definition of incompetence in the particular setting (e.g., incompetence to stand trial, incompetence to manage one’s estate or affairs) and jurisdiction.

In some ways, this type of research has an additional evaluative component as part of the validation procedure. Content and construct-related validities must take into account legal definitions and outcome criteria that are meant to be represented in the measure. If a measure of competence, for instance, does not tap a major facet of the legal construct (e.g., ability to instruct counsel), then its validity is questionable in this regard, despite the possible existence of otherwise excellent psychometric properties.

In addition to the regular components of the scientist-practitioner model, then, there is an additional, and sometimes superordinate, layer. Consequently, not only must research be carried out that is clinically meaningful and informative, and not only must clinical practice reciprocate by relying upon this research as much as is reasonable, but both science and practice must also follow the lead of the law. It is likely that clinical practice has less flexibility than does science to stray from legal standards. All forensic practice, and much forensic research, however, must be mindful of the law.

Several further aspects of the legally informed practitioner model need explanation. First, the addition of the law to the models of clinical training imposes an inherent limitation on their theoretical utility and, perhaps, on the accumulation of clinical-scientific knowledge that gathers under it. Tomorrow, a high-level court could decide that, for example, all pieces of civil commitment legislation of a certain ilk are unconstitutional and in need of drastic revision. What happens to the established base of science and practice that developed to assist decision-makers in this context? Research and practice must evolve alongside evolutions in the law. Research can become dated and clinical practice antiquated not only through the passage of time, but through the passage of law.

A further limitation of the legally informed practitioner model within the forensic context involves the limitations placed on research methodology. Certain important issues can never be studied in an ideal methodological manner because of the pragmatic constraints of the law. For instance, nearly all research on violence risk assessment, the prediction of violence, and correlates of violence has been carried out on truncated research samples. That is, certain persons will never be included in research samples simply because they will never or only rarely be released from prisons or other institutions. Risk assessment studies that attempt to study postrelease community violence are forced to use only persons who have been actually released. However, when the clinical task of risk assessment is undertaken, this research is applied to all persons appearing for release.

Another example of a methodological shortcoming is the absence of gold standards for validation. For instance, research on criminal competencies is undertaken to maximize the utility of clinical determinations of competence. There is no inherent gold standard of comparison to validate the decisions that competence instruments yield. If an instrument yields a decision of competence, but a judge declares the petitioner incompetent, this does not mean that the instrument was wrong. Rather, the judge may not have understood the psychological and clinical aspects that were entered into evidence in support of the petitioner’s motion for a finding of incompetence. Although these instruments do use judicial decisions as part of the formal validation procedure, they must also rely heavily on content validity and inference. That is, the measures must dissect the legal requirements for competence, construct items that tap these legal requirements, and provide thresholds at which inferences are drawn about whether persons understand what they need to about the legal and court process in order to be found competent.

To summarize, then, three main points can be made about the legally informed practitioner model as it manifests in forensic assessment: (a) Practice and scientific freedom must be constrained, in part, by the legal questions that are being posed; (b) the field must at times readjust itself and its scientific and clinical approaches in response to changes in the law; and (c) legal practicalities sometimes preclude optimal methodological approaches to a topic of inquiry.

The Roles and Limits of General Psychological Testing in Forensic Contexts

In much of this research paper, we have discussed the importance of aligning clinical assessment and research with legal requirements. This logic applies as well to psychological testing that is carried out in forensic contexts. In this section, we will discuss specifically the use of psychological assessment instruments and tests as applied to forensic contexts. Following the theme of the legal specificity and parameters of forensic assessment, we will discuss issues surrounding the use of regular psychological tests in forensic assessment, as well as the development and use of tests that are intended to be forensic in nature.

By way of background, Heilbrun et al. (2002) have proposed a simple yet effective typology of psychological measures relevant to forensic assessment. These include forensic assessment instruments, forensically relevant instruments, and clinical instruments. Although measures from each category can be useful for assisting with a forensic assessment, the specific nature and utility of each category of psychological measure varies. Similarly, the way in which the measures should be used in assessments vary.

A forensic assessment instrument is one that “is directly relevant to a specific legal standard and its included capacities that are needed for the individual being evaluated to meet that legal standard” (p. 10 of in press manuscript). Examples of specific legal standards are criminal competence to stand trial, criminal responsibility (versus insanity), and competence to manage one’s estate.An example of a forensic assessment instrument is the MacArthur Competence Assessment Tool— Criminal Adjudication (MacCAT-CA; Poythress, Monahan, Bonnie, & Hoge, 1999; Poythress, Nicholson, et al., 1999). The MacCAT-CA was developed to guide mental health professionals who are assessing a defendant’s competence to stand trial. The instrument is specifically designed to assess the legal standards for competence to stand trial as set out by the U.S. Supreme Court (Dusky v. United States, 1960). As Heilbrun et al. (2002) point out, there has been a proliferation in the past decade or so of instruments intended to be used in forensic settings. The development of forensic assessment instruments and forensically relevant instruments can be seen as an important development, in that it should, in principle, compensate for some of the pitfalls of using clinical measures for forensic assessments.

Forensically relevant instruments are those that do not address specific legal standards but “clinical constructs that are sometimes pertinent to legal standards” (p. 12 of in press manuscript). Examples may include measures of psychopathy (via the Hare Revised Psychopathy Checklist, or PCL-R; Hare, 1991) or measures of violence risk (such as the HCR-20; Webster et al., 1997). Concerning risk assessment measures, some argument may be made that many uses of these instruments actually should place them in the forensic assessment instrument category, since often they are applied to specific legal standards pertaining to risk for future violence.

Heilbrun et al. (1999) called the third type of instrument, comprised of traditional psychological instruments, clinical measures. The implications of using these types of instruments in forensic assessment will be discussed later.

Assessment questions in clinical psychology are usually informed through the use of psychological instruments. Such instruments typically were developed to inform decisions about common or traditional psychological constructs, such as intelligence, memory, depression, or anxiety. A problem emerges when these instruments (e.g., the Wechsler Adult Intelligence Scale—Third Edition, or WAIS-III; Wechsler, 1997, or the Minnesota Multiphasic Personality Inventory-2, or MMPI-2; Butcher, Dahlstrom, Graham, Tellegen, & Kaemmer, 2001) are applied to forensic assessments. The basis of the problem is that forensic constructs and questions rarely map directly onto traditional psychological constructs (Heilbrun et al., 2002; Otto & Heilbrun, 2002).As such, there is a schism between general psychological instruments, on the one hand, and forensic psychological assessment questions, on the other. Traditional psychological instruments were not designed for the purpose of answering questions pertaining to legal constructs such as insanity, competence, or risk for certain types of violence. Although they may perform well, and as they were designed to, with respect to general psychological assessment questions among forensic samples (e.g., determining the intelligence of a particular forensic patient), their ability to inform specific forensic questions is tenuous (how does an IQ score inform a decision about competence?).

Research has supported the problems inherent in using traditional psychological instruments to answer forensic or legal questions. First, there is simply not much research that addresses the validity of traditional psychological instruments as applied to forensic questions (Heilbrun et al., 2002). Second, the research that does exist does not provide strong support for their use in forensic assessments to answer specifically forensic questions. For instance, as reviewed by Heilbrun et al. (2002) and Rogers and Shuman (2000), the MMPI/MMPI-2 is commonly used in insanity evaluations, despite relatively few studies on its application to this task (see Ogloff, 1995, for a review of the legal applications of the MMPI/MMPI-2). Studies that do exist tend not to provide stable estimates of profiles indicative of legal insanity. Although the MMPI-2, or some other measure such as the Personality Assessment Inventory (PAI; Morey, 1991), may have adequate research support with respect to its ability to detect clinical insanity or psychopathology (i.e., the presence of delusions or hallucinations), there is far from a one-to-one correspondence between clinical and legal insanity. To the extent that the constructs tapped by the MMPI-2 , the PAI, or comprehensive structured assessments fail to align with the legal construct of insanity, the application of such measures for legal or forensic purposes is questionable.

This state of affairs is neither terribly surprising nor detrimental to the general validity of such measures as the MMPI-2 or WAIS-III. Neither was designed with legal constructs in mind. Hence, in psychometric terms, they were not built to include construct coverage of legal questions such as insanity or violence risk. They do not include items that were meant to tap legal constructs. This situation is akin to a depression measure’s failing to include items designed to tap the physical signs and symptoms of depression. Such an instrument would have inadequate construct coverage, and its psychometric properties, particularly its validity indexes, would suffer accordingly. Similarly, the validity indexes of traditional psychological measures tend to suffer when these measures are applied to specific forensic or legal constructs or criteria.

In response to the difficulties associated with the use of traditional psychological measures in forensic assessments, commentators have provided some guidance for the use of tests in forensic psychological assessment. Earlier we discussed the importance of legal context to forensic assessment generally. Similarly, there has been discourse pertaining to the link between legal context and psychological instrumentation. Heilbrun et al. (2002) referred to the importance of correspondence between a (forensic) assessment measure and the legal construct to which it purportedly applies. This correspondence is an important part of the development and validation of forensic instruments. They discussed legal status as a “population-specific influence” on the development and validation of forensic instruments. In essence, they pointed out, forensic instruments (and, consequently, assessments) should only be used within legal settings for which they have been developed and validated. Similarly, writing about the importance of legal context for the practice of forensic assessment generally, Heilbrun (1992) has argued that psychological tests used in such assessments must be germane to the legal issue at hand. Thus, as Heilbrun et al. (2002) point out, the law is an important source of authority for the development of forensic instruments.

Grisso (1987), in discussing the “necessary research” (p. 834) to establish forensic psychological assessment as a credible and legally informative vehicle, discussed several law-related research avenues that could forward such a goal. These included pure legal analyses of specific questions (e.g., criminal responsibility), application of basic psychological principles to legal questions, and research on the applicability of traditional psychological measures (e.g., MMPI-2) to legal issues, as well as the development of “specialized assessment instruments” (p. 835) that link directly to legal questions. These ideas overlap with the notion of psycholegal content analysis presented earlier.

In terms of providing a methodology for constructing forensic instruments, Grisso (1986) provided an example based on the assessment of criminal competence. He noted that the first stage of devising and validating a method for assessing criminal competence is to translate legal standards into functional abilities.Then, psychological test construction and validation procedures can be applied to these functional abilities. For example, if the legal standard for competence to stand trial requires, among other things, that the defendant is able to communicate with his or her lawyer, the first task of a psychologist assessing the defendant’s competence is to determine what functional abilities the defendant must have to communicate with his or her lawyer. These functional abilities could include, for example, such things as being able to speak or otherwise communicate and being able to assist the lawyer by discussing the evidence and the weaknesses of the testimony to be given by prospective witnesses.

Legal Specificity

In all areas of psychological assessment, it is beneficial to have referral questions that are as specific as possible. This helps to guide the nature and course of the assessment and prevent unnecessary fishing expeditions. This admonition is particularly apt in forensic assessment. The law, and particularly courts, is loath to address more than is required to answer the legal question at stake. The reason for this is sensible. The adversarial legal system in which we live allows opposing parties to litigate their legal questions in front of judges and juries, in effect educating the court about the particular legal issue(s) in question. For a legal decision-maker to address more than what was argued is undesirable because the parties did not have a chance to address or argue the peripheral matters, and hence the decision-maker was not presented with evidence pertaining to these peripheral matters.

Following the logic presented, it is undesirable for a forensic assessment, which often will be used to educate a legal decision-maker, either to address unduly broad referral questions or to stray beyond the referral questions that were asked. Unduly broad referral questions are those that do not provide the forensic evaluator with sufficient information to proceed with an assessment. For example, without knowing exactly at what stage the defendant is in the legal process and the exact legal matters that are at issue and require a forensic assessment the forensic clinician can do little more than provide something akin to a traditional psychological assessment. Straying beyond the referral question results in the clinician’s raising issues or addressing matters that extend beyond the particular legal matter being considered. The following is an actual excerpt from a report prepared by a forensic practitioner who was asked to conduct an assessment to determine whether the defendant’s mental state at the time of the offense might be grounds for raising the insanity defense:

It does not appear that Mr. S. was suffering from any psychosis at the time of the assault. He may have been under the influence of various drugs and alcoholic beverages, which he reported consuming at that time. There is no clinical basis for an insanity defence here. Mr. S. is one of the most dangerous persons I have ever examined; the only appropriate disposition would be a lengthy prison sentence. (Melton et al., 1997, p. 548)

In this case, information that is off the legal point will be introduced into the legal arena without due cause and without a priori notice that such information would be justiciable (i.e., at issue in the trial). This introduces an element of uncertainty into the legal forum, one that could unfairly affect the process or the result of the legal endeavor. Apart from the rather picayune legal point presented, psychologists should refrain from going beyond the legal referral question when preparing reports of forensic assessments because the reports that are prepared in legal cases, more so than those of virtually any other area of clinical practice, have a long shelf life.Thus, extraneous information that appears in a report prepared for a particular purpose can be used, sometimes years later, in a manner that can be harmful to the person who was assessed.

Although it is important that forensic assessments address the legal questions for which they were requested, psychologists are generally advised to use extreme caution if asked to answer the ultimate legal question that is asked. In law, this is referred to as answering the ultimate issue (Meltonetal., 1997). The ultimate issue in a case is the question the judge or jury is asked to decide. For example, in a case involving a custody dispute, the ultimate issue is generally what living arrangements would be in the child’s best interests.Therefore, a psychologist who offered an opinion about which living arrangement would be in the child’s best interests would be answering the ultimate issue.As was discussed in the context of the guidelines for expert testimony, the FRE 704 does allow experts to give an opinion concerning the ultimateissue. Recall that, as discussed with reference to the admissibility of expert evidence earlier in this research paper, FRE 704(b) prohibits experts in a criminal case from testifying whether they believe the defendant had the mental state or condition required to satisfy an element of the crime or a defense to the crime. However, forensic mental health professionals should nonetheless be cautious when deciding to answer the ultimate issue. If the expert is allowed to answer the ultimate question, he or she is basically telling the jury or judge how to decide the case. Formerly, ultimate issue testimony was actually barred in courts (Melton et al., 1997). Although the current rules of evidence are not as strict, psychologists generally should refrain from answering the ultimate issue, both because doing so can usurp the power of the court or jury and because, most often, the ultimate legal issue does not correspond directly to the relevant psychological construct. For example, there is no construct in psychiatry or psychology that corresponds directly to competence to stand trial.

Despite the convincing arguments against providing an ultimate opinion, forensic psychologists are regularly asked by attorneys and judges to state whether they think, for example, that a defendant is competent to stand trial. Any reluctance to answer the question as asked—that is, to state the ultimate opinion—may be met with suspicion or criticism by the attorneys or the judge for not doing their job as an expert witness. We recommend that, rather than simply providing the answer to the ultimate issue, psychologists take care to ensure that they discuss the psychological information that is relevant to the underlying legal principles that pertain to the construct being addressed. Taking the case of competence to stand trial as an example, we would not recommend that psychologists simply express an opinion that a defendant is, or is not, competent to stand trial. Rather, we would suggest that psychologists provide the court with relevant psychological information that relates to the legal criteria for competence to stand trial. For example, the psychologist could discuss the relevant psychological information that relates to how the defendant’s mental state will affect his or her ability to communicate with counsel or to understand the nature of the legal proceedings (see Roesch, Ogloff, & Golding, 1993).

Another important issue concerns the absolute necessity of avoiding the role of advocate in forensic assessment practice. Terms such as hired gun or whore of the court are well-known monikers used to describe the forensic evaluator who will find certain results, given the right price. Of course, such practice is unethical and will undermine not only the credibility of the individual assessor in a given case, but the profession of psychology as well. Despite the pressure that psychologists might experience, either explicitly or implicitly, from the parties that hire them, it is critical that they do not adopt the position of advocate. Rather, the psychologist should most properly take on the role of an impartial educator. That is, even when he or she is hired by one side or another, the proper role of the forensic evaluator is to impartially arrive at a conclusion based on assessment findings and to deliver this conclusion, along with any uncertainties.

Training in Forensic Assessment

As noted in the introduction to this research paper, along with the emergence of forensic psychology has come the development of graduate training programs in the area (see, e.g., Freeman & Roesch, 1992; Grisso, Sales, & Bayless, 1982; Hafemeister, Ogloff, & Small, 1990; Ogloff, 1990; Ogloff & Schuller, 2001; Ogloff et al., 1996; Roesch, Grisso, & Poythress, 1986; Tomkins & Ogloff, 1990).As with other aspects of the developing field, little attention has been given to the training needs and opportunities in the field. Part of the concern for the lack of attention directed to training in legal psychology has been rectified with the National Invitational Conference on Education and Training in Law and Psychology, which that took place at Villanova Law School in 1995. The Villanova Conference, as it has come to be known, was attended by approximately 60 invited people from across the field of legal psychology. The overarching purpose of the conference was to develop an agenda for legal psychology training into the twenty-first century. A description of the conference can be found in an article written by Bersoff et al. (1997).

People have debated whether psychologists who work in the law and psychology field need to be trained formally in law (see Grisso et al., 1982; Hafemeister et al., 1990; Ogloff et al., 1996; Tomkins & Ogloff, 1990). This debate has culminated in consideration of the joint degree programs in which students can obtain both a law degree and a PhD. Arguments against dual degree training have emphasized the costs of such training and the fact that most people who work in legal psychology as clinicians or researchers focus on one or two specific areas of the law. Those who support dual degree programs, by contrast, argue that although all legal psychologists do not require formal training in law there are considerable advantages to pursuing formal training in law and psychology (Hafemeister et al., 1990). Foremost among these advantages is the ability of psychologists with law degrees to have a sophisticated understanding of the law. Indeed, many psychologists with little appreciation of law have jumped into the field only to produce work that is of questionable validity (see Hafemeister et al., 1990). We want to emphasize here that although it would not be necessary, or even a good idea, for all forensic psychologists to obtain a law degree, it is nevertheless critical that forensic psychologists obtain a clear understanding of, if not true expertise in, the law that relates to their work.

Most forensic psychologists working today obtained their forensic training and experience largely on their own. With the growth in the field, the recent recognition of forensic psychology as a specialty area, and the development of knowledge and sophisticated assessment techniques in the field, there will be continued growth in formal training programs in the field. There are several models and methods by which forensic psychologists are now being trained to work in the area (Ogloff & Schuller, 2001). Information about various training programs and internship opportunities in forensic psychology may be found on the Web site of the American Psychology Law Society ( First is the mentor model. In this model, graduate students learn their skills by working and conducting research with individual faculty members who practice or do research in the field of law and psychology.Although this model affords students with individualized training, the students typically receive little formal training in the broad area of the field, and they are unlikely to have a critical mass of colleagues with whom they can converse and collaborate.

Ogloff and Schuller (2001) refer to the second model as the “limited focus training model.” In this model, students study and train in a department in which there is more than one person working in the field of law and psychology. Alternatively, they may study in a department with one person in the field, but have access to psychologists in institutions (e.g., jails or prisons, forensic hospitals) who help enrich their training experiences. Programs of this ilk provide students with a wider range of training experiences than is available to students trained by way of the mentor model. Again, though, it is generally difficult for prospective students to identify psychology departments that do offer some informal training by relying on one or two people in the field.

Another model includes actual programs in law and psychology or forensic psychology. There are several of these programs available, and that number is gradually growing. Although the programs vary considerably in their detail and focus, they provide students with an overview of the field of law and psychology as well as advanced courses, research experiences, and practical or applied training in some area of the field. Some of the courses allow graduate students in psychology to take one or more courses in law schools. At least one program, at the University of Nebraska-Lincoln, allows students the option of completing a nonprofessional degree in law, called the Master of Legal Studies. This degree requires students to complete approximately one third of the course that a law student usually takes. The clear advantage of the programs in law and psychology beyond the opportunity to complete a range of relevant courses in the field is that students have the benefit of being part of a critical mass of students and faculty with common interests. Often the learning and training experiences are enriched by the expanded opportunities a program can afford.

A final training model, which has been adopted in a few universities in North America, is a joint or dual degree program in law and psychology or forensic psychology (Ogloff, 1999b). In these programs, students have the opportunity of simultaneously pursuing a law degree (a Juris Doctor or JD in the United States and a Bachel or of Laws degree or LLB in Canada) and a PhD or PsyD in psychology. Although these programs are very demanding, because they require students to complete all of the requirements for both the law degree and PhD, the programs do allow students to become experts in the law.

Beyond developing training programs, considerable discussion is occurring in the field about whether forensic psychology programs should be accredited. In addition, commentators have noted that there still are few well-established training programs in forensic psychology (Otto & Heilbrun, 2002). Moreover, Otto and Heilbrun (2002) note that there are few accredited internships with specialized training in forensic psychology and even fewer postdoctoral fellowships available. It is our view that with the rapid growth and development in the field, there can be little doubt that forensic programs will continue to emerge and that at some point some form of accreditation might be developed.

Future Concerns

Throughout this research paper we have defined the newly recognized area of specialty practice forensic psychology. We noted the growth of forensic psychology, and we reviewed some of the contemporary issues in the field. In the remainder of this research paper, we would like to highlight some of the concerns regarding forensic assessments that will need to be addressed in the future.This list will by no means be exhaustive, but in our view the matters identified here are among the most pressing ones. The matters we shall highlight can be broken into two general topics: the need for quality control in forensic assessment and areas requiring future development (e.g., civil forensic assessment and forensic assessments with youth, women, and visible minorities).

Quality Control in Forensic Assessment

In the good old days, most psychologists viewed forensic psychology as an unattractive and unappealing field. Our comment about the good old days is written somewhat facetiously; however, along with the recent attraction of the field of forensic psychology has come a plethora of related problems. Chief among the problems that we see in the field is the fact that many of the psychologists who are making their way into the forensic field, frankly, are poorly trained and inexperienced and do not do a good job overall. Although this statement may seem too extreme, it points to a very serious problem. Given the force of the law in the lives of the people with whom forensic psychologists work, extreme care must be taken to ensure that our work is competent. As Otto and Heilbrun (2002) note,

That some psychologists are motivated to enter the forensic arena because of economic concerns is not, in itself, problematic. Those psychologists who actively seek to increase their forensic knowledge, skills, and abilities through continuing education, supervision, and other methods are to be commended and supported. It becomes problematic, however, when some psychologists, in response to financial concerns, enter and practice in the forensic arena unprepared. Psychological expertise, forensic or otherwise, is not developed overnight. By its very nature forensic work is likely to be subjected to a greater degree of scrutiny than other kinds of psychological services, and there is some support for the claim that this is occurring over time. (p. 1)

Although we are sympathetic to the economic pressures that psychologists feel, particularly in light of the impact of managed care on the delivery of health care services, psychologists must ensure that they are competent before entering forensic practice. Unfortunately, across North America, licensing bodies report that complaints arising from assessments and practice in the forensic arena are among the most frequent they see (Ogloff, 1999a).Although forensic psychologists can expect a greater risk of being the focus of an ethics complaint simply because of the adversarial nature of the law, the fact is that there is substance to a large proportion of the complaints that are lodged. To the extent that psychologists are not policing themselves appropriately, then, the question arises whether we should not move toward a model of credentialing and certification in forensic psychology.

Otto and Heilbrun (2002) discuss the advances in credentialing and certification that have emerged in forensic psychology. In particular, they note that as many as nine states have some program of credentialing psychologists who conduct criminal forensic assessments. In addition, increasing numbers of forensic psychologists are seeking board certification. Preeminent among these credentialing boards is the American Board of Forensic Psychology, which employs a stringent process of reviewing an individual’s training, experience, and knowledge prior to granting the individual diplomate status. Sadly, a number of newer boards are emerging that grant diplomate or fellow status without careful scrutiny. Such boards are referred to unkindly as vanity boards, and, generally speaking, psychologists gain little from gaining recognition from such a board (Hanson, 2000; Otto & Heilbrun, 2002).

We are reluctant to advocate that all forensic psychologists ought to be board certified or otherwise specially credentialed. Indeed, little if any evidence exists to show that forensic psychologists who are board certified or otherwise recognized as specialists are more competent than other forensic psychologists or whether credentialed forensic psychologists are more ethical. Nonetheless, board certification, through a rigorous process, can at least provide some assurance that the forensic psychologist meets some accepted threshold of training, experience, and knowledge in the field. As discussed earlier in this research paper, the onus falls on the individual psychologist who enters the forensic area to ensure that he or she is competent in every sense of the word. As with developments in training programs, we can expect that more forensic psychologists will seek board certification or equivalent recognition.

Areas Requiring Future Development

Given that forensic psychology can be seen as being in the developmental stage of adolescence (Grisso, 1991), it is not particularly surprising that many areas of forensic assessment require further development or refinement. Here, we shall focus on two topics that are in great need of more attention at this time. The first is the entire area of civil forensic assessments and the second is the need to focus more attention on forensic assessments conducted with youth, women, and visible minorities.

Civil Forensic Assessments

Traditionally, forensic psychologists have worked primarily in the criminal field. Indeed, most often when people think of forensic psychologists, they think of psychologists who work with criminals. Today, although more forensic psychologists do work in noncriminal areas of law, the focus of the research and development of instruments and techniques in practice is still on topics within criminal law. Without a doubt, though, many more people are affected by civil law than are ever affected by criminal law (Melton et al., 1997; Ogloff, 2001). As a result, forensic psychologists would do well to learn about civil law topics for which psychology has some relevance. More importantly, of course, psychologists need to develop more instruments that are relevant to civil law topics and to develop assessment techniques to address these matters. As discussed previously in this research paper, there are several topics in civil law that require further development.

Forensic Assessments With Youth, Women, and Visible Minorities

Perhaps because of our historical focus on criminal behavior, much of the research and practice in forensic psychology has focused on males, and adult males at that. Moreover, despite the overrepresentation of some visible minorities in the criminal justice system, relatively little attention has been paid in forensic assessments to questions about the validity of forensic assessments for populations other than White adult males (Ogloff, 2001).

Although there has been a dramatic increase in forensic assessment instruments that have been developed over the past 15 years (Otto & Heilbrun, 2002; Heilbrun et al., 2002), surprisingly little attention has been paid to the validation of such tests for the diverse populations with which the instruments are sometimes used. To simply employ an instrument across populations, regardless of age, race, or gender of the person being assessed, is inappropriate.At the very least, then, forensic psychologists need to be assured that the tests they are employing are valid and that there are normative data available for the population from which the person being assessed is drawn. In the extreme, using instruments that have not been normed on the population from which the person being assessed comes is evidence of incompetence, and the results of the assessments will have questionable validity.

As the refinement of legal standards for the admissibility of expert psychological testimony has developed following the decision in Daubert v. Merrell Dow Pharmaceuticals (1993), the focus of inquiry by courts has moved from the general acceptance of ameasure within the field to an examination of the scientific foundation of the instruments.This, again, increases the need for forensic psychologists to ensure that the psychometric instruments and clinical techniques they employ in their assessments are empirically validated.


This is an exciting time for the field of forensic psychology. Now that forensic psychology has been formally recognized as a specialty area of practice within psychology, the need is greater than ever before to ensure that forensic psychology meets the highest standards of the discipline. Unlike most other areas of psychology, forensic psychology is reliant upon the law, which places unique demands on the field. In particular, the legal standards that govern the assessments that forensic psychologists perform establish the parameters of the assessments. Thus, forensic psychologists must be thoroughly knowledgeable about the areas of law in which they work.

As the field of forensic psychology has developed, several contemporary issues have received some attention. In particular, forensic psychologists must not rely solely upon clinical experience when conducting assessments, nor should they limit their assessments to purely actuarial measures. Rather, we advocate the use of structured clinical decision-making. This technique involves some reliance upon actuarial instruments and, more importantly, empirically supported evidence in developing clinical decisions. Given its reliance upon empirically validated instruments and techniques, we support the scientist-practitioner model in forensic psychology.

In addition, we recognize the need for forensic psychologists to be knowledgeable about the law in the areas in which they work. Although general psychological testing has some utility for forensic assessments, gone are the days when standard psychological assessments could satisfy the demands of the legal system for our work. As we noted, it is critical to use the legal criteria that underlie a forensic assessment referral as guidelines for the assessment. At the same time, though, we caution against having forensic psychologists offer their opinions about the ultimate legal issue being addressed by the court or other legal decision-makers. In addition, it is critical that forensic psychologists do not fall into the trap of becoming advocates or hired guns for the party that employed them. Finally, the emergence of forensic psychology has seen some development of forensic training programs. At the present time, there are not enough comprehensive programs to meet the needs of the field. Over time, too, it will become necessary to explore the possibility of accrediting specialized forensic clinical training programs.

Moving beyond the issues that have emerged in the field, we highlighted two major areas that present future concerns. First, with the explosion of the field of forensic psychology, it has become increasingly important to ensure that some quality control mechanism is developed. Although we do not advocate a strict model of board certification, we do recognize the value of such a credentialing mechanism. Moreover, we caution readers to avoid becoming recognized by the increasingly notorious vanity boards.

Of considerable importance in forensic assessment is the need to move beyond the criminal law field and to develop specialized forensic assessment techniques and instruments that will be valid for use in the expansive areas of civil law. Finally, surprisingly little attention has been paid to validating assessment instruments and methods for use with diverse populations, including youth, women, and visible minorities.

On the whole, we in the field of forensic psychology have accomplished a great deal in a relatively short time in forensic psychology. Interested readers need only review the premier books that were in print in the mid-1980s (e.g., Melton, Petrila, Poythress, & Slobogin, 1987; Grisso, 1986) and compare the information in them with the more recent volumes (e.g., Melton et al., 1997) that are available to see how far we have come in so little time. Along with the growth in the field have come several contemporary issues and future concerns that must be addressed. From our perspective, the field of forensic clinical assessment is particularly challenging and rewarding, and we look eagerly toward the future developments that we shall experience in the field.


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