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Notes on Ethical Practice in Forensic Psychology: Identifying the Forensic Psychologist Role

Book Information and Overview

  • Source Material: Chapter 1 and expert responses to Chapter 1 (pages 1-31) of "The Ethical Practice of Forensic Psychology: A Casebook" edited by G. Pirelli, R.A. Beattey, & P.A. Zapf (2017).
  • Publisher: Oxford University Press.
  • ISBN: 978-0-19-025854-2

Advance Praise

  • The casebook offers thoughtful perspectives on resolving a broad range of ethical issues in forensic psychology.
  • Valuable for forensic specialists at all experience levels, as stated by Irving B. Weiner, PhD, ABPP.
  • Core Focus: Highlights ethical standards and guidelines from:
    • American Psychological Association's Ethical Principles of Psychologists and Code of Conduct (EPPCC).
    • Specialty Guidelines for Forensic Psychology (SGFP).
  • Methodology: Provides a practical review through forensic case vignettes with commentary by field leaders.
  • Model: Concepts are presented using a best-practices model, promoting empirically supported decision-making.
  • Distinctive Features:
    • Integration of EPPCC and SGFP ethical standards and guidelines.
    • Over 30 vignettes presenting various ethical dilemmas in forensic practice.
    • Review of relevant empirical literature and case law/legal statutes.
    • Expert commentary by leaders in forensic psychology.
  • Target Audience: Academics, graduate and postdoctoral students/trainees, practitioners, mental health counselors, social workers, and legal professionals.

About the Editors

  • Gianni Pirelli: Licensed Psychologist, private practice in clinical and forensic psychology. Research areas include forensic mental health assessment, firearm-related matters, and ethics/standards of practice.
  • Robert A. Beattey: Enhanced Chancellor's Fellow in Psychology Ph.D. program at John Jay College of Criminal Justice/CUNY. Teaches and researches clinical and forensic psychology/neuropsychology. Former prosecutor and civil litigator.
  • Patricia A. Zapf: Professor of Psychology at John Jay College of Criminal Justice/CUNY, Director of Education and Training for Consolidated Continuing Education and Professional Training (CONCEPT). Maintains a private practice in forensic evaluation.

Chapter 1: Identifying the Forensic Psychologist Role by Tess M. S. Neal

Introduction and Core Ethical Issues

  • Forensic psychology has evolved into a recognized specialty with its own ethical guidelines over the past century.
  • A consensual definition of forensic psychology remains elusive.
  • Two primary ethical issues discussed:
    1. Therapeutic vs. Forensic Roles: Critical differences and the ethical obligation to avoid serving in both roles in the same case. It is noted that treatment in forensic contexts can be ethically appropriate and is an area of future growth.
    2. Adversarial Process and Objectivity: The insidious effect of the adversarial process on psychologists' objectivity, termed "forensic identification" or "adversarial allegiance." This issue is prioritized in the SGFP.

The Role of the Forensic Psychologist: Historical Context

  • Early Beginnings (Early 20^{th} Century):
    • 1906: Sigmund Freud lectured judges on the practicality of psychology.
    • 1908: Hugo Muensterberg published "On the Witness Stand," applying psychological principles to legal problems.
    • 1909: William Healy established the first psychological clinic linked to a court in Chicago.
  • First Expert Testimony: State v. Driver (1921) was the first published US case with psychologist expert testimony.
  • Increased Regularity: Psychologists began testifying more regularly after the 1940s and 1950s, significantly boosted by Jenkins v. U.S. (1962), which deemed psychologists suitable experts for mental illness testimony.
  • Formalization and Guidelines:
    • 1975: APA commissioned a task force on ethical issues in criminal justice interactions.
    • 1980: Task force report published 12 recommendations.
    • 1991: First Specialty Guidelines for Forensic Psychologists (SGFP) published (updated in 2013).
    • 1992: APA Ethical Principles of Psychologists and Code of Conduct (EPPCC) revised to include a "Forensic Activities" section.
    • 2001: APA formally recognized forensic psychology as a specialty, renewed in 2008 and 2016.

Defining Forensic Psychology: An Ongoing Debate

  • The definition has varied historically and remains debated.
  • APA (2015) Specialty Definition (Narrow):
    • "The professional practice by psychologists within the areas of clinical psychology, counseling psychology, school psychology, or another specialty recognized by the American Psychological Association, when they are engaged as experts and represent themselves as such, in an activity primarily intended to provide professional psychological expertise to the judicial system." (para. 1)
    • Focuses on applied professional psychologists who self-identify as "forensic" practitioners.
  • SGFP (APA, 2013) Definition (Broad):
    • "Professional practice by any psychologist working within any subdiscipline of psychology (e.g., clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters… [which] does not depend on the practitioner's typical areas of practice or expertise, but rather on the service provided in the case at hand." (p. 7)
    • Emphasizes the service provided rather than the practitioner's training or identity.
  • Historical Disagreement (Brigham, 1999):
    • Initial petition for specialty designation involved a joint effort between the American Psychology-Law Society and the American Academy of Forensic Psychology.
    • Effort abandoned due to definitional disputes: broad (psychology-law interactions generally) vs. narrow (clinical applications).
    • Concerns arose about grouping clinical and non-clinical psychologists due to different training/licensure.
    • American Academy of Forensic Psychology proceeded with a narrow, clinically-focused definition.
  • Current State: Otto and Ogloff (2014) assert: "THERE IS NO CONSENSUAL DEFINITION OF FORENSIC PSYCHOLOGY." (p. 35)
  • SGFP Revision (2013): Explicitly adopted a broad definition, titling the guidelines for "forensic psychology" (the service) instead of "forensic psychologists" (the professional identity) to embrace various modes of practice.
  • Critical Time Point: Psychological services become "forensic" "from the time the practitioner reasonably expects to, agrees to, or is legally mandated to provide expertise on an explicitly psycholegal issue" (SGFP, APA, 2013, p. 7).

Ethical Standards Relevant to the Forensic Psychologist Role

  • Primary Governing Sources:
    1. APA Ethical Principles of Psychologists and Code of Conduct (EPPCC, APA, 2010): Broadly applicable to psychologists in diverse capacities and settings.
    2. Specialty Guidelines for Forensic Psychology (SGFP, APA, 2013): Complements the EPPCC, providing specific guidance for forensic practitioners. It is unique as the only APA-approved guidelines covering a complete specialty practice area and is broader in scope than other APA guidelines.
  • Other Relevant Standards (Not Covered In-Depth):
    • International Association for Correctional and Forensic Psychology (IACFP, 2010) Standards for Psychological Services in Jails, Prisons, Correctional Facilities, and Agencies: Focus more on "correctional" services independent of immediate psycholegal questions.
    • American Bar Association (ABA) Criminal Justice Mental Health Standards (ABA, 1986): Guides cooperation between legal and mental health professionals. Standard 7-1.1 outlines scientific, evaluative, consultative, and therapeutic roles, emphasizing objectivity. Not covered in depth as they refer professionals to their respective ethical standards.
  • Key Ethical Imperative: Competence: Regardless of definition, psychologists must practice within their expertise or develop it.
    • EPPCC Standard 2 (Competence):
      • 2.01(a): Psychologists provide services, teach, and research only within their competence boundaries (education, training, supervised experience, consultation, study, professional experience).
      • 2.01(c): Psychologists planning new services/areas must undertake relevant education, training, supervised experience, consultation, or study.
      • 2.01(f): Psychologists in forensic roles must become familiar with judicial/administrative rules governing their roles.
    • SGFP (APA, 2013):
      • 2.01 Scope of Competence: Factors include complexity, specialized nature, training, experience, preparation, and consultation opportunities.
      • 2.02 Gaining and Maintaining Competence: Acquired through education, training, supervised experience, consultation, study, professional experience; ongoing efforts to stay abreast of psychology and law developments.
      • 2.04 Knowledge of the Legal System and Legal Rights of Individuals: Forensic practitioners must have a reasonable understanding of the legal system and individual rights.
  • Conclusion on Competence: Psychologists in forensic roles bear the onus to recognize, develop, and maintain unique competencies and understand their role within the legal system's rules.

Therapeutic Versus Forensic Roles

  • Historical Prohibition: Ethics codes since the early 1990s (e.g., APA, 1992, Standard 7.03; Committee on Ethical Guidelines for Forensic Psychologists, 1991, Guideline IV-D) have prohibited mixing therapeutic and forensic roles in the same case.
  • Market Pressures: In the 1990s, managed care and perceived efficiency led many professionals to serve dual roles, despite ethical warnings. Many did not understand the importance of role separation.
  • Seminal Articles (1997): Two independently published articles detailed the irreconcilable conflict:
    • Greenberg and Shuman (1997): "Irreconcilable Conflict between Therapeutic and Forensic Roles" in Professional Psychology: Research and Practice.
    • Strasburger, Gutheil, and Brodsky (1997): "On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness" in The American Journal of Psychiatry (won Guttmacher Award).
  • Key Differences (Greenberg & Shuman, 1997, Table 1.1): Summarizes 10 principles differentiating roles:
    1. Client Identity: Therapist's client is the patient; forensic evaluator's client is typically the attorney or court.
    2. Privilege Governing Disclosure: Therapist-patient privilege in therapy; attorney-client and attorney work-product privilege in forensic evaluation.
    3. Cognitive Set/Evaluative Attitude: Therapist is supportive, accepting, empathic; forensic expert is neutral, objective, detached.
    4. Competency Areas: Therapy techniques for treatment; forensic evaluation techniques relevant to legal claims.
    5. Hypotheses Tested: Diagnostic criteria for therapy; psycholegal criteria for legal adjudication.
    6. Scrutiny of Information/Historical Truth: Therapy relies mostly on self-report with little scrutiny; forensic evaluation supplements litigant information with collateral sources and scrutinizes all data.
    7. Structure: Therapy is patient-structured, relatively less structured; forensic evaluation is evaluator-structured, relatively more structured.
    8. Adversarialness: Therapy is a helping, rarely adversarial relationship; forensic evaluation is evaluative, frequently adversarial.
    9. Professional Goal: Therapist aims to benefit the patient; evaluator advocates for evaluation results/implications for the court.
    10. Impact of Critical Judgment: In therapy, critical judgment impairs the therapeutic alliance; in forensic evaluation, it's unlikely to cause serious emotional harm.
  • Ethical Issues Related to Dual Roles:
    1. Multiple Relationships:
      • EPPCC Standard 3.05 and SGFP 4.02 prohibit multiple relationships (professional role with personal, financial, or other relationship with the same person, related person, or adverse party).
      • Address conflicts of interest (EPPCC Standard 3.06), identifying the client, and third-party requests (EPPCC Standard 3.07).
      • SGFP 4.02.01 Therapeutic-Forensic Role Conflicts: Providing both services to the same individual/related individuals involves multiple relationships that can impair objectivity or cause harm. Practitioners are encouraged to disclose risks, refer, or, if not possible, consider risks/benefits, separating services in time, seeking judicial review, and consulting colleagues. Minimizing negative effects is crucial.
    2. Confidentiality and Disclosures:
      • Therapist-patient privilege (Jaffee v. Redmond, 1996) means the client governs disclosure.
      • Forensic evaluation contexts: attorney or court decides disclosure.
      • EPPCC 4.01 and 4.05 ethically obligate confidentiality until permitted/required.
    3. Informed Consent:
      • Psychologists must discuss limits of confidentiality and permitted/required disclosures throughout the service (EPPCC 4.02; SGFP 6.03 Communication with Forensic Examinees).
      • SGFP 6.03 specifies informing examinees about:
        • Purpose, nature, and anticipated use of examination.
        • Who has access to information.
        • Limitations on privacy, confidentiality, and privilege (who releases/accesses records).
        • Voluntary/involuntary participation and potential consequences.
        • Anticipated cost (if examinee's responsibility).
      • Legal Requirement: Estelle v. Smith (1981) held that defendants and counsel have the right to be informed of the nature/purpose of pretrial mental health examinations and intended uses of information.
      • Consent for Non-Court-Ordered: Informed consent is required (SGFP 6.03.01; EPPCC Standard 3.10).
      • Assent for Court-Ordered: Informed assent is sought, but consent is not required before proceeding (SGFP 6.03.02; EPPCC Standard 3.10).
      • Guidance for individuals lacking capacity to consent/assent (SGFP 6.03.03; EPPCC Standard 3.10).

Is It Unethical to Provide Treatment in Forensic Contexts?

  • Early analyses (Greenberg & Shuman, 1997; Strasburger et al., 1997) focused on assessment and did not explicitly address treatment in forensic contexts.
  • SGFP (APA, 2013) allows for treatment in forensic psychology: SGFP 4.02.03 Provision of Forensic Therapeutic Services states that some therapeutic services can be forensic, especially if court-ordered.
    • Considerations: Potential impact of legal context, impact of treatment on psycholegal issues, and whether another reasonable psychologist would consider the service forensic.
    • Therapeutic services can have significant effects on legal proceedings (SGFP 6.03.02).
  • Definition of Forensic Service Applied to Treatment: A treatment is forensic when it is explicitly designed to impact, or the practitioner agrees to take the case to impact, psycholegal issue(s) in the case.
    • Example: Psychoeducational treatment to restore competency to stand trial is clearly a forensic treatment service.
  • Role Separation: Even with forensic treatment, the role separation between therapeutic and forensic contexts within a single case remains applicable (Neal & Zelle, 2016; Zelle & Neal, 2016).

Forensic Identification (Adversarial Allegiance) and Objectivity

  • Ethical Imperative: Both EPPCC (Principle C, Integrity) and SGFP stress accuracy, honesty, and fairness.
  • SGFP Prioritization: This issue is uniquely highlighted in the first two SGFP guidelines, demonstrating its primacy in forensic contexts:
    • 1.01 Integrity: Strive for accuracy, honesty, truthfulness, and resist partisan pressures.
    • 1.02 Impartiality and Fairness: Strive for accuracy, impartiality, fairness, and independence; recognize the adversarial nature, treat all participants, weigh all data/opinions impartially, and avoid partisan/misleading presentations.
  • Other Relevant SGFP Standards: 11.01 (Accuracy, Fairness, Avoidance of Deception), 11.04 (Comprehensive and Accurate Presentation of Opinions in Reports and Testimony), 5.02 (Fee Arrangements, addressing biasing effects of contingency payments).
  • Definition and Evidence of Forensic Identification:
    • Zusman and Simon (1983): Defined forensic identification as "the subtle influence of adversarial proceedings on initially neutral witnesses" (p. 1300), causing evaluators to unintentionally adopt the retaining attorney's viewpoint.
    • Zusman and Simon Study: Examined mental health examinations of 42 litigants; found systematic differences in conclusions consistent with retaining party's position.
    • Field Studies Confirmation: Subsequent field studies (e.g., DeMatteo et al., 2014; Lloyd, Clark, & Forth, 2010; Murrie et al., 2008; Murrie et al., 2009; Otto, 1989) have confirmed this phenomenon.
  • Experimental Evidence: Adversarial Allegiance (Murrie et al., 2013):
    • A seminal experimental study published in Psychological Science causally linked adversarial referral party and forensic identification.
    • Methodology: Experimentally manipulated referral source (defense vs. prosecution attorney) while keeping other information constant and randomly assigning participants.
    • Ecological Validity: Participants were actual forensic mental health professionals conducting a real file review.
    • Results: Psychologists believing they worked for the prosecution assigned significantly higher risk scores, while those believing they worked for the defense assigned lower risk scores to the same offenders.
    • Conclusion: This supports the "adversarial allegiance effect"—the tendency to interpret case information preferentially to the retaining party.
  • Mitigating Bias:
    • Assessment Tools: Murrie et al. (2013) found that more objective assessment tools resulted in smaller to medium effect sizes for adversarial allegiance, compared to large effects for subjective tools. Standardized tools do not eliminate bias but can reduce it.
    • Other Strategies: Psychologists can strive to disconfirm (rather than confirm) hypotheses, "consider the opposite," or seek court appointments instead of party appointment (Neal & Brodsky, 2016).
    • More research is needed to identify effective bias-reduction strategies (Neal & Grisso, 2014).

Vignette 1A: Defining Forensic Psychology (Case of John Dial)

Scenario Summary

  • Defendant: John Dial, charged with felonies, referred for competency evaluation.
  • Intern's Observation: Ina Jiff observes psychomotor agitation and confusion, raising concerns about competence due to a prior head injury with a 15-minute loss of consciousness.
  • Prior Records: Brain MRI showed no acute issues during hospitalization, but judge observed confusion.
  • Intern's Request: Ina believes neuropsychological assessment is warranted. The unit's forensic neuropsychologist is unavailable.
  • Consultation: Supervisor suggests Dr. Kohl, a board-certified clinical neuropsychologist from the neurology department.
  • Dr. Kohl's Stance: Agrees to conduct a clinical neuropsychological evaluation for impairment but states it's not a forensic evaluation, as he is not a "forensic practitioner." Ina questions this.

Expert Response #1: David DeMatteo

  • Acknowledges Dr. Kohl's intent: Commends Dr. Kohl for not assuming a forensic role if he lacks expertise.
  • Clarifies "Forensic" Determination: The definition of a "forensic" evaluation is not up to the psychologist's self-identification or typical practice areas.
  • SGFP Definition of Forensic Psychology: Based on the type of service provided: "professional practice by any psychologist… when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters" (APA, 2013, p. 7).
  • Distinction: Expert Witness vs. Fact Witness:
    • Expert Witness (Forensic): If Dr. Kohl provides an expert opinion (report or testimony) on how neuropsychological impairments impact competence to proceed. SGFP applies to providing expertise to judicial, administrative, and educational systems.
    • Fact Witness (Not Forensic): If Dr. Kohl only provides information about the defendant's neuropsychological functioning without opining on the psycholegal issue (competence). His testimony on mental status, diagnosis, progress, etc., related to a patient, is not ordinarily considered forensic practice (SGFP 4.02.02).
  • Conclusion: If Dr. Kohl limits his report/testimony to documentation of functioning without a psycholegal opinion, his evaluation is not forensic, even if relevant to the court's determination.

Expert Response #2: Ira Packer

  • Two Issues Identified:
    1. Boundaries of Competence (EPPCC Standard 2.01): Psychologists must practice within their relevant experience/training.
    2. Special Knowledge for Forensic Contexts (EPPCC 2.01(f) / SGFP): Psychologists in forensic roles must be familiar with governing judicial/administrative rules. SGFP applies to anyone involved in "examining or treating persons in anticipation of or subsequent to legal, contractual, or administrative proceedings."
  • Application to Case: Since the evaluation is for competence to stand trial, SGFP applies, even if Dr. Kohl is a clinical neuropsychologist.
  • Dr. Kohl's Role: Appropriately limiting his involvement to clinical expertise, not opining on the forensic issue. This is within ethical standards. Opining on competence without expertise would be problematic.
  • Intern's Concern: Ina's concern regarding Dr. Kohl's knowledge of the forensic context is valid.
    • Performance Validity Testing: Standard practice in neuropsychology to administer measures to detect feigning/malingering (Heilbronner et al., 2009).
    • Informed Consent: Dr. Kohl must fully inform the individual that testing is for a forensic evaluation and results will be shared with the court (SGFP 6, Informed Consent, Notification, and Assent).
  • General Principle: The applicability of SGFP "does not depend on the practitioner's typical areas of practice or expertise, but rather, on the service provided in the case at hand" (APA, 2013, p. 7).
    • Psychologists in consultative, testing, or therapeutic roles where expertise is relevant to a legal matter must conform to SGFP.
    • They must understand how the legal context impacts clinical presentation and inform clients of purpose, limits of confidentiality, and privilege.
  • Implications for Forensic Practitioners: When seeking consultation from non-forensic psychologists, the forensic psychologist must clearly communicate:
    • Specific referral questions.
    • That results will be included in a forensic report.
    • The importance of informing the evaluee of these elements at the evaluation's onset.

Vignette 1B: Therapeutic Versus Forensic Roles (Case of Steven)

Scenario Summary

  • Defendant: Steven, 20-year-old college student, charged with indecent exposure (first offense as an adult).
  • Sentence: Time served, 3 years probation, abstains from alcohol/drugs, weekly therapy.
  • Court Order: Psychotherapist must file notes and progress reports with the court.
  • Therapist: Dr. Cho, Steven's former therapist from his mid-teens, contacted by Steven.
  • Dr. Cho's Dilemma: Steven had a prior similar incident (exposing himself to a teacher) in high school, using alcohol/marijuana daily; this was handled in-house with Dr. Cho's therapy, undisclosed to the current court. Dr. Cho is uncertain how to proceed due to court reporting requirements and potential harm to Steven by revealing prior, possibly sealed, juvenile information.

Expert Response #1: Stanley L. Brodsky

  • Conflict Identified: A clear "conflict of roles" for Dr. Cho.
  • Confidentiality vs. New Client: As a juvenile, Steven's records were likely sealed, and Dr. Cho had a commitment to confidentiality. Now, the court is her "client" and requires reports.
  • Potential for Harm: If Dr. Cho accepts, her required reports would draw on earlier therapy, revealing prior similar behaviors (unknown to the court) that contradict the "first offense" assumption. This information could lead to a negative impact on Steven's life.
  • Unequivocally Forensic Service (SGFP 4.02.03): Therapy mandated by court order, with reports and notes sent to the court, makes the service unequivocally forensic.
  • Responsibility to Avoid Harm:
    1. Dr. Cho: Her primary task is to consult colleagues with forensic knowledge who would advise against her accepting the case.
    2. Steven's Attorney: Should have advised Steven against seeing Dr. Cho; ideally, a different therapist would be needed.
    • Note on Steven's Innocence: Steven made a rational choice based on prior positive experience, although recurring symptoms question prior therapy's success.
  • Blame on the Judge: Requesting detailed therapy notes puts the equivalent of a "third person in the therapy room." This "judge-eavesdropper" is intrusive and objectionable, likely dampening open communication and psychological progress. Therapists may decline such referrals.

Expert Response #2: Stephen L. Golding

  • Interrelated Role Considerations:
    • Whether the second therapeutic role in a forensic context constitutes an unwise/impermissible dual role.
    • Functioning of confidentiality and privilege in the second role.
    • Who is the client in the second role.
    • General record keeping and standard of practice.
  • Relevant Ethical Codes: SGFP 4.02.01 and EPPCC 3.05 (multiple relationships and therapeutic-forensic role conflicts).
  • Multipronged Analysis: Codes require analysis of potential role conflicts concerning objectivity, competence, effectiveness, exploitation, or harm.
  • Principal Conflict: Potential for Harm: Dr. Cho's prior involvement may color her objectivity regarding this risk.
  • Recommendation: Dr. Cho should not accept this referral and must explain the nature of potential harm to Steven.
  • Why Dr. Cho Cannot Proceed:
    • Risk Management: Effective therapy requires assessing why Steven reoffended. Dr. Cho already possesses knowledge of prior problematic sexual behavior and substance abuse.
    • Mandated Communications: Court-mandated communications (treatment strategies, goals, progress) would inevitably lead to the court's discovery of information Steven withheld.
    • Ethical Obligation: It would be unethical for Dr. Cho to agree to omit this information (due to limited confidentiality, record-keeping guidelines, dual clients, and avoiding deceptive communications), potentially risking her license.
  • Alternative: Another therapist would still conduct an assessment and likely discover prior history, but Dr. Cho already knows.
  • Communication to Steven: Dr. Cho should explain the logical risks if he accepts the plea bargain and continues to deceive the court.
  • Obligation to Court: Dr. Cho is not obligated to inform the court of Steven's prior therapy details unless Steven releases the records or they are court-ordered. Steven is free to seek another therapist and potentially imperil himself by deceiving them or the court.

Vignette 1C: Allegiance and Objectivity (Case of Dr. Jessica Quinn)

Scenario Summary

  • Practitioner: Dr. Jessica Quinn, a forensic psychologist with 4 years of private practice experience.
  • Referral Source: Hugh L. Dewey, a criminal defense attorney, is a steady source of referrals (Dr. Quinn has evaluated 15 of his clients).
  • Dr. Quinn's Integrity: She is ethical and thorough, having reached conclusions unfavorable to Mr. Dewey's cases at least 4 times, yet he continues referrals.
  • New Case: Minor, non-violent felony charge. Preliminary plea agreement contingent on outcome of pretrial motion.
  • Judge's Concern: During testimony, the judge ordered a competency evaluation due to concerns about the defendant's ability to proceed.
  • Referral to Dr. Quinn: Mr. Dewey selected Dr. Quinn.
  • Defendant's Background: Long history of intellectual disability, FSIQ score of 62 in grade school, current limitations in adaptive functioning (e.g., locating witnesses).
  • Plea Agreement: Allows client release on probation to his aunt, avoiding prison time. If found incompetent, the client would likely spend 6-12 months in restoration treatment, and the plea agreement would expire.
  • Dr. Quinn's Belief: Believes the best outcome for both legal and mental health perspectives is for the client to accept the plea.
  • Mr. Dewey's Request: Asks Dr. Quinn to exclude the prior grade school psychological report and information on adaptive functioning from her report.
  • Dr. Quinn's Discomfort: She believes this information is crucial for assessing competence and is uncomfortable omitting it.

Expert Response #1: Barry Rosenfeld

  • Ethical Dilemma Contingent on Opinion: The dilemma depends heavily on Dr. Quinn's opinion of the defendant's competence.
    • If Competent: The prior records might not be relevant. Competence is malleable, and lower functioning levels may be sufficient for less serious decisions (e.g., plea bargain vs. murder trial). An IQ of 62 with mild limitations could be sufficient to accept a plea.
    • If Incompetent: The issue becomes trickier.
  • Restrictions on Information: Agreeing to conditions that restrict information use or inclusion in advance is problematic.
  • Relevance of Information: Information may or may not be relevant to the ultimate clinical opinion. Including potentially "pejorative or misleading" information (e.g., low IQ score from an old report) might be inappropriate if not directly related to the psycholegal issue.
  • Reliability of Information: Skepticism regarding attorney's verbal account of an IQ score. Recommend reviewing actual records or conducting fresh testing. An example given: an IQ of 45 was found to be unreliable due to language barrier and poor test administration.
  • Navigating the Case Outcomes:
    • If Found Competent: Report can be succinct, noting mild cognitive limitations that do not render him incompetent. Attorney would likely be satisfied, and case resolves.
    • If Found Incompetent: Dr. Quinn is in a different position. If the evaluation can be "shelved" (not filed) if unfavorable (assuming no court order), the case might settle without conflict. Attorney disappointment is common and usually doesn't sour professional relationships (as demonstrated by Dr. Quinn's past).
  • When Ethical Conflict Arises (Court-Ordered Report):
    • If a report must be filed regardless of outcome, including school records may support an intellectual disability diagnosis (though current testing is preferred).
    • Attorney's account of mild functional limitations is less critical and perhaps reasonable to omit if requested, as significant limitations should be directly apparent to the evaluator.

Expert Response #2: Daniel Murrie

  • Adversarial Pressures: Forensic work is inherently subject to adversarial pressures from retaining parties, even institutional pressures (e.g., state psychiatric facilities pressure to find competency).
  • Evaluator Immunity Illusion: Most evaluators believe they are immune to partisan pressures, but research consistently demonstrates "adversarial allegiance" (Murrie & Boccaccini, 2015; Murrie et al., 2013). This bias influences some evaluators more than others, but no specific characteristics of vulnerable/immune evaluators have been identified.
  • SGFP Emphasis: Section 1.02 highlights the importance of accuracy, impartiality, fairness, and independence in expert opinions, striving to resist partisan pressures and avoid "partisan presentation of unrepresentative, incomplete, or inaccurate evidence that might mislead finders of fact" (APA, 2013, p. 9).
  • How Dr. Quinn Should Proceed (Declining the Request):
    • Politely decline Mr. Dewey's explicit request to alter the report or omit information, with a clear explanation.
    • Emphasize that comprehensive background information is essential for a meaningful competence evaluation of a defendant with intellectual deficits.
    • Explain that omitting information makes the report less credible to the court.
    • Refer to ethical duties and the goal of objectivity (potentially sharing relevant SGFP excerpts).
  • "Do Not Make an Attorney's Problem Your Problem":
    • Attorneys manage case strengths and weaknesses. Objective evaluators present all relevant evidence, regardless of how it supports attorney goals.
    • Attorney goals (prevailing) differ from evaluator goals (accurate opinion).
    • Evaluators should set clear boundaries. Reasonable attorneys will accept this; unreasonable ones might terminate the relationship, which is preferable as they are best avoided in future cases.
  • Task-Irrelevant Information and Bias:
    • Dr. Quinn's concern for the defendant's "best interests" and the plea agreement expiring if found incompetent are "task-irrelevant information"—contextual information relevant to the broader case but not the specific forensic analysis (adjudicative competence).
    • Such information can bias psycholegal opinions.
    • Strategies to Mitigate Bias from Task-Irrelevant Information:
      • Recognize and acknowledge it.
      • Ask: "Would I be reaching the same conclusion if I had not known this contextual information?" or imagine opposite contextual information.
      • Seek consultation from a "blinded" colleague who receives only task-relevant information.
  • Evaluator's Duty: Dr. Quinn's sole duty, given the court's referral, is to opine whether the defendant is competent and communicate that opinion clearly, based solely on task-relevant information (defendant's capacities related to competence standard).
  • Attorney's Role: It is Mr. Dewey's responsibility to advocate for his client's best interests, not Dr. Quinn's. A good attorney will find other ways to pursue favorable outcomes, even with a disappointing competency finding, or ask additional, well-framed referral questions (e.g., type of restoration services).