The Art and Science of Forensic Evaluation: Staying Focused on the Relevant Legal Issue

On any given day, my phone will ring with an unidentified number.  On this particular day, I answered the phone and was immediately charged by questions from an attorney who had received one of my evaluations, “Dr. Smelko, why did you not include this individual’s distinct pattern of religious beliefs?”  “He is a devout Catholic. You should understand this and explore this within your evaluation!”  While I understand religion has its place in certain evaluations, and is very important in the clinical realm, it provides very little relevant information in many forensic evaluations (One exception is to explore delusions vs extreme religious beliefs such as in the Mitchell decision).  With this specific instance in mind, I was conducting a psychosexual risk assessment and had to explain to the attorney in detail that information pertaining to the individual’s religious practice had no bearing on the risk variables I was looking at during that evaluation.  

I often find myself explaining to clinicians, attorneys, and laypeople alike that information found in a forensic evaluation may be significantly different than that of what one would find in a clinical evaluation.  Evaluators trained primarily in the clinical realm that crossover into the forensic realm, initially are very critical of differences such as brevity or lack of diagnostic focus.  Again, these are interesting topics to explore because unlike clinical evaluations, forensic evaluations focus on the legal question posed by the referring party.  Information collected and presented outside of the legal question could be considered prejudicial and to a greater degree unethical.  In addition information which is not relevant to answering the posed question could mislead others to believe the irrelevant material is somehow important in the psychologists decision making process.  

On one (of many) occasions, I asked a fellow professional, “Why would you include a diagnosis?”  The mental health professional paused and began to explain to me the importance of diagnosing as part of the mental health profession.  I again asked them, based on the referral question, why was a diagnosis relevant to the area he or she was exploring? Did the statute require a diagnosis? Did it add value to the referral question?  While they were unable to answer me specifically, they ultimately stated “Because that’s what we do, we are clinicians.”  

When I was being trained in forensic psychology, I was asked similar questions by my supervisors.  On one occasion the question was related to mental status examinations. “Why do we care how much they weigh or how tall they are? Why would we add this information into our evaluation?”  When deliberating this question I could find rationale for times I wanted this information as physical presentation can change during the process of mental illness onset.  At other times, I was unable to find a good reason I was asking similar questions.  One of the major differences between clinical psychology and forensic psychology is the astute focus to what needs to be answered, how to answer it, and how to give the reader (the trier of fact) as much relevant data in a concise manner.

What is the process of conducting a forensic evaluation? 

Kirk Heilbrun and Dave DeMatteo published an influential article Principles of Forensic Mental Health Assessment.  In this article, they outlined 29 points of start to finish effective forensic evaluation.  The very first factor is to identify relevant forensic issues.  This concept is found in multiple works in the forensic field including primers written by Thomas Grisso (Competence to Stand Trial Evaluations: Just the Basics).  The point being, once you identify the relevant forensic issue, it will guide not only the format of your evaluation and the conceptualization of your evaluation, but also the data-gathering and what you will need to answer the specific questions.  One forensic evaluation (psychosexual evaluation) is vastly different from another (mental state at the time of the alleged offense).  Neither evaluation should nor do they look the same as they answer unrelated questions.

In addition to guiding the evaluation, the forensic psychologist should also understand Fifth Amendment rights and the possibility of self-incrimination.  When individuals being evaluated engage in forensic evaluation, they should have a distinct understanding of the evaluation they are engaged in and understand what the data you are collecting will be used for.  The Specialty Guidelines for Forensic Psychology suggest the process of informed consent and/or notification of purpose should clearly outline why it is we are engaged in the forensic evaluation we are conducting and we should not use that information to answer other questions which may be raised during the course of the legal proceedings.  

Show your work!

Information gathered during the course of the evaluation, whether it is historical, clinical, legal, or third-party information should be relevant to the referral question, reliable and often challenged.  This information is helpful in assessing response style, alternative hypotheses, and ultimately showing a causal connection between the relevant data/clinical condition and the statutory language guiding the evaluation.  Forensic psychologists need to be able to point out backwards what they have done.  They should be able to attribute their conclusions back to the information they gathered.  If one collects too much data or irrelevant data, it could become confusing to the trier of fact and/or possibly show illusionary correlates.

Further forensic psychology differs slightly from clinical psychology as the reader is often an individual not associated with psychology or the mental health profession.  With this information in mind, forensic psychologists attempt to use plain language and avoid technical language when possible.  In fact, forensic psychologists describe words that clinicians take for granted (i.e. Delusion) and often write in simple language, avoiding large words.  This greatly assists the trier of fact to understand the information presented and make informed decisions without the fear of confusion. 

How different could it really be? 

Beyond the question of what should go into an evaluation, many professionals do not completely understand what makes forensic psychologist so vastly different from clinical psychology?  To answer this, I will provide eight general areas addressing the differences.  These areas include the scope of the evaluation, the importance of the client’s perspective, the voluntariness of the intervention or evaluation, the autonomy the client has, threats to validity, relationship dynamics, the pace and setting of the evaluations, and psychological testing and procedures.

Scope 

The first area that helps us to understand the differentiation between forensic and clinical work is the scope of the evaluation. Clinical evaluation addresses broad issues with the primary goal to diagnose, to look at personality functioning, to find treatment effective for behavior change and ultimately to improve interpersonal wellness.  Conversely, forensic evaluation is focused primarily on very narrow issues.  These issues are often nonclinical and defined by legal statute.  Clinical issues fall to the background if they are even addressed at all.  Further forensic evaluations do not consider the individual being assessed to be a patient or client, rather a forensic examinee.  The evaluation does not necessarily benefit or promote the health or well-being of the examinee.  

These concepts can be quite controversial at times.  Very recently, there has been debate amongst psychologists related to the practice of psychology outside of the traditional focus of improvement of the wellbeing of those served.  It has been argued if any practice of psychology does not guarantee the promotion of health and well-being it should not be conducted.  This debate originated from the debacle which occurred at Guantanamo Bay.  With this in mind, it is clear forensic psychology at times is not focused on the individual needs of the examinee they are evaluating.  In fact in extreme cases such as death penalty competency, if an examinee is found competent, the examinee would proceed to move forward with their sentence of death.  This highlights an important distinction in how forensic psychology vastly differs in scope and focus.

Client Perspective

The importance of the client’s perspective comes into play when differentiating the two disciplines of psychology.  In the clinical realm, the client’s unique perspective comes first.  We often do not doubt the motives of our client.  We often do not believe they may be telling us an alternative truth rather their truth is most important because it is about them, they came to us for treatment, they came to us to get better.  On the other hand, in forensic psychology, the forensic examinee’s perspective is only one piece of information collected.  Other information is routinely obtained from third-party, testing data, and our own observation.  In the case of forensic evaluation, objective accuracy is the most important perspective and at times it will conflict greatly with what the individual presents.  We have to understand that forensic examinees may have ulterior motives to present themselves in a vastly different light.  We have to remember the referral source’s question is what we need to focus on even if the forensic examinee would like to guide our question elsewhere.

Voluntariness

Returning to our initial discussion regarding what the referral question is, one must also understand where the referral originates.  If a client is referred by defense counsel for evaluation, informed consent must be provided. This is very similar to clinical procedure, however, does differ somewhat.  In the clinical relationship, it is a client-patient relationship and completely voluntary.  Even when the forensic examinee is referred by defense counsel and is provided informed consent, there are consequences they may encounter if they chose not to engage in the evaluation, which need to be described.  Those consequences can vary and be as simple as their attorney will have less data to work with or not be able to assist the examinee as effectively, yet consequences all the same.  In contrast, when a court order exists, consent is not at issue, rather notification of purpose.  This means the examinee is ordered into the forensic evaluation by the court.  In some cases, they will state they will not participate or engage in the evaluation regardless of the order; however, are still notified by the forensic psychologist that the evaluation will continue regardless of their consent.  It can feel very intrusive at times and is not considered a relationship between the examiner and examinee.  While one is consent and one is information being provided to the examinee, in both cases, individuals are told:  (1) The nature and purpose of the evaluation.  (2) Who authorized the evaluation.  (3) The associated limits of confidentiality including who may receive the evaluation.  (4) The examiner must determine if the person understands the explanation, usually by asking them to summarize what they have heard.

Autonomy 

In addition to the voluntariness, the client’s autonomy is also at issue.  In the clinical realm, evaluations are done in a collaborative fashion.  The patient and the doctor determine the course of treatment and the tools used in evaluating their needs.  This is highly guided by the patient and their willingness.  This differentiates significantly in a forensic evaluation.  In a forensic examination, the objective and the tools are determined by the psycho-legal question and the statutory language.  The tools selected are not guided at all by the forensic examinee.  On occasion I will have forensic examinees contact me prior to their scheduled appointment and ask me specifically what tools I will be using and how they will be used.  This is a difficult question to answer as many times I cannot simply tell them the tools.  If I would provide that knowledge ahead of time they may look those tools up, potentially altering the outcome of the evaluation.  I also want to make sure the evaluation is well understood, yet must be very careful about specific questions.  I will answer questions regarding invasiveness and types of tools, but not specifically the name of the tool or what goes into making that tool. This is a fine line we walk because we need to understand that examinees still have rights and the right to refuse in many cases.

Threats to Validity 

On the same line as discussing tools with forensic examinees, one must understand the threats to validity in forensic evaluations.  In clinical evaluation, clients are seeking treatment for relief of symptoms and usually have little motive too intentionally or unintentionally distort information.  If a clinical evaluator reaches out to third party such as parents or a spouse it is very unlikely the information provided by their loved ones has ulterior motive.   Healthcare and improvement are the key issues.  Because of this, we have no reason to believe that they will distort or lie to us and we can take their information mainly at face value, rarely do we begin to distrust or not believe.  

This is not the case in the forensic evaluations.  Subjects have added incentive to be less than candid.  There are different psychometric tools, which assist us in understanding if somebody wants to present themselves in an overly favorable light or engage in negative impression management.  Later we will talk more in depth in the blog about specific issues related to what is often called malingering or dissimulation, but currently one just needs to understand there are multiple reasons individuals may not be as truthful and that we need to guard ourselves against these situations while practicing forensic evaluation.  Further external sources may also be tainted due to the inherent outcome.  Being able to compare and contrast information is very important in determining the true picture of the forensic examinee.

Relationship Dynamics 

The relationship we have with the forensic examinee and the dynamics of that relationship are also distinctly different.  In a clinical setting, we hang our hat on the Rogerian model which includes therapeutic alliance, empathy, rapport and caring as the hallmarks of any good intervention or evaluation.  Clinical practice demands we must establish ourselves, make the client feel very comfortable, and provide them an environment to open up freely.  

While these characteristics at some level are relevant in a forensic evaluation, the forensic examiner must be careful not to violate the rights of the examinee.  All of the aforementioned Rogerian clinical factors may become unethical in various forensic evaluations.  As such, forensic evaluators are often encouraged to be detached, understanding even empathy could create a situation where the examinee may feel overly confident in confiding in the evaluator.  It is not that we do not want them to tell us everything, but we want them to do so with their eyes open and with the limits of confidentiality in mind.  Violation of a person’s Fifth Amendment right is something we make sure we are not violating and engaging in deception or making the examinee feel more comfortable than they should would be a direct violation of that right.  The forensic examiner wants to make sure the examinee is providing information freely and willingly, as we are not interrogators but evaluators.  

Forensic examiners must be oriented to the adversarial process and understand that information will be explored both on direct examination and cross-examination while in a court of law.  How we obtain that information is critical.  We want to make sure we do it legally and with inside of the rights of that individual.  At times, information could be confrontational when we gather it.  Often we will confront individuals (hopefully using motivational interviewing or other similar techniques) as information may need to be further understood and/or in some situations, we may want to see how someone reacts when you present them with information.  

Pace and Setting 

The pace and setting of the evaluations also differ.  In clinical settings, these can go on for a long time, very lengthy with multiple contacts and often some therapeutic intervention in between the evaluation.  These can be conducted at a leisurely pace and at the client’s comfort.  In stark contrast, forensic evaluations have very limited contact with the forensic examinee.  These evaluations are often fast, finite, and are directed by the court or the referral source’s pace.  Information is gathered at a rapid rate and at times in a fairly aggressive manner.

 Psychological tools 

Testing procedures and assessment tools also can differ significantly.  While traditional assessments focus on a battery of tools, often forensics assessments are free-flowing and are driven by a working hypothesis.  Information which is obtained from start to finish can radically change the course of the evaluation in certain settings.  While some evaluations are very similar to the traditional process of structured data collection (i.e. psychosexual evaluations), other evaluations move according to data as it is collected (i.e. mental state at the time of the offense and competency).  Forensic evaluations focus on informing the legal relevant questions and do not necessarily require multiple, if any, specific tests.  

I recall early on in my forensic career, a psychologist who oversaw the referral of evaluations for an agency insisted I use cognitive testing.  They strongly felt cognitive testing was what differentiates psychologists from other mental health professionals and wanted an IQ test in every evaluation that was conducted.  At that point, I did not understand exactly that there was a problem with this professionals request; however, after I developed further into my career, I understood that cognitive testing has its place; however, it should only be utilized if it is actually answering a question.  Fishing expeditions are not welcome in forensic evaluation and one should remain focused on the question at hand, the problem at hand, and what is relevant in each case.  A battery of tests is insufficient in most forensic evaluations.  Further other psychological tests have been scrutinized (i.e. the Rorschach) as it is seen as a projective method with questionable reliability and validity.  While I do not take a firm stance and actually use the Rorschach on occasion, I will note there are other assessment measures that are projective in nature that have little or no relevance to the forensic question at hand and/or are so subjective that one would not expect that they would stand up to the Frye or Daubert standards respectively (these legal standards will be further explored in later blogs yet reference the admissibility of evidence).  In addition, clinical evaluations often use multiple tests, which one hypothesizes on the interpretations, at times even stepping outside the bounds of what the data has been shown to report.  This is unacceptable in the area forensic psychology and one must be much more dogmatic in their interpretation and presentation of data.

Stay True Despite Those Who Do Not Understand

As you can see there are multiple differences between clinical and forensic work.  When I am challenged by my colleagues in the clinical realm or those just beginning forensic work, they are often appalled at the brevity and/or specificity of my evaluations.  Great social pressure occurs in smaller communities where one wants to see “The richness and depth of an individual.”  They state, “That does not look like (fill in the name of their favorite clinician’s) work”.  

I challenge those dedicated to the discipline of Forensic Psychology to stay true and not waver.  It is likely they will have to have many conversations with those mental health professionals not well versed in Forensic Psychology regarding the 8 differences I noted above and how those differences will ultimately assist the trier of fact.  These are often tough conversations however, conversations that need to happen, possibly repeatedly.  The area of forensic psychology is a distinct and different area that we continue to explore and I would encourage students pursuing forensic psychology to understand that while they are learning very important clinical skills that will assist them in writing beautiful clinically-oriented reports, they will need to refine their skills when they specialize in the area of forensics and understand exactly why they pick each test, why they are focused on specific issues, and how they can better assist the trier of fact.

Forensic Psychology: Perspectives, disbelief, and intrigue…Walking a fence without wavering

To the Reader:  My writings are not intended on being an authority or dogmatic in any way.  Rather my goal with this feature is to inform, hopefully create interest and to that end promote the practice and discipline that is Forensic Psychology.  

Introduction

Forensic psychology is an often misunderstood and glamorized profession.  I personally stumbled into forensic psychology after my graduate studies and only had a rough understanding of the profession from overhearing others discuss the subject.  While in graduate school I had the opportunity to work in a jail setting and many of my classmates and professors talked about this practicum as if it was a forensic setting, simply because we were providing treatment and evaluation to those in an incarcerated setting.  I later would find out this would fall under a different label of correctional psychology.

When I’m in the community I am always hesitant to discuss what I do as when I mention I practice forensic psychology most people begin to ask me about autopsies or at best the psychiatrist famed for investigations on Law and Order.  So this begs the questions…….what is forensic psychology, how is it conducted, and why would one want to go into this field?  

So what exactly is Forensic Psychology?

To answer this question we need to make some distinctions between 3 key words:  Law, Justice and Forensic Psychology. 

Law: a rule of conduct or procedure established by custom, agreement, or authority. 

Justice: the quality of being just or fairness.  The principle of moral rightness or equality, conformity to moral rights in action or attitude and the upholding of what is just especially fair treatment.  

Forensic Psychology:  the application of the science and profession of psychology to questions and issues relating to law and the legal system.  The word “Forensic” comes from the Latin word “Forensis,” meaning “Of the forum,” where the law courts of ancient Rome were held.  Today, forensic refers to the application of scientific principles and practices to the adversarial process where specialty knowledge of all sorts plays a role.

Therefore, forensic psychology is simply the application of psychology to inform the trier of fact.  The trier of fact can be many things to include judges and juries as well as legal tribunals.  Individuals with advanced degrees are qualified (or not) to provide testimony, which will assist the trier of fact in making legal determinations. 

Over a hundred years ago (1908), a psychologist by the name of Hugo Munsterberg wrote about psychologists testifying in the courtroom (On the witness stand).  His controversial book specifically discussed the presentation of information to the courts related to eyewitness identification.  Despite his pioneering work it was several decades later that Psychologists were recognized by the courts as holding the necessary qualifications to opine as experts in mental health related cases in the courts (Jenkins v US 1962).  

Do Psychologists belong in the courts?  What do they have to offer?

Even after the landmark decision in 1962, questions continue to arise “Should psychologists be considered experts?”  I have been challenged with the question of whether I am providing knowledge which is specialized and it has always been determined I am, but what is specialized knowledge?  Specialized knowledge is defined as: Whereas laypersons are generally limited, experts may testify to opinions provided that “Specialized knowledge” will assist the trier of fact in determining a relevant issue (rule 702, the federal rules of evidence, article 7.2).  When providing information to those in the courtroom, there are various levels of opinion, which can be rendered.  Psychologists can provide specialized knowledge in the area of psychology related to diagnosis, treatment, prognosis, and specific educational areas. They may also inform on the relationship of formulation or diagnosis and how it relates to legally relevant behavior. 

While Psychologists have much to offer the trier of fact they must also know their limitations.  When psychologists are asked to discuss ultimate legal issues (e.g. Was the Defendant Insane at the time of the crime?) or even what we would call penultimate legal issues (e.g. Did the Defendant appreciate the wrongfulness of their actions?) questions are raised to whether or not psychologists hold specialized knowledge in coming to these conclusions.  Many argue making these decisions exceed the scope of what our training and expertise is; however, sometimes legal mandates insist on psychologists making these determinations.  Some suggest questions as to criminal responsibility, competency to proceed, and so forth are not based on knowledge or training in the psychological field but are legal and moral judgments intended for the trier of fact.  This becomes conflicting at times because in certain situations, the trier of fact is not satisfied with the psychologist simply outlining a pattern of behavior, rather would like us to opine.  As the reader I challenge you to form an opinion over the next several months and years if these are decisions a psychologist can or even should make or if this should be left exclusively to a judge or jury.  

Sounds like this could be exciting, but where is the line to sign up?

It has often been stated forensic psychology has a shelf life.   Professionals in the field elude to a developmental model, which is approximately five years in length.  Without getting into specifics, unless a professional in the field of forensic psychology can find ways to effectively and adaptively cope with the extremely vivid and traumatizing material inherent in many cases as well as the adversarial process itself, they find their way out of this profession fairly quickly.  Over the course of many writings, readers will be exposed to multiple factors that keep psychologists in the field or drive them away from the specialization of forensic psychology.  In addition, and to a greater extent, my hope is to expose the reader to relevant topic areas and hopefully provide a greater understanding of what forensic psychology is, at least from my perspective.

My initial training was primarily in clinical psychology.  I spent my early undergraduate years studying psychology and sociology and the nuances of understanding abnormality and how to apply my knowledge to evaluation and treatment.  I worked long hours treating and evaluating children, adults, families, and even developing and carrying out enhancement-based programs such as sports psychology.  What most individuals, both in the realm of mental health and laypeople alike, do not understand is forensic psychology is an application of excellent clinical standard.  One must have a solid underpinning of all of the skills needed to become a clinical psychologist to move into the field and help courts make decisions.  With that said, the differences are also very distinct.  Clinical psychology and forensic psychology, while close cousins, are vastly different. 

Forensic psychology therefore is both an art and a science.  Psychologists practicing forensic psychology walk a tightrope every day.  They do not work for a side but work for objectivity and to promote the science they study and practice.  There is a high level of stress and a high demand for integrity.  I equate forensic psychology to a cat walking a fence in an alley.  Individuals throw objects at that cat from both sides, yet the cat maintains its balance.  This is not unlike being an expert in a courtroom.  Both prosecution and defense, depending on who is conducting cross examination, may attempt to discredit you or shoot holes in your educational background and your opinion.  We will get into testimony later; however, the point being is that forensic psychologists require a level of resilience and confidence to a greater extent than in the clinical realm.  

Well……..Now you know, so swim at your own risk!

I often tell a story to my students of what is it like to be a forensic psychologist.  I recall when I was an undergraduate.  Over Christmas break, I was fortunate enough to take a trip to Australia.  While in Australia, I was brought to a pristine beach.  The sand was white.  The ocean was blue.  It was always sunny.  It was gorgeous.  There were hundreds of people on the beach enjoying themselves.  Every so often, a biplane flew over.  After a while, I became interested in why the plane was flying over, yet did not have a reason to believe there was anything to be worried about.  As I walked down the beach, there was a placard, which was odd to find in the middle of a beach.  It had a piece of wood over the top of it and on top of that piece of wood it read “if you want to know”.  Well, ultimately curiosity got the best of me and I flipped that placard over.  Underneath was an aerial shot from one of these planes.  The view of the areal shot was beautiful, yet, also told an eerie tale. In the photo individuals were swimming, surfing and floating without a care in the ocean. Under the photo there was writing, which in short, pointed to the fact there were also sharks in the picture! The reader learned the reef had been eroding over the years and at times the sharks would swim inland and had attacked in the past. What it indicated was now you know that there is danger in the water and that sharks could be swimming around you and potentially attack, swim at your own risk!

I tell this story to my students to express the experience many have after entering the field of forensic psychology.  I explain that once you enter the world of forensic psychology, you move beyond clinical abnormalities, you move beyond treating, you move into the realm of understanding at times what people can be capable of and how dark human nature can be. You also understand the judicial system is a very technical and adversarial environment.  Your mind shifts, some for the better, some for the worst and as I indicated earlier, it is not hard to understand why most psychologists last short of five years in this subspecialty. 

I find this field fascinating, intriguing, and also recognize the detriment it can bring to those who fall in love with it.  I personally love forensic psychology, have devoted my life to it and throughout my writings, hope to present to you information and stories, which are intriguing, factual, and help you have a greater understanding of exactly what this field can bring to the science of psychology and to the greater role of humanity.