Chapter Title: ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING IN FORENSIC

ASSESSMENT
Chapter Author(s): Lori L. Hauser

Book Title: Ethics Challenges in Forensic Psychiatry and Psychology Practice

Book Editor(s): Ezra E. H. Griffith
Published by: Columbia University Press

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PART III
SPECIFIC ETHICS PROBLEMS
IN FORENSIC PRACTICE

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10
ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING
IN FORENSIC ASSESSMENT
Lori L. Hauser

DESPITE EARLY CRITICISMS that psychological testing did not have any
place in the forensic arena (e.g., Ziskin 1981), psychological testing routinely
plays a key role in forensic work today. Although it is true that many tests were
not designed specifically to address psycholegal questions, the tests still are
able to provide relevant data that can aid in answering forensic questions.
Whether it involves assessing a person’s response style in the context of a com-
petency evaluation, exploring personality characteristics that may contribute
to a person’s risk, assessing a person’s cognitive capacity to make a will or to
consent to treatment, or describing a person’s functional capacities in the con-
text of a personal-injury case, psychological testing can both generate specific
hypotheses for further exploration and can confirm or disconfirm those hypoth-
eses (Heilbrun 1992).
At the same time, use of the tests in the forensic arena brings a host of unique
ethical challenges for the forensic practitioner. In a context where mistakes or
misuses of data could mean the difference between life and death, freedom and
incapacitation, or preventing a violent rape and missing its potential, profes-
sionals must maintain a standard of conduct that respects the import of their
work and its impact on others’ lives. Working in such a field requires being
attuned to a wider scope of potentially problematic situations.

THE IMPORTANCE OF A CODE

Having a code of ethics, a system of shared principles and professional aspira-

tions, serves multiple functions. For the public, it instills trust that practitio-
ners are there to serve the greater good, to benefit society, and to fulfill their

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162 SPECIFIC ETHICS PROBLEMS IN FORENSIC PRACTICE

duties under a framework of decency and integrity. For practitioners, it pro-

vides a moral compass against which to judge professional behavior, and it
instills a professional identity, a sense of loyalty and commitment to shared
values. For educators and supervisors, as well as their professional progeny,
it provides a concise way of transmitting the practice of psychology to the
next generation, outlining an organized set of standards that can be applied
to most situations without being so rigidly dogmatic that there is no room for
extenuating circumstances or individualized decision making. And finally,
for all stakeholders, it provides an agreed-upon source by which to resolve
conflicts and to regulate the unprofessional conduct of practitioners, when
necessary (Hess 2005). In this sense, it is useful to think about a specific frame-
work for the ethical use of psychological testing in forensic work.
In coming up with such a framework, one source to draw upon is the court
itself (that is, legal doctrine). The principles of relevance and reliability under-
score the basis for the admissibility of expert testimony (Federal Rules of Evi-
dence [FRE], 401, 702). To be considered relevant, the psychological test must
measure some construct that is tied to the psycholegal issue at hand. If the
forensic question is testamentary capacity, it may not be relevant to assess other
emotional, personality, or clinical syndromes. If the standard for insanity in
your jurisdiction is a strict M’Naghten standard, it may not be relevant to assess
such constructs as emotional stability and impulsivity, as it would be in a juris-
diction that also considered capacity to conform one’s behavior. If the ques-
tion is competence to stand trial, it may not be relevant to assess (or to comment
on) an examinee’s risk for future violence. And in all cases, if the examinee does
not fit the standardization sample for a particular test, the test may not be rele-
vant for that person, regardless of the context. Thus, psychologists must be
mindful that they restrict their selection of tests to those that are relevant not
only for the task but also for the person being assessed.
The way courts use the term “reliability” has to do with whether the test
measures what it purports to measure in an accurate, replicable manner. This
definition captures both principles of reliability (or consistency) and validity
(or accuracy) encountered in traditional psychological test development (Anas-
tasi and Urbana 1997). A test must adhere to both principles to be considered
reliable under the FRE. In the forensic arena, this extends beyond just estab-
lishing that the test meets the basic psychometric standards for any psycho-
logical test. It must be ensured that the test is reliable and valid for its intended
forensic purpose. As stated above, most psychological tests were not designed
specifically with a forensic or psycholegal construct in mind. As Butcher

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 ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING 163

and Pope (1993) noted, the simple fact that a test has been used for a particu-
lar purpose in the past does not mean that it is valid for that purpose unless
there are sufficient research findings to substantiate its utility in doing so.
This necessitates that practitioners stay abreast of the ever-changing literature
with respect to psychological tests and what they do (or do not) measure.
This framework also can be structured from a clinical standpoint. Two
decades ago, Appelbaum (1997) proposed that forensic practice be guided by
the principles of truth telling and respect for persons, in the interest of achiev-
ing the value of justice. In applying the principle of truth telling to psycho-
logical testing, one not only must report their findings honestly but must select
the appropriate tools to answer the question, consider the findings in context
when interpreting them (including specific attention to the response style and
motivation of the examinee), and communicate those findings in such a way
as to ensure that others’ do not misunderstand or misuse them. In this sense,
it draws from both of the principles of relevance and reliability outlined above.
In addition, the principle of respect for persons can be achieved by ensuring
that one has the necessary knowledge and training to conduct the evaluation,
that the examinee understands the parameters of the relationship (and, thus,
does not expect that your purpose is to help or to advocate for them), that one
restrict the evaluation to the specific issue at hand, and that one present the
findings in a fair and impartial manner.
With this framework in mind, ethical practitioners must walk themselves
through a series of steps (or questions) when faced with an ethical conflict.
Naturally, one must recognize that there is a conflict and identify the issue at
hand: What is the problem? What are the ethical principles involved? Next, one
must identify the competing interests: Who has a stake in this conflict? Who
will be affected by the outcome of my decision? Next, one must generate possi-
ble resolutions to the conflict and assess the impact to all involved: What
recourse do I have to resolve this, and how will others be affected by that deci-
sion? This usually is done in consultation with others, whether one turns to the
literature or to colleagues for guidance. Finally, one must select the option that
minimizes harm to all involved, the one that best adheres to the universal
principles of fairness, integrity, and respect for persons.
This chapter will provide guidance for the forensic practitioner in adhering
to an ethical stance that centers on the principles of relevance, reliability, and
respect for persons (the three Rs) when conducting or utilizing psychological
testing in forensic work. Psychological testing will be construed broadly to
encompass any standardized measure of behavior, including tests designed

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164 SPECIFIC ETHICS PROBLEMS IN FORENSIC PRACTICE

to measure clinical constructs (e.g., personality characteristics, clinical syn-

dromes) as well as tests designed to measure constructs central to the psy-
cholegal question at hand (e.g., competence to stand trial). Specific ethical
dilemmas are presented and deconstructed to inform the reader about the
ethical principles that influence our decisions in a variety of forensic contexts.
In some of the scenarios, workable solutions are presented, but the larger pur-
pose of this chapter is to engage the reader to think about the issues at hand
and how their own response might be guided by the overarching principles
and aspirations of our professions. Because the subject matter of this chapter
is psychological testing, the principles discussed will derive from the Ethical
Principles for Psychologists and Code of Conduct (American Psychological
Association [APA] 2010), hereinafter referred to as the Code, and the Specialty
Guidelines for Forensic Psychology (APA 2013), hereinafter referred to as the
Guidelines.

SCENARIO 1

A fifty-year-old Jamaican immigrant with intellectual disabilities is committed to an

inpatient forensic unit for a competency-to-stand-trial evaluation. He grew up in the
mountains of Jamaica, and he relocated to the United States at age seventeen, at
the time speaking only broken English in place of his native Patois (Jamaican Creole).
He has been treated in the past for schizophrenia, and he presents with bizarre
somatic and paranoid delusions, rigid thinking, and poor social relatedness, although
it is difficult for him to articulate his experiences given his intellectual limitations.
He is referred for psychological testing for diagnostic clarification and for an opin-
ion as to his prognosis for restoration.

This example concerns the principles regarding appropriate use of assess-

ment instruments (Code, 9.02: Use of Assessments; Guidelines, 10.02: Selec-
tion and Use of Assessment Procedures). The tendency for psychologists to use
a standard battery in conducting psychological evaluations for diagnostic clar-
ification may be inadequate and inappropriate given the circumstances of the
assessment or the characteristics of the individual being assessed. Factors such
as geographical locale, cultural background, or formal education could distort,
mislead, or negate the findings of psychological testing, thereby violating sev-
eral principles with respect to adequate evaluation of an individual (Butcher
and Pope 1993).

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 ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING 165

In this scenario, the examinee involved does not match the standardization
sample for many psychological tests in any way other than the fact that he is
male: he is not white; he is not an acculturated minority (that is, one who grew
up in the United States or a similar Western culture); he has little formal edu-
cation and never received any special education to address his intellectual
deficits; he most likely has never been exposed to formal testing procedures
(including timed tests); he learned English as an adult and still does not have
command of its nuances to be able to express himself adequately; and he is
placed in a maximum-security environment facing charges in a criminal-
justice system he knows little about, with no real supports or familiar resources
at his disposal. So, what are the potential pitfalls of administering such tests?
First, let us consider what can happen when tests are applied to individuals
who do not match the population on which they were normed. Butcher and
Pope (1993) describe a study conducted by Erdberg and colleagues back in the
1970s, in which the researchers discovered that a single item on the original
MMPI (personality test) could distinguish all white test takers from all black
test takers in a rural sample. Widely used computer scoring and interpretation
services found 90 percent of black test takers to show profiles associated with
psychiatric patients, despite no other evidence (from history or clinical inter-
views) supportive of such. Though this test underwent large-scale revision
since then (now the MMPI-2 and its progeny, the MMPI-2-RF), at the time it
was regarded as a precise, valid measure of psychopathology. Thus, it is imper-
ative that psychologists (and the consumers of their evaluations) remember
that ethical practice demands ensuring that tests are suitable for the individu-
als being tested, and this necessitates ongoing scrutiny of our measures and
assurance through rigorous research that they continue to meet standards of
reliability and validity.
Now back to our example. Cognitive testing may provide a description of
this man’s functional capacities in tasks associated with Western civilized cul-
tures, but it may underestimate his innate potential if the stimuli, content, and
context (for instance, the timed nature) are unfamiliar to him or if he fails to
understand the task instructions. Personality testing to explore his thought
content and process may be helpful, but again, his limited cognitive abilities
combined with his cultural upbringing may cause him to misinterpret items
that were standardized on a group that was quite differently acculturated. What
may appear in test interpretation as paranoia and somatic preoccupation may
simply reflect widely accepted, sanctioned cultural beliefs and practices. The
uninformed psychologist who simply administers a standard battery of tests

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166 SPECIFIC ETHICS PROBLEMS IN FORENSIC PRACTICE

without consideration of the examinee’s background and cultural context

risks confirming an inaccurate assumption made by others that the man is
mentally ill and, thus, needs medication—medication that he does not need
and that will do nothing to further his restoration to competence. A more
appropriate course of action may be to refer the man to another psychologist
who is versed in his culture or, if such is not possible, to seek consultation
(from colleagues or the literature) to understand the man’s experiences better.

SCENARIO 2

You receive a phone call from a social worker who works in the public defender’s
office, regarding a former (recently discharged) patient on whom you conducted
a psychological evaluation as part of a competency-to-stand-trial evaluation. The
patient is now undergoing a criminal-responsibility evaluation by a defense-hired
psychologist, and the social worker is requesting the raw data from your evaluation
to aid their psychologist in conducting his evaluation. She claims to have a release
signed by the patient, and (while she has you on the phone) she attempts to ask
“just a few questions” about the patient and your impressions of him.

There actually are a host of potential problems associated with this sce-
nario, but let us start with the release of raw test data. Psychologists have been
troubled by this principle (Code, 9.04: Release of Test Data) ever since the last
revision of the Code. According to the Code, psychologists now must release
test data (for instance, examinee’s responses, psychologists’ notes regarding an
examinee’s behavior during an examination) pursuant to a valid release, even
when it means turning over portions of the test materials themselves (for
instance, when test questions are printed directly on test-recording booklets).
This bothers psychologists because it stands in contrast with another princi-
ple from the Code, 9.11: Maintaining Test Security. Certainly, if examinees
are privy to the test questions and/or answers prior to an evaluation, they
may be able to manipulate their response pattern to serve their own interest
(either more or less pathological, depending on the nature of the evaluation).
So, how are psychologists expected to maintain test security if they can be
forced to turn over test questions along with the test responses?
One option may be to try to ignore the request or to stall any sort of official
response to it. However, we must remember that we also are bound to main-
tain a certain level of cooperation with other professionals (Code, 3.09:

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 ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING 167

Cooperation with Other Professionals). Psychologists do not deliberately act

in obstructionist ways, and refusal to turn over the data may not be fair to the
defendant/former patient, as it may interfere with the defense’s ability to pre-
pare a legitimate mental-health defense. At the same time, simply sending the
data directly to the defense attorney and his social worker may be problem-
atic, as they may misinterpret or misconstrue the information itself. Psycholo-
gists also take steps to avoid misuse of their work by others (Code, 1.01, Misuse
of Psychologists’ Work), and failure to do so in this scenario may lead to a great
miscarriage of justice if the court is misinformed about the implications of the
data because they were relinquished to individuals not qualified to interpret
them.
Another option is first to pull the examinee’s test responses from the test
materials prior to sending the data, but this may be extremely time consuming
for you, the professional. A better option is to explain the situation to the per-
son requesting the information, to make known your commitment to the
Code, and to insist on releasing the test data only to the defense-hired psy-
chologist. The request for release of information should come from (and the
data to be released sent to) the psychologist. You do not have to release the data
or answer any questions directly from the social worker. Although you ulti-
mately may be forced by a court order to turn over the materials to the person
requesting them, this should not be your first response. Psychologists can (and
should) negotiate to maintain test security of the materials that are so essen-
tial to the work that they do.
Another potential problem with this scenario is the social worker’s attempts
to elicit information from you outside the context of the evaluation you con-
ducted (pertaining to competency). Again, the principles of cooperating with
other professionals and preventing misuse of one’s work (the psychological
testing you conducted) come into play. However, now they are pitted against
another principle, drawn from the Guidelines, which has to do with maintain-
ing an unbiased, impartial presentation of data (1.02: Impartiality and Fair-
ness). Although it may seem like an innocent solicitation on the part of the
social worker (and very well may be), and although it may seem that the psy-
chologist simply is being helpful (and indeed, ethical) by ensuring that her
data is not misinterpreted or misunderstood, the problem is that the psycholo-
gist’s role was in service to the court, and now that service has been fulfilled.
As such, it is unfair to provide information to one side (the defense) but not
the other (the prosecution). If further explanation regarding the psychologist’s
work is needed, it can be drawn out in testimony at a hearing or trial. Thus,

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168 SPECIFIC ETHICS PROBLEMS IN FORENSIC PRACTICE

psychologists must keep in mind under what circumstances and for what pur-
pose they conducted psychological testing and where that duty ends in light
of fairness for all involved.

SCENARIO 3

A psychiatrist administers and relies upon a computer-generated test interpretation

of the MMPI-2 and MCMI-III personality tests in a forensic assessment speaking to
the issue of criminal responsibility. The test interpretation suggests the presence of
antisocial personality disorder, so the psychiatrist includes it in his formulation.

First, this scenario poses an interesting question about competence and

scope of practice (Code, 9.07: Assessment by Unqualified Professionals).
Although psychiatrists may have a solid grounding in the basics of psychomet-
rics, such as test diagnostics, they are not routinely trained in some of its
nuances, such as test construction and development, principles of reliability and
validity, test bias, and so forth. They may not undergo years of rigorous practical
training in different types of assessment instruments (e.g., cognitive, objective
and projective personality, validity) under supervision to achieve compe-
tence, and not just in the general principles of testing but in the specific tests
themselves. This is not to say that they could not, but they may not. So, from
a competence perspective, it may be a fair assumption that many psychia-
trists would not possess the knowledge, training, and supervised experience
required to conduct psychological testing.
Even if there are exceptions—a psychiatrist who is as informed and as com-
petent in the requisite knowledge and skill of psychological testing as any qual-
ified psychologist—there still remain concerns regarding the larger scope of
practice issue and its perception by the public. The standards of competence
in psychological testing exist for a reason, so that the public may have faith in
the quality of services received. Any practitioner who wishes to conduct psycho-
logical testing can pursue the requisite educational, training, and supervised
experience to become qualified to do so. And any practitioner who does not
achieve the requisite qualifications but who conducts it anyway is misleading
the public. Further, for any forensic professional—psychiatrist or psychologist—
if one is not familiar with the basic principles underlying the data on which
they rely, they leave themselves vulnerable to cross-examination about their
work or sanction by an ethics committee (Butcher and Pope 1993). Even worse

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 ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING 169

(for the justice system), their explanations to the judge or jury may neglect
information that is crucial in understanding the test data, which may have
negative consequences on the outcome of the case.
Second, this scenario raises an ethical issue with respect to interpretation
of test results (Code, 9.06: Interpreting Assessment Results), which also influ-
ences the aforementioned scope-of-practice issue. Test-generated computer
printouts make it tempting for practitioners to administer psychological tests,
knowing that the computer will interpret the results for them. However, reliance
on computers to interpret a psychological test can be short-sighted, depending
on the test. Most of these computerized scoring programs (such as the MMPI-2
and the MCMI-III) are simply generic, algorithmic guides meant to provide
the basis for hypothesis testing. Butcher and Pope (1993, 282) state it best:
“Computer-derived descriptions are essentially textbook or prototype descrip-
tions of a particular test pattern developed by examining patterns of test results
and behavioral correlates.” They still must be evaluated by the psychologist
in light of other data. Some tests, such as the MMPI-2-RF (Ben-Porath and
Tellegen 2008/2011), go a little further, by providing reference to the empirical
literature for every interpretive statement made in the profile. Thus, for any
interpretive statement, the evaluator can cite specific research findings that
support its basis under cross-examination.
However, no computer-generated interpretive printout is able to consider
the unique cultural or situational factors that may have influenced this par-
ticular individual’s responses on this particular administration of this particular
test. For instance, consider the case of a young man who has never been incar-
cerated before, who is wrongfully accused of committing a heinous crime, and
who is facing years of incarceration as a result. Consider that this individual
has slept very little in the two weeks since he was arrested and incarcerated, that
he is threatened daily by other inmates and subtly derogated by staff because of
his alleged crime, and that he has no idea whether his wife and children believe
his innocence and stand behind him or not. Now consider an alternative sce-
nario in which this man simply walks into a psychologist’s office for psychologi-
cal testing as part of a routine pre-employment screening. One can imagine
that his MMPI-2 profiles might differ in the two scenarios, but while a com-
puter may not appreciate or incorporate these contextual differences into its
interpretation of his responses, a psychologist can and should (Guidelines,
10.04: Consideration of Assessment Settings).
Let us alter scenario 3 slightly to have the psychiatrist contract with a psy-
chologist to conduct the psychological testing and provide an interpretation of
the findings. The psychologist concludes, on the basis of the testing and all

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170 SPECIFIC ETHICS PROBLEMS IN FORENSIC PRACTICE

available evidence, that the examinee does meet criteria for antisocial person-
ality disorder but also suffers from bipolar disorder with psychotic features,
which forms the basis for a legitimate insanity defense. The psychiatrist now
must decide whether to include the information regarding the antisocial per-
sonality or whether it should be omitted.
First of all, the diagnosis could be invalid if there was no other evidence to
support it (aside from the computer interpretation). An elevated score on the
Psychopathic Deviate scale of the MMPI-2 is not, in and of itself, evidence of
antisocial personality disorder. But, assume for this scenario that it is accurate.
Not every psychological test’s finding needs to be reported. The larger issue
here is relevance to the psycholegal question: insanity. Antisocial personality
could be relevant to the issue of criminal responsibility if an argument can be
made that that is what precipitated the crime and not his coexisting mental
illness. However, if it can be firmly established that his bipolar illness precipi-
tated and legally negated his criminal responsibility for the crime (as stated
above), it could be prejudicial to mention the antisocial personality, as it
may unfairly bias the trier of fact to think that this is just another criminal.
On the other hand, omitting any discussion of it also may mislead the trier
of fact, who is responsible for considering all relevant data. Psychologists who
conduct psychological testing must consider what is at stake when assimilat-
ing their findings and producing a report. Assuming that the personality dis-
order is not relevant to the commission of the crime, what is at stake for this
individual? The psychologist could discuss the test findings, it could preju-
dice the jury, and an individual deserving of the insanity defense is not
granted it. Alternatively, the psychologist could omit the test findings, but
those findings could be discovered and raised by the prosecution, in the
aims of discrediting the psychologist’s testimony (which actually favors the
defendant), resulting in a guilty verdict. Now let us envision a scenario in
which the psychologist discusses the test findings, explaining how the entire
diagnostic picture relates to the individual’s mental state at the time of the
crime, and the jury considers such information in rendering whatever verdict
they deem appropriate. The bottom line is, you should always attempt to artic-
ulate the data that are relevant to the formulation of your opinion, including
that which is supportive and that which contradicts it, and how you came
to your conclusion in weighing both sides. As forensic practitioners, it is our
responsibility to provide the data honestly, relevantly, and with respect for
persons and to let the trier of fact decide (Guidelines, 10.01: Focus on Legally
Relevant Factors).

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 ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING 171

SCENARIO 4

A psychologist naïve to the PCL-R uses it in conducting an assessment of risk in

a death-penalty case. The psychologist is hired by the prosecution to assess the
defendant’s risk of future dangerousness, one component of a determination that
death is deserved.

As practitioners of our professions, we are obligated to provide services

within the scope of our competencies, based on our education, training,
experience, or consultation (Code, 2.01: Boundaries of Competence; Guide-
lines, 2.01: Scope of Competence). This is even more important in the forensic
arena, where (as this scenario suggests) the stakes literally are sometimes
life and death.
Although there are not explicit guidelines for determining whether some-
one is qualified to use the test, the PCL-R manual suggests that appropriate
users should possess an advanced degree in the social or behavioral sciences,
meet the professional standards to purchase tests and conduct psychological
assessments in their jurisdiction, have experience working with forensic popu-
lations, and be familiar with the clinical and research literature regarding
psychopathy (Hare 2003). Hare (2000) adds that training can be provided by
experienced users of the test, and he recommends that new users conduct at
least five to ten practice assessments and achieve an acceptable level of inter-
rater reliability before being permitted to conduct them on their own. In other
words, it is ethically irresponsible to conduct an assessment of psychopathy by
simply picking up the manual and reading it.
Again, we come back to the point made above about user qualifications and
competence when it comes to psychological testing. The term psychological
testing simply refers to “an objective and standardized measure of a sample of
behavior” (Anastasi and Urbina 1997, 4). It encompasses a wide range of actual
instruments, from self-report questionnaires and checklists that are highly face
valid and easy to interpret, to aptitude and achievement tests that require astute
attention to procedure for accurate results, to objective and projective person-
ality measures that require considerable understanding of norms, context,
response style, and hypothesis testing to interpret accurately. Even the most
basic of instruments still requires a firm grounding in test development and
psychometrics. An instrument such as the PCL-R, which taps into a construct

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172 SPECIFIC ETHICS PROBLEMS IN FORENSIC PRACTICE

that can be rather pejorative and extremely influential on the outcome of a

legal case, should only be used by those who have the training to administer
it properly, and that training includes an awareness of its potential misuses
(e.g., Edens 2001).
Recent findings indicate that the PCL-R may not be as reliable as once
thought. Although the manual (and other well-controlled research studies)
boasts interrater agreement levels ranging from .86 to .94, studies comparing
evaluators in practice have found considerably lower levels of reliability (e.g.,
ICC = .47, Boccaccini, Turner, and Murrie 2008). One study examining
PCL-R total scores generated by opposing experts—one hired by the prosecu-
tion and one hired by the defense—in sexually violent predator cases in Texas
revealed that prosecution- and defense-retained evaluators differed by an aver-
age of 7.81 points, with the former rating examinees higher than the latter. This
yielded an agreement level of .39, far less than that professed in the manual.
Furthermore, the direction of the difference suggests that partisan bias, or alle-
giance to the side retaining them, may be one explanation for the difference
in scores (Murrie et al., 2008).
The problem with the above scenario from an ethical standpoint is that, for
a host of reasons, practitioners may fail to recognize the boundaries of their
competence when it comes to psychological testing. Test manuals may appear
to be fairly straightforward, and interpretation guides sufficiently explanatory, to
give testers the impression that they understand the data. However, if they are
unfamiliar with the subtle nuances of scoring differences, or the influence of
context on particular scores, or the scope of behaviors they are evaluating, or
their own personal biases with respect to constructs related to crime, violence,
or victimization, suddenly the difference in outcomes is consequential. Perhaps
one has a rather limited scope of exposure to psychopathic individuals; he or
she would tend to perceive any evidence of the behavior or trait as “strong” evi-
dence, warranting a score of 2. Alternatively, perhaps one has a generally lenient
or forgiving worldview of people and tends to give others the benefit of the
doubt when judging potentially negative characteristics; he or she would likely
err on the side of seeing “some” or “no” evidence, warranting a score of 1 or 0.
Such individual differences could change the overall score by 6 or 8 points (or
more), painting a very different picture of the examinee in the eyes of the trier
of fact.
When you combine that naïve incompetence with the high-stakes context
of a forensic evaluation, particularly a risk assessment in the context of a death-
penalty case, where the pull for allegiance to the side who retains you may be
greater, the practitioner is all the more vulnerable to partisan bias (Guidelines,

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 ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING 173

1.02: Impartiality and Fairness). This is dangerous ground for the forensic
practitioner. Attorneys may be pressured by the high stakes of the case, making
them all the more emphatic about the narrative they wish to present. A
psychologist who is on shaky ground in terms of familiarity with a test instru-
ment, particularly one with as much emotional impact and stigma as the PCL-
R, is vulnerable to subtle, perhaps not even conscious, pressures to “see” the
data in a particular way. It is incumbent upon us, as forensic practitioners, not
only to know the boundaries of our competence but also to undertake assess-
ments with a humble acknowledgment that even the most experienced among
us may fall victim to the subtle pressures and cognitive biases inherent in a sys-
tem based on deciding the fate of others. Approaching each assessment in a
structured and methodical way, using only the tools that we have the requisite
competence to use, withholding judgment until we have all of the data, coun-
terarguing our own conclusions to ensure that we have carefully considered
each angle and hypothesis, and consulting with others who share our expertise
can guard against the pressures of partisan bias (and our own inherent cognitive
biases) to ensure that we have done our job with due diligence, objectivity, and
fairness for all (Neal and Brodsky 2006, Neal and Grisso 2014).

CONCLUSION

The ethical dilemmas and principles discussed in this chapter are but a few of
those encountered routinely by forensic professionals working at the nexus of
psychology or psychiatry and the legal system. One key point to keep in mind
with respect to the ethical use of psychological testing is that it is but one piece
of data, one piece of the puzzle. It is meant to tell us something about a per-
son, in order to help the trier of fact decide the legal issue at hand. It almost
never tells us the full story, and it must be considered in relation to the other
data—history, interviews, collateral interviews or reports, evaluator and third-
party observations, other medical testing—in formulating our opinions and
conclusions about the psycholegal question (Heilbrun 1992, Heilbrun et al.
2009). If we, as forensic professionals, can keep that one maxim in mind, we
are less likely to fall prey to pressures that might cause us to misuse our
tools, misconstrue our findings, or go beyond what the data tell us. This has
implications not only for the individual being examined but also for court
personnel, who may base rulings on invalid or irrelevant data, and for soci-
ety in general, whom the courts serve and whose justice is undermined by
unfair outcomes.

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174 SPECIFIC ETHICS PROBLEMS IN FORENSIC PRACTICE

A simple way to ensure that testers are adhering to our ethical guidelines
regarding psychological testing is to ask oneself a series of questions at the
outset:

1. What do I need to know about this individual to answer the psycholegal

question?
2. Is there a psychological test(s) that can tell me that?
3. Does the individual to be examined fit the standardization sample for that
test(s)?
4. Am I (or do I know someone who is) competent to administer, score, and
interpret that test(s)?
5. What other factors might influence the test results (including motivation
and response style)?
6. Can I talk myself out of my conclusions (that is, have I ruled out all other
possible interpretations or hypotheses that could fit the data)?
7. Have I conveyed my findings to the respective parties clearly, concisely,
and in accordance with the principles of relevance, reliability, and respect
for persons?

As noted in the examples here, few ethical quandaries are black and white.
Often, there is more than one right answer to a dilemma. There always are
multiple stakeholders involved who are affected by our decisions, and inevita-
bly some are going to be pleased and others not. At the end of the day, how-
ever, you have to be able to defend your position with a confidence deeply
rooted in your professional values and guided by the principles that inspire
professionals to pursue excellence in their work. If you have done your due dili-
gence to ensure that you have arrived at a conclusion that has considered all
the relevant data points and have taken steps to ensure that your work, and
your profession, are not misrepresented, misused, or misunderstood by others,
then chances are you can rest easy that you have acted in an ethical and
respectable manner.

References

American Psychological Association. 2010. “Ethical Principles of Psychologists and

Code of Conduct.” http://apa.org/ethics/code/index.aspx.
——. 2013. “Specialty Guidelines for Forensic Psychology.” American Psychologist
68:7–19.

This content downloaded from

223.231.149.49 on Sat, 13 Jan 2024 08:21:35 +00:00
All use subject to https://about.jstor.org/terms
 ETHICAL ISSUES IN THE USE OF PSYCHOLOGICAL TESTING 175

Anastasi, Anne, and Susana Urbina. 1997. Psychological Testing. 7th ed. Upper Sad-
dle River, N.J.: Prentice Hall.
Appelbaum, Paul. 1997. “A Theory of Ethics for Forensic Psychiatry.” American
Academy of Psychiatry and the Law 25:233–247.
Ben-Porath, Yossef S., and Auke Tellegen. 2008/2011. MMPI-2-RF (Minnesota Mul-
tiphasic Personality Inventory 2 Restructured Form): Manual for Administration,
Scoring, and Interpretation. Minneapolis: University of Minnesota Press.
Boccaccini, Marcus T., Darrel B. Turner, and Daniel C. Murrie. 2008. “Do Some
Evaluators Report Consistently Higher or Lower PCL-R Scores Than Others?”
Psychology, Public Policy, and Law 14:262–283.
Butcher, James N., and Kenneth S. Pope. 1993. “Seven Issues in Conducting Foren-
sic Assessments: Ethical Responsibilities in Light of New Standards and New
Tests.” Ethics and Behavior 3:267–288.
Edens, John F. 2001. “Misuses of the Hare Psychopathy Checklist-Revised in Court:
Two Case Examples.” Journal of Interpersonal Violence 16:1082–1093.
Federal Rules of Evidence. 1976. 28 United States Code §§101–1103.
Hare, Robert D. 2000. “Some Comments on Qualifications for the Forensic Use of
the Hare PCL-R.” http://www.hare.org/comments/comment1.html.
——. 2003. Manual for the Revised Psychopathy Checklist. 2nd ed. Toronto: Multi-
Health Systems.
Heilbrun, Kirk. 1992. “The Role of Psychological Testing in Forensic Assessment.”
Law and Human Behavior 16:257–272.
Heilbrun, Kirk, Thomas Grisso, and Alan M. Goldstein. 2009. Foundations in
Forensic Mental Health Assessment. Oxford: Oxford University Press.
Hess, Allen K. 2005. “Practicing Principled Forensic Psychology: Legal, Ethical, and
Moral Considerations.” In Handbook of Forensic Psychology, 3rd ed., ed. I. B.
Weiner and A. K. Hess, 821–850. New York: Wiley.
Murrie, Daniel C., Marcus T. Boccaccini, Jeremy T. Johnson, and Chelsea Janke.
2008. “Does Interrater (Dis)agreement on Psychopathy Checklist Scores in
Sexually Violent Predator Trials Suggest Partisan Allegiance in Forensic Eval-
uations?” Law and Human Behavior 32:352–362.
Neal, Tess M. S., and Stanley L. Brodsky. 2006. “Forensic Psychologists’ Perceptions
of Bias and Potential Correction Strategies in Forensic Mental Health Evalua-
tions.” Psychology, Public Policy, and Law 22:58–76.
Neal, Tess M. S., and Thomas Grisso. 2014. “The Cognitive Underpinning of Bias
in Forensic Mental Health Evaluations.” Psychology, Public Policy, and Law
20:200–211.
Ziskin, Jay. 1981. “Use of the MMPI in Forensic Settings.” In Clinical Notes on the
MMPI, no. 9, ed. J. N. Butcher et al. Minneapolis, Minn.: National Computer
Services.

This content downloaded from

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