Ethical Practice in Forensic Shane Bush

Ethical
Practice
in Forensic
Psychology
EthicalPracticeInForensicPsych-TitlePP.indd 1 9/3/19 3:29 PM

SECOND EDITION
Ethical
Practice
in Forensic
Psychology
A Guide for Mental Health Professionals
Shane S. Bush, Mary Connell, and Robert L. Denney

Copyright © 2020 by the American Psychological Association. All rights reserved. Except
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Psychological Association.
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Library of Congress Cataloging-in-Publication Data

Names: Bush, Shane S., 1965- author. | Connell, Mary, author. | Denney,
Robert L., author.
Title: Ethical practice in forensic psychology : a guide for mental health
professionals / Shane S. Bush, Mary Connell, and Robert L. Denney.
Description: Second edition. | Washington, DC : American Psychological
Association, [2020] | Includes bibliographical references and index.
Identifiers: LCCN 2019022623 (print) | LCCN 2019022624 (ebook) | ISBN
9781433831171 (paperback) | ISBN 9781433831188 (ebook)
Subjects: LCSH: Forensic psychology—Moral and ethical aspects. | Forensic
psychologists—Professional ethics. | Forensic psychology—Practice.
Classification: LCC RA1148 .B86 2020 (print) | LCC RA1148 (ebook) | DDC
614/.15—dc23
LC record available at https://lccn.loc.gov/2019022623
LC ebook record available at https://lccn.loc.gov/2019022624
http://dx.doi.org/10.1037/0000164-000
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
To psychologists working in forensic settings who,
faced with complex ethical situations and
potential incentives for ethical misconduct,
nevertheless aspire to the highest standards
of ethical practice.
IMPORTANT NOTICE
The statements and opinions published in this book are the responsibility of
the authors. Such opinions and statements do not represent official policies,
standards, guidelines, or mandates of the American Psychological Association
(APA), the APA Ethics Committee or Ethics Office, or any other APA gover-
nance group or staff. Statements made in this book neither add to nor reduce
requirements of the APA’s (2017) Ethical Principles of Psychologists and Code of
Conduct (APA Ethics Code), nor can they be viewed as a definitive source of
the meaning of the APA Ethics Code Standards or their application to partic-
ular situations. Each ethics committee or other relevant body must interpret
and apply the APA Ethics Code as it believes proper, given all the circum-
stances of each particular situation. Any information in this book involving
legal and ethical issues should not be used as a substitute for obtaining per-
sonal legal and/or ethical advice and consultation prior to making decisions
regarding individual circumstances.
CONTENTS
Acknowledgments ix
Introduction 3
1. The Interface of Law and Psychology: An Overview 13
Primary Subspecialties Within Forensic Psychology 14
Forensic Roles for Psychologists 14
The Adversarial Environment 21
The Need for Information on Ethics in Forensic Psychology 22
Applying General Bioethical Principles in Forensic Arenas 22
Specialty Guidelines for Forensic Psychology: A Brief Overview 25
Related Professional Guidelines 25
Consideration of Jurisdictional Laws 28
Applying Risk Management Strategies in Forensic Practice 30
An Ethical Decision-Making Model for Forensic Psychology 31
Conclusion 38
2. The Referral 41
The Retaining Party–Examiner Relationship 41
Case 1: Handling Referrals in Personal Injury Litigation 52
Conclusion 55
3. Collection and Review of Information 57

Bases for Opinions 59
Case 2: Background Information in a Criminal Case 66
Conclusion 69
vii
viii Contents
4. The Evaluation 71
The Examiner–Examinee Relationship 71
Informed Consent, Assent, and Notification of Purpose 72
Procedures and Measures 77
Legal Considerations in Methods Selection 91
Mandated Measures 92
Third-Party Observers 93
Diversity Considerations 98
Record or Peer Reviews 101
Case 3: Custody Evaluation 102
Conclusion 106
5. Documentation of Findings and Opinions 107

Forensic Psychological Records 107
Scope of Interpretation 109
Monitoring Self-Bias 112
Forensic Reports 116
Test Security and Release of Raw Data 120
Clinicians Thwarting Disclosure 126
Feedback 126
Case 4: Anticipating Involvement in a Personal Injury Case 127
Conclusion 131
6. Testimony and Termination 133

Role Clarification 133
Accuracy 135
The Ultimate Legal Issue 135
Attorney Tactics 136
Completion of the Case 137
Retention of Records 138
Case 5: Disclosure of Test Results Using a Criminal Case Example 139
Conclusion 143
7. Addressing Ethical Misconduct 145

Framework for Addressing Perceived Ethical Misconduct 146
Case 6: Reporting Ethical Violations: A Family Law Example 152
Getting It Right After Getting It Wrong 158
Conclusion 159
Afterword 161
References 163
Index 179
About the Authors 187
ACKNOWLEDGMENTS
We are indebted to the many authors who have previously written about
psychological ethics, and we are particularly grateful to those who have
explored ethical issues in forensic psychology and related psychological spe-
cialties. Without their work, this book would not have been possible. We are
also appreciative of the many colleagues with whom we have discussed cases
and debated controversial ethical issues; the development and application of
professional ethics is an evolving process, and such discussions keep the evo-
lution alive. Additionally, we are grateful to the legal system for allowing us
to contribute to what we hope are just determinations and quality consulta-
tive and clinical services. Finally, we appreciate the support that APA Books,
particularly acquisitions editor Susan Reynolds, has provided us over the years.
ix
Ethical
Practice
in Forensic
Psychology

Introduction
T houghts of forensic involvement evoke mixed reactions from psycholo-

gists. Some psychologists find forensic practice very appealing, others are
extremely frightened by the prospect of being involved in the legal system,
and still others fall somewhere in between. Psychologists involved in forensic
practice perform wide-ranging professional services in varied settings, with a
broad spectrum of referral sources and examinees. Yet, providing forensic
services tends to be quite different from providing the clinical services for
which most practitioners were trained. In forensic practice, psychologists are
likely to confront competing expectations from the consumers of our services,
the profession of psychology, and the guardians of public welfare. Successfully
negotiating competing expectations in an adversarial context is required for
both professional survival and the protection and benefit of those receiving
services. Although psychologists who are drawn to forensic activities will
undoubtedly face the unique ethical challenges associated with forensic prac-
tice, many psychologists with little or no interest in professional legal involve-
ment will also find themselves thrust into the adversarial process and
confronting ethical challenges for which they are not adequately prepared.
The practice of psychology in forensic contexts can be both rewarding and
challenging. Successful negotiation of the challenges can itself be rewarding.
To establish ethical practices and successfully negotiate the challenges, psy-
chologists involved in forensic practice activities must have both a personal
commitment to maintaining high standards of ethical practice and the infor-
mation and tools needed to achieve and maintain ethical practice. This book
http://dx.doi.org/10.1037/0000164-001
Ethical Practice in Forensic Psychology, Second Edition: A Guide for Mental Health Professionals,
by S. S. Bush, M. Connell, and R. L. Denney
Copyright © 2020 by the American Psychological Association. All rights reserved.
3
4 Ethical Practice in Forensic Psychology
is intended to help fulfill both of those requirements by emphasizing the

importance of and modeling high standards of ethical practice, as well as by
serving as a source of information and some of the tools needed to achieve
and maintain ethical practice.
It has been said that ethics papers and books raise more questions than
they answer (Goodman, 1998). The extent to which that is true of this text, like
most ethical matters, depends upon what questions are asked. If one asks, “What
are the ethical issues of greatest concern in forensic psychology?” or “What
model can one follow to negotiate ethical challenges in forensic psychology?”
then this text will likely provide the answers sought. In contrast, if one asks
for guidance to an ethical dilemma, such as, “What should I do when I’m
asked to have my evaluation of an examinee recorded?” then the information
provided may be less specific than desired. The specific ethics questions with
which psychologists struggle do not lend themselves to cookbook answers
that apply to everyone. Nevertheless, through use of a structured decision-
making process, the ethical issues can be clarified and good solutions can be
established. Our vision for the book is to provide essential information and
tools that promote the ethical practice of forensic psychology.
GOALS OF PUBLICATION
This second edition provides an update on common ethical issues confronting

psychologists practicing in forensic contexts, including updated illustrations of
ways to negotiate ethical challenges in civil, criminal, and family law cases.
With this book, we strive to present and integrate the principles and standards
provided in the American Psychological Association’s (APA’s; 2017a) Ethical
Principles of Psychologists and Code of Conduct (APA Ethics Code) with many of the
other guidelines that have relevance for forensic practice in order to form a
more proactive, long-term, and positive approach to ethical practice. A number
of important resources have emerged since the first edition of this book was
published more than a decade ago, including the revised Specialty Guidelines
for Forensic Psychology (SGFP; APA, 2013), the Standards for Educational and
Psychological Testing (SEPT; American Educational Research Association, APA,
& National Council on Measurement in Education, 2014), and new position
statements/practice guidelines promulgated by the APA (e.g., Assessment of
Older Adults With Diminished Capacity [American Bar Association (ABA)/APA,
Assessment of Capacity in Older Adults Project Working Group 2008]) and
other professional organizations that are directly relevant to forensic practice.
Additionally, journal articles and book chapters in subspecialty areas (e.g.,
forensic practice with older adult and pediatric populations) have advanced the
understanding of ethical issues in forensic psychology and have been integrated
into this edition of the book. Furthermore, as the forensic psychologist’s under-
standing of relevant ethical issues evolves, so does the field of psychological
ethics in general. Scholarly publications that contribute knowledge to gen-
eral ethical psychological practice (e.g., the work by Knapp, VandeCreek, &
Introduction 5
Fingerhut, 2017, on positive ethics) are relevant for, and should apply to,
forensic practice.
The overarching purpose of this book is to provide information and a
decision-making process that assists psychologists engaged in forensic prac-
tice activities to (a) understand relevant ethical issues; (b) aspire to practice
in a manner that is consistent with high standards of ethical practice; and
(c) anticipate, avoid, and address ethical challenges. To achieve the overarch-
ing purpose, this book (a) describes ethical issues involved in forensic psy-
chology; (b) reviews ethical requirements, professional guidelines, and other
published literature relevant to forensic psychology; (c) provides an ethical
decision-making model; (d) describes ethical decision making in forensic psy-
chology from the perspective of positive ethics; and (e) illustrates the applica-
tion of the decision-making model through clinical vignettes that represent a
sample of ethical challenges experienced in different subspecialties of forensic
psychology. The present edition incorporates the ethical and professional
resources and thinking that have emerged since the first edition was pub-
lished. It integrates evolving psychological ethical principles with the evolu-
tion of forensic psychology, relying on contemporary theory and research,
where it exists. Although the wide variety of potential forensic activities for
psychologists prohibits exhaustive coverage of issues and practices, it is hoped
that readers will benefit from an enhanced understanding of relevant ethical
issues and the structured approach to ethical decision making.
In addition to updating the text based on new and revised ethical and legal
materials that have become available since publication of the first edition,
notable changes in this edition include (a) a description of ethics as a founda-
tional competency; (b) increased focus on evidence-based practice; (c) increased
emphasis on cultural considerations, technology, and teaching and super
vision; (d) modification of the decision-making model and implementation of
a mnemonic to facilitate recall of the decision-making steps; and (e) revision
and updating of case analyses based on the new resources and decision-making
mnemonic.
Coverage of ethical issues and challenges involves consideration of areas of
controversy that, by definition, lack universal agreement. As a result, readers
may disagree with some points made or positions taken in this book. In ethi-
cal decision making, there can be more than one sound decision or course
of action for a given situation. Well-reasoned, evidence-based divergence of
opinions enhances ethical thinking and promotes the evolution of forensic
psychology.
ETHICS AS A FOUNDATIONAL COMPETENCY
Professional competence is the foundation of ethical practice in psychology in

general and in specialties such as forensic psychology specifically. Professional
competence establishes the foundation upon which practitioners of forensic
psychology can provide services that are informative and beneficial to referral
sources and triers of fact. However, professional competence is not a unitary
concept, and it is not as easily defined as some practitioners and consumers
might wish. Multiple competencies underlie the forensic practitioner’s various
activities and responsibilities. Rodolfa et al. (2005) provided a conceptual frame
work for competency development in psychology in general. Known as the
cube model, this conceptual framework covers both foundational competen-
cies (knowledge, skills, attitudes, and values) and functional competences (pro-
fessional activities, e.g., forensic psychological evaluations). Fouad et al. (2009)
explained how competency benchmarks are attained at different stages of train-
ing and professional development. Packer and Grisso (2011) and the American
Board of Forensic Psychology (ABFP; 2015) described functional and founda-
tional competencies for forensic practitioners.
Consistent with the cube model, ABFP (2015) described core competencies
in forensic psychology. Foundational competencies include (a) relationships,
(b) individual and cultural diversity, (c) ethics legal standards policy, (d) pro-
fessionalism, (e) reflective practice/self-assessment/self-care, (f) scientific
knowledge and methods, (g) interdisciplinary systems, and (h) evidence-based
practice. Functional competencies include (a) assessment, (b) intervention,
(c) consultation, (d) research and/or evaluation, (e) supervision, (f) teaching,
(g) management/administration, and (h) advocacy. For each of the founda-
tional and functional competencies, behavioral anchors are provided that
further describe and clarify the forensic specialist’s required knowledge or
skills. As the cube model and ABFP illustrate, the ability to practice in an
ethical manner is a core foundational competency.
The functional competencies include assessment strategies, forensic con-
sultation, and supervision, training, and management. The foundational com-
petencies consist of ethics, interpersonal dimensions of the forensic relationship,
and laws relevant to the practice of forensic psychology.
Other documents, such as the Education and Training Guidelines for Forensic
Psychology (Forensic Specialty Council, 2007), outline training goals and the
sequential organization of training, including doctoral and internship level
training, and the accreditation requirements for forensic psychology residency
programs. The authors explained that
A basic principle of Forensic Psychology is that the quality of the forensic work is
limited by the underlying foundational competency (i.e., the science and profes-
sional practice of psychology) of the forensic psychologist. It is therefore essential
for practitioners to first obtain a broad and general education in both scientific
psychology and in the foundations of practice. This generalist training should then
be augmented by exposure to the forensic area, at the graduate and internship
levels, followed by specialized training at the postdoctoral level. (Forensic Specialty
Council, 2007, p. 3)
When career paths within forensic psychology change or consultation is

requested in an aspect of forensic practice in which one’s experience is limited,
competence must be attained in the new areas of practice. The APA Task Force
on the Assessment of Competence in Professional Psychology stated that the
assessment of professional competence, including ethical competence, should be
Introduction 7
a multitrait, multimethod, and multi-informant process that occurs throughout

one’s career (Kaslow et al., 2007). Board certification by way of a reasonably
rigorous formal peer review process (e.g., as conducted by the American Board
of Professional Psychology [ABPP]) provides evidence of professional compe-
tence in a psychological specialty, which can be readily understood by other
professionals and the public. Additionally, the recent implementation of main-
tenance of certification requirements by ABPP helps demonstrate a commit-
ment to a career-long pursuit of professional competence.
Achieving and maintaining an awareness of common ethical challenges
and an understanding of ethics-related resources reflects an essential aspect of
foundational competence and helps forensic practitioners pursue high stan-
dards of practice, reduce the likelihood of ethical conflicts, and resolve ethical
dilemmas when they occur. The ability to develop and maintain ethical compe-
tence is a dynamic and ongoing process. Because ethics codes and professional
guidelines are periodically drafted and updated, changes in clinical practice
occur, and new laws are implemented, forensic practitioners must integrate the
evolving requirements into their professional activities.
Ethical decision making would be much simpler if all ethics questions could
be resolved with bottom-line answers. Bottom-line answers provide direction
for resolving specific ethics questions and can be applied consistently across
settings and contexts. For some ethics questions, such as, “Is it appropriate to
have sex with a therapy client?” the bottom-line answer is obvious and can be
applied consistently. However, more ambiguous variations may emerge, such
as, “Is it appropriate to have sex with the attorney who retained me and is
technically my client but is not a recipient of clinical services? And does the
2-year abstention rule apply even though the case has been settled?” Although
bottom-line ethics may be refreshing and appreciated, the considerable vari-
ability of case details renders such an approach insufficient in most situations.
For this reason, a structured approach to ethical decision making, such as
through use of a decision-making model, helps facilitate the decision-making
process and the generation of sound solutions to challenging situations.
ETHICAL ISSUES AND CHALLENGES
Bush (2015) described 10 ethical and professional issues that are of primary
importance in forensic practice contexts. The list is based on the assumption
that the psychologist is competent to perform the service being provided. If
competence is lacking, it is unlikely that the service provided or conclusions
offered will be of value to the trier of fact, and considerable harm could result.
The order of importance of the issues covered in this list will vary depending on
the forensic practice context, and issues not on this list may be of considerable
importance to some forensic practitioners.
• Third-party requests for services

• Multiple relationships/conflicts of interest
• Informed consent/notification of purpose (including privacy and
confidentiality)
• Test security/release of test data

• Explaining assessment results
• Contingency fees
• Impartiality/bias
• Third-party observers
• Accuracy and truthfulness in public statements (reports and testimony)
• Addressing ethical misconduct
Forensic practitioners should understand the potential relevance of these issues

in their professional activities, anticipate challenges, and establish procedures
for addressing dilemmas when they arise.
UNDERSTANDING, ADOPTING, AND APPLYING

PROFESSIONAL RESOURCES
Psychologists have at their disposal a variety of ethics resources for determining

appropriate professional behavior. The views psychologists take of professional
ethics have a considerable influence on their professional behavior. Those who
view ethics solely as a means of establishing and enforcing minimal standards
of practice fail to appreciate that professional ethics, including the APA Ethics
Code, represent an attempt to translate core ethical principles and their under-
lying human values into operationally defined guidelines for psychologists.
Professional codes of ethics, despite their essential contribution to guiding
behavior, need not always be the final word on how best to resolve an issue.
Practitioners of forensic psychology have an obligation to the profession
and those who are served not to simply be guided by that which is ethically
permissible but to seek that which is ethically preferable. The extra steps
required to determine and pursue ethically preferable courses of action may
require additional effort in the short term, but from that effort comes greater
benefit to the forensic practitioner, forensic psychology, consumers of forensic
psychology services, and the general public in the long run. While profes-
sional ethics codes are a primary resource for psychological practice, they
typically provide only the ethical floor and do not address the more specific
needs of psychological specialties. Therefore, psychologists providing forensic
services benefit from an understanding and use of ethics resources that extend
beyond ethics codes.
POSITIVE ETHICS AND THE 4 As OF ETHICAL PRACTICE
Ethics codes used for disciplinary purposes represent the minimum standards of
professional conduct. This remedial perspective on psychological ethics focuses
more on ways to avoid harming others than on ways to promote well-being. In
contrast to remedial ethics, positive ethics represents a voluntary commitment
to pursuing ethical ideals, motivated by deeply held moral principles (Knapp
Introduction 9
et al., 2017). Positive ethics is proactive; practitioners strive to promote exem-

plary professional behavior rather than only reacting when faced with ethical
challenges. From the perspective of positive ethics, ethics codes represent a
starting point, from which higher standards of practice are pursued (Knapp
et al., 2017). When considering ethical issues, the question to ask is not, “What
must I do according to the Ethics Code?” but, “What can I do that reflects the
highest standard of ethical practice?” As Beauchamp and Childress (2013)
noted, “If we expect only the moral minimum of obligation, we may lose an
ennobling sense of excellence” (p. 49).
Positive ethics involves a deeper level of integration, the integration of
practitioners’ personal ideals with their professional lives (Knapp et al., 2017).
Although most members of a society, including professional societies, share
common values (e.g., competent adults should have the right to make deci-
sions about matters that affect their lives, as reflected in the bioethical princi-
ple respect for autonomy), individuals vary in the extent to which they embrace
different values. Differences in life experiences, cultural backgrounds, reli-
gious beliefs, and other unique variations in one’s life influence the personal
values that guide one’s personal and professional decisions. Practitioners who
perceive a connection between their personal values and the values underly-
ing their ethical obligations may be more likely than practitioners who lack
such a connection to experience a strong commitment to their professional
ethics. The pursuit of ethical ideals can require more time and expense than
is required to comply with enforceable ethical standards, causing some prac-
titioners to choose not to pursue such ideals. However, time and expense
requirements are poor reasons for electing not to pursue ethical ideals.
Bush (2009) described the Four As of Ethical Practice as a framework for
conceptualizing ethical practice. The four As are Anticipate, Avoid, Address, and
Aspire. Practitioners strive to (a) Anticipate and prepare for ethical issues and
challenges commonly encountered in their specific practice contexts, (b) Avoid
ethical misconduct, (c) Address ethical challenges when they are anticipated
or encountered, and (d) Aspire to the highest standards of ethical practice. In
this way, the four As are consistent with positive ethics. Remaining mindful
of the four As of ethical practice can facilitate appropriate professional activ-
ity, as well as the modeling of ethical behavior for students and trainees, other
forensic specialists, and interdisciplinary professionals.
AUDIENCES
The book is intended both as (a) a resource for the forensic psychology practi-
tioner, which is defined broadly to include all psychologists working in the
various legal contexts, including civil, criminal, and family/child custody law;
and (b) a text for forensic psychology students and trainees. In addition to psy-
chologists who deliberately pursue professional involvement in the legal sys-
tem, some clinicians inadvertently find themselves involved in the legal matters
of their patients. Involvement of a clinician may be either requested or required.
For example, a neuropsychologist may be subpoenaed to testify about the

evaluation findings of a patient who sustained a traumatic brain injury in a
motor vehicle collision. Such engagement in the legal system, although not
forensic practice by most definitions, nonetheless requires an understanding
of the relevant professional, ethical, and legal issues. Those with little forensic
experience but who are anticipating involvement in, or have been unexpect-
edly thrust into, a legal matter will acquire the ability to apply appropriate
professional resources to ethical challenges associated with specific practice
activities.
The critical reader may find legitimate points of disagreement with posi-
tions taken in the text, given the broad range of contexts and services in
which forensic practice takes place. Nevertheless, an increased understanding
of the ethical issues that pertain to forensic psychology in general will assist
psychologists in all forensic contexts to better serve those with whom they
interact professionally. For the purposes of this text, the term forensic psychol-
ogist is used broadly to refer to those psychologists who perform forensic
activities; it is not used solely to denote those with specialized training or
board certification in forensic psychology.
CONTENTS AND FORMAT
There are many possible ways to organize a forensic psychology ethics book,
including organizing the material around (a) the steps in the forensic evalua-
tion process (e.g., the referral, data collection); (b) forensic topics areas, such as
civil litigation and criminal litigation; (c) the relevant ethical issues and princi-
ples; or (d) threats to the validity of the data or the opinions provided, such as
inadequate competence and compromised objectivity. We chose to organize the
material around the steps in the evaluation process, because it provides clear
reference points for practicing psychologists who are considering ethical issues
or facing ethical challenges. Although practitioners may not always immedi-
ately be aware of the relevant ethical issues and principles or the underlying
threats to the validity of data and opinions, they do know the practice activity
in which they or their colleagues are engaging. Thus, organization along these
lines facilitates reference to the material that is most relevant at a given time.
The material was not organized according to forensic topic areas because the
considerable overlap of relevant ethical issues across topic areas would require
excessive redundancy in the coverage of material. The emphasis on the evalu-
ation process is not meant to minimize the importance of ethics for the many
nonevaluation forensic activities (e.g., treatment, trial consultation) in which
psychologists engage; it simply reflects an element of practice that we have
found to be a focus for many forensic psychologists. It is hoped that the ethical
issues examined and the decision-making process described in the context of
the forensic evaluation can be readily applied to a broad range of forensic prac-
tice activities.
Introduction 11
Following this introduction, Chapter 1 provides an overview of the inter-

face of law and psychology. The chapter includes a description of a structured,
systematic ethical decision-making model with the corresponding mnemonic
CORE OPT. The seven steps of the model are (1) Clarify the ethical issue;
(2) identify Obligations owed to stakeholders; (3) utilize ethical and legal
Resources; (4) Examine personal beliefs and values; (5) consider Options,
solutions, and consequences; (6) Put plan into practice; and (7) Take stock,
evaluate the outcome, and revise as needed. All of the case examples pre-
sented in the book are analyzed according to this model. Although applying
the model can help psychologists develop ethical practices and arrive at sound
solutions to ethical challenges, ethical behavior also requires personal integ-
rity and a commitment to high standards of ethical practice.
Chapters 2 through 7 examine the various components of the forensic
evaluation process, including the referral, collection and review of informa-
tion, the evaluation, documentation of findings and opinions, and testimony
and termination. Although much of the information applies to psychologists
working in forensic treatment settings and as trial consultants, the book is
structured primarily around the forensic evaluation. Issues related to neuro-
psychological evaluations in forensic contexts are covered. Case illustrations
are provided to demonstrate application of the issues examined and the ethi-
cal decision-making process. Case illustrations cover three broad topic areas:
personal injury litigation, criminal litigation, and child and family law. Chap-
ter 7 covers the ethical challenges inherent in addressing ethical misconduct by
colleagues performing forensic work. Forensic psychologists are likely exposed
to more of the work of colleagues than psychologists practicing in any other
specialty areas. That exposure, combined with the natural emotional reactions
and the potential for bias that may emerge in adversarial situations, contribute
to a context in which allegations of ethical misconduct may abound. This issue
raises a need for attention to be given to the sensitive topic of responding to
apparent ethical misconduct by forensic psychology colleagues. The chapter
includes a checklist for reporting ethical violations that shares some similari-
ties with the CORE OPT model. The Afterword offers concluding remarks, with
an emphasis on the personal commitment needed by forensic psychologists in
order to establish and maintain ethical conduct.
The book includes “excerpts” from fictional psychological and neuropsycho-
logical reports. These “excerpts” were created by the authors and represent an
amalgam of reports by numerous psychologists that the authors reviewed over
the years. Similarly, case illustrations provided in the book were created by
the authors and represent an integration of scenarios encountered in practice
and/or imagined by the authors. Despite any unintended similarities, excerpts
and case illustrations do not represent the reports or practice of any given
psychologist.
1
The Interface of Law
and Psychology
An Overview
T he profession of psychology has much to offer the legal system and those
with possible or clearly identified psychological difficulties who find
themselves negotiating the legal system. As a result of the contributions made
by psychologists to legal matters, forensic psychology emerged as a distinct
specialty area within the broader field of psychology. Forensic psychology,
although defined in multiple ways by different authors, includes both schol-
arly and applied activities and represents the intersection of psychology and
the law (Bartol & Bartol, 2019; Cutler & Zapf, 2015; Melton et al., 2018; Otto
& Ogloff, 2013; Packer & Grisso, 2011; Roesch, Zapf, & Hart, 2010).
The Specialty Guidelines for Forensic Psychology (hereinafter referred to as the
Guidelines; APA, 2013) emphasize the applied aspects of the specialty in the
following fairly broad definition:
forensic psychology refers to professional practice by any psychologist working
within any subdiscipline of psychology (e.g., clinical, developmental, social, cog-
nitive) when applying the scientific, technical, or specialized knowledge of psy-
chology to the law to assist in addressing legal, contractual, and administrative
matters . . . Psychological practice is not considered forensic solely because the
conduct takes place in, or the product is presented in, a tribunal or other judicial,
legislative, or administrative forum. (p. 7)
In this chapter, we describe (a) primary subspecialties within forensic psy-

chology, (b) forensic roles for psychologists, (c) the adversarial environment,
(d) the need for information on ethics in forensic psychology, (e) the applica-
tion of general bioethical principles in forensic arenas, (f) the application of
http://dx.doi.org/10.1037/0000164-002
13
psychological ethics in forensic arenas, (g) the Specialty Guidelines for Forensic
Psychology and other relevant professional guidelines, and (h) the importance
of understanding jurisdictional laws. The chapter also presents an ethical
decision-making model for forensic psychology, and it describes appropriate
risk management strategies for forensic practice.
PRIMARY SUBSPECIALTIES WITHIN FORENSIC PSYCHOLOGY
The clinical and experimental forensic arenas are themselves composed of psy-
chologists from diverse psychological specialties, such as counseling, develop-
mental, and social psychology. Thus, forensic psychologists may have multiple
professional identities representing both their primary areas of training and
experience and their subsequent application of their knowledge and skills to
forensic matters.
Subspecialties within forensic psychology can be conceptualized in multiple
ways, such as by a related psychological specialty (e.g., forensic neuro
psychology, forensic geropsychology), the administrative context in which
psychological evaluations are performed (e.g., claims for Social Security dis-
ability, workers’ compensation, or Veterans Affairs), or, as described by Bartol
and Bartol (2019), the nature of the forensic involvement. Bartol and Bartol
presented the following five forensic psychology subspecialties: (a) police and
public safety psychology, (b) legal psychology (e.g., child custody, compe-
tency to stand trial, not guilty by reason of insanity defenses, civil capacities,
court mandated psychotherapy), (c) psychology of crime and delinquency,
(d) victimology and victim services (e.g., personal injury), and (e) correc-
tional psychology. There are many settings in which such subspecialties are
practiced.
FORENSIC ROLES FOR PSYCHOLOGISTS
Psychologists practice and conduct research in both civil and criminal legal
arenas. Civil law includes matters of family law; administrative proceedings
(e.g., workers’ compensation, commitment for mental health treatment, and
decisional capacity/competency issues); and tort law, such as personal injury
litigation. Common purposes of civil law are to assign responsibility for harm,
resolve disputes, and provide compensation to someone injured by another’s
behavior (see https://legaldictionary.net/civil-law/).
Family law, a type of civil law, differs from other civil matters in several
important ways. In family law matters, the court is generally called upon to
resolve disputes having to do with the following: (a) marital dissolution, where
there may or may not be a finding of fault; (b) determinations regarding par-
enting relationships, such as parenting agreements following divorce, adop-
tion proceedings, or proceedings to terminate parental rights; and (c) matters
The Interface of Law and Psychology 15
of juvenile justice that do not fall within the purview of criminal law, owing to
the status of the actor as a minor.
In contrast to civil law, criminal law is based on the concept of moral blame-
worthiness (Behnke, Perlin, & Bernstein, 2003). When an individual has been
found guilty of a crime, a moral sanction applies, including removal from soci-
ety if that is deemed necessary by the court. Criminal law determines the guilt
or innocence of a defendant and provides a consequence if the accused is
found guilty. Psychological expertise and services can be found across the con-
tinuum of criminal law procedures. According to the American Bar Associa-
tion’s (ABA’s; 2016) Criminal Justice Standards on Mental Health, mental health
professionals serve the administration of criminal justice through the following
roles: evaluative expert, scientific expert, consultative, treatment, and policy
(ABA Standard 7-1.3, p. 3). Because these roles involve differing and some-
times conflicting obligations and functions, these professionals as well as
courts, attorneys, and criminal justice agencies need to be clear about the
nature and limitations of the roles assumed by mental health professionals.
Because much of the role confusion for psychologists involves distinctions
between forensic (e.g., evaluative expert) and clinical (e.g., treatment) prac-
tices, these issues are the focus of the following sections.
Forensic Evaluation Services
For criminal forensic purposes, the ABA (2016) defines the evaluative expert
role as
Evaluating and offering legally relevant expert opinions and testimony about a
particular person’s past, present or future mental or emotional condition,
capacities, functioning or behavior, and about the effects of interventions,
treatments, services or supports on the person’s condition, capacities, function-
ing or behavior. (p. 3)
Although it may at first appear that a treating clinician could offer such infor-
mation to the court, theoretically with greater accuracy because treating clini-
cians often have known and worked with the patients longer than an evaluative
expert could, the nature of the information obtained, the manner in which it is
obtained, and the relationship with the person being evaluated differ in signif-
icant ways between forensic and clinical evaluations.
Differences begin with the language used to describe the evaluation. Psy-
chological evaluations performed by practitioners who are hired as indepen-
dent contractors by third parties, such as disability insurers, attorneys, or the
courts, are often referred to as forensic evaluations, independent psychological exam-
inations, or independent medical examinations (IMEs). Attorneys and courts tend
to refer to such evaluations as forensic, whereas disability insurance carriers
tend to describe such evaluations as IMEs. Differences between forensic and
clinical evaluations also include the nature of the requested evaluation, which
has theoretical and practical implications for the manner in which the task is
approached. With forensic evaluation services, context affects (a) the goals of
the evaluation, (b) the psychologist’s role, (c) the assumptions the psycholo-
gist makes about the accuracy of information received from the examinee,
(d) alliances formed and obligations owed, and (e) methodology employed by
the psychologist.
As Melton et al. (2018) stated, “the purposes and uses of forensic evalua-
tions differ qualitatively from the purposes and uses of evaluations developed
for treatment purposes” (p. 10). The purpose of a forensic evaluation is to
assist the legal decision-maker, who may be a judge, jury, mediator, or other
hearing officer. This forensic purpose stands in contrast to the clinician’s goal
of assisting the patient. Accepting that the psychologist’s primary obligation
is to the legal decision maker rather than to the examinee may be a difficult
transition to make for psychologists who have been clinically trained. How-
ever, it is necessary for examining psychologists to understanding that the
retaining party is the client and that the examinee is neither a patient nor the
client of the examining psychologist. Exceptions may exist in forensic treat-
ment settings in which evaluations may be performed to facilitate clinical
services rather than to inform legal decisions.
The goal of the psychologist retained to serve as an expert witness is to pro-
vide information useful to the trier of fact in its effort to answer a specific legal
question, such as the presence or absence of psychological injury or the exam-
inee’s competency to stand trial. Thus, the psychologist’s task “is an exercise in
consultation and dissemination of information” (Melton et al., 2018, p. ix). To
be able to disseminate useful information to the trier of fact, the psychologist
assumes the role of “seeker of truth” and judicial educator (Denney, 2012a;
Denney & Sullivan, 2008). The opinions provided are not designed to “help”
the examinee; in fact, in many instances, the opinions offered conflict with the
examinee’s wishes.
The psychologist retained to serve as an expert witness cannot assume that
the information received from the examinee is complete or accurate. Exam-
inees may not even be voluntary participants in the evaluation. The possible
outcomes of litigation can create tremendous motivation for the examinee to
attempt to manipulate the evaluator and to affect the outcome of the evalua-
tion. It would be naïve and forensically misguided to trust the presentation of
such highly invested examinees without corroboration; a degree of skepti-
cism can promote accurate diagnoses and conclusions.
The alliances that a psychologist maintains and the obligations owed to
those involved differ depending on the context in which the services are pro-
vided. Although a psychologist providing treatment typically forms a thera-
peutic alliance with the patient and is invested in promoting the well-being
of the patient, such an alliance with, and investment in, a forensic examinee
would not be appropriate. The psychologist retained as an expert witness
forms an alliance with the truth, and the primary obligation is to the trier
of fact. The investment in determining and reporting the truth may make
problematic the establishment of rapport between examiner and examinee.
Rapport may be misconstrued as an offer of advocacy and may lure the
examinee into a level of disclosure that is not in the examinee’s best legal
interest. A posture of respectful receptivity with an arms-length, or dispas-
sionate, mien may be the most appropriate posture to assume during the
forensic evaluation.
The context in which the evaluation is performed also affects the method-
ology employed by the psychologist. Forensic psychological evaluations require
a broader base of information sources than is typical of clinical practice, a base
that extends well beyond the self-report of the examinee (Denney, 2012a;
Denney & Sullivan, 2008; McLearen, Pietz, & Denney, 2004; Melton et al.,
2018). A multimethod, multisource examination is required for forensic exam-
inations (Heilbrun, 2003). In contrast to the urgency that is often required in
the provision of clinical evaluation services, psychologists practicing in many
forensic contexts must take the time necessary to ensure that the broad base
of information that is needed (e.g., interviews, observations, records, test data)
can be obtained and thoroughly reviewed before conclusions are offered. Of
course, evaluations in some forensic contexts can be time sensitive as well;
however, in situations in which the broad information base is not available,
conclusions should be tempered accordingly, with limitations described in
the report.
The Distinction Between Expert Witness and Treating Clinician
The distinction between the roles of “treating clinician” and forensic psycho-
logical “expert” has long been a focus of discussion in forensic psychology
ethics (e.g., S. A. Greenberg & Shuman, 1997, 2007; Neal, 2017; Otto,
Goldstein, & Heilbrun, 2017; Saks, 1990; Strasburger, Gutheil, & Brodsky,
1997). In the treatment role, psychologists can be called to testify as either
fact witnesses or expert witnesses. Fact witnesses limit their testimony to
what they know firsthand, do not rely on hearsay information, and have little
freedom to draw conclusions or provide opinions. Treating psychologists who
testify as expert witnesses are called percipient experts (Caudill & Pope, 1995).
They are considered experts because of their specialized training and/or expe-
rience but were not retained for the purpose of litigation. Treating psycholo-
gists generally avoid providing ultimate issue opinions, aware that offering
expert testimony about such forensic issues is risky. This topic, which has
been a source of divergent opinions in forensic psychology, is covered in more
detail in Chapter 6.
Opinions about the clinical interpretation of data are relevant contribu-
tions, but the treating therapist rarely has accomplished an arms-length, com-
prehensive assessment that would lead to defensible opinion on the psycholegal
issue. Although there is controversy about whether the treating clinician
should offer opinion on the ultimate issue before the court, the treating clini-
cian must limit opinion to that for which adequate data has been gathered.
For example, a therapist may believe that visitation with a parent the thera-
pist has never met would be damaging, based on the child’s and possibly the
other parent’s presentation, but the therapist must recognize that as an advo-
cate for the patient and without hearing the “other side of the story,” such an
opinion would be insufficiently developed. The interpretation of data collected
in therapy is more subjective and potentially less reliable than data gathered
from a range of sources, such as objective measures, records, and collateral
consultation. Even with careful statement of limitations, the therapist testify-
ing about matters before the court must be aware of the potential for the court
to misconstrue or misuse the opinion data. The therapist who has risked this
misuse of data may find little support in the professional community for offer-
ing opinion derived through provision of psychotherapy as an expert evalua-
tion of the forensic issue (Heilbrun, 1995, 2001; Melton et al., 2018).
The distinction, then, is between being an expert clinician and being a
forensic examiner for the purpose of developing an expert opinion, to be
offered to the court, on a psycholegal matter. Both may function as experts
in the court, and the clinician may be able to provide expert opinion on the
clinical data, but generally the clinician has insufficient data to offer an opinion
on the matter before the court.
To facilitate clinical treatment, the treatment provider may develop diag-
nostic impressions prior to or without performing a complete review of rel-
evant records, interviewing collateral sources of information, conducting
thorough psychodiagnostic testing, or otherwise performing an evaluation
adequate to answer questions before the court “with a reasonable degree of
certainty.” In contrast to the clinical role, the forensic psychological expert
role requires (a) review of all materials and completion of all procedures
upon which to base an opinion sufficient to withstand judicial scrutiny, and
(b) an objective and judgmental position that may be impossible for the typ-
ically accepting and nonjudgmental clinician to achieve (Guideline 4.02.01:
Therapeutic–Forensic Role Conflicts).
The term “treating clinician” has at times been used inappropriately to
describe all clinical activities, such as clinical diagnostic evaluations that do
not involve remedial intervention or advocacy (Bush, 2005c). Although
clinical evaluations are typically performed to facilitate therapy, they are not
intended to be therapeutic in and of themselves. Thus, the goals, assump-
tions, and alliances of the clinical examiner may more closely parallel those of
the forensic examiner than those of the treating therapist.
The distinction between “treating clinician” and “expert witness” is limited
and is insufficient to understand the forensic roles of psychologists. Heilbrun
(2001) described five possible roles for mental health professionals in forensic
assessment contexts: clinical or court-appointed evaluator, defense/prosecution/
plaintiff’s expert, scientific advisor to the court, consultant, and fact witness.
This broad description of roles better reflects the breadth of psychologists’
potential professional forensic involvement.
Blurring of Professional, Clinical, and Forensic Roles
The role held by the psychologist has implications for objectivity and accu-
racy in the presentation of information to the court and, by extension, the
accuracy of judicial determinations. The Ethical Principles of Psychologists and

Code of Conduct (APA Ethics Code, 2017) states that
(a) A multiple relationship occurs when a psychologist is in a professional role
with a person and (1) at the same time is in another role with the same person,
(2) at the same time is in a relationship with a person closely associated with or
related to the person with whom the psychologist has the professional relation-
ship, or (3) promises to enter into another relationship in the future with the
person or a person closely associated with or related to the person. (APA Ethics
Code, Standard 3.05, Multiple Relationships)
APA Ethics Code, Standard 3.05 also states that psychologists should strive to
avoid entering into such relationships, if the relationship “could reasonably
be expected to impair the psychologist’s objectivity, competence, or effective-
ness in performing his or her functions as a psychologist, or otherwise risks
exploitation or harm to the person with whom the professional relationship
exists.”
Blurring of professional, clinical, and forensic roles has the strong potential
to invoke conflicts of interest that negatively affect one or more of the roles.
Psychologists have a responsibility to recognize the potential for conflicts of
interest in dual or multiple relationships with parties to a legal proceeding and
to seek to minimize their effects (APA Ethics Code, Standard 3.05, Multiple
Relationships, & Standard 3.06, Conflict of Interest; Guideline 4.02, Multi-
ple Relationships). In general, to maximize objectivity, these roles should not
be combined in a single case (Denney, 2005a; Heilbrun, 2001); however,
some exceptions exist.
One potential exception to the principle of avoiding dual or multiple
relationships may be seen in the psychologist who transitions from the role of
examiner to that of trial consultant after all evaluation-related responsibilities
have been completed. For example, a psychologist retained by a criminal
defense attorney to conduct an evaluation and provide verbal feedback, who
is asked to not write a report, and who will not later testify, might appropri-
ately transition to the role of consultant. The psychologist in this scenario will
have completed the role of examiner and will no longer be required to main-
tain impartiality.
Other situations in which a psychologist may find the unavoidable need to
provide multiple services to a party in a legal proceeding include small forensic
hospital settings, small communities, and psychiatric emergencies in which
patient welfare is given priority over the forensic service. Additionally, mili-
tary court-martial participation by psychologists designated as expert forensic
consultants/testifying experts may call for blending of roles (Connell, 2019;
Gottlieb & Younggren, 2019). When circumstances call for blending of roles
or provision of multiple services, the onus is on the forensic psychologist to
actively monitor for the insidious effects of bias or allegiance and to limit roles
in order to retain objectivity.
Some forensic mental health professionals want to have it both ways, to
be healers and to serve or influence the adversary system (Stone, 1984).
L. R. Greenberg and Gould (2001) took the position that, in some situations,
psychologists may ethically have it both ways. They described a “hybrid

role” in which the treating psychologist whose patients have impending or
ongoing litigation should (a) be sensitive to the unique experiences and
needs of such patients, (b) be aware that the litigation will likely impact the
therapy, and (c) possess many of the practice-related traits of the forensic
examiner, while maintaining firm limits regarding the nature of the opinion
testimony provided. Although the treating psychologist may provide to the
court their opinions regarding diagnosis, treatment, and prognosis, “the
treating expert generally declines to express opinions on psycholegal issues
(e.g., custody recommendations and parental capacity)” (L. R. Greenberg &
Gould, 2001, p. 477). When overlapping or multiple roles are adopted, the
manner in which the overlap or different roles are managed distinguishes
ethical conduct from misconduct. An awareness of competing obligations and
a demonstrated commitment to maximizing objectivity serves the psychol-
ogist well.
Although psychologists may define the factors that comprise a forensic
psychological evaluation and the factors that characterize a competent expert
witness, it is ultimately the court that determines what evidence will be
allowed and who will be considered an expert in a particular case. The adver-
sarial system is designed to provide the checks and balances for determining
the adequacy (relevance and reliability) of the psychologist’s work product.
It is the psychological sophistication of the attorneys, trial consultants, and
trier of fact involved in the case that determine the effectiveness of the
adversarial system for cases in which psychological functioning is at issue. It
is the responsibility of the psychologist to provide education to those who do
not appreciate the threats to impartiality and to attempt to maintain clear
distinctions in professional roles. For example, a family court judge may sug-
gest that the custody evaluator who conducted a court-ordered evaluation of
all parties to a parenting dispute take on the role of treatment provider to
assist one parent and child to reunify; it falls upon the forensic psychologist
to explain to the judge why adoption of this second role could be problem-
atic for the parent (who may harbor antipathy toward the forensic evaluator
for the findings of the initial evaluation) and for the examiner who may
have some investment in a treatment outcome that supports the opinions
offered to the court.
The Guidelines address the issue in the following manner:
When requested or ordered to provide either concurrent or sequential forensic
and therapeutic services, forensic practitioners are encouraged to disclose the
potential risk and make reasonable efforts to refer the request to another quali-
fied provider. If referral is not possible, the forensic practitioner is encouraged to
consider the risks and benefits to all parties and to the legal system or entity
likely to be impacted, the possibility of separating each service widely in time,
seeking judicial review and direction, and consulting with knowledgeable col-
leagues. When providing both forensic and therapeutic services, forensic practi-
tioners seek to minimize the potential negative effects of this circumstance.
(Guideline 4.02.01, Therapeutic-Forensic Role Conflicts)
In addition to potentially biasing relationships between psychologists and

examinees, it is advisable for psychologists to maintain independence from the
retaining party (Packer & Grisso, 2011). Despite what can be appropriately
close working relationships between practitioners and attorneys, psycholo-
gists should remain mindful that the attorney’s primary obligation is to pre-
vail in the case, whereas the psychologist’s primary obligation is to educate
the trier of fact in as complete and objective manner as possible (Packer &
Grisso, 2011). Psychologists who are aware that pressure, whether subtle or
overt, and financial incentive may be used to influence their opinions can
prepare to negotiate such influences when they are encountered.
THE ADVERSARIAL ENVIRONMENT
Expert witnesses play a prominent role in the American litigation process

(Crown, Fingerhut, & Lowenthal, 2003); however, the adversarial nature of
the U.S. legal system presents unique challenges for psychologists. A primary
issue that is unique to many forensic situations is that the practitioner’s opin-
ions may be challenged or questioned. The “opponent” mounting this chal-
lenge is an individual or team of individuals who question the practitioner’s
methods, opinions, and/or qualifications. A psychologist retained by the defense
attorney in a civil case or by the prosecution in a criminal case to provide
an “independent” opinion is viewed by some examinees as an opponent, a
perception that may alter the examinee’s behavior during the exam. The
perception of the psychologist as an opponent leads to many of the ethical
dilemmas that are faced by forensic psychologists.
The adversarial environment may also pit psychologists against those who
have retained their services. The attorney who has retained a psychologist
to perform an evaluation has an allegiance to the client and must diligently
advocate for the client. In contrast, the examining psychologist has a respon-
sibility to remain objective. Although retained by the attorney, the psycholo-
gist has an allegiance to the trier of fact. This inherent clash between the
attorney as advocate and the expert witness, whose single most important
obligation is to approach each question with independence and objectivity,
can become a source of ethical conflict for psychologists (Crown et al., 2003;
Packer & Grisso, 2011). Such conflict sometimes arises from the real and per-
ceived incentive or other subtle or obvious pressures from the attorney advo-
cate to influence the opinions of the objective expert.
Psychologists are not always adequately prepared by their education and
training for these challenges. Thus, for many psychologists, the transition
from the classroom or clinical setting to a forensic environment may involve
a substantial paradigm shift and a corresponding struggle with the ethical,
moral, and legal issues involved (Martelli, Bush, & Zasler, 2003). A logical
approach to both advancing ethical practice and availing the legal system of
one’s expertise is to develop an increased sensitivity to, and understanding
of, the disparities between conflicting interests and ethics and to maintain a
personal commitment to ethical practice.
THE NEED FOR INFORMATION ON ETHICS

IN FORENSIC PSYCHOLOGY
The pulls to sacrifice objectivity, the differences between clinical and forensic
activities, and the enticement to step beyond the boundaries of one’s compe-
tence all provide fertile soil for ethical misconduct. Particularly in today’s
health care environment, where shrinking or unpredictable reimbursement
for clinical services is often coupled with increased time-consuming clerical
requirements, the lure of higher fees for one’s professional services may
draw inadequately prepared clinicians into professionally dangerous waters.
Similarly, financial incentives may lead even the most qualified forensic
psychologist into unethical behaviors that are harmful to the involved par-
ties, the legal system, and the profession of psychology. Awareness of the
common ethical challenges in forensic psychology helps psychologists exam-
ine their own practices and the practices of colleagues; familiarity with ethi-
cal, legal, and professional resources provides a foundation for addressing the
challenges.
APPLYING GENERAL BIOETHICAL PRINCIPLES

IN FORENSIC ARENAS
All ethical principles are based on fundamental human values. Values that
a society deems important, such as the right to self-determination and the
right to quality health care, are applied to specific industries and professions.
Beauchamp and Childress (2013) offered a model of biomedical ethics that
has been widely adopted by scholars and practitioners in a variety of health
care specialties, including psychology. The model comprises moral principles,
including respect for autonomy, nonmaleficence, beneficence, and justice.
Psychologists may recognize nonmaleficence, beneficence, and justice from
the APA Ethics Code’s General Principles. Respect for autonomy, also pres-
ent in the APA Ethics Code’s General Principles, is embedded in Principle E
(Respect for People’s Rights and Dignity).
Respect for autonomy refers to an appreciation of the individual’s right to
self-determination—the ability to make decisions regarding one’s life. Non-
maleficence is closely related to the Hippocratic Oath’s mandate to “first, do
no harm.” Beneficence takes clinician responsibility a step further by encour-
aging the practitioner to promote that which is beneficial to the patient. In
health care settings, justice typically refers to the equitable distribution of the
burdens and benefits of care (Hanson, Kerkhoff, & Bush, 2005). Biomedical
ethical principles can be readily applied to most ethical challenges in clinical
psychology, where the clinician’s goal is to help patients, avoid harm, respect
the wishes of patients regarding their treatment, and practice in a just and fair
manner. However, in an adversarial judicial system, the application of these
principles may initially appear to be far more challenging.
In forensic practice, psychologists have a responsibility to respect the rights
of examinees and other clients to determine their involvement in psycholog-
ical services. Examinees participate in forensic evaluations more or less of
their own accord, albeit at times under the threat of negative consequences
should they choose not to participate. In legal contexts, the concepts of non-
maleficence and justice are closely tied. Forensic practitioners are mindful of
the ethical principle of doing no harm, and yet the results of forensic exam-
inations and testimony can thwart the interests of the examinee in ways that
are maximally harmful. These include possible life or death determinations in
capital cases, termination of parental rights, loss of insurance coverage for a
claimed disability, and many other potential consequences. The practitioner’s
obligation is to address the psycholegal question in an objective way with
candor. The outcome of the legal matter may depend somewhat or to a great
extent on that input, but practitioners have fulfilled their professional obliga-
tion when they adhere to those ethics. The issue of self-determination can
and should be addressed in the way we gain consent or assent for services,
which is addressed more fully in other chapters of this book.
Forensic psychologists have a responsibility to treat examinees with courtesy,
dignity, and fairness. Beyond the possibility of evoking emotional reactions to
evaluation questions or tasks, practitioners must not bring direct harm to exam-
inees during evaluations. Nevertheless, the results of forensic psychological
evaluations and subsequent testimony have the potential to result in consider-
able negative effects on the lives of examinees. It is the psychologist’s respon-
sibility to perform a fair evaluation and present the findings objectively and
dispassionately. The legal decision maker then has the task of achieving a just
outcome. An examinee who believes he has been treated fairly and respectfully
is less likely to perceive the examiner as being maleficent, even given an unfa-
vorable determination.
For forensic examinations, helping the examinee is not a primary goal of
the examiner. Helping the trier of fact to make an appropriate determination,
taking into account the examinee’s cognitive or psychological functioning, is
a goal. The examinee may or may not benefit from the examination findings.
Thus, the principle of beneficence as it relates to forensic psychological ser-
vices may generally fall within the ambit of the justice system rather than the
individual examinee.
The adversarial process is built upon the assumption that right will prevail
if the responsibilities of all participants are fully discharged. It is not the foren-
sic psychologist’s responsibility to ensure retention by the party deserving to
prevail. It is the forensic psychologist’s responsibility to thoroughly and ade-
quately perform his or her duties; if the resultant outcome favors the “unjust,”
the psychologist can forgo a sense of personal responsibility for the injustice.
The differences between clinical and forensic contexts notwithstanding, we

believe that the Beauchamp and Childress model (2013) is useful in forensic
psychology and have chosen to use their model in the more comprehensive
decision-making model that is presented in this chapter.
Applying Psychological Ethics in Forensic Arenas
The 2002 edition of the APA Ethics Code was the 10th version of the code,
reflecting the continuing evolution and maturation of the profession of psy-
chology. The APA Ethics Code has been subsequently amended twice (APA,
2017a). The APA Ethics Code applies to all psychology specialty areas, includ-
ing forensic psychology. However, different sections may hold more or less
relevance for various aspects of forensic practice than they do for clinical psy-
chology or other areas of practice. For example, it may be more common to
have one’s credentials called into question (Standard 2.01, Boundaries of
Competence) in forensic practice than in routine clinical practice. The aspira-
tional general principles and enforceable standards provide important guid-
ance that can be supplemented by additional resources.
A Note About Nonmaleficence
Health care ethics typically emphasizes the long-held value that avoiding bring-
ing harm to others is a primary goal. The obligation to do no harm represents
half of the first APA General Principle (Beneficence and Nonmaleficence).
However, in most forensic contexts, one party or the other is harmed by the
outcome, and forensic psychologists often contribute directly to such an out-
come. For example, the outcome of a psychological evaluation in the context
of a criminal death penalty case could eventually lead to the person’s execution
or lifelong incarceration. However, if the defendant does not end up being
executed or spending the rest of his life incarcerated, the family of a murdered
victim may forever experience feelings of injustice. In personal injury litigation,
multimillion-dollar awards may hang in the balance, to be swayed by the con-
clusions of a psychological evaluation, with either the plaintiff or an insurance
carrier being harmed by the result. In child custody cases, family relationships
and the well-being of children are at stake, typically with one parent and some-
times one or more children believing that they have been harmed by the
outcome.
Thus, forensic practitioners should understand that their opinions can con-
tribute to harmful outcomes for one party or the other (Bush, 2018b). Never-
theless, when competent services have been provided, it is not the psychological
service that is harmful; it is the outcome of the legal matter. The psychologist’s
primary ethical obligation is to seek truth within the bounds of scientific under-
standing, which assists the court in the pursuit of justice; the psychologist’s
obligation is not to a particular party in the matter. Providing competent services
in an unbiased manner that is beneficial, rather than harmful, to the judicial
decision-making process is consistent with ethical practice and should be the

goal of the psychologist.
SPECIALTY GUIDELINES FOR FORENSIC PSYCHOLOGY:

A BRIEF OVERVIEW
The Guidelines were designed to be consistent with the APA Ethics Code while
providing more specific guidance to forensic psychologists than is offered in
the APA Ethics Code. The goals of the Guidelines were
to improve the quality of forensic psychological services; enhance the practice
and facilitate the systematic development of forensic psychology; encourage a
high level of quality in professional practice; and encourage forensic practitioners
to acknowledge and respect the rights of those they serve. (APA, 2013, p. 7)
The Guidelines consist of an introductory section followed by eleven guide-

lines, each with multiple subsections. The 11 guidelines are listed in Exhibit 1.1
and are referred to throughout the book. The Guidelines provide an essential
resource as a supplement to the APA Ethics Code. Although the ethical stan-
dards of the APA Ethics Code are enforceable rules of conduct and the Guide-
lines are aspirational, forensic practitioners nevertheless benefit from considering
the Guidelines a valuable resource for informing professional behavior and
should be prepared for explaining why they deviated from these expectations.
RELATED PROFESSIONAL GUIDELINES
The Introduction and Applicability section of the APA Ethics Code states, “psy-
chologists may consider other materials and guidelines that have been adopted
or endorsed by scientific and professional psychological organizations . . .”
EXHIBIT 1.1
The 11 Specialty Guidelines for Forensic Psychology
1. Responsibilities
2. Competence
3. Diligence
4. Relationships
5. Fees
6. Informed Consent, Notification, and Assent
7. Conflicts in Practice
8. Privacy, Confidentiality, and Privilege
9. Methods and Procedures
10. Assessment
11. Professional and Other Public Communications
Data from APA (2013).

during the process of making decisions about professional behavior. To go a

step further, we suggest that forensic psychologists must consider guidelines
promulgated within their areas of specialization and appropriately endorsed
by recognized organizations leading the field to which they apply. The inten-
tionally general nature of the APA Ethics Code offers a solid foundation for
many aspects of forensic practice, but more specific application of ethical
principles and acceptable practice parameters is required and can be found in
a number of publications from APA and other professional organizations.
Table 1.1 provides a summary of some of the available guidelines from psycho
logical organizations. Some of these guidelines undergo periodic revision, so
psychologists should periodically check the websites and publications of the
sponsoring organizations to ensure that they are in possession of the most
recent versions of the documents. Although the focus of Table 1.1 is on posi-
tion statements generated by psychological organizations, many informative
papers are also available from related professions, such as psychiatry, counsel-
ing, and medicine, as well as legal societies.
TABLE 1.1. Professional Guidelines and Position Statements Relevant

to Forensic Psychology
Organization Year Title

AACN 2001 Policy Statement on the Presence of 3rd Party Observers in
Neuropsychological Assessments
2003 Official Position of the American Academy of Clinical Neuro
psychology on Ethical Complaints Made Against Clinical
Neuropsychologists During Adversarial Proceedings
2009 American Academy of Clinical Neuropsychology Consensus
Conference Statement on the Neuropsychological
Assessment of Effort, Response Bias, and Malingering
2010 Official Position of the American Academy of Clinical
Neuropsychology on Serial Neuropsychological Assessments:
The Utility and Challenges of Repeat Test Administrations
in Clinical and Forensic Contexts
2015 Official Position of the American Academy of Clinical
Neuropsychology Social Security Administration Policy
on Validity Testing: Guidance and Recommendations for
Change
AACN, ABN, SCN 2018 Deciding to Adopt Revised and New Psychological and
(APA Division 40), Neuropsychological Tests
& NAN
AAPL 2005 Ethics Guidelines for the Practice of Forensic Psychiatry
2015 Practice Guideline for Forensic Assessment
ABA & APA 2008 Assessment of Older Adults With Diminished Capacity:
A Handbook for Psychologists
ABN 2014 Policy statement of the American Board of Professional
Neuropsychology regarding third party observation and
the recording of psychological test administration in
neuropsychological evaluations
AERA, APA, NCME 2014 Standards for Educational and Psychological Testing
TABLE 1.1. Professional Guidelines and Position Statements Relevant

to Forensic Psychology (Continued)
Organization Year Title
APA 1994 Guidelines for Child Custody Evaluations in Divorce
Proceedings
1999 Test Security: Protecting the Integrity of Tests
1999 Guidelines for Psychological Evaluations in Child Protection
Matters
2007 Record Keeping Guidelines
2007 Statement on Third Party Observers in Psychological Testing
and Assessment: A Framework for Decision Making
2010 Guidelines for Child Custody Assessment
2013 Specialty Guidelines for Forensic Psychology
2017a Ethical Principles of Psychologists and Code of Conduct
2017b Professional Practice Guidelines for Occupationally
Mandated Psychological Evaluations
ASAPIL 2014 Psychological Assessment of Symptom and Performance
Validity, Response Bias, and Malingering
ASPPB 2005 ASPPB Code of Conduct (currently under revision)
CPA 2001 Practice Guidelines for Providers of Psychological Services
2017 Canadian Code of Ethics for Psychologists—4th Edition
NAN 2000 Presence of 3rd Party Observers During Neuropsycho
logical Testing: Official Statement of the National Academy
of Neuropsychology
2000 Test Security: Official Position Statement of the National
Academy of Neuropsychology
2003 Informed Consent: Official Statement of the National
2003 Test Security: An Update. Official Statement of the National
2005 Independent and Court-Ordered Forensic Neuropsycho
logical Examinations: Official Statement of the National
2005 Symptom Validity Assessment: Practice Issues and Medical
Necessity
2009 Secretive Recording of Neuropsychological Testing
and Interviewing
2012 Conflict of Interest Inherent in Contingency Fee
Arrangements
SCN (Division 40) 2007 Disclosure of Neuropsychological Test Data
SCN (Division 40), 2007 Disclosure of Neuropsychological Test Data
APPCN, & AACN
Note. AACN = American Academy of Clinical Neuropsychology; AAPL = American Academy of
Psychiatry and the Law; ABA = American Bar Association; ABN = American Board of Professional
Neuropsychology; AERA = American Educational Research Association; APA = American Psychological
Association; ASAPIL = Association for Scientific Advancement in Psychological Injury and Law; ASPPB =
Association of State and Provincial Psychology Boards; NAN = National Academy of Neuropsychology;
NCME = National Council on Measurement in Education; SCN = Society for Clinical Neuropsychology
(APA Division 40). Complete references are available in the reference section. Note that some of
the papers are referenced according to the contributing authors from the organizations rather than
the organizations themselves. From Ethical Decision Making in Clinical Neuropsychology (2nd ed.,
pp. 26–31), by S. S. Bush, 2018, New York, NY: Oxford University Press. Copyright 2018 by Oxford
University Press. Adapted with permission.
CONSIDERATION OF JURISDICTIONAL LAWS
The Introduction and Applicability section of the Ethics Code instructs psy-
chologists to consider applicable laws and psychology board regulations during
their ethical decision-making process. Packer and Grisso (2011) highlighted the
issue this way:
All psychologists must be familiar with the laws that govern their practice.
However, the level of knowledge required for forensic practice is significantly
higher because the very nature of forensic psychological practice involves inter-
face with the law. Forensic psychologists must develop competencies related
both to the application of psychological expertise to legal concepts, as well as the
legal issues related to the practice of psychology. (p. 164)
Specific statutes and case law are covered in relevant sections throughout
this book. We now turn to a brief overview of the sometimes confusing Health
Insurance Portability and Accountability Act (HIPAA) requirements.
HIPAA
At the federal level, HIPAA took effect in April 2003 and has been a source of
confusion for forensic psychologists. This legislation was intended to simplify
and protect the confidentiality of electronic billing and transmission of health
information, as well as to provide increased patient access to their medical
records, including the right of patients to amend their medical records to cor-
rect errors. Although those goals may seem logical and straightforward, the
legislation evolved into a complex series of administrative rules, with excep-
tions for certain settings.
Of particular relevance to forensic practice is the determination of whether
HIPAA applies to forensic services and, if so, to what extent. HIPAA states that
information compiled in anticipation of use in civil, criminal, and administrative
proceedings is not subject to the same right of review and amendment as is
health care information in general (HIPAA, 1996).
Connell and Koocher (2003) opined that forensic practice may not be sub-
ject to HIPAA because (a) forensic services are designed to serve a legal pur-
pose, rather than a therapeutic purpose; (b) forensic services are provided at
the request of a party or entity outside of the health care system; (c) forensic
services fall outside of health insurance coverage, because they do not consti-
tute health care; (d) forensic psychologists do not ordinarily transmit data
electronically except in the specific ways for which consent has historically
been obtained from the examinee; and (e) no new protections or rights accrue
to examinees by way of HIPAA compliance (i.e., no new right of access and
amendment of information gathered in anticipation of litigation).
Legitimate arguments, also noted by Connell and Koocher (2003), posit
that forensic practitioners indeed need to become HIPAA compliant. Such
arguments include (a) the observation that assessment and diagnosis with
respect to an individual’s mental condition or functional status may, in fact,
constitute health care, according to HIPAA; and, as a result, psychologists

who provide forensic assessment services may be considered by HIPAA to be
covered entities; (b) to obtain health care information about an examinee
from other service providers, forensic psychologists must provide assurance
that the information will be handled in a secure way; and (c) the question of
whether forensic psychologists are covered entities will likely fall to case law
for resolution, and it may prove less expensive and burdensome to become
compliant than to become the case that decides the issue. Borkosky, Pellett, and
Thomas (2014) explained that HIPAA has no exclusion criteria based on type of
service, only inclusion criteria for providers. They concluded, “the evidence
strongly suggests that, for those forensic mental health practitioners who are
covered entities, HIPAA does apply to forensic evaluations” (p. 1, emphasis in
original).
Scholars continue to consider the HIPAA Privacy Rule to be complex, dif-
ficult to understand, and unclear, especially as applied to forensic practice
(e.g., Knapp, VandeCreek, & Fingerhut, 2017). It has been reported that one’s
entire practice is subject to the requirements of HIPAA if, at the time that a
given service is provided, the HIPAA rule is applicable for even one patient
(Bennett et al., 2006; Knapp et al., 2017). Therefore, psychologists whose
practices consist of both direct forensic activities (e.g., hired by attorneys or
appointed by courts to accomplish assessment) and clinical activities that
occur in medicolegal contexts are more likely to be subject to HIPAA require-
ments than those whose practice is solely forensic in nature. These authors
have recommended that even psychologists who are not covered by HIPAA
may be well served by complying with its standards.
Of course, many laws, not just HIPAA, govern the privacy of and patient
access to records. State laws address these issues in various ways and may
establish guidelines that are more protective of patient privacy. It has been
reported that 47 states “have statutes or rules that are consistent with, or more
stringent than HIPAA records release requirements” (Borkosky et al., 2014,
p. 5, emphasis in original). When considering the applicability of overlapping
state and federal laws, the more stringent of the two applies. Thus, when HIPAA
and state laws conflict, it is prudent to adhere to the law that is most protec-
tive of health care information. Consultation with professional organizations
and legal resources in the jurisdictions in which one practices will typically
result in the most appropriate practices for a given psychologist.
Conflicts Between Ethics and Law
Jurisdictional laws, regulations, and other governing legal authority provide

requirements for professional behavior that must be followed. However,
sometimes laws or other sources of legal authority conflict with each other or
with professional ethics. When laws and ethics conflict, psychologists should
make known their commitment to professional ethics and take reasonable
steps to resolve the conflict (Standard 1.02). Psychologists pursuing the highest
standards of conduct may strive to compromise with legal authorities when

the APA Ethics Code requires a higher standard of professional behavior than
does the law. In many instances, efforts to compromise result both in the legal
system receiving the information or action it requires and in the preservation
of the integrity of psychological information or techniques. Although all such
attempts may not meet with equal success, the attempts themselves help to
educate others about the ethical concerns of psychologists and demonstrate
the psychologist’s commitment to high practice standards.
APPLYING RISK MANAGEMENT STRATEGIES

IN FORENSIC PRACTICE
In 1984, Alan Stone wrote, “The philosophers say life is a moral adventure;
I would add that to choose a career in forensic psychiatry is to choose to
increase the risks of that moral adventure” (p. 73). Psychologists engaging in
forensic professional activities enter an environment with moral, ethical, and
professional challenges that are often quite different from those found in clin-
ical practice. These challenges and their associated potential ethical pitfalls
put the unprepared psychologist at considerable risk for at least allegations of
professional misconduct if not actual professional misconduct. A significant
contribution to decreasing one’s vulnerability to professional misconduct can
be made by striving to understand the laws that govern one’s practice. As Sales
and Miller (1993) indicated, however,
most professionals do not know about, much less understand, most of the laws
that affect their practice, the services they render, and the clients they serve . . .
not knowing about the laws that affect the services they render can result in
incompetent performance of, and liability for, the mental health professional.
(p. 1)
Bennett et al. (2006) defined risk as “the calculation that a particular . . .

service will lead to a good or bad outcome and that the outcome will have
positive or negative consequences” (p. 11). They also noted that “ultimately
risk management is a business decision in which you decide how much time
and effort to put into implementing risk management principles into your
professional practice” (p. 9). For forensic psychologists invested in minimizing
risk, continuing education in the areas of one’s psychological specialty, the laws
that regulate one’s practice, the interface of the specialty practice with the legal
system, and risk management itself are all necessary to maximally reduce the
likelihood of engaging in professional misconduct. However, knowledge is not
enough. Forensic psychologists must be committed to applying that knowl-
edge in a manner that is consistent with ethical practice.
Where professional competence has been established and is being main-
tained, the greatest risk to ethical misconduct in forensic psychology seems to
be the potential influence of bias. Assessment of one’s performance and atti-
tudes, through both self-assessment and peer review, helps to identify and
address biases that could otherwise lead to risk mismanagement. For exam-
ple, a strong or inflexible belief in the value of a particular methodology or
symptom etiology or course, while sufficient much of the time, could result in
inaccurate or inappropriate determinations in a given case. Bias in this con-
text, however, refers not only to a philosophical preference for one aspect of
the professional literature or another, but also to bias in favor of the retaining
party resulting in the intentional selection of instruments that may result in
favorable outcomes or the modification of opinions or testimony designed
solely to support the position of the retaining party. Bias can exert its influ-
ence even when the psychologist is well armed with information about the
professionally correct course of action.
To justify one’s positions and behaviors, clear and detailed documentation
of the rationale should be maintained. As Behnke and colleagues (2003)
stated, “the process by which a clinician decides what to do becomes as important as
the decision itself” (emphasis in original; p. 13). Documentation that the psy-
chologist understood the values at stake and followed a rational process of
ethical decision making will, if necessary, inform any outside reviewer that the
ethical challenge was addressed in a thoughtful and systematic manner. Such
documentation of the decision-making process is the forensic psychologist’s
best protection against liability (Behnke et al., 2003). Bennett and colleagues
(2006) highlighted the unique risk management usefulness of documenta-
tion with this warning: “From a legal perspective, the general rule is ‘if it isn’t
written down, it didn’t happen.’ Records are given deference in disciplinary
actions” (p. 45).
When issues of professional liability are in doubt, psychologists are well
served by consulting their professional liability insurance carrier and perhaps
their personal attorney as well. In considering the consultation, it is essential
to keep in mind that the interests of the attorney or insurance carrier may
overlap with one’s own, but in some respects, may not, and at the end of the
day, one must be comfortable that the action to be taken reflects the values
and ethics held to be meaningful.
AN ETHICAL DECISION-MAKING MODEL

FOR FORENSIC PSYCHOLOGY
Determining a course of professional behavior that not only avoids ethical

misconduct according to an ethics code but also adheres to high aspirational
principles requires a commitment to ethical ideals. Determining such a course
of action requires access to the necessary tools, and it requires effort and time.
Some practitioners may find adherence to the letter of enforceable ethical
standards to be sufficient. In our view, however, it is difficult to justify choos-
ing not to pursue the highest standard of ethical behavior available to psychol-
ogists. As Knapp and VandeCreek (2003) stated, “Ethics Codes of professions
are, by their very nature, incomplete moral codes” (p. 7). Positive ethics
requires a shift from an emphasis on misconduct and disciplinary action to an

emphasis on the pursuit of one’s highest ethical potential (Knapp et al., 2017).
The forensic psychologist must understand not simply that certain practices
are unethical but also why they are unethical.
The ability to develop ethical practices and arrive at sound ethical decisions
is facilitated through use of systematic decision-making process. A variety of
ethical decision-making models have been proposed by psychology scholars.
The models vary in terms of the steps outlined by the drafters and the focus,
depending on the specific context in which the model is being proposed. Having
considered a number of models in preparation for the first edition of this
work, we (Bush, Connell, & Denney, 2006) developed an eight-step model
that incorporated steps common to existing models as well as components that
were found to be lacking in those models. The model was designed to provide
forensic psychologists with a structured, evidence-based means of establishing
ethical practices and avoiding or resolving ethical challenges. Given the com-
plexity of many ethical challenges and the range of information and consulta-
tion that may be needed to determine an appropriate course of action, it may
be beneficial, consistent with the four As of ethical practice (described in the
Introduction), for practitioners to anticipate potential ethical needs and chal-
lenges and determine in advance optimal courses of action. The original eight
steps of the forensic psychology ethical decision-making model were as follows:
(a) identify the problem, (b) consider the significance of the context and set-
ting, (c) identify and utilize ethical and legal resources, (d) consider personal
beliefs and values, (e) develop possible solutions to the problem, (f) consider
the potential consequences of various solutions, (g) choose and implement a
course of action, and (h) assess the outcome and implement changes as needed.
In the continuing evolution of ethical decision making, Bush, Allen, and
Molinari (2017) reduced the model’s eight steps to seven and provided a
mnemonic to assist practitioners with remembering the steps. The updated
model combines the previously separated steps of developing solutions and
considering the consequences of the solutions, given that likely consequences
often emerge as the possible solutions are generated. Additionally, focus of
the second step was modified to more specifically address the obligations owed
to the various parties within the context or setting. The mnemonic CORE OPT
can help practitioners follow the ethical decision-making steps and arrive at a
correct option. Table 1.2 lists the ethical decision-making steps according to
the mnemonic and provides questions to be asked at each step in the decision-
making process. Application of the model can help psychologists develop
ethical practices and arrive at sound solutions to ethical challenges, but it is
insufficient if the psychologist lacks personal integrity and a commitment to
high standards of ethical practice.
Step 1: Clarify the Ethical Issues(s)
Some professional activities considered by or requested of forensic psycholo-

gists are clearly appropriate and ethical, and some are clearly not. However,
TABLE 1.2. Ethical Decision-Making Steps and Questions

CORE OPT mnemonic Question
Clarify the ethical issue What is the ethical issue?
Obligations owed to stakeholders Who are the stakeholders, and what are my
obligations to them?
Resources—ethical and legal What references can inform me about the issue?
Examine personal beliefs and values How might my values and beliefs affect my
decisions?
Options, solutions, and consequences What are my options?
Put plan into practice Which option should I choose?
Take stock, evaluate outcome, and How did it work out, and is anything else
revise as needed needed?
Note. Adapted from Ethical Practice in Geropsychology (pp. 41–42), by S. S. Bush, R. S. Allen, and
V. A. Molinari, 2017, Washington, DC: American Psychological Association. Copyright 2017 by the
American Psychological Association.
many options available to practitioners are ambiguous or present complex

layers to be considered. Forensic psychologists must keep in mind that a wide
range of potential behaviors may be appropriate when considering courses of
action and when reviewing the work of colleagues. A distinction may need to
be made between ethical, legal, moral, and professional perspectives. These
overlapping concepts may need to be parsed out in order to identify or clarify
the ethical issue or dilemma.
Professional behaviors that are clearly ethical or unethical need little expla-
nation or discussion. Blatantly unethical behavior harming others or obstruct-
ing just legal determinations may invoke a host of negative consequences. If
one observes such behavior in a colleague, a course of action must be taken
to remedy the situation. However, in the less clear circumstances often expe-
rienced in practice, a psychologist may encounter a request or a situation that
arouses feelings of uneasiness, a sense that something may be wrong with the
situation. In such situations, the psychologist must consider possible reasons
for the unease and attempt to narrow down the possibilities, eventually focus-
ing on those elements of the situation that are contributing to the initial feel-
ings of discomfort.
To illustrate, a psychologist retained by an attorney to evaluate a plaintiff
who has been experiencing posttraumatic stress from a motor vehicle colli-
sion may be asked by the attorney to describe the patient’s severe symptoms,
her total and permanent disability, and the causal link between the collision
and the posttraumatic stress and disability. A request such as this, which may
seem straightforward on the surface, may involve a host of issues that would
need to be considered by the psychologist (e.g., regarding how clearly the
causal link has been established or whether the psychologist believes it to be
something that can be determined by virtue of the examination). The psy-
chologist would benefit from determining, as specifically as possible, what it
is about the situation that is troubling. The psychologist may feel uneasy
about the appropriateness of writing such a report when the evaluation

results may not support the facts as presented by the plaintiff’s attorney. If
such a situation had been considered in advance, the psychologist would
likely have known exactly how to respond to the request. Consider next that
the plaintiff’s attorney, upon receiving the report, is very pleased with the
conclusions and promises to send more cases to the psychologist but first asks
that psychologist to make a couple minor edits, including deleting information
about a prior traumatic event and postcollision substance abuse. The psychol-
ogist must determine whether complying with the request could simply reflect
a professional choice or would have ethical or legal implications.
Step 2: Consider Obligations Owed to Stakeholders
Forensic psychologists work in a wide variety of settings and contexts, with

differing roles and differing obligations to the parties and institutions involved.
In any forensic role, there may be a number of individuals or institutions to
whom or to which obligations are owed. Although differing by context, some
possible parties to whom obligations may be owed include the following:
referral source, client, examinee, surrogate decision makers, employing insti-
tution, profession of psychology, trier of fact, court, legal system, and society
at large. In some contexts, these parties may overlap, whereas in others, they
are distinct.
Just as there exists a range of individuals or institutions owed obligations,
there is a range of obligations that may be owed. Professional activities that are
appropriate in one forensic setting or one set of obligations may be inappro-
priate in others. In general terms, the forensic psychologist has an obligation
to provide competent services that advance the interests of justice without
bringing unjust harm to the individuals and institutions involved. The nature
of the harm to be avoided has been specified as “unjust” harm. This clarifica-
tion is provided because, due to the adversarial nature of the legal system,
many of the opinions offered or determinations made by psychologists may be
considered unfavorable and thus harmful to one of the parties involved in a
case. Such opinions or determinations are only unethical if they were reached
in an inappropriate manner.
Step 3: Utilize Ethical and Legal Resources
There exist many published resources, sometimes offering conflicting guid-

ance, relevant to ethical issues encountered in forensic psychology. Never
theless, by utilizing both the published and interpersonal resources described
in this section, the forensic psychologist can likely establish a solid founda-
tion for determining courses of action that are consistent with ethical prac-
tice. The various resources are presented here in an order consistent with a
deductive or top-down method of ethical reasoning and decision making
(Beauchamp & Childress, 2013). This method involves applying a general

rule to a specific case.
First, assess the foundational values. General bioethical principles, the ethics
codes of professional organizations, and jurisdictional laws all reflect the values
of a society. Examples of North American values include the right to self-
determination and the right to adequate health care. These values underlie
general bioethical principles, such as respect for a client’s autonomy and the
need to “do no harm” to the parties served by the health care professional.
Determining the values underlying a given ethical standard or law helps to
clarify the spirit behind the letter of the standard or law and, by extension,
helps to clarify the appropriate course of action (Behnke et al., 2003). Behnke
and colleagues (2003) advised that an ethical dilemma be approached by first
asking the following questions, “What values are at issue? And how can I act
consistent with those values?” (p. 225).
Second, determine the applicable bioethical principles. Beauchamp and
Childress (2013) presented a model of bioethical principles reflecting society’s
fundamental values. Their model, which has been widely adopted across health
care disciplines, posits four core principles: respect for autonomy, beneficence,
nonmaleficence, and justice. As previously noted in this chapter, these princi-
ples are clearly evident in the APA Ethics Code.
Applying the Beauchamp and Childress (2013) model to ethical challenges
in forensic psychology can be of considerable use in determining an appropri-
ate course of action. However, dilemmas emerge or increase in complexity in
situations in which one value is pitted against another. For example, from an
ethical perspective, recommending that a particular parent be awarded cus-
tody based on the wishes of an older adolescent examinee may be consistent
with respecting the adolescent’s autonomy, but it may also result in psycho-
logical or other harm to the adolescent and others involved, if the decision is
made solely on that factor. Weighing the relative importance of the principles
involved and attempting to strike a balance that satisfies the greater good is
the task of the forensic psychologist. Of course, such determinations need
not, and often should not, be made in isolation.
Third, review relevant professional ethics codes. Ethics codes are devel-
oped to clarify and operationalize the concepts embodied in declarations of
professional values (Beauchamp & Childress, 2013). The APA Ethics Code
provides guidance for ethical psychological practice. Whereas the Code’s Gen-
eral Principles are aspirational in nature, the ethical standards provide more
concrete dicta for ethical practice and should be consulted to establish ethical
practices and achieve ethical solutions. The standards are the enforceable
minimum level of ethical conduct for psychologists who are APA members or
whose state boards have adopted the APA Ethics Code as the professional
regulations or rules of practice for licensed psychologists.
Fourth, psychologists must be familiar with the jurisdictional laws that reg-
ulate the profession of psychology where they practice. State and federal laws
offer specific direction on how to manage fundamental aspects of psychological
practice; however, specific practices pertaining to psychological specialty areas,

such as forensic psychology, may not be adequately addressed by statutory or
case law.
Fifth, refer to position statements (“white papers”) of relevant professional
psychological associations. Beauchamp and Childress (2013) noted, “Often
no straightforward movement from general norms, principles, precedents, or
theories to particular judgments is possible. General norms are usually only
starting points for the development of norms of conduct suitable for specific
contexts” (p. 2). Position statements offer clarification of details of practice
areas that are beyond the scope of an ethics code. Many of these statements
are listed in Table 1.1 and are readily available from the websites of the orga-
nizations authoring or endorsing them. The Guidelines provide ethical guid-
ance specific to forensic activities, much of which overlaps substantially with
the APA Ethics Code.
Sixth, review relevant scholarly publications, such as journal articles, books,
and book chapters. General ethics texts provide coverage of ethical issues of
concern to forensic psychologists and may offer vignettes specific to forensic
practice. Forensic psychology books cover, to varying degrees, many of the
practice issues that are of ethical concern, and some dedicate specific chapters
to ethics. In addition, texts from related psychology specialty areas, such as
child and family psychology and neuropsychology, include chapters that
address forensically relevant ethical issues. Other forensic psychology ethics
books are also available (e.g., Otto et al., 2017; Pirelli, Beattey, & Zapf, 2017).
Thus, there exist many published resources that can assist the forensic psy-
chologist striving to establish an ethical practice and anticipate or address
ethical challenges.
Seventh, consult experienced and ethically knowledgeable colleagues. Such
consultation may occur informally through discussions with colleagues, for-
mally through contact with ethics committees, or both. Professional liability
insurance carriers also typically have consultants available to advise their
clients about risk management issues. The experiences of colleagues who have
faced similar ethical challenges and the collective knowledge and experience
of ethics committees may provide invaluable assistance to the psychologist
facing an ethical dilemma. Consultation with others in one’s own jurisdiction
may offer the advantage of sensitivity to both the legal and ethical aspects of
a case. However, one might also need, in certain circumstances, to seek con-
sultation from outside the geographic area to preserve confidentiality of case
involvement or of details of the matter. It is useful to establish several collegial
consultative relationships and to seek expertise to address the relevant issues
of the matter at hand. The consultation may be formalized, even on a case-
by-case basis, by establishing a consultation agreement, retaining the consul-
tant at an hourly fee, and requesting that the consultant maintain a record of
the consultation. Such consultation can then be identified, if later needed, as
one of the ways the psychologist strived to meet the ethical challenge in a
professional and thoughtful way.
Step 4: Examine Personal Beliefs and Values
In addition to, or at times in contrast to, the collective values of a society, the
psychologist may endorse a particular value to some degree along a contin-
uum. Forensic psychologists have a responsibility to evaluate the degree to
which their personal moral positions are consistent with those of the larger
society and the organizations to which they belong. To the extent possible,
they should attempt to understand their biases and the potential impact of
their values and biases on their professional and ethical decision making.
Psychologists may also draw on personal values other than those reflected in
a model of professional ethics, such as those inspired by their religion or cul-
tural background. It is critically important that forensic psychologists, whose
work often involves matters laden with moral and values implications,
attempt to understand the potential influences of their personal beliefs on
their professional behavior.
Step 5: Consider Options, Solutions and Consequences
When confronted with an ethical dilemma, inaction is typically not an ethical

option. The legal counsel that one may obtain would typically address the
issue from a “risk management” perspective, arguing for temporary inaction
or for avoidance of efforts at resolution that might incur liability, while the
principles by which the psychologist practices may argue for action that reme-
diates potential suffering or injustice on the part of a party in the situation.
The complex dilemmas that pit one ethical principle against another, or ethi-
cal against legal obligations, may tax the most thoughtful practitioner.
Generating a list of possible solutions requires integration of the signifi-
cance of the context and obligations owed, information obtained from avail-
able resources, and personal beliefs and values. In some situations, the best
course of action may be clear upon such consideration. However, in other
ethically challenging situations, practitioners may need to generate a number
of potential solutions in as much detail as possible. Consider the example of
the request to have a third party present during a forensic evaluation. Having
considered the ethical and legal issues, there are a variety of options that the
forensic psychologist might consider. Some of these options include (a) com-
plying as requested, possibly with some conditions, such as the third-party
observer remaining quiet and out of the examinee’s line of sight; (b) refusing
to perform the evaluation; (c) offering to allow the third-party observer to be
present during the interview but not during testing; (d) offering to have the
evaluation recorded; and (e) educating the involved parties about the ethical
issues, including the impact of third-party presence on examinee performance,
and suggesting that the request be rescinded.
Once possible solutions to the ethical problem have been developed, poten-
tial consequences must be considered. Both positive and negative conse-
quences must be anticipated. In a manner similar to determining the relative
importance of the underlying values, the potential positive and negative
consequences of each action may need to be weighed to determine the best

option. Attempting to negotiate a solution that is acceptable to all involved
parties can foster good will and a spirit of cooperation with those with whom
one wishes to work, whereas obstructive or oppositional attitudes are typi-
cally less beneficial. Thus, the potential consequences may extend beyond
solely ethical considerations to those with business and other implications.
Forensic psychologists must consider potential consequences, weigh their
options, and pursue the option that is most consistent with high standards of
ethical practice.
Step 6: Put the Plan Into Practice
Once potential solutions have been examined and consequences considered,

the practitioner must select and implement the most appropriate course of
action. The timing of the action may be critical to its success. Depending on
the issues involved and the context, the course of action may need to occur
quickly or may need to be delayed. Consultation with colleagues may be par-
ticularly valuable in weighing the best time to respond to situations in which
timing must be taken into account. Advanced consideration of the types of
ethical challenges that are likely to be encountered in a given practice context
may help eliminate the panic that can be experienced and faulty decision
making that can ensue when one must confront an urgent issue unprepared.
The solution need not be perfect, because the reality of forensic practice sel-
dom allows for such an option; however, the selected solution should be
ethically sound and defensible.
Step 7: Take Stock, Evaluate the Outcome, and Revise as Needed
To ensure that the outcome was as anticipated and desired, the psychologist
must evaluate the effectiveness of the decision or action. This process also
affords the psychologist the opportunity to implement changes if needed.
With many difficult ethical decisions in forensic psychology, the chosen action
may be unsatisfactory to one or more of the parties involved. The psychologist
should be prepared to receive and respond to feedback about the decisions
made and actions taken. Being able to refer to the structured decision-making
process and the evidence base (i.e., resources) that informed the decision helps
the psychologist to explain how and why the decision was made. Documentation
of the issues and process prepares the psychologist to address questions and
defend one’s choices and actions.
CONCLUSION
The interface of psychology and the law is unfamiliar territory for many, per-
haps most, psychologists entering forensic practice. The ethical issues of most
relevance and the manner in which ethical principles and standards are
applied differ between clinical and forensic activities. Psychologists who suc-
cessfully engage in forensic activities understand the importance establish-
ing and maintaining ethical competence, including the value of a systematic
approach to ethical decision making. As with clinical decision making, there
are many resources that provide the evidence base needed for making sound
ethical decisions. Psychologists who strive to anticipate ethical needs and
challenges and to prepare practice activities to meet those needs and address
the challenges are well positioned to apply their knowledge and skills in the
interests of justice.
2
The Referral
T he Specialty Guidelines for Forensic Psychology (SGFP; American Psychological

Association [APA], 2013) state that “professional conduct is considered
forensic from the time the practitioner reasonably expects to, agrees to, or is
legally mandated to provide expertise on an explicitly psycholegal issue” (p. 7).
When a practitioner is contacted and agrees to provide a forensic service or
learns that a mandated service is required, a variety of ethical issues become
relevant and need to be considered and addressed. Some ethical responsibili-
ties begin immediately (e.g., confidentiality), whereas others begin after the
agreement regarding compensation has been reached (SGFP Guideline 4.01:
Responsibilities to Retaining Parties). Ethical issues most relevant to the refer-
ral involve (a) the relationship between the retaining party and the examiner,
(b) objectivity, (c) advocacy, (d) professional competence, and (e) financial
arrangements. This chapter describes ethical issues related to the forensic
referral, including (a) the relationship between the retaining party and the
forensic practitioner, (b) the importance of professional competence, and
(c) the handling of financial arrangements. A case example is used to illus-
trate the relevant ethical issues using the ethical decision-making model.
THE RETAINING PARTY–EXAMINER RELATIONSHIP
The fundamental human value underlying the retaining party–examiner

relationship is respect for autonomy, which may be operationalized in this
regard by observing that all parties are entitled to a clear understanding of the
http://dx.doi.org/10.1037/0000164-003
41
expectations of the others involved in order to make a fully informed decision

about whether to engage in the relationship. The court is entitled to expect
from its experts the clarity of purpose upon which reliable testimony is based.
In order to have clarity of purpose, all individuals in the process must have
clearly defined roles. The ethical principle of respect for autonomy reflects
this informed decision-making process.
When accepting a forensic case, psychologists should perform each step of
their work in a manner that is defensible within the legal forum. The relation-
ship between the retaining party and the examiner is the foundation upon
which all forensic psychological services are based. A lack of clarity among
involved parties regarding roles and responsibilities renders the working rela-
tionship vulnerable to subsequent misunderstanding and conflict and in itself
represents possible ethical misconduct (see Ethical Principles of Psychologists and
Code of Conduct [APA Ethics Code]; APA, 2017a; Standard 3.07, Third-Party
Requests for Services; SGFP Guideline 4.01: Responsibilities to Retaining
Parties).
Identifying one’s role is not always as straightforward as might be antici-
pated. Clarifying the questions to answer or forensic issues in question in the
context of a matter is essential to understanding one’s role. The forensic
issues may involve a plaintiff’s or criminal defendant’s cognitive or psycho-
logical functioning or the relationships among individuals. Improving the
decision-maker’s understanding of the plaintiff’s or defendant’s psychologi-
cal functioning serves the larger legal question on which the case is based,
such as the plaintiff’s right to compensation, whether an accused is guilty, or
the allocation of parental responsibilities in a way that serves the best inter-
ests of the child. Therefore, when identifying one’s role, “an important first
step is to identify the forensic issues contained in the legal questions that
have triggered the need for the evaluation” (Heilbrun, 2001, p. 22).
An understanding of the nature of the information the psychologist gives the
examinee and the extent to which information obtained during the evaluation
process will be kept confidential, or conversely its discoverability, is established
through discussions between the psychologist and the retaining party, and it
derives at least partially from statutory or case law (Melton et al., 2018). Thus,
the psychologist and the retaining party must achieve clarity regarding their
mutual expectations from the outset. Clarifying these issues upon receipt of the
referral, or as soon thereafter as possible, promotes a smoother working rela-
tionship between the retaining party and the practitioner as the case proceeds.
Objectivity in the Role of Forensic Expert
The ability of forensic practitioners to provide opinions that are objective

and evidence based (rather than significantly influenced by partisanship,
prejudice, or passion) is what gives value to the expert in legal matters. Efforts
to identify and reduce or eliminate the impact of bias on forensic opinions
promote objectivity. Nevertheless, threats to objectivity remain in forensic
The Referral 43
practice contexts, and both psychology as a profession and the legal system in
which forensic psychologists work are becoming increasingly aware of the
biases that influence forensic assessments and opinions (Neal & Grisso, 2014).
When retained as forensic experts, psychologists should anticipate attempts
by attorneys to elicit opinions for which adequate support may not exist
(Barsky & Gould, 2002). This may even occur at trial when tensions are high
and there is limited opportunity to re-examine and discuss expectations and
resolve conflicting interpretations of the data. By anticipating this possibility at
the outset, the psychologist may be better prepared to maintain previously
agreed upon boundaries. The outcome of the litigation should not be the direct
concern of the testifying expert. Rather, the expert’s carefully developed opin-
ion, and the sound data upon which it rests, should remain the focus. The
practitioner’s task is to assist the court by providing reliable information rele-
vant to the matter at hand.
After summarizing field and experimental research findings on the issue of
forensic identification and objectivity, Neal (2017) noted that forensic practi-
tioners tend, unintentionally, to adopt the viewpoint of the retaining party.
A tendency exists for otherwise neutral forensic practitioners to interpret case
information in a manner supportive of the position of the retaining party.
Psychologists working as forensic experts can maintain or improve objectivity
by understanding the potential for such unintentional bias and taking steps
to maximize their potential for arriving at impartial conclusions. Such steps
include ensuring professional competence (discussed in this chapter) and engag-
ing in self-examination.
Self-examination questions (e.g., Sweet & Moulthrop, 1999) and strate-
gies (e.g., Neal & Brodsky, 2016) offer practitioners possible means of max-
imizing current and future objectivity. Sweet and Moulthrop (1999) offered
nine self-examination questions to help forensic experts identify and reduce
bias (see Exhibit 2.1).
Of particular relevance to our discussion here are these questions:
• “Do I almost always reach conclusions that are favorable to the side that
has retained me?”
• “Have I taken a position, in very similar cases, when retained by an attor-

ney from one side that I did not take when retained by the opposite side?”
• “Have I been reaching the same diagnostic conclusion at a much higher base
rate than my colleagues or at a higher rate than described in the literature?”
It can be helpful for forensic practitioners to consider whether they are

retained because their opinions tend to be predictable; that is, their opinions
consistently reflect advocacy for a particular belief, or they consistently favor
the retaining party, rather than being based on the facts of a given case and the
established knowledge of the profession.
Alternatively, there are situations in which experts are known for their
research findings and are brought into a legal situation because of their views
EXHIBIT 2.1
Self-Examination Questions Regarding Bias for the Expert Witness
1. Do I receive referrals from only plaintiff attorneys or only defense attorneys?

2. Do I almost always reach conclusions favorable to the side that has retained me?
3. Have I moved away from being an expert witness to being an advocate?
4. Do I form opinions of plaintiff or defense positions prematurely, without having
enough facts for a solid opinion?
5. Have I taken a position, in very similar cases, when retained by an attorney from one
side that I did not take when retained by the opposite side?
6. Do I routinely apply the same decision rules for establishing brain dysfunction no
matter which side retains me?
7. Have I been reaching the same diagnostic conclusion at a much higher base rate than
my colleagues or at a higher rate than described in the literature?
8. Has my initial written opinion been altered by the time of deposition or trial
testimony?
9. Does my emotional response to a case cloud or distort my objectivity?
Note. From “Self-Examination Questions as a Means of Identifying Bias in Adversarial Assessments,” by

J. J. Sweet and M. A. Moulthrop, 1999, Journal of Forensic Neuropsychology, 1, pp. 73–88. Copyright
1999 by Taylor & Francis. Adapted with permission.
of the science. In such instances, it is not inconsistent with ethical standards

to provide an opinion relevant to the case at hand but which also reflects the
psychologist’s professional viewpoint regarding the scientific literature. For
example, one can easily understand why Professor Elizabeth Loftus would be
repeatedly hired by attorneys specifically because of her robust research
regarding the problems inherent in claims of repressed memories of child-
hood abuse (e.g., Loftus & Ketcham, 1994). It would be much less likely for
those advocating for the authenticity of such claims of remote memories to
hire Professor Loftus as an expert witness for their cases. Likewise, it would
be rather unlikely for prosecutors to hire Professor James Flynn to discuss
why the Flynn Effect should not be used in a particular death penalty case
given his research and published views (e.g., Flynn, 2007). In instances like
these and others, having a record of testimony consistently for one side in
forensic cases does not necessarily suggest an ethical concern. In both of the
above examples, the ethical expert witness opines based on his or her genuine
understanding of the scientific literature in a manner that is forthright, balanced,
and dispassionate.
The third question posed by Sweet and Moulthrop (1999, as shown in
Exhibit 2.1) warrants special consideration as well: “Have I moved away from
being an expert witness to being an advocate?” Unlike the more obvious
financial incentive to potentially bias an expert, there are instances in which
a more cloaked, yet powerful, cause exists that can quickly move an unbiased
expert witness into advocacy for a specific case outcome: sociopolitical advo-
cacy. In the area of death penalty litigation and sex offender litigation, for
example, we have observed individuals involved as expert witnesses who had
strong sociopolitical opinions that were simply not consistent with having a
The Referral 45
balanced scientific opinion. There have been instances in which expert wit-
nesses who had very clear moral objections to the death penalty take down
their website blogs on the subject (corresponding to the time they were con-
tracted as criminal defense witnesses in the case), then “bend” the truth,
emphasize erroneous statistical principles, ignore established scientific con-
sensus, and claim that their views on the death penalty did not bias their
opinions.
It is not ethical for an expert to “drag the science through the mud” to
achieve a sociopolitical outcome. Sociopolitical outcomes should be decided in
the legislature, not in the courtroom. As noted in regard to a priori ethical
considerations (Denney, 2005a, 2012b), “clinicians who are strongly opposed
to the death penalty have too great a possibility of inadvertent bias to partici-
pate in capital cases as nonpartisan evaluators” (Denney, 2012b, p. 486). Like-
wise, it would be improper for a psychologist to take on a custody examination,
if the psychologist held an a priori sociopolitical viewpoint that fathers should
never have sole custody of very young children in the case of divorce. Such
strong views have too great a likelihood of biasing the expert even before eval-
uating either parent.
Prior to accepting cases that involve emotionally charged outcomes (e.g.,
sex offenses, child abuse, death penalty), ethical examiners consider earnestly
whether their strongly held sociopolitical viewpoints would inadvertently
influence their ability to come to a proper opinion. If the psychologist cannot
tolerate the possibility of having an opinion on either side of the issue, the
psychologist should not take the case. The SGFP guidelines make this issue
quite explicit: “Forensic practitioners refrain from taking on a professional
role when personal, professional, legal, financial, or other interests or relation-
ships could reasonably be expected to impair their impartiality, competence,
or effectiveness” (SGFP Guideline 1.03: Avoiding Conflicts of Interest).
On the basis of interviews of board-certified forensic psychologists, Neal and
Brodsky (2016) identified several bias-correction strategies, including seeking
to disconfirm rather than confirm one’s hypotheses, in part by considering the
opposite of one’s current thought patterns, and seeking to be appointed by the
court rather than retained by one side of the adversarial process. Research
(Murrie, Boccaccini, Guarnera, & Rufino, 2013) also revealed that use of stan-
dardized assessment measures, particularly those with less subjectivity in scor-
ing, promotes objectivity; specifically, the more objective the test, the lower the
risk for the influence of adversarial allegiance.
Advocacy in the Role of Trial Consultant
In assuming the role of trial consultant, the psychologist enters a relationship

with an attorney that is different from that of a testifying expert, in that advo-
cacy may more reasonably be expected in the former. Nevertheless, the psy-
chologist should advocate for evidence-based decisions (which can include a
critical review of the work of colleagues) rather than advocate for a specific
outcome in the case. When retained as a trial consultant, the psychologist
essentially joins the retaining attorney’s team to bring psychological exper-

tise to the partisan adversarial process. Impartiality is not required of the trial
consultant, but the psychologist trial consultant who holds a place on the
“trial team” is cautioned against agreeing to transition into or concurrently
participate in the case as an examining or testifying expert (Brodsky &
Gutheil, 2016). Some authors have maintained that a consultant can assume
both a partisan role in assisting an attorney’s case and an impartial evaluator
role during trial preparation and then, at the time of trial, maintain only the
role of impartial evaluator (e.g., Halleck, 1980). Separating the acceptable bias
of the consultant from the necessary objectivity of the evaluator, however,
may be difficult if not impossible. Heilbrun (2001) identified as an emerging
principle the “single role” maxim that should be familiar to the practicing
forensic psychologist, advising the forensic psychologist to decline a referral
when impartiality would likely be jeopardized.
Psychologists may find this distinction between testifying expert and con-
sultant difficult to maintain. For example, an attorney may ask a psychologist
that she has retained as a testifying expert for feedback regarding the oppos-
ing expert’s report, which invokes a discussion about a point of disagreement
between the experts. The testifying expert, in explaining the source of the
difference, essentially offers the attorney a roadmap for cross-examining the
opposing expert. Although there is no clear line distinguishing the appropri-
ate contribution of a testifying expert from that of a nontestifying, consulting
expert, practitioners help clarify the appropriate course of action by examin-
ing their motivations. When motivated to clarify genuine professional dis-
agreement and its genesis, as well as to assist an attorney in making appropriate
use of one’s opinion, the testifying expert is on solid ground. However, when
the motivation is to contribute as a member of the trial team, sharing the
attorney’s goal of winning the case, the psychologist has become an advocate
whose opinions should not be offered as objective expertise.
Attorneys may not observe this distinction between trial consultant and
testifying expert in the same way forensic practitioners do. In fact, attorneys
may consider consultation an essential part of the service they are seeking
and may designate the expert as a consulting expert until an examination is
completed and the report is received. Only when the attorney is clear about
what the expert can and will say on the stand is the attorney inclined to des-
ignate the expert as a testifying expert. The recommended “one case–one
role” rule of thumb does not preclude being designated as a consulting expert
during the earlier stages of the case. It matters more how the psychologist
carries out the role. The role of jury consultant or trial consultant that is spe-
cifically intended to be a behind-the-scenes assistant to help in such activities
as deciding which experts to retain, deciding what materials to have the
potential testifying expert(s) review, assisting with development of cross-
examination ideas, identifying which jury members may be most likely to be
sensitive to specific issues, and other such activities may be different in pur-
pose and expected professional objectivity. However, to be maximally useful,
the expert fulfilling this role may adhere closely to overarching psychological
The Referral 47
ethical principles and standards. For example, the expert trial consultant
would not participate in distortion of psychological examination findings,
construct questions or suggest arguments that would suggest psychological
theories that are not validated, that are known to have been discredited, or
that are not applicable in the case at hand. The consultant psychologist should
not contribute to intentional misrepresentation or misconstruing of data.
In some institutional settings, it may be contemplated that forensic psy-
chologists can fulfill several different roles on the same case. For example, in
military courts-martial, the contractual obligation of the expert may be to
serve as consultant assisting in trial preparation, a potential teaching expert
who testifies on some specific issue, and/or an examining expert who may
testify during the findings or the sentencing portion of the case. Navigating
these multiple roles in a way that is consistent with professional ethics may
be a challenge, but the expert who is aware of the reasons for caution and
who exercises appropriate self-monitoring may be able to successfully navi-
gate this terrain (Connell, 2019; Stein & Younggren, 2019).
Likewise, forensic psychologists working within the correctional environ-
ment, particularly with competency restoration cases, may find themselves in
a potential dual role of treatment provider and subsequent examiner. In
many settings, treatment provider roles and end of treatment assessment
roles are kept separate; however, there are instances in which this practice
simply may not be possible (e.g., where specialized expertise is required for
both the treatment and assessment, such as with unique neuropathologies).
Standard 3.06, Conflict of Interest, of the APA Ethics Code (2017a) and SGFP
Guideline 1.03: Avoiding Conflicts of Interest, describe these general issues
under the direction of avoiding conflicts of interest. Per SGFP Guideline 1.03,
it is recommended that psychologists make known such potential conflicts as
soon as they become aware of them. In both the courts-martial and correc-
tional settings, examiners may not have the flexibility to completely avoid
every potential dual role.
When such situations are unavoidable, peer consultation and/or review is
a viable option to verify that potential affiliation bias has not unduly affected
the examination process. For example, after providing months of cognitive
remediation in the context of court-ordered competency restoration, a psy-
chologist requested a formal peer review by a panel of forensic psychology
colleagues in the facility. The issue related to the assessment of competence to
proceed in a situation where there were no other options but to provide treat-
ment and examination due to the lack of other neuropsychological experts in
the facility. In this instance, the court appreciated the added protection against
affiliation bias potentially tainting the examination findings.
Professional Competence
Psychological services, to be effective and useful to consumers, must be per-

formed competently. Such professional competence is obtained through some
combination of “education, training, supervised experience, consultation, study,
or professional experience” (Standard 2.01a, Boundaries of Competence).

Competence is not universal; that is, competence in one area of psychology
does not imply competence in another area. This is true across and within
specialty areas of practice. Within specialty areas, competence does not nec-
essarily transfer across patient populations or clinical settings. This specificity
of competence is particularly significant in forensic settings or contexts, where
specialized knowledge of the rules or laws governing the activity is essential.
Further, competence in a particular psychology specialty area does not neces-
sarily translate into competence in performing that specialty in a forensic con-
text or setting (Heilbrun, 2001; Sullivan & Denney, 2008). Psychologists who
provide expert testimony without having had proper specialty training are
practicing beyond the scope of their competence.
The concept of professional competence is based on the fundamental human
value that people have the right to competently provided services. The bio
ethical principles of beneficence and nonmaleficence reflect this underlying
value. Psychologists who lack the necessary competence to provide their ser-
vices in forensic contexts may not be able to provide an acceptable level of
accuracy and reliability, and they risk harming those with whom they interact
professionally. For example, a forensic practitioner who uses outdated or unre-
liable instruments or techniques to arrive at opinions may provide erroneous
testimony or, at the very least, may be easily discredited on the witness stand,
causing harm to the retaining party who counted on the service to be compe-
tently provided.
Just as competence is not universal, it is not static. Competence must be
maintained through continuing education and relevant professional activities
(Standard 2.03, Maintaining Competence). Research continues to evolve and
to illuminate matters of interest to forensic psychologists. New instruments
may be incorporated in practice to assist psychologists in arriving at the most
refined opinions possible. It is incumbent on testifying experts to stay abreast
of current literature and assessment techniques in the areas in which they
offer opinions. Massey (2017) noted, “perhaps the most important aspect of
developing and maintaining competence is self-awareness and the willingness
to continuously assess one’s competence throughout one’s career” (p. 51).
Difficulty may lie in determining what represents competence in forensic
psychology. Psychologists who engage in forensic activities come from or rep-
resent a range of specializations. Such diversity is important for assisting the
court with the range of questions that emerge; however, ambiguity regarding
qualifications may emerge in individual cases. In fact, despite the existence of
a division of the APA devoted to psychological and legal issues (Division 41/
American Psychology-Law Society) and the American Board of Forensic Psy-
chology established by the American Board of Professional Psychology (ABPP),
there remains debate within the field regarding the definition of “forensic psy-
chology” (e.g., Bartol & Bartol, 2019). Although board certification in forensic
psychology by the ABPP provides the clearest evidence of competence for
forensic practitioners, such certification is not currently required and is held
The Referral 49
by only a very small percentage of psychologists providing services in forensic

contexts. Board certification in a different psychological specialty provides
evidence of competence in that specialty, which may assist the judge in deter-
mining whether to declare the holder of that certification an expert for pur-
poses of the testimony being offered in a given case. However, holding board
certification in a specialty other than forensic psychology does not necessarily
imply forensic competence in that area. Further, it certainly does not convey
competence to practice more broadly forensically.
SGFP Guideline 2.01: Scope of Competence states,
When determining one’s competence to provide services in a particular matter,
forensic practitioners may consider a variety of factors including the relative com-
plexity and specialized nature of the service, relevant training and experience, the
preparation and study they are able to devote to the matter, and the opportunity
for consultation with a professional of established competence in the subject
matter in question. (p. 9)
In the individual case, it is the court that determines who qualifies as an expert
for the matter at hand. Rule 702 of the Federal Rules of Evidence (FRE; House
of Representatives, Committee on the Judiciary, 2018) and state laws define
who is qualified to testify as an expert. The psychologist is responsible for accu-
rate representation of the knowledge, skill, experience, training, and educa-
tion that comprise the relevant credentials (Standard 5.01a, Avoidance of False
or Deceptive Statements; FRE 702). Challenges to expertise can be raised by
the other side in voir dire of the proffered expert. The court then makes a
determination, based on the relevance of the expert’s credentials to the matter
for which testimony is to be offered, i.e., whether to qualify the witness as an
expert whose opinion testimony will assist the trier of fact (FRE 702). A psy-
chologist may be “qualified” or recognized by the judge as an expert in a spe-
cific field, such as child abuse or eyewitness identification, or may be qualified
by the court more broadly as an expert in forensic psychology. Nevertheless,
surviving voir dire on one’s qualifications and being recognized as an expert in
forensic psychology does not obviate professional requirements for establish-
ing and maintaining competence.
Financial Arrangements
Forensic practitioners are compensated in different ways depending on the

nature of the case and the referral source. For example, different billing and
reimbursement practices occur for publicly funded court-ordered evaluations
than for evaluations funded by a law firm, disability insurance carrier, or
directly by the examinee (Otto et al., 2017). For publicly funded court-ordered
evaluations, the psychologist may have little influence on the manner in
which fees are determined or in which payment occurs. With other referrals,
the psychologist often has the flexibility to choose to have a fixed fee or hourly
rate, with or without advance payment. In considering billing options, the goal
is not only to be adequately and fairly compensated for one’s services but also
to limit the potential to have one’s opinions or work product swayed by the
possibility of increased revenue or, in the other direction, of not getting paid.
Psychologists and their clients should establish compensation and billing
arrangements in writing as early as possible in the professional relationship
(Standard 6.04, Fees and Financial Arrangements).
The strength of the judicial system derives from society’s expectation that the
decisions rendered by the court are just. To that end, society anticipates that
expert witnesses involved in serving the court will perform their duties objec-
tively. Practices that have the potential to negatively affect objectivity, and by
extension justice, must be carefully considered by psychologists. The manner
in which the psychologist’s fees are arranged is one factor that has the poten-
tial to significantly interfere with, or appear to interfere with, objectivity. When
a psychologist’s fees are contingent upon the outcome of a legal case, the
psychologist is vulnerable to intentionally or unintentionally producing a
report or testimony that favors the retaining party. Thus, SGFP Guideline 5.02,
Fee Arrangements, states the following:
. . . Forensic practitioners seek to avoid undue influence that might result from
financial compensation or other gains. Because of the threat to impartiality pre-
sented by the acceptance of contingent fees and associated legal prohibitions,
forensic practitioners strive to avoid providing professional services on the basis of
contingent fees. Letters of protection, financial guarantees, and other security for
payment of fees in the future are not considered contingent fees unless payment
is dependent on the outcome of the matter. (p. 12)
It can be argued that contingency fees pose no greater threat to objectivity

than does retention by any party with a stake in the outcome of an adversarial
proceeding. Although some attorneys appreciate an objective expert opinion,
even when it does not support their position—and attorneys may articulate
just that position—the expert is well aware that sometimes attorneys are
seeking an opinion that does support their case. If the psychologist’s opinion
does not support the retaining attorney’s case, the attorney may attempt to
“massage” the opinion into shape. The psychologist who holds firm to the data
is sharply aware that the attorney may be lost as a referral source. Thus, it
could be argued that psychologists who are retained by one side in a legal case,
regardless of how they choose to bill for their services, are subject to finan-
cially based threats to objectivity.
Although it is true that the potential for biased reporting exists for all
forensic experts, those whose fees are directly contingent upon a certain out-
come face a greater threat to objectivity and a clearer appearance of compro-
mised objectivity. The provision of an opinion for which payment is contingent
upon the outcome of the case is inappropriate. Thus, cases should not be
undertaken on a contingency fee basis, except possibly when one is working
as a nontestifying expert in trial consultation.
The nature of trial consultation, in which a psychologist is retained by an
attorney to assist in preparing the case against the other side, may raise an
exception to the proscription against contingency fees. In this role, the
The Referral 51
psychologist, like the retaining attorney, assumes a position for one party. The
role is not to directly provide opinions to the trier of fact. If the trial consul-
tant’s aim is to provide an objective review of the data and to assist the retain-
ing attorney by clarifying mental health issues in the case, it may be that a trial
consultant, like any other expert, is advocating for correct use of psychological
data and not necessarily for a “win” (Connell, 2019). However, if the goal is to
use the data explicitly in a way that will assist the attorney to prevail in the
case, the role is not one of neutrality (Heilbrun, 2001). In this context, the
manner in which the psychologist is paid may not alter the service provided.
Because impartiality is not a requirement of the consultant role, it cannot be
affected by contingency fees. Thus, it could be viewed as ethically acceptable
for the nontestifying consulting psychologist, like the attorney, to choose to
accept payment for services contingent upon the outcome of the case.
Another potential financial arrangement that may provide the psychologist
with incentive to deviate from ethical practice is charging higher fees for tes-
timony than for other forensic services (Heilbrun, 2001). Although the added
stress and inconvenience that can be associated with testimony may seem to
justify increased payment, the higher fees may be viewed as providing moti-
vation to perform one’s services with the end result of increasing the likeli-
hood that one may be asked to testify. One such example would be omitting
an important piece of information from a report and then informing the attor-
ney of the omission and the need to elicit the information during testimony.
The psychologist who wishes to avoid the appearance of ethically questionable
practice is advised to avoid charging higher fees for testimony.
In contrast, for a number of reasons, it is reasonable and acceptable to charge
higher rates for forensic services than for routine clinical services. Forensic
practice demands maintaining familiarity with current research in a broad range
of areas, and intimate familiarity with not only the instruments one commonly
uses but all of the instruments that might be used in the kind of examination
under consideration. Additionally, many forensic practice areas require consid-
erable added infrastructure to manage the complex and demanding scheduling
issues that can arise in this area of practice. Court subpoenas and other matters
beyond one’s control can cause last minute scheduling changes. Travel is often
required for forensic interviews, depositions, and court testimony, and it takes
time and resources to arrange travel. Additionally, forensic practice requires the
management and retention of extremely large data sets.
Ethically acceptable financial arrangements include setting fixed rates for a
given service, which may be required in some states, and, when billing an
hourly rate, doing so in a manner that is consistent across various forensic
services provided. Hourly rates tend to be preferable over fixed rates, when
the option is available, because no two forensic cases are exactly the same and
when a case requires more document review, more interview time, or more
complex testing than the usual case for a service area, there is a danger the
practitioner receiving a flat fee for the service may struggle to maintain a pos-
itive or constructive attitude toward the demands of the case.
CASE 1: HANDLING REFERRALS IN PERSONAL

INJURY LITIGATION
Case Facts
A personal injury attorney contacts a psychologist who has experience work-

ing with people who have been involved in car accidents. The attorney
explains that her 63-year-old client was involved in a motor vehicle accident
a month ago and, in her opinion, has posttraumatic stress disorder (PTSD).
She is making the referral for psychological treatment because her client lives
alone, has no close relatives, and does not know how to access the services he
needs. The attorney explains that the patient’s no-fault car insurance will be
the payment source. She offers to fax the police report and ambulance and ER
records, and she requests an appointment for her client. The psychologist,
feeling a little uncomfortable about the proposed fee arrangement, never-
theless accepts the referral and provides an appointment time for the patient
to be seen. After hanging up, the psychologist reflects on the nature of the
referral.
Case Analysis
In analyzing the case, we use the seven-step structured, systematic ethical

decision-making model (CORE OPT) as described in detail in the Introduction
to this volume.
Clarify the Ethical Issue

The psychologist accepted a referral from an attorney without exploring his
possible role in the litigation. The psychologist asked no questions about the
attorney’s expectations and conveyed no information regarding his practices
with respect to patients who are involved in litigation. The psychologist did
not clarify with the attorney who would be the psychologist’s client. The
ostensible reason for the referral was for treatment, with the attorney assist-
ing in the referral only because the individual lacked the resources to make
his own arrangements for treatment. The referral is presented as being for
clinical, not forensic, purposes.
Identify Obligations Owed to Stakeholders

This apparent clinical referral occurred within the context of civil litigation.
The attorney, while possibly interested in the psychological welfare of her
client, may have had additional motivations for initiating psychological treat-
ment. The attorney seemed to have made the diagnosis of PTSD and was
sending records that the psychologist had not requested and may or may not
have found necessary. The psychologist, in musing about this referral, consid-
ered that the attorney would likely be making requests of him once his initial
assessment was performed and treatment was underway. He wondered if he
should have addressed these expectations proactively—before accepting the
The Referral 53
referral. As he views it, his obligation is to the patient’s psychological well-

being and the provision of quality psychological care.
Utilize Ethical and Legal Resources

The psychologist has a responsibility to assist an appropriate patient (benefi-
cence). At the same time, he also must avoid harming the patient (nonmalefi-
cence), which may occur through entering into multiple, potentially conflicting,
roles without thoroughly clarifying expectations with the referring attorney
and the patient (APA General Principle A: Beneficence and Nonmaleficence;
Standard 3.05, Multiple Relationships; Standard 3.07; Standard 3.10, Informed
Consent). The psychologist has ethical and legal obligations to bill the appropri-
ate party for services provided (APA General Principle C: Integrity; APA General
Principle D: Justice; Standard 6.04, Fees and Financial Arrangements). If the
symptoms experienced by the patient predate or are otherwise not related to
the accident, it would be fraudulent to bill the no-fault carrier. The psychologist
had a responsibility to discuss with the attorney during the initial contact any
factors that may affect the attorney’s decision to use the psychologist’s services
or the psychologist’s decision to accept the referral.
The blurring of roles is one of the most frequent bases for ethics complaints
against psychologists in custody cases (Heilbrun, 2001). In such cases, the role
conflict or conflation often involves a treating therapist who steps into a
forensic role by making recommendations regarding custody or access with-
out having completed a full forensic assessment of the parties. In addition to
role clarity problems in forensic matters, maintaining multiple roles can have
a negative effect in a therapeutic relationship. When a clinician is asked to
monitor treatment progress and report the findings to an outside authority,
for example, the clinician may have difficulty maintaining the trust of the
patient (Barsky, 2012) and the patient may be less than forthcoming with the
therapist. In forensic contexts, role clarification is critically important for all
parties, particularly because the assumptions generally held about psycholog-
ical treatment, such as the confidential and helping nature of the relationship,
generally do not apply. Professional guidelines describe the dangers of assum-
ing multiple roles (SGFP Guideline 4.02, Multiple Relationships; SGFP Guide-
line 4.02.01, Therapeutic-Forensic Role Conflicts). No laws of that state were
found that applied to clarification of roles.
Examine Personal Beliefs and Values

This psychologist believes that any individual reporting symptoms that seem
to be consistent with PTSD has the right to access his services. He is generally
not concerned about where the referral comes from; however, the nature of
this referral was somewhat different for him in that the attorney seemed to
have proposed a diagnosis and was sending records that the psychologist typ-
ically did not request. Because he had not been retained by the attorney, he
preferred to be open to, and accepting of, the patient’s experiences. Based
upon his understanding, if the patient reported that the symptoms emerged
or worsened following the automobile accident, then the no-fault carrier

would be the appropriate payor.
Consider Options, Solutions, and Consequences

The psychologist, feeling somewhat uneasy about the referral, considered
four options. First, he considered refusing the referral and possibly suggesting
alternative treatment providers. The only adverse consequence for this option
was the loss of business. Second, he considered accepting the referral and not
worrying about any unexplored expectations at this time. The negative con-
sequence that he identified for this option involved disappointment and frus-
tration for the attorney or patient, if the expectations of either of them were
for something other than clinical care. There was also the possibility that the
patient’s lawsuit could suffer. Third, he considered calling the attorney back
to obtain further clarification about the attorney’s expectations of the nature
of his involvement in the matter. Other than taking a bit of time, he identified
no drawback for this option. Fourth, he considered contacting a colleague to
seek consultation. He also identified no drawback for this option, although he
preferred not to bother a colleague.
Put Plan Into Practice

The psychologist did not believe that declining the referral or referring the
patient to someone else was necessary. He believed that he could work out
the potential conflicts and still provide the patient with appropriate treat-
ment. However, having reflected on the relevant values and ethical guide-
lines, he believed that the attorney’s expectations should be addressed in
some way before treating the patient. He thought that a reasonable option
would be to call the attorney to clarify expectations, but he also thought that
it might be more appropriate to discuss expectations with the patient, without
further involving the attorney. However, he wanted to know what others
would do, so he chose to call an experienced colleague first.
Take Stock, Evaluate the Outcome, and Revise as Needed

The colleague suggested that the most ethically appropriate course of action
would be to call the referring attorney prior to seeing the patient in order to
clarify expectations. Indeed, when the psychologist called the attorney, the
attorney stated that although the patient’s mental health was the first priority,
she would be asking for periodic reports on the patient’s accident-related psy-
chiatric disability and treatment. The psychologist responded that although
he appreciated the referral, he could not promise such reports, as he had not
yet met with the patient and had no idea about the patient’s psychiatric status
or his interest in having that information shared with anyone. The attorney,
seemingly losing patience, indicated that she had a number of such clients
and was looking for someone to whom she could refer them. She further told
the psychologist that although she was hoping that it could be this psycholo-
gist, such referrals would be made only if he was “sensitive to litigation
issues.” The psychologist stated that he would be glad to have the additional
The Referral 55
referrals, but he maintained his position—an unwillingness to commit pre-

maturely to periodic reports. The attorney said she would send her client
elsewhere and terminated the conversation. After the conversation, where he
learned that the attorney was determined to select a clinician based on the
clinician’s willingness to endorse her position, the psychologist was satisfied
that he had made the right decision.
CONCLUSION
The manner in which the psychologist handles the referral provides the ethical
foundation for the services that will be provided as well as for the relationship
with the referral source. Clarifying the expectations, roles and relationships,
and fee arrangements are key aspects of the referral process—each with ethical
implications. Sensitivity to potential biases and other threats to objectivity, as
well as to one’s professional competence for the case at hand, serve the forensic
practitioner well. Sometimes during the course of a lengthy legal proceeding,
one or more party may forget about or fail to respect the specific parameters
of the originally established agreements. These issues can, and should, be
revisited as needed during the case.
3
Collection and Review
of Information
O ne of the cardinal differences between most forensic and clinical evalua-

tions is the nature and extent of the background information and third-
party data that is sought and reviewed prior to the rendering of an opinion
or the provision of a report (Heilbrun, Grisso, & Goldstein, 2009; Heilbrun,
Warren, & Picarello, 2003; Melton et al., 2018). The examiner needs to develop
a broad and thorough foundation that will effectively serve as the basis for
the final forensic opinions; information obtained from records and collateral
sources helps establish that foundation. In this chapter, we address the foun-
dation for strong and defensible forensic opinions from an ethics perspective.
We review the multiple data source model, which helps the examiner develop
reasonable opinions, and the need for appropriate review of records, acquisi-
tion of third-party information, the methods of obtaining that information
(including social media), and the importance of impartiality and accuracy of
information.
Thorough review of background information allows the forensic psycholo-
gist to support opinions with a degree of confidence that may not be attainable
in many clinical contexts. The fundamental values relevant to the collection
and review of collateral information are the examinee’s right to privacy and
the judicial system’s right to have expert opinion derived from all information
relevant to the formulation of that opinion. These values translate into the
ethical principles of respect for autonomy and justice. The potential for conflict
http://dx.doi.org/10.1037/0000164-004
57
between these values is lessened in many forensic evaluation contexts because

the examinee who has raised his or her mental functioning as a legal issue has
waived the right to privacy with regard to background information that may
be relevant to mental functioning.
There are exceptions to the situation described above, where examinees
have not waived their rights to privacy. This can arise in situations where the
court develops a concern regarding the mental health of a defendant and
raises, sua sponte,1 a request for evaluation; or when, in family law matters, the
court seeks information regarding the mental health of a party whose capacity
to parent has been challenged, or alternatively when a child has alleged abuse
and the court orders an evaluation of the child. Occasions arise, then, when
the forensic practitioner must be concerned about the potential intrusion into
or violation of a vulnerable party’s rights as well as society’s interest in auton-
omy, beneficence, and justice. The goal is to avoid malfeasance.
An interesting case pertaining to this issue in the context of a criminal defen-
dant’s competency to proceed arose some time ago in New York. The case of
Hirschfeld v. Stone (Hirschfeld; 2000) arose from a class action civil suit brought by
criminal defendants who had been adjudicated as incompetent and sent for
restoration treatment; the defendants claimed their personal information was
inappropriately disclosed during the case. The defendants’ psychiatric and med-
ical treatment information, including sexual orientation, HIV, hepatitis, family
history of violence, substance abuse, and mental illness were included in their
competency reports at the end of the treatment. Those reports were then filed
in a public manner, rather than being sealed. The court held that examiners
should only include personal information about a defendant that is directly
relevant to the issue of concern to the court. Clearly, lawyers representing the
defendants can easily resolve this potential concern by requesting the court to
seal any such reports; however, the forensic examiner should remain aware of
protecting a defendant’s constitutional right to privacy.
The Hirschfeld case is not broadly authoritative, but it raises an issue exam-
iners should consider. Making the issue more complicated, at least within the
federal system, is 18 U.S.C. § 4247 (General Provisions for Chapter, 2017),
which directs that in addition to the clinical and ultimate issue opinions,
forensic examiners include the defendant’s history and present symptoms, as
well as a description of psychiatric, psychological, and medical tests that were
employed with any results. Balancing the examinee’s rights to privacy and
the need for thorough examination is ultimately the court’s responsibility, but
ethical forensic examiners should remain mindful of this tension and only
disclose in their reports truly pertinent information. For a further discussion
of the practical implications created by the Hirschfeld case, see Poythress and
Feld (2002).
Upon the court’s own authority without either party’s motion.

1
Collection and Review of Information 59
BASES FOR OPINIONS
Ethical psychologists “base the opinions contained in their recommendations,

reports, and diagnostic or evaluative statements, including forensic testi-
mony, on information and techniques sufficient to substantiate their find-
ings” (American Psychological Association [APA], 2017a; Ethical Principles of
Psychologists and Code of Conduct [APA Ethics Code] Standard 9.01a, Bases for
Assessments) and document the sources of information upon which their
conclusions rest (Standard 6.01, Documentation of Professional and Scientific
Work and Maintenance of Records). In addition, as stated in the Specialty
Guidelines for Forensic Psychology (SGFP; APA, 2013), in forensic contexts psy-
chologists examine the issue from perspectives that differ from those of the
referring party and seek and consider information that might rule out plau-
sible rival hypotheses when making determinations (SGFP Guideline 9.01,
Use of Appropriate Methods).
The background information obtained “should be guided by relevance to the
forensic issues and validity of the different sources” (Heilbrun, 2001, p. 107).
The use of a multisource, multimethod assessment strategy to gather and
review reliable and relevant information is a valuable approach to competent
forensic assessment (Denney 2012a, 2012b; Heilbrun, 2001; Heilbrun et al.,
2003; McLearen, Pietz, & Denney, 2004; Melton et al., 2018). It is important
for forensic examiners to incorporate methods to assess the validity of their
findings, whether subjective report or objective test performance, given the
nature of the forensic setting. Related to the validity of obtained results is the
determination of exaggerated cognitive dysfunction and exaggerated self-
reported somatic, cognitive, or emotional disturbance, as well as defensive
presentations where examinees deny emotional dysfunction. Because foren-
sic examinees may distort their presentations, Melton and colleagues (2018)
provided the following recommendation:
Given the significant potential for deception and the implications of the validity
of their findings, mental health professionals should have a low threshold for
suspecting less-than-candid responding. At the same time, given the limitations
of science . . . and the weight that labels used to describe response styles (e.g.,
“malingerer,” “faker”) carry with legal decisionmakers, the examiner should
make sure that conclusions about an examinee’s response style have a sound
foundation. Thus the forensic examiner should combine a low threshold for
suspecting dissimulation with a cautious stance about reaching conclusions on
that issue. (pp. 57–58)
Sources of information should provide incremental validity; that is, each

piece of information, if it is relevant, contributes to form a full and accurate
understanding of the examinee. Inaccurate information or information that is
obtained from a source that lacks credibility, if given too much weight, lessens
the accuracy of the evaluation findings. The use of multiple sources of infor-
mation helps to provide (a) independent corroboration of essential aspects of
the examinee’s history; (b) essential information about past mental states that
may be relevant to forensic questions; and (c) observational data from a vari-
ety of contexts, thus increasing the likelihood that they are representative.
Figure 3.1 reveals the common sources of information relevant to a crimi-
nal forensic evaluation of past mental state. This multiple data-source model
was initially applied to criminal forensic examinations (Denney & Wynkoop,
2000) and also adapted to personal injury assessments (McLearen et al.,
2004). Boxes represent information obtained from self-report and collateral
sources across different points in time. Lines between boxes should represent
reasonable consistency, which then leads to a clinical diagnosis. Each of these
lines of information should come together to make a reasonably consistent
picture that makes sense for the clinical condition(s) presumed to exist. As
demonstrated in Figure 3.1, corroborative information is critical when it comes
to determining mental status at a particular time in the past.
The Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert; 1993) decision, like
Rule 702 of the Federal Rules of Evidence (House of Representatives, Com-
mittee on the Judiciary, 2018), emphasized relevance and reliability of evidence
as the most important criteria for acceptance of scientific evidence in federal
court. Information that is considered legally relevant is that which directly
relates to the psycholegal issue, such as a criminal defendant’s mental state at
the time of an offense, an individual’s capacity to create a will, or the capacity
of a suspect to voluntarily confess to a crime. Forensic examiners should con-
sider the assessment methods used during the examination in light of Daubert
and FRE 702 guidance. For psychological findings to be helpful to the trier of
fact, the information upon which the examination rests must be relevant and
informative to the ultimate issue in question (Melton et al., 2018).
Review of Records
The collection and review of relevant records is an essential aspect of a thor-

ough forensic evaluation (Heilbrun et al., 2009; Melton et al., 2018). For
example, documentation of a plaintiff’s preaccident level of functioning, as
found in school, work, or military records, is valuable in order to establish a
baseline against which postaccident behavior can be compared (McLearen
et al., 2004). Records pertaining to postaccident injury and functioning, such
as medical records, are necessary for establishing injury severity and sub
sequent signs and symptoms of impairment and disability (L. Miller, Sadoff,
& Dattilio, 2011).
Comparison of preaccident and postaccident records helps establish whether
functioning at the time of the evaluation represents a change. As part of a
multisource, multimethod assessment strategy, information obtained from
records can be used to confirm or contradict the plaintiff’s self-report. In rare
instances, reviewing some types of written information has the risk of biasing
the examiner (Glancy et al., 2015). Medical records of other professionals have
the potential to affect one’s own professional judgment. For example, neuro-
logical reports at times conclude with diagnoses of neurological disorders based
FIGURE 3.1. Multiple Data Source Model
Self-Report Other Data Sources Opinions
Psychological tests
Self-reported symp- Neuropsychological
toms and behavior Present mental
Mental Status Exam status and
Present when aware of being Behavioral observations
observed. diagnosis
(especially unobtrusive)
Neuroimaging
Arrest reports
Defendant’s explanation Investigative records
of his thoughts, feelings, Witness statements Mental state,
Time of motivation, and Ultimate
motivation, and behavior Video/audio tapes
Offense prior to, during, and diagnosis at the Issue
Physical evidence
following the offense. Confessions time of offense

Family/friend reports
Childhood Hospital/psych records

Education NCIC/FBI record Historical symp-
History Employment Employment records toms, diagnoses
Relationships School records and patterns of
Medical/psychiatric Probation Officer notes behavior
Substance abuse Family/friend reports
Criminal
NCIC = National Crime Information Center; FBI = Federal Bureau of Investigation. From “Criminal Responsibility Evaluations,” by D. Mrad, 1996,
Issues in Forensic Assessment Symposium, Federal Bureau of Prisons, Atlanta, GA. Copyright 1996 by David Mrad. Adapted with permission.
solely on patient self-report, despite normal examination findings. Similarly,

the parent who is attempting to gain an upper hand in a contested custody
matter may prompt the creation of both psychotherapeutic and medical records
documenting alleged symptoms of abuse or neglect of the child by falsely
reporting symptoms or events. The unsuspecting nonforensic health services
professional is less likely to maintain suspended judgment and seek corrobora-
tion, but may instead, in the interest of risk management, or out of naiveté or
simple expediency, document a diagnostic impression based upon examinee
self-report alone. In addition, reports of negative psychiatric histories may be
misleading. Potentially inaccurate diagnoses or history, accepted as fact and
incorporated into reports, are then perpetuated by other professionals. Savvy
forensic examiners must remain aware of the above issues and seek to mini-
mize their impact on examination conclusions.
Experienced forensic examiners understand that some referral sources
“cherry pick” records to be provided to the examiner in a “bad faith” effort to
bias the examiner’s opinions (Schatman & Thoman, 2014). When potentially
informative records appear to be missing or incomplete, the examiner should
make known the omission to the retaining party and request the complete
records. If such records remain unavailable, the examiner should note in the
report that additional information appeared to be missing, could have been
informative, and was pursued, and that the final results and opinions could
be revised, if the missing material later became available for review and sup-
ported reconsideration of the conclusions.
Third-Party Information
The use of data from collateral sources increases both the reliability of the
overall information obtained and the face validity of the data (Heilbrun et al.,
2009; Melton et al., 2018). Information from individuals in a position to
observe or interact with the examinee often provides important information
to help confirm or refute information obtained through self-report. As stated
in SGFP Guideline 9.02, Use of Multiple Sources of Information,
Forensic practitioners ordinarily avoid relying solely on one source of data, and
corroborate important data whenever feasible. . . . When relying upon data that
have not been corroborated, forensic practitioners seek to make known the
uncorroborated status of the data, any associated strengths and limitations, and
the reasons for relying upon the data.
The nature of the examinee’s current abilities, symptoms, and their stabil-
ity or change over time is often critically significant. Information from third
parties may come from unstructured or structured interviews and/or stan-
dardized questionnaires that clarify the nature and stability of the examinee’s
behavior.
Just as examinee self-report may be subject to distortion, the information
provided by collateral sources may not be accurate. Inaccurate information
may also be provided by collateral sources because of bias, a lack of expertise
regarding the behaviors in question, suggestibility, and memory loss (Heilbrun,

2001). Examiners can proactively reduce the potential for inaccuracy through
the manner in which interview procedures and questions are selected and
designed (e.g., Heilbrun, 2001, pp. 174–175, for specific examples). Informa-
tion obtained from third parties should be verified by additional sources to the
extent possible. Collateral sources are often able or willing to convey more
during a personal contact than through written documentation. For example,
consider the case of a 58-year-old married man who sustained a very minor
work-related head injury. During an evaluation 8 months after his injury, he
stated that he had not been able to read since his injury. He gave consent for
contact with a number of individuals, including his wife. During the course of
a telephone interview, his wife related that they both began each morning by
reading the newspaper, aspects of which they typically discussed. Such infor-
mation can be extremely valuable when making a determination regarding
the validity of the examinee’s statements and responses.
It is important to obtain informed consent from the collateral sources of
information, in addition to that provided by the examinee. Consistent with
ethical principles of respect for autonomy, nonmaleficence, and justice, indi-
viduals serving as collateral sources of information are typically entitled know
(a) the limits to confidentiality of their communications, (b) the psychologist’s
need to cite them as the source of the information provided, (c) the potential
range of foreseeable consequences of the evaluation, (d) potential foreseeable
consequences of the information that they are providing, and (e) the fact that
their communication is voluntary (Standard 3.10, Informed Consent; SGFP
Guideline 6.04, Communication With Collateral Sources of Information).
The accuracy of the information provided by the collateral source, like that
provided by the examinee, is subject to bias. In the above scenario, imagine
that the examinee’s wife had supported his invalid contention that he could
no longer read. The evaluator relying upon that third-party information as
incrementally increasing the validity of the findings would be making an
error that would reduce the accuracy and utility of the assessment. Use of the
multisource, multimethod strategy by a psychologist with a critical approach
to all information obtained helps to increase the likelihood that the psychol-
ogist’s conclusions accurately capture the examinee’s status relevant to the
legal issue under investigation.
Obtaining Information
The timing of the collection of collateral information may vary depending upon
the context of the evaluation. In some contexts, such as capital sentencing cases
in which psychological evaluations are performed to assess competency to be
executed, a wide range of sources may be considered for interview (Zapf,
Boccaccini, & Brodsky, 2003), including “line and medical correctional staff,
other death row inmates, chaplains, appellate counsel, and persons having
had recent visitation or phone interactions with the defendant” (Cunningham,
in press). In some cases, records may be obtained prior to meeting with the
examinee. In those instances, the content of the records may help to deter-
mine the nature and scope of the expected evaluation. In other cases, it is only
through the initial meeting with the examinee that the examiner can determine
what specific additional information would appear to be of potential value.
Consent and contact information can often come directly from the examinee
in those cases.
The psychologist may encounter difficulty obtaining collateral information
because of resistance on the part of the examinee to consent, or resistance of
the third party to provide the information. Limited access to the information
may spring out of good intentions of the resistant third party. For example, in
an attempt to safeguard health care information, providers may claim that the
Health Insurance Portability and Accountability Act prohibits the release of
certain records and that the requested records exceed what is “minimally
necessary.” In other instances, a key collateral source of information may
prove difficult to reach. The extent to which psychologists should strive to
satisfy due diligence in the pursuit of information deemed to hold potential
value is difficult to define. The psychologist is advised to make multiple
attempts and to clearly document the process. When a critical piece of data is
not obtainable, it may become necessary to halt, temporarily or altogether,
the completion of the evaluation. Once an effort has been initiated to obtain
data, it is difficult to make the case that the data, should they prove difficult
to obtain, were not really essential to the evaluation.
Social Media Information
An interesting new source for collateral information includes the Internet.

In 2005, Grote provided an early illustrative example of using the internet
during a forensic examination and provided a discussion of the risks and
benefits of that course of action. Since that time, the issue of mental health
professionals using the internet to acquire information about the people they
evaluate or treat has gained considerable traction, although most of that liter-
ature deals with the clinical setting. Forensic psychiatry has addressed the
issue substantively since 2006 (Glancy et al., 2015; Metzner & Ash, 2010;
Neimark, Hurford, & DiGiacomo, 2006; Recupero, 2008, 2010). A significant
percentage of forensic examiners do search the internet for such collateral
information (Pirelli, Hartigan, & Zapf, 2018; Pirelli, Otto, & Estoup, 2016).
Although there are no clear guidelines for psychologists yet established on the
issue, forensic psychiatry has addressed it within their forensic practice guide-
lines (Glancy et al., 2015):
Internet searches regarding the evaluee can also provide useful information.
Social networking sites and other Internet social forums may contain informa-
tion about the evaluee that conflicts with data provided by the evaluee or
others, warranting further examination to contextualize this apparent conflict.
An evaluee’s online persona may constitute impression management or postur-
ing, as people often behave or present themselves differently online than in
person. It is also possible that the online information is more accurate than what
the evaluee is telling the police and experts. (Glancy et al., 2015, p. S10)
A number of issues are worth considering in making the determination of

whether, and to what extent, the psychologist would choose to investigate
the background of an examinee through social media. Although the conclu-
sion may depend on the professional context, it appears the issue is generally
accepted in the broader field of forensic assessment. It could be argued that it
is not only appropriate, but necessary, for the psychologist to make use of
publicly-available information in order to provide a fully informed opinion.
However, examiners should also remember the information available online
may have been created by others specifically to place the examinee in a neg-
ative light, as may occur in hotly contested custody cases. If the examiner
decides to explore what is available online, the psychologist should proceed
with caution and with the understanding that it may be difficult to know with
certainty who created the information, when it was created, and for what
purpose it was created.
It is also necessary to cite sources for such information. If such information
is to be sought, the examiner may wish to notify the examinee beforehand. The
decision of whether to pursue the examinee’s consent in this context is compli-
cated by the fact that if consent is denied, the psychologist may have less access
to certain aspects of the examinee’s background than does the general public
(Grote, 2005). Additionally, depending on the nature of the evaluation, the
examinee may not have the right to withhold consent. SGFP Guideline 8.03,
Acquiring Collateral and Third Party Information, includes this statement:
“Forensic practitioners strive to access information or records from collateral
sources with the consent of the relevant attorney or the relevant party, or when
otherwise authorized by law or court order.” Given the complexities of the legal
situation, it is worthwhile to make the referral source aware of the wish to
obtain such information before pursuing it. It may be that the information has
already been gathered and can be provided to the examiner by the referral
source, or that the referral source has access to investigators who can gather
such data. Or if not, the referral source may be able to assist in resolving the
question of consent. One can also include within the informed consent or
notification of purpose discussion and documents a description of general
approaches to information gathering, including internet searches.
It is not uncommon for third-party information to also come from video
surveillance that is provided by the referring party (e.g., in the case of inde-
pendent psychological examination at the request of a disability insurance
carrier). In some cases, the nature of the claimed disability may be so clearly
countered by the demonstrable facts that the case does not proceed to the
independent examination stage. Occasionally in cases that involve psycholog-
ical independent examination, such obviously counterfactual data are avail-
able. However, for many of the cases in which independent psychological
examination is requested, the surveillance data are less revealing, and experts
are called upon to integrate the information in the examination and weigh its
contribution to the clinical and forensic formulations. Sometimes that infor-
mation comes before the opinion is formulated, and sometimes it only comes
as the expert sits on the witness stand (L. Miller et al., 2011). In our view,
there is no ethical concern about psychologists reviewing such information
and incorporating that which is trustworthy and relevant in their analyses. In

fact, the American Academy of Psychiatry and the Law Practice Guideline for
Forensic Assessment (Glancy et al., 2015) includes “undercover investigation
reports or videotapes” as useful records in such evaluations.
CASE 2: BACKGROUND INFORMATION IN A CRIMINAL CASE
The following case illustrates challenges that can be encountered when work-
ing under time pressure.
Case Facts
A prosecuting attorney refers a criminal defendant charged with bank rob-

bery to a psychologist for an evaluation of the defendant’s sanity at the time
of the alleged offense—8 months prior to the date of the referral. The attor-
ney highlighted the fact that during the arrest, once the Miranda warnings
were read to the defendant, he stopped talking and asked for an attorney. This
behavior, the attorney believed, revealed “clear awareness of his right to
remain silent.” The obtained investigative material included the arrest docu-
mentation, which described the defendant as talkative and speaking in a
rational but nervous manner when apprehended by the police; police inter-
rogation summaries, which revealed that the defendant was silent after he
was told of his rights; and surveillance camera photos, which clearly docu-
mented the examinee robbing the bank.
During the clinical interview, the defendant presented as oriented and
rational, although he displayed indications of at least mild suspiciousness
such as hypervigilance and hesitancy to discuss matters in detail with the
examiner. He denied hallucinations and no delusions were elicited. He noted
he had been in the state psychiatric hospital on more than one occasion with
a diagnosis of schizoaffective disorder and had, in fact, been released one
month prior to the bank robbery. Following his release from the psychiatric
hospital, he had been living at home with his elderly mother. He did not
believe he had a mental disorder but described a long history of methamphet-
amine use. When asked about the robbery, he said he robbed the bank
because “that was where the money was,” and he needed more money to buy
methamphetamine.
The evaluator contacted the district attorney and informed the prosecutor
that she needed the records of prior state psychiatric hospitalizations to per-
form the evaluation. The attorney said that obtaining such material would
take considerable time, and that he was dealing with a strict timeline on this
case. The district attorney said he needed the report very quickly to stay within
legal guidelines. The psychologist was torn between her commitment to con-
ducting an adequate evaluation based on sufficient background information
and her desire to satisfy the time demands of the referral source. Ultimately,
she agreed to provide the report without the benefit of the requested records.
Case Analysis
In analyzing the case, we use the seven-step structured, systematic ethical

decision-making model (CORE OPT) as described in detail in the Introduction
to this volume.

The psychologist provided an opinion regarding a criminal defendant’s past
mental state without completing a reasonably thorough review of back-
ground information relevant to the determination. It was more than appro-
priate to review investigative material, since this information is often the best
source for reconstructing mental states during the time of a crime, but addi-
tional highly relevant information was potentially available. That information
would likely have clarified the nature of the man’s mental illness, but even
more importantly helped present a picture of his mental status 1 month before
the robbery. The psychologist recognized that such information was needed
and, in fact, requested it; but, ultimately the psychologist provided an expert
opinion without it and thus rendered an opinion based on insufficient data.
She based much of her forensic opinion on three factors: the defendant’s cur-
rent mental state; his descriptions of what happened on the day of the rob-
bery; and the investigative information pertaining to the robber (e.g., witness
statements).

The psychologist insufficiently attended to the fact that she had been retained
as a partisan expert (Standard 3.07, Third-Party Requests for Services).
Although she might have been right in assuming that the referring attorney
would not intentionally withhold information from her, she should have also
recognized the strong situational press for her to provide an opinion favorable
to the referring side, in this instance, the government. The context of the
evaluation added weight to the pressure exerted by the prosecutor—the psy-
chologist perceived the entire legal system to be frustrated awaiting her report.
Such pressure weighed heavily in her decision to provide an opinion absent
necessary records.

The psychologist has a responsibility to provide forensic services consistent
with the highest standards of the profession (SGFP Guideline 2.01, Scope of
Competence). The multisource, multimethod model of forensic evaluation
requires reliance on as much relevant information from varied sources as is
reasonably available. Failure to obtain and consider pertinent information, as
occurred in this case, may result in substantial harm to the defendant and
society and is inconsistent with the principle of nonmaleficence (APA General
Principle A: Beneficence and Nonmaleficence; Standard 3.04, Avoiding Harm).
The psychologist recognized her need to review records from psychiatric
hospitalizations, particularly the most recent hospitalization, as this would
give a clearer indication of the defendant’s mental state just prior to the rob-
bery (Standard 9.01, Bases for Assessment), but she felt considerable time
pressure from her referral source. It is incumbent upon forensic evaluators to
resist the pressure to perform an incomplete examination. “Forensic practi-
tioners seek to provide opinions and testimony that are sufficiently based
upon adequate scientific foundation, and reliable and valid principles and
methods that have been applied appropriately to the facts of the case” (SGFP
Guideline 2.05, Knowledge of the Scientific Foundation for Opinions and Tes-
timony). When events outside the control of the forensic practitioner limit
the scope of the examination, the examiner should make the potential effect
of that event known to the referral source and document the extent it poten-
tially impacted the validity of the final opinion.
The psychologist realized that she could benefit from consultation with a
colleague. She called two senior forensic psychologists that she had recently
met at a workshop to discuss the impact of not having those hospital records.

At the time of entry into forensic work, the psychologist began to examine
her personal views about the criminal justice system and the various parties
in legal proceedings. In the context of this particular case, she again examined
her views regarding the mentally ill, those who abuse substances, and those
who perform criminal acts, specifically bank robbery. She believed that she
maintained no biases for, or against, any of the parties. She believed that she
was able to remain fair in evaluating information gained from the multi-
source, multimethod model and to provide balanced, reasonable testimony
when called to do so (SGFP Guideline 2.07, Considering the Impact of Personal
Beliefs and Experience).

After reviewing the relevant ethical and legal references and consulting with
colleagues, the psychologist considered two courses of action: (a) tell the dis-
trict attorney that she could not provide an opinion without the hospital
records; or (b) write a report, indicating that the results were “preliminary”
and pointing out the missing portion of her formulation and the potential
impact that information might have on her opinion.
One of the colleagues she had consulted had informed her that writing a
report prematurely to satisfy the urgency of the referral source may indeed
reflect prosecutorial bias, and that raised the concern that such bias might
affect her opinions. Based on that frank feedback, she engaged in renewed
self-examination of her values.

Given the pressure to produce a report that might be helpful to the court, the
forensic evaluator decided to write a “preliminary” report, which outlined her
evaluation methods, results, and opinions. This report also disclosed the fact
there was information not reviewed that, once available for review, might
prove quite important in the clinical and forensic opinion formulations. She
believed that by making her report preliminary and disclosing the limits of
her expert opinion, she was complying with the aspirational goal set forth in
the SGFP Guidelines (see 1.01, Integrity; 1.02, Impartiality and Fairness; 2.05,
Knowledge of the Scientific Foundation for Opinions and Testimony; 3.03,
Communication; 9.02, Use of Multiple Sources of Information) suggesting
that the forensic psychologist should limit expert opinions when the scope of
the evaluation (i.e., scientific foundation) is not fully adequate to provide that
opinion. It could be argued, however, that reaching a preliminary opinion
without all of the necessary data is precisely a failure to achieve this goal.
Even though the report is designated “preliminary,” it clearly reflects the bias
or leaning of the evaluator, who may have a hard time convincing others that
she remained receptive to the forthcoming information, particularly if that
information did not result in a change of stance.

The forensic evaluator provided the preliminary opinion in written form to
the district attorney as requested. Later, during testimony, she reiterated the
limitations of her opinion given the limited informational sources. The judge
then provided additional time for her to complete a more thorough evalua-
tion, which included a review of the medical records and an interview of the
defendant’s mother. The psychologist, upon incorporating the additional
information, provided an addendum to her findings and was then able to
testify with more certainty regarding her clinical and forensic conclusions.
In retrospect, she realized there really had been no need to provide a pre-
liminary report and that it would probably have been preferable not to do so.
She realized that the greater potential for harm came from providing a pre-
liminary report with less than fully substantiated conclusions. When later
discussing the outcome with one of the colleagues whom she had consulted,
she was informed that she had been vulnerable to a legitimate criticism by the
defense attorney and factfinder and was fortunate to have escaped such an
aggressive and effective cross-examination on the point. Although the psy-
chologist’s involvement in this case was concluded, at least for the time being,
the psychologist was convinced of the importance of avoiding being pressured
into prematurely offering opinions in the future.
CONCLUSION
Competent forensic practitioners understand that forensic evaluations, while

typically involving interviews of examinees and administration of standard-
ized assessment measures, require consideration of additional data sources.
Essential information is obtained from records, observations, and interviews
of collateral sources. A multisource, multimethod assessment strategy enables
forensic practitioners to obtain the information needed to advise triers of fact
on ultimate forensic issues. Collateral information should be sought to test
reasonable rival hypotheses. All parties are best served when conclusions are
rendered only after such information has been obtained and considered.
Pressure from a retaining party to provide a preliminary report should be
resisted, in part through educating the party about the limitations and risks of
providing opinions based on incomplete information. If a premature opinion
cannot be avoided, the confidence placed in the opinion should be tempered
with notation of the specific implications of not having all relevant informa-
tion. Collateral sources of information should be identified as early as possi-
ble, and the information should be diligently sought to ensure a comprehensive,
multisource, multimethod assessment resulting in a strong and defensible set
of opinions or conclusions.
4
The Evaluation
T he forensic evaluation typically involves gathering information, through

a variety of means, about the clinical characteristics of the examinee that
are relevant to the forensic issues of concern (Heilbrun, 2001; Melton et al.,
2018). In this chapter, we highlight the examiner–examinee relationship,
including the issue of informed consent and the limits of confidentiality. We
then address methodology, with an emphasis on incorporating a multisource
and multimethod process, and end the chapter with a discussion about third-
party observers.
THE EXAMINER–EXAMINEE RELATIONSHIP
The nature of the relationship between the psychologist and the examinee,
and the manner in which the relationship is established, have significant impli-
cations for the validity of the information that is obtained and the value of the
psychological opinion for the court. As part of the process of informing the
examinee of the purpose and nature of the forensic evaluation, the psychologist
has an ethical obligation to inform the examinee that a relationship based on a
presumption of helpfulness does not exist (Bush, Barth, et al., 2005). Despite
the absence of this traditional doctor–patient relationship, the forensic examiner
does have ethical obligations to the examinee: The examinee should be told and
understand the nature and limitations of confidentiality, feedback, and treat-
ment. An examination of these elements of the evaluation process follows.
http://dx.doi.org/10.1037/0000164-005
71
INFORMED CONSENT, ASSENT, AND NOTIFICATION OF PURPOSE
The right of the examinee to understand the nature and purpose of the evalu-
ation is based on the fundamental right of individuals to freedom of choice.
Freedom of choice underlies the ethical principle of respect for autonomy. To
the extent that the examinee’s ability to understand the information is limited
due to intelligence, cognitive impairment, psychiatric state, or some other con-
dition, surrogate decision making may be required. When the legal system has
already limited the examinee’s rights, the only choice for the examinee may be
to undergo the evaluation or experience a negative consequence. The need to
impart to the examinee or the surrogate decision-maker information about
the evaluation—through the process of informed consent or assent—is estab-
lished by statute and case law in most jurisdictions, as well as by standards and
codes governing professional practice, and, thus, appears to be an established
principle of mental health assessment (Heilbrun, 2001; Melton et al., 2018).
Individuals to be examined or evaluated by a forensic psychologist have a
fundamental right to understand the evaluation process and its potential impli-
cations (American Psychological Association [APA], 2017a; Ethical Principles
of Psychologists and Code of Conduct [APA Ethics Code] Standard 3.10, Informed
Consent; Standard 9.03, Informed Consent in Assessments; Standards for Edu-
cational and Psychological Testing [SEPT] Standard 8.4 [American Educational
Research Association, American Psychological Association, & National Council
on Measurement in Education, 2014]).
Informed Consent denotes the knowledgeable, voluntary, and competent agree-
ment by a person to a proposed course of conduct after the forensic practitioner
has communicated adequate information and explanation about the material
risks and benefits of, and reasonably available alternatives to, the proposed
course of conduct. (Specialty Guidelines for Forensic Psychology [SGFP], Appendix B,
Definitions and Terminology [APA, 2013])
Prior to performing a clinical interview or administering psychological tests,

the examiner should seek to establish with the examinee a reasonable under-
standing of the purpose and nature of the evaluation, including limits on con-
fidentiality, reporting of results, and possible uses of the findings. Depending
on the context in which the evaluation is performed, the psychologist must
obtain informed consent or assent from the examinee or a legal representa-
tive or, in the context of court-ordered evaluations, provide notification of
the purpose of the evaluation (Standard 3.10; Standard 9.03; SGFP Guidelines,
Section 6, Informed Consent, Notification, and Assent).
SGFP Guideline 6.03, Communication with Forensic Examinees, states
that information to be provided should include the following:
anticipated use of the examination; who will have access to the information;
associated limitations on privacy, confidentiality, and privilege including who is
authorized to release or access the information contained in the forensic practi-
tioner’s records; the voluntary or involuntary nature of participation, including
potential consequences of participation or nonparticipation, if known; and, if
the cost of the service is the responsibility of the examinee, the anticipated cost.
The Evaluation 73
The psychologist must define the parameters of the service to be provided

and clarify the examinee’s expectations. The information must be tailored
to the specific legal context. With the exception of court-ordered examina-
tions, the examinee has the right to provide partial consent; that is, to consent
only to some aspects of the evaluation and reporting process. When partial
consent is offered, the psychologist may wish to explore and address the exam-
inee’s concerns, but the psychologist ultimately determines whether to con-
duct the evaluation in the face of such limitations.
Mandated Examination and Refusal
When psychological services have been ordered by the court and there is no
meaningful choice for the examinee about participation, psychologists pro-
vide notification of purpose. Such notification includes informing the examinee
of the purpose and nature of the evaluation, as well as the limits of confiden-
tiality (Standard 3.10c; SGFP Guideline 6.03.02, Persons Ordered or Mandated
to Undergo Examination or Treatment). If the examinee is unwilling to pro-
ceed after thorough notification has been provided, it is often quite helpful to
facilitate communication between the examinee and his or her legal repre-
sentative. The concerns of the examinee can often be resolved through edu-
cation from the lawyer. Even if this effort does not resolve the examinee’s
concerns, it goes a long way toward communicating proper concern for the
examinee and respect for the examinee’s rights. Additionally, building ade-
quate situationally appropriate rapport with the examinee may make it more
likely that the examinee will cooperate with the examination. Such situations
are not uncommon in court-ordered evaluations.
If the examinee has been ordered by the court to participate but does not
wish to participate, even after consulting with counsel, the forensic practitioner
can notify the retaining party of the examinee’s unwillingness to proceed or
conduct the examination to the extent possible (Standards 3.10 and 9.03).
Mandated Forensic Assessment With Unrepresented Individuals
Regarding forensic examinees not represented by counsel, special care should

be exercised to guard the rights of the examinee who may be unable to act
instrumentally. SGFP Guideline 6.03.04, Evaluation of Persons Not Represented
by Counsel states that
Because of the significant rights that may be at issue in a legal proceeding, foren-
sic practitioners carefully consider the appropriateness of conducting a forensic
evaluation of an individual who is not represented by counsel. Forensic practi-
tioners may consider conducting such evaluations or delaying the evaluation so
as to provide the examinee with the opportunity to consult with counsel.
Note that, in criminal forensic contexts, there is SCOTUS (Supreme Court of

the United States) case law against referral for psychological evaluations in the
absence of legal representation for the examinee (e.g., Estelle v. Smith, 1981).
Maximizing the Potential for Enlightened Consent
To maximize the potential for understanding, the psychologist should provide

information in language that is reasonably understandable to the examinee
(Standard 3.10(a); Standard 9.03(b); SEPT Standard 8.4, Comment); that is,
the language should generally be appropriate to the language fluency, devel-
opmental level, and cognitive capacity of the examinee. The psychologist
must ensure that the examinee understands the information that has been
provided about the nature and purpose of the evaluation (American Bar
Association, 2016). To verify that the information was understood, the psy-
chologist should question the examinee about the concepts conveyed.
Questions that require the examinee to paraphrase the examiner’s wording
or apply it to the examinee’s specific context or to hypothetical contexts may
be of value in determining the examinee’s level of understanding (Heilbrun,
2001). The information should be repeated as needed to facilitate under-
standing. In addition, the most salient aspects of information should be
reviewed at the beginning of each separate evaluation session. Guidelines and
measures for assessing capacity to consent to treatment (e.g., Appelbaum &
Grisso, 1995; Grisso, 2003; Grisso & Appelbaum, 1998a, 1998b; Moye et al.,
2007) may also apply in forensic settings (Heilbrun, 2001).
When Understanding Has Not Been Gained or Has Been Lost
When the examinee appears to lack the capacity to provide informed consent,
the psychologist provides notice to the legal representative (Guideline 6.03.03),
provides the examinee with an appropriate explanation, and seeks the exam-
inee’s assent (Standard 3.10b). Assent, according to the SGFP Guidelines (see
Appendix B, Definitions and Terminology)
refers to the agreement, approval, or permission, especially regarding verbal or
nonverbal conduct, that is reasonably intended and interpreted as expressing
willingness, even in the absence of unmistakable consent. Forensic practitioners
attempt to secure assent when consent and informed consent cannot be obtained
or when, because of mental state, the examinee may not be able to consent.
Specifically, SGFP Guideline 6.03.03 identifies that these considerations

are offered “for examinees adjudicated or presumed by law to lack the capac-
ity to provide informed consent for the anticipated forensic service.” Citing
the content of Standard 3.10b and SGFP Guideline 6.03.03 further addresses
this cohort of examinees:
For examinees whom the forensic practitioner has concluded lack capacity to
provide informed consent to a proposed, non-court-ordered service, but who
have not been adjudicated as lacking such capacity, the forensic practitioner
strives to take reasonable steps to protect their rights and welfare.
The Guideline further states, “in such cases, the forensic practitioner may
consider suspending the proposed service or notifying the examinee’s attor-
ney or the retaining party.” In mandated examinations, some form of compe-
tency is usually at issue. Forensic psychologists should proceed thoughtfully,
facilitating contact between the examinee and his/her attorney to try to resolve
The Evaluation 75
the examinee’s questions or concerns when possible. This respects the exam-
inee’s autonomy and makes the examination process flow more smoothly.
There are times when an examination can still occur over the protests of an
examinee—when the examination is court ordered and the examinee has
legal counsel. Typically, such examinations relate to competency to proceed.
In such instances, notification of purpose suffices, and the report outlines the
limitations of the examination and any limitations to the final opinions.
When information related to informed consent or notification of purpose
does not seem to have been fully understood, the psychologist must deter-
mine if the understanding obtained is sufficient to continue with the exam-
ination. Consultation with the examinee’s attorney may help to clarify whether
it is in the best interests of the examinee and the court for the examination to
proceed. Depending on the context, the consent of a surrogate decision-maker
may be required. The steps in this process should be clearly documented (Stan-
dard 3.10d).
Obtaining Assent of Minors
Jurisdictional statutes define the age at which one is legally able to make deci-
sions independently, although the age may differ within jurisdictions depend-
ing upon the issue being decided. Typically, individuals under 18 years of age
are considered minors with respect to providing authorization for psycho
logical services. As a result, authorization from one holding the legal right to
consent to the evaluation on behalf of the minor is usually required. Such
authorization may be provided by a custodial parent, court order, or other
legal surrogate decision-maker, such as an attorney, depending on the cir-
cumstances (Heilbrun, 2001).
In addition to this informed consent process with the minor’s legal decision-
maker, the cooperation and assent of the minor should be sought. Minors who
are, by virtue of age, presumed by law to lack the capacity to provide informed
consent for examination are provided information in language they can under-
stand. The forensic psychologist explains in age-appropriate language the
nature of the evaluation, the purpose, the people to whom the results will be
conveyed, and the examiner’s role. The examiner explains who gave permis-
sion for the examination and provides an opportunity for the minor to ask
questions; if necessary and when possible, the minor should be given the
opportunity to consult with the legal representative or guardian (SGFP Guide-
lines 6.01 and 6.03). The forensic psychologist seeks the examinee’s assent in
addition to gaining appropriate permission from a legally authorized person, as
permitted or required by law (Standards 3.10 and 9.03).
Limits of Confidentiality
A primary difference between forensic and clinical psychological services is

the nature of confidentiality. With some exceptions, communication between
treatment provider and recipient in a clinical context is protected. The APA
Ethics Code states that protecting confidential information is a primary
obligation of psychologists (see Standard 4.01, Maintaining Confidentiality).

In contrast, communications made in a forensic context are generally subject
to review by others and, in many instances, may become a matter of public
record. Forensic psychologists must discuss all reasonably foreseeable disclo-
sures with the potential examinee or his/her legal representative as part of
the consent/notification process (Standard, 4.02(a), Discussing the Limits of
Confidentiality). SGFP Guideline 8 cautions that “forensic practitioners rec-
ognize their ethical obligations to maintain the confidentiality of information
relating to a client or retaining party, except insofar as disclosure is consented
to by the client or retaining party, or required or permitted by law” (Privacy,
Confidentiality, and Privilege). However, when information is sought,
forensic practitioners are encouraged to recognize the importance of complying
with properly noticed and served subpoenas or court orders directing release
of information, or other legally proper consent from duly authorized persons,
unless there is a legally valid reason to offer an objection. (SGFP Guideline 8.01,
Release of Information)
It is appropriate to notify the examinee, through counsel if necessary, that the

information has been requested so that the examinee can intervene legally if
he/she wishes to do so. If the forensic practitioner is in doubt about the validity
of a subpoena or request for information, it is advisable to seek legal assis-
tance or to formally notify the drafter of the subpoena or order to gain clari-
fication (SGFP Guideline 8.01). Some demands for information provide a place
for designating that all information requested has been provided or the nature
of information not provided, with an explanation.
Feedback
In many clinical settings and in some forensic contexts, psychologists provide

examinees with feedback about the results of the evaluation. However, in
many forensic contexts, feedback is not to be provided to the examinee
directly, and this is clearly explained at the outset (Standard 9.10, Explaining
Assessment Results). When feedback is permissible, the guidelines address
the provision of examination feedback in a manner consistent with the APA
Ethics Code, suggesting that “forensic practitioners take reasonable steps to
explain assessment results to the examinee or a designated representative in
language the ________ can understand” (SGFP Guideline 10.05, Provision of
Assessment Feedback). SGFP Guideline 10.05 recognizes that professional
and legal standards may govern the disclosure of test data or results, inter
pretation of data, and the underlying bases for conclusions and suggests that
forensic practitioners practice in a way consistent with those professional and
legal standards. SGFP Guideline 8.02, Access to Information, recognizes that
examinees may request access to their records and advises the following:
If requested, forensic practitioners seek to provide the retaining party access to,
and a meaningful explanation of, all information that is in their records for the
matter at hand, consistent with the relevant law, applicable codes of ethics and
The Evaluation 77
professional standards, and institutional rules and regulations. Forensic exam-

inees typically are not provided access to the forensic practitioner’s records with-
out the consent of the retaining party. Access to records by anyone other than
the retaining party is governed by legal process, usually subpoena or court order,
or by explicit consent of the retaining party.
There may be tensions between competing ethical principles, state and fed-
eral provisions for access to one’s health information, and the needs of the
legal system, along with lack of clarification regarding whether forensic exam-
inations are excepted from health information because they are done for legal
purposes. The forensic examiner may engage in a case-specific analysis to
determine the best way to respond to a request by the examinee to obtain
file data.
PROCEDURES AND MEASURES
Forensic practitioners have at their disposal a variety of informal and psycho-

metric methods for assessing constructs of interests (e.g., cognitive abilities,
emotional states, personality traits). Indeed, there has been a substantial
increase in the development and use of psychological assessment measures in
forensic settings in recent decades (Edens & Boccaccini, 2017). Choosing
appropriate methods is an essential component of the process of gaining an
understanding of the examinee and educating triers of fact. The APA Ethics
Code requires that psychologists limit their expressed opinions to information
and techniques sufficient to substantiate their findings (Standard 9.01a, Bases
for Assessment). Determining which techniques are sufficient may be chal-
lenging in some cases, and there is room for difference of opinion, given the
complexities of cases, the range of assessment instruments available for con-
sideration, and circumstances that might affect access to relevant materials or
collateral resources.
The assumptions, roles, and alliances inherent in forensic practice necessitate
the use of a comprehensive evaluation methodology consisting of systematic
incorporation of multiple data sources (Denney, 2012a, 2012b; Heilbrun, Grisso,
& Goldstein, 2009; McLearen, Pietz, & Denney, 2004; Melton et al., 2018; Packer
& Grisso, 2011). Typically, the forensic psychological evaluation consists of the
following procedures: review of records, interviews with collateral sources of
information, behavioral observations, interview(s) of the examinee, and psy-
chological testing. For review of records and interviews with collateral sources,
see previous sections of this chapter; the focus of this section is on behavioral
observations, interview(s) of the examinee, and psychological testing.
Behavioral Observations
Behavioral observations may occur within and beyond the evaluation room,
depending on the psychological questions being asked and the hypotheses being
considered. Additionally, the examiner may observe the examinee’s behavior
directly or obtain, through interviews or records, descriptions of behavioral

observations made by others. Observations that occur across settings on mul-
tiple occasions may help to maximize the reliability of the information obtained
from the behaviors being observed. A multisource, multimethod approach
increases the likelihood of making accurate assessment of consistencies between
behavior and self-report (Shapiro, 1999). Establishing a pattern of consistency
adds confidence to the diagnostic formulation or helps reveal disingenuous
claims. There is face validity in behavioral observations made by the examiner
and behavioral descriptions garnered from records, such as jail records, school
behavioral records, and employment records, for the issue before the court.
Such data may carry considerable weight with the trier of fact, even though
they lack the scientific rigor of other types of data (Grisso, 2003).
In certain circumstances, meaningful information can be gained through
surreptitious observation made by the examiner or others. In settings such as
correctional centers and hospitals, observations made of the examinee when
the examinee is not aware of the observation are often readily available from
correctional officers and nursing staff. Even in the private practice setting, the
examiner may note examinee behavior during the arrival to and departure
from the office, such as walking unassisted or independently driving, which
may be inconsistent with the examinee’s claims of disability. However, consis-
tent with the principle of respect for autonomy, the examinee has a right to
be informed during the consent process that data from such observations may
be obtained and considered.
Investigative information in criminal cases often includes audio and video
recordings of defendant behavior at the time of an alleged offense, and it is
competent practice to incorporate that information in the formulation of past
mental states (Denney, 2012b; Denney & Wynkoop, 2000). It is also not
unusual for examiners to receive video surveillance of plaintiffs in personal
injury cases or insurance disability cases. Using such information in clinical
evaluations may seem inappropriate to some providers, but in forensic mental
health evaluations, by contrast, reliance upon a variety of data sources is the
standard of practice (SGFP Guideline 9.02, Use of Multiple Sources of Infor-
mation), and litigants are informed at the outset that corroboration of claims
will be sought.
The forensic evaluator strives to ensure that any such material obtained and
reviewed is admissible in a court of law. To review, and, therefore, potentially
rely upon, material that was illegally obtained may render the evaluator’s find-
ings and conclusions inadmissible. For that reason, it is prudent to ask that all
information provided be scrutinized by the retaining attorney (or, when the
evaluation is being performed by court order or agreement of the parties, such
as might occur in an assessment concerning contested parenting issues, by all
attorneys to the matter) to be sure that it is appropriate for review. It is also
essential to maintain copies of any such material reviewed so that the data
upon which conclusions were based can be provided, if necessary, in response
to challenges (SGFP Guidelines 10.05, 10.06, and 10.07 address maintenance
and provision of all data relied upon in forming opinions).
The Evaluation 79
An evaluation of a criminal defendant in the correctional environment under

court order establishes limitations on examinee privacy. One forensic case
study illustrated the potentially rich data accessible through review of recorded
telephone conversations made during the evaluation that gave explicit descrip-
tions of exaggerating deficits (see Wynkoop & Denney, 1999). The fact that the
psychologist relied upon the recordings in the evaluation was reviewed by the
U.S. District Court Judge overseeing the case; that judge held that the use of
the recordings was not a violation of the defendant’s right to privacy. The
Judge reasoned that because the defendant was housed in a correctional facil-
ity for the evaluation and was specifically warned that his behavior during the
evaluation period was not private, in addition to the fact that placards were
placed next to the inmate phones indicating they were subject to review, there
were no constitutional concerns. In the authors’ view, the facts of this case also
relieved the psychologist of any ethical concerns about reviewing surreptitious
telephone conversations (Wynkoop & Denney, 1999).
Interviews
Face-to-face or in-person interviews with the examinee are typically an essen-

tial aspect of the evaluation process. The examinee’s thoughts, feelings, and
memories are often fundamental to the forensic issue at hand. However, the
subjective nature of the examinee’s experience and the potential for bias may
reduce the reliability of information obtained directly from the examinee
(Otgaar & Baker, 2018). Sbordone, Rogers, Thomas, and de Armas (2003) sum-
marized the literature on the accuracy of criminal defendants’ autobiographical
memory, stating that the primary problem with “utilizing a defendant’s recollec-
tion of what occurred during the alleged crime is that their memory of this event
is likely to change over time” (p. 479). Such change tends to be in the direc-
tion of decreasing their culpability. Similarly, Bieliauskas (1999) cautioned,
It is important to be careful in obtaining the history of a patient directly from the
patient himself or from relatives and friends. On the face of it, these individuals
should know the patient’s situation best. . . . However, it is also the case that the
veracity of interview information is open to question in forensic evaluation.
(p. 125)
Williams, Lees-Haley, and Djanogly (1999) reviewed the empirical research

in personal injury evaluations and concluded that when a great deal may be
at stake and pressures may exist to cause the litigant to try to affect the out-
come of the assessment, there is significant risk for distortion in symptom
presentation. They advised practitioners working in this area to adopt a more
analytical, data-oriented attitude toward examinee self-report when conduct-
ing forensic examinations than they might in working with people in more
traditional clinical settings.
Children’s capacity to accurately recall events, benign or traumatic, has been
vastly researched, and effective interview protocols have been recommended
for forensic evaluators to follow to ensure that the most accurate and detailed
possible information is gathered without contamination (Ceci & Bruck, 1995;

Ceci & Hembrooke, 1998; Chrobak & Zaragoza, 2013; Gudjonsson, Sveinsdottir,
Sigurdsson, & Jonsdottir, 2010; La Rooy et al., 2015; Poole & Lamb, 1998;
Saywitz & Snyder, 1996; Vagni, Maiorano, Pajardi, & Gudjonsson, 2015). In
general, child interviews require an appreciation for the capacities of chil-
dren to understand complex constructs and to express notions about time,
source attribution, and causal relationships. Children may respond to inter-
view characteristics differently from adults and are somewhat more vulnera-
ble to influences that may shape the nature or accuracy of their recollections.
Good data can be gathered from children by interviewers trained to do so, but
the contours of this arena are not necessarily intuitively obvious, and special-
ized training is essential.
Because forensic examinees have a significant stake in the outcome of the
assessment, interviews with others are an important part of most forensic
assessments. Heilbrun (2003) noted that use of multiple data sources of infor-
mation for each area being assessed is a principle of forensic mental health
assessment. Collateral interviews add richness and depth to a forensic assess-
ment and are important in providing information that may be less biased than
self-report. Third-party sources increase the examiner’s certainty as opinions
are formulated; divergent data generates new hypotheses to be explored,
while convergent data increases reliability of findings (Heilbrun, Warren, &
Picarello, 2003).
Psychological Testing
One of the strengths of psychological testing, as part of a psychodiagnostic

evaluation, is the introduction of standardized measurement of cognitive and
emotional functioning and personality organization, as contrasted to reliance
on clinical judgment alone. Many commonly used psychological measures
were not developed for forensic purposes, however, and do not have relevant
normative data, although an increasing number of forensic measures is
becoming available. Standard 9.02b, Use of Assessments, states, “Psychologists
use assessment instruments whose validity and reliability have been estab-
lished for use with members of the population tested. When such validity or
reliability has not been established, psychologists describe the strengths and
limitations of test results and interpretation.”
The selection of psychological measures depends on multiple factors,
including (a) the purpose of the evaluation, (b) the available normative data
and the relevance of the norms to the examinee’s demographics and known
or suspected psychopathology, (c) other examinee characteristics such as sen-
sory or motor impairments or lack of English fluency, (d) the evaluation set-
ting, (e) the examinee’s prior experience with psychological measures, and
(f) the availability of prior test results (Bush & Morgan, 2017). SGFP Guide-
line 10.02, Selection and Use of Assessment Procedures, advises psychologists
to use assessment procedures in the manner and for the purposes that are
The Evaluation 81
appropriate given available research or other evidence that they are useful
and appropriate for the circumstances. Further,
Forensic practitioners use assessment instruments whose validity and reliability
have been established for use with members of the population assessed. When
such validity and reliability have not been established, forensic practitioners
consider and describe the strengths and limitations of their findings (SGFP
Guideline 10.02, p. 15)
The SEPT Standard 10 (Psychological Testing and Assessment) addresses this

issue as follows: “Many tests measure constructs that are generally relevant to
the legal issues even though norms specific to the judicial or governmental
context may not be available” (p. 162). However, the SEPT also explain that
when normative data or validity studies are lacking for the purposes of a given
examination, the interpretation of the results should be qualified and pre-
sented as hypotheses rather than firm conclusions.
When selecting psychometric measures from among the available options,
forensic psychologists must recognize the uniqueness of the population from
which the examinee comes (Standard 9.02, Use of Assessments; SGFP Guide-
line 10.02). Forensic examiners are not required to limit test selection to
those developed and standardized on forensic populations but must be cogni-
zant that a particular forensic setting may include an atypical population—
a population that was underrepresented in the standardization sample. Obvi-
ous examples of examinee characteristics to consider include age, education,
race, and nationality, but other less obvious factors, such as lower levels of
intellectual functioning or lower socioeconomic status, can be factors to con-
sider in some forensic settings.
The results of tests or indices that have been developed with one forensic
population may not generalize to different forensic populations. Such tests or
indices may require validation with different forensic populations before being
broadly utilized. Forensic examiners should select technically sound measures
that are appropriate for the situation (International Test Commission, 2013).
Forensic examiners need to proceed with caution when extrapolating results
of general clinical assessment instruments to specific legal questions. When
such extrapolation occurs, forensic examiners should consider qualifying or
presenting their interpretations as hypotheses rather than conclusions. When
qualifying one’s interpretations, it is not sufficient to merely state that “caution”
was used in the test interpretation. The examiner should not only alert the
reader to a lower level of confidence in the findings but should specifically state
the manner in which deviations from standardized testing conditions or nor-
mative samples may have impacted the test results or interpretation. For
example, in a parenting assessment in which the parent and child have been
separated, the examiner using a parenting satisfaction scale should not only
indicate in the report that the instrument was normed for intact families but
should also note that measures of parental attachment may not be applicable
to the current situation, because the items making up the scales query the
examinee about time spent with the child.
A similar concern is that the psychometric properties of some forensic

measures normed with research populations do not adequately translate into
“real world” applications (Edens & Boccaccini, 2017). Although many foren-
sic practitioners rely almost exclusively on the psychometric properties
reported in the test’s technical manuals to support their use and interpreta-
tion of the tests, “it is unwise to assume—without cross-validation findings
from field research—that reliability and validity findings from research-based
normative samples apply to real-world forensic evaluation contexts” (Edens
& Boccaccini, 2017, p. 600). SCOTUS has considered fairly recently the issue
of psychometric properties of measures used in forensic mental health assess-
ment. In Hall v. Florida (2014), SCOTUS considered the reliability, particularly
the standard error of measurement, of psychological instruments (i.e., intelli-
gence tests) when adjudicating criminal justice issues, specifically whether
the defendant in a capital punishment case could be accurately diagnosed
with an intellectual disability that would preclude him from being eligible for
execution, according to Atkins v. Virginia (2002). Thus, forensic practitioners
should be able to defend their selection, use, and interpretation of the assess-
ment measures that are employed in a given case, understanding that test
manuals are commonly not the sole, and often not the best, source of infor-
mation about a test’s psychometric properties and normative data.
In general, the responsibility lies with the examiner to select procedures
sufficient to address the forensic psychological issues bearing on the legal
question, to utilize those procedures appropriately, and to describe in detail
any limitations or reservations regarding conclusions. Otto, Buffington-Vollum,
and Edens (2003) posed a series of questions that examiners should con-
sider when deciding the issue of testing in custody evaluation, although the
considerations also apply to psychological testing in other evaluation con-
texts. Exhibit 4.1 provides questions to consider when selecting psycho
logical tests.
EXHIBIT 4.1
Considerations for Selecting Psychological Tests
1. Is the test commercially published?

2. Is a comprehensive test manual available?
3. Are adequate levels of reliability demonstrated?
4. Have adequate levels of validity been demonstrated?
5. Is the test valid for the purpose for which it will be used?
6. Has the instrument been peer-reviewed?a
7. Do I possess the qualifications necessary to use this instrument?
8. Does the test require an unacceptable level of inference from the construct it assesses
to the psycholegal question(s) of relevance?
Note. aWe add the caveat that although it may seem apparent, the reviews of the instrument must
be reasonably positive. From Handbook of Psychology: Forensic Psychology (Vol. 11, p. 188),
by A. M. Goldstein (Ed.), 2003, Hoboken, NJ: Wiley. Copyright 2003 by Wiley. Adapted with permission.
The Evaluation 83
Survey data regarding instruments commonly used by forensic psycholo-

gists may also guide the examiner, although, of course, just because an instru-
ment is commonly used does not mean that it is the appropriate instrument
for the psycholegal issue that drives an assessment. A number of researchers
have surveyed forensic practitioners and published the frequency with which
instruments are used in various contexts as well as other useful information
on instrument selection. R. P. Archer, Buffington-Vollum, Stredney, and Handel
(2006) surveyed forensic psychologists regarding instrument selection in both
adult and child forensic issues. Lally (2003) queried forensic psychologists to
determine frequency of instruments used in various assessment types includ-
ing mental state at the time of the offense, risk for violence, risk for sexual
violence, competency to stand trial, competency to waive Miranda Rights,
and evaluations of malingering. Quinnell and Bow (2001) and Keilin and
Bloom (1986) surveyed evaluators regarding the procedures used, including
instruments administered, in child custody evaluations. LaDuke, Barr, Brodale,
and Rabin (2018) surveyed forensic neuropsychologists regarding their test
usage. Martin, Schroeder, and Odland (2015) conducted a survey of neuro-
psychologists’ practices in assessing for malingering and then later com-
pared that data to a survey of experts in validity testing (Schroeder, Martin,
& Odland, 2016). Additionally, Ryba, Cooper, and Zapf (2003) surveyed psy-
chologists regarding test usage in assessing juvenile competence to stand trial
evaluations. Some of these data are dated and certainly there are evolutions
in available instruments as well as in usage. It is beyond the scope of this
writing to provide a list of “acceptable” instruments to be used in a forensic
setting. Where there is controversy regarding an instrument or a class of instru-
ments, the forensic examiner should be aware of arguments for and against
their use in forensic work. Regarding projective instruments, for example,
there may be good reason to forego their use when interpretation is a matter
of subjective judgment.
The use of projective tests (e.g., Draw-A-Person, Thematic Apperception Test,
Children’s Apperception Test, and Rorschach) can open the psychologist to
severe cross-examination. Psychologists who use these tests need to be sure
that they know them well enough to justify them as valid for some meaningful
purpose in this situation. (Knapp, Younggren, VandeCreek, Harris, and Martin,
2013, p. 102)
Symptom and Performance Validity Assessment

Forensic examinees have considerable incentive to present in a manner favor-
able to their cause. Such incentive can lead to misrepresentation of background
information, misleading behavioral presentations, under- or overreporting of
symptoms, and/or suboptimal performance on cognitive or other ability (e.g.,
motor) tests. As a result, forensic evaluations must include assessment of the
validity of the examinee’s symptoms, presentation, and test-taking effort to
determine whether the examinee may be engaging in impression manage-
ment. Efforts to determine the accuracy of reported symptoms or problems
is known as symptom validity assessment; efforts to establish whether adequate
effort was generated on cognitive or other ability tests is known as performance

validity assessment; and efforts to establish the accuracy of reported biographi-
cal information has been referred to as response validity assessment (Bush,
Heilbronner, & Ruff, 2014; Larrabee, 2012). In the official position statement
of the Association for Scientific Advancement in Psychological Injury and
Law on psychological assessment of symptom and performance validity,
response bias, and malingering, Bush et al. (2014) stated that “the assess-
ment of validity as part of forensic psychological evaluations is essential” and
noted “the importance of adopting a comprehensive, impartial, and scientific
approach to validity assessment” (p. 197).
Psychometric instruments, such as personality inventories, can promote
evidence-based diagnostic decision making, but they depend on genuine
responding, rather than denial or minimization of symptoms and common
fallibilities or exaggeration or fabrication of problems. Valid test results allow
the forensic psychologist to make inferences regarding constructs of interest
with a certain degree of confidence, whereas invalid results limit such confi-
dence. Although such issues are important in clinical evaluations, they may be
even weightier in forensic assessments. The tremendous incentives encoun-
tered in forensic contexts increase the likelihood that an examinee will approach
the evaluation with the impression management in mind. Therefore,
forensic practitioners consider and seek to make known that forensic exam-
ination results can be affected by factors unique to, or differentially present in,
forensic contexts including response style, voluntariness of participation, and
situational stress associated with involvement in forensic or legal matters. (SGFP
Guideline 10.02, Selection and Use of Assessment Procedures)
Even with those individuals for whom standardized testing is not appropri-
ate (e.g., due to severe behavioral problems, apparent severe cognitive impair-
ment, acute psychosis), the validity of the individual’s presentation should be
assessed through other evaluation methods, such as behavioral observations,
interviews of collateral sources, and review of records. Such evaluation methods
may reveal inconsistencies that suggest fabrication or exaggeration of symp-
toms. Invalid symptom manifestation can reflect irrelevant or uncooperative
behavior or feelings of justification, entitlement, frustration, neediness, greed,
or manipulation (Iverson & Slick, 2003).
In forensic assessments in which the litigant has a vested interest in appear-
ing virtuous or normal, the litigant may deny existing symptoms and present
as “too good to be true.” Litigants in contested parenting matters or fitness-
for-duty assessment, for example, demonstrate a higher degree of defensive
responding or other efforts at distortion (E. M. Archer, Hagan, Mason, Handel, &
Archer, 2012; Bagby, Nicholson, Buis, Radovanovic, & Fidler, 1999; Bathurst,
Gottfried, & Gottfried, 1997; Erickson, Lilienfeld, & Vitacco, 2007; Hynan,
2013, 2014; Posthuma & Harper, 1998; Siegel, 1996; Siegel, Bow, & Gottlieb,
2012; Siegel & Langford, 1998; Young, 2014). Although the assessment of
potential minimization of symptoms is essential in some evaluation contexts,
the assessment of exaggerated or feigned symptoms has been emphasized in
The Evaluation 85
the psychological literature in recent years and is the focus of the remainder of
this section.
Ethical Misconduct in Validity Assessment

With validity assessment, forensic psychologists may stray, unintentionally or
intentionally, into areas of questionable ethical conduct. Unintentional ethi-
cal misconduct may result from insufficient competence in forensic practice
or assessment; for example, the psychologist may fail to employ some mea-
sure of impression management when the nature of the evaluation calls for
it. Standard 9.01(a), Bases for Assessments, states, “Psychologists base the
opinions contained in their recommendations, reports, and diagnostic or
evaluative statements, including forensic testimony, on information and
techniques sufficient to substantiate their findings.” Psychologists bear the
burden of justifying their selection of tools for evaluation, and the absence
of empirically based, multimethod approach to validity assessment in forensic
examinations may be difficult to justify, or may draw into question the ade-
quacy of the assessment to substantiate the opinions offered. Given the con-
tinually evolving nature of validity assessment research and test development,
it is incumbent upon the forensic practitioner to maintain current knowledge
of the research and instrumentation relevant to the practice area (Standard 2.03,
Maintaining Competence; Standard 9.08, Obsolete Tests and Outdated Test
Results).
In addition to inadvertent ethical misconduct related to competence, differ-
ences in symptom and performance validity measurement selection, adminis-
tration, interpretation, and use can lead to the appearance of intentional
manipulation by the examiner to serve a specific purpose. Test selection may
at times be guided, deliberately or unintentionally, by the examiner’s wish
to develop a certain result. Not all validity assessment measures have equiv-
alent sensitivity. An examiner wishing to give the appearance of assessing
validity, but also to avoid detecting malingering or some other form of invalid
presentation, may select tests that have relatively poor sensitivity. The
examiner may also administer the fewest number of measures that he or she
believes can be justified. In contrast, an examiner wishing to demonstrate
invalid symptom manifestation or performance may administer many validity
assessment measures in the hope that at least some scores will fall in the range
indicative of impression management. Psychologists engaging in either of these
patterns of test selection give the appearance of intentional misconduct. In
addition, examiners who differentially select the number and type of validity
assessment measures depending on which side has retained them may have a
particularly difficult time defending allegations of biased test selection.
The manner in which validity tests are administered may also be inappro-
priately manipulated to support a given position. For example, certain very
simple measures of effort appear to assess memory (e.g., the Rey 15-Item
Memory Test), and recommended instructions require the examiner to describe
the measures as being difficult (Lezak, Howieson, Bigler, & Tranel, 2012).
However, the extent to which the difficulty level is emphasized has the poten-
tial to influence the examinee’s performance. Such manipulation of outcome
may be difficult to detect. It is the ethical obligation of the forensic practi-
tioner to use instruments fairly.
Interpreting validity assessment test scores or patterns of scores, within
the context of overall findings, poses perhaps the greatest opportunity for mis
understanding and abuse of tests. Some professional guidelines are available
to inform examiners about validity assessment in general (e.g., Bush et al.,
2014; Bush, Ruff, et al., 2005; Heilbronner et al., 2009); however, such
resources cannot inform examiners about exactly what meaning to attribute
to test scores or patterns of scores in a case-specific circumstance, leaving the
biased examiner to exploit this ambiguity in the interpretation process. For
example, consider the following excerpts from a hypothetical neuropsycho-
logical report.
The evaluation was initiated by a referral from the examinee’s attorney in the
context of a disability claim and civil litigation 6 months after a work-related
accident.
A 60-year-old woman tripped and fell at work, hitting her knee and head.
There was a brief loss of consciousness and a 24-hour period of posttraumatic
amnesia. Her first memories consisted of medical interventions by hospital staff
while on the neurology service. A CT scan of the brain was negative. The exam-
inee was discharged home to her husband’s care 2 days after admission. . . . The
examinee is a poor historian due to retrograde memory problems. She reported
that she lost all memory from her childhood on. She reported that she only
knows the information that she does know because her husband and childhood
friends have reminded her of certain details.
The report included the following statements regarding performance validity:
“Rapport was excellent and the examinee appeared to try her best. Thus, the
results of the evaluation were considered to be a valid representation of the
examinee’s cognitive, behavioral, and psychological functioning.”
Later in the report, the examiner wrote, “The results of symptom validity
testing were equivocal. While some results were within normal limits and others
were below established cut-offs, none were significantly below chance.”
The only performance validity test listed was the Rey 15-Item Memory Test,
and the score was not reported. Despite reporting invalid performance on “some”
performance validity tests, the psychologist did not list those tests or their scores
and ultimately diagnosed impairments and their cause, localized cerebral dys-
function, and made the following determination regarding disability:
The examinee presents with a variety of cognitive, behavioral, and psycho

logical problems that emerged following a head injury that she sustained
at work. The results of this preliminary examination suggest that some
neurologic functions have been compromised by injury to the brain, with
impairment of neurobehavioral and neurocognitive status resulting from
damage to dorsolateral, orbital, and mesial prefrontal systems. The symp-
tom picture and documented deficits are indicative of a totally disabling
injury.
In the discussion section, the psychologist attempted to explain away the

examinee’s suboptimal performance on validity testing.
The Evaluation 87
A complicating factor in this examinee’s case is her variable performance on mea-

sures of performance validity. . . . Her performance in this area is equivocal,
which makes interpretation of her cognitive abilities difficult. . . . Consideration
has been given to the possibility that she has exaggerated her deficits. However,
the pattern of findings is not consistent with exaggeration or fabrication of symp-
toms. The examinee has consistently and vociferously emphasized her wish to
return to her job. Despite the income received from Workers’ Compensation,
her financial situation has been negatively affected by her inability to work since
her accident, creating a hardship for the examinee and her family. . . . A more likely
explanation for her variable performance on measures of performance validity
may be found in her severe attention problems. For those performance valid-
ity tests on which her performance fell below expectations for individuals with
brain injuries, her performance was not below chance, which would be more
reflective of malingering. Thus, the examinee’s variable performance on effort tests
appears to reflect her severe difficulties with attention.
The examiner considered her own potential for self-bias:

Throughout the evaluation process, primary threats to examiner objectivity that
may bias the interpretation of neuropsychological data were considered, and a
strong commitment to objectivity was maintained. As a result, this evaluation is
considered to have been thorough and impartial.
The psychologist’s justification of her test interpretation reflects professional

incompetence, a striking lack of objectivity, or both. Additionally, references to
multiple performance validity measures when only one was listed may indi-
cate an unintentional error of omission or intentional neglect of test results
that were unfavorable to the examinee. Finally, it is not up to current profes-
sional standards to only view performance validity test results falling below
random as indicative of invalid task engagement.
There may be legitimate difference of professional opinion regarding use of
validity assessment measures. As a result, it may be difficult to determine, in
individual cases, whether a practice reflects the best interests of justice or the
best interest of the examiner’s referral source, to the extent that those posi-
tions differ. Psychologists must determine for each case the appropriate selec-
tion, use, and meaning of indicators of validity in order to ensure the validity
of examination findings. This thoughtful approach may ensure that the eval-
uation most effectively addresses the psycholegal question in a relevant and
reliable way.
Blau (1998) noted that “the validity and reliability of expert opinion as to
the presence or absence of malingering is a complex issue. . . . Testimony
regarding malingering brings the expert close to being the Thirteenth Juror”
(p. 19). To err by diagnosing malingering, when an alternative explanation
for symptom invalidity may be present, “is essentially to accuse an individual
of a potentially criminal act (e.g., fraud, perjury), while possibly also denying
needed clinical services (e.g., treatment of depression)” (Sweet, 1999, p. 262).
Therefore, psychologists have an affirmative obligation to conduct thorough
and objective evaluation of symptom and performance validity, and to consider
and document all potential explanations for invalid symptom reporting or

manifestation. Thoughtful reporting of results of the validity of test responses
takes into account a range of possibilities and appropriately limits the gener-
alizations that can fairly be drawn from the validity assessment results. This
consideration should include an understanding of specificity and sensitivity
of instruments and the likely base rate of poor task engagement within the
examination context—factors that contribute to confidence in one’s con-
clusions about potential malingering (Larrabee, 2012). Use of probabilistic
language (e.g., possible, probable, definite) based on established criteria (Greve,
Ord, Bianchini, & Curtis, 2009; Slick & Sherman, 2013) improves descriptions
of invalid presentations.
Examiner Deception
To some extent, deception is required of the examiner in validity assess-
ment. As part of the informed consent process, psychologists typically describe
the methods and procedures that will be used during the evaluation. Some
psychologists may choose to provide general information regarding the gen-
eral categories of assessment measures to be used or capacities to be assessed,
including symptom and performance validity. For example, they might explain
that measures will be used to assess the examinee’s effort to do well, and even
discuss the importance of being forthcoming and doing one’s best, while others
may mention this factor briefly or not at all. Whatever tack is determined to
be appropriate in disclosing this aspect of the forensic assessment, the evalu-
ator should apply it consistently, providing the same information regardless of
which party has requested the evaluation.
Psychologists may give general information suggesting that among the tests
are measures of response style or validity, but they do not inform examinees
that a specific measure (or index embedded in a specific measure) assesses the
validity of their responding. Such information would invalidate the validity
assessment measure. By allowing the examinee to believe that validity mea-
sures are actually measuring another psychological construct (e.g., memory,
psychosis), psychologists use deception to detect deception. The current stan-
dard of practice appears to support informing examinees, in the informed con-
sent or notification of purpose process, that their effort and honesty will be
assessed. However, the measures used and often their specific instructions rely
on deception for their effectiveness. Measures that appear to assess cognitive
ability and are described as measures of a certain cognitive ability, such as
memory, may actually be measures of the validity of cognitive symptoms.
Such deception on the part of the psychologist departs from the goal of obtain-
ing fully informed consent. The ethical tension created by these competing
aims—transparency in the examination process and collection of valid and
reliable information—must be resolved by each evaluator. Because the
examinee may be later evaluated by another forensic psychologist and, in
the interest of safeguarding testing procedures more generally, it would be
unwise to disclose, at the conclusion of testing, which instruments were
The Evaluation 89
utilized for validity assessment purposes. Nonetheless, consistent with SGFP

Guideline 11.03, Disclosing Sources of Information and Bases of Opinions,
the examiner is encouraged to note the sources of information relied upon
in forming a particular conclusion, opinion, or other professional product.
The treatment of these instruments that rely on naiveté of the test taker to
be effective, in an age when information is easy to find, is challenging, and
the skilled examiner may need to have multiple measures of impression
management at the ready.
In the context of discussing testimony, Heilbrun (2001) stated that “there
is no place for deception in forensic mental health assessment” (p. 274).
Although the APA Ethics Code addresses the use of deception in research
(Standard 8.07, Deception in Research), it does not specifically address decep-
tion in assessment. Consistent with APA General Principle C: Integrity, psy-
chologists seek to practice in a truthful manner; however, there may be
instances in which deception may be justified in order to benefit consumers
of psychological services and the interests of justice. In such instances, psy-
chologists must be mindful of the possible effects of deception on the sense of
trust or the emotional state of the examinee or others involved in the case,
and they should attempt to minimize potential adverse effects of such decep-
tion (Bush, 2005b). Having provided general information related to the inclu-
sion of measures/indices of response validity during the informed consent
process, the examiner has, in our opinion, met the obligation to honestly
inform, and to properly obtain informed consent from, the examinee.
Adopting New Tests
New assessment instruments and revised versions of prior measures period-

ically become available and may improve the ability of forensic practitioners
to quantitatively assess constructs of interest. When the forensic psycholo-
gist contemplates adopting a new instrument for use, there are a number
of important considerations. The APA Ethics Code (Standard 9.02, Use of
Assessments) instructs psychologists to use test instruments and assessment
techniques consistent with research on or evidence of their usefulness and
appropriateness for the manner in which they are to be used. Further, the
psychologist is cautioned to refrain from using tests that are obsolete and not
useful for the purposes for which they are being considered (Standard 9.08,
Obsolete Tests and Outdated Test Results).
Most psychological tests and measures undergo periodic revision intended
to improve psychometric properties, normative data, relevance of stimuli,
and ease of administration. In addition, new tests are developed to evaluate
psychological constructs. However, practitioners may be reluctant to move
from a familiar and well-researched instrument to a newly released edition or
measure. A primary concern is whether the newer version or measure will
assess the constructs of interest in a specific population better than the prior
measure.
Questions sometimes arise concerning how long it may be appropriate to

continue using an instrument beyond the date of release of a revised version
or when it is appropriate to replace an older test with a new test purporting
to measure the same or overlapping constructs. The availability of a newer
version of a test does not automatically render prior versions of the test obso-
lete for purposes that are empirically supported (Bush et al., 2018; Inter
national Test Commission, 2015). The continued use of a prior version of a test,
when it is empirically supported, is consistent with ethical practice. A forensic
psychologist may elect to continue using a well-researched instrument until its
updated version or a new test has published evidence of improved utility for
making diagnostic and related decisions. It is important to be able to justify
decisions regarding test selection. Empirical scientific evidence and usefulness
of the measures for a given examinee should drive such decisions; the cost or
the effort required to upgrade or replace the instruments would not be ade-
quate justification. Ultimately, it is the responsibility of the forensic psychologist
to determine which tests are most appropriate for the needs of a given exam-
inee and referral question and to be able to support their decisions with empir-
ical evidence and sound clinical judgment (Bush et al., 2018).
Technology
The use of information technology and telecommunications is increasingly

part of psychological practice. Examples include (a) websites that offer infor-
mation about one’s services and sometimes provide materials such as intake
forms; (b) use of text messages or emails for scheduling appointments, pro-
viding intake forms, and otherwise interacting with examinees; (c) use of the
Internet for collecting collateral information; (d) computerized test admin-
istration, scoring, interpretation, and report writing; (e) electronic record
maintenance; and (f) electronic billing. The use of computerized assessment
has many advantages (Bauer et al., 2012; J. B. Miller & Barr, 2017), especially
for those who provide services away from the office and need to have a full
arsenal of instruments at hand wherever they may be working. Ease of online
scoring and of ready access to test records are further advantages. For forensic
psychologists, telepsychology applications such as online assessment have the
potential to extend forensic services to examinees who otherwise might not
have access to the services or who may have to undergo considerable hardship
to reach a qualified forensic practitioner.
Despite the advantages of merging psychological assessment with informa-
tion technology, such advances pose unique ethical challenges (Bush, Naugle,
& Johnson-Greene, 2002; Bush & Schatz, 2017), with very little specific guid-
ance provided by the APA Ethics Code. To help remedy the limitations of the
APA Ethics Code, The Guidelines for the Practice of Telepsychology (APA, 2013; see
also Campbell, Millán, & Martin, 2018) provide clarification of the ethical and
professional issues and responsibilities by establishing eight guidelines in the
following general areas: (a) Competence of the Psychologist; (b) Standards
The Evaluation 91
of Care in the Delivery of Telepsychology Services; (c) Informed Consent;

(d) Confidentiality of Data and Information; (e) Security and Transmission of
Data and Information, Disposal of Data and Information and Technologies;
(f) Testing and Assessment; and (g) Interjurisdictional Practice.
Although these guidelines are informative and beneficial for practitioners,
additional empirical investigation is needed to address technological applica-
tions of forensic psychological services, such as whether (a) meaningful data
is lost when face-to-face interviews are replaced with online video interviews,
(b) it is necessary and proper to maintain recordings of online interviews, and
(c) compromises might be made in instrument selection to accommodate the
psychologist’s wish to restrict testing to online instruments. Forensic psychol-
ogy will inevitably continue to move toward increased technological applica-
tions to address professional needs. As this process continues, a commitment
to establishing, maintaining, and improving ethical practices, including work-
ing within the boundaries of one’s technological competence, facilitate and
enhance the services that are provided to forensic examinees and triers of fact.
LEGAL CONSIDERATIONS IN METHODS SELECTION
Forensic psychologists select the methods and procedures they determine to

be most appropriate to address the psycholegal question at hand. Such selec-
tion decisions are guided not only by the psychometric merits of the instru-
ment or procedure, but also by the admissibility standards established by the
court; it is the court serves as gatekeeper for determining whether the psy-
chologist’s testimony will be allowed. To assist with the determination of
admissibility of forensic psychological evidence, the court historically relied
on the standard of “general acceptance.” That standard was established in
Frye v. United States (1923), when the Court ruled that the methods and pro-
cedures upon which psychological determinations are made “must be suffi-
ciently established to have gained general acceptance in the particular field”
(p. 1014).
In 1993, the case of Daubert v. Merrell Dow Pharmaceuticals, Inc. (Daubert)
refined the standard of admissibility of expert testimony in federal jurisdictions
by articulating that methods and procedures must not only have achieved
general acceptance in the field to which they belong, but also must be relevant
to issues at hand and must have demonstrated scientific reliability and validity
in contributing to the conclusions of the expert. Daubert’s focus on testability,
falsifiability, reliability, validity, and error rates of the basis underlying scien-
tific expert testimony was ultimately determined to be less important than the
“relevance and reliability” of the testimony (Shapiro, 2012). A number of
other cases, including Kumho Tire Company v. Carmichael (Kumho) (1999), have
also dealt with issues of admissibility of expert testimony. Kumho extended
the analysis to nonscientific expert testimony. In 2000, the Federal Rules of
Evidence 702 and 703, which address expert testimony, were amended to
reinforce the importance of “relevance and reliability” and noted that the
judge, as gatekeeper, determines whether the expert testimony is based on
sufficient evidence that is relevant to the case at hand (Shapiro, 2012).
After noting that there is a misunderstanding among psychologists about
the function of the Daubert factors, Shapiro (2012) concluded,
Clearly, Courts do not generally use these in assessing the reliability of social
science or behavioral science evidence and are generally more concerned with
relevance, reliability and whether the proposed testimony is of assistance to
the trier of fact, along with whether or not the expert is sufficiently qualified.
(p. 207)
Nonetheless, forensic practitioners may be asked by attorneys during pre-

trial evidentiary hearings to articulate the falsifiability, error rate, and general
acceptance of a technique on which they have relied. Regardless of whether
these are factors the court really needs to consider in admissibility determi-
nations, attorneys continue to put opposing experts through the paces to
attempt to have their testimony excluded.
The Daubert analysis extends beyond the measures employed to include
the nature of the reasoning upon which the expert’s conclusions rest; both
must be grounded in scientific method. Thus, forensic psychologists should be
prepared to defend their choices of methods and procedures and the reasoning
that flowed from data collection to the opinion offered in court—a defense
based upon both general acceptance and scientific merit. The forensic expert
must be prepared to illuminate the path that led from data to opinion, even if
the court does not demand it; failure to do so falls below the standard of prac-
tice (Grisso, 2003; Heilbrun, 2001). Whether admissibility is governed by Frye,
Daubert, or some other standard, and whether there are challenges raised
regarding admissibility of the testimony to be offered, psychologists practicing
in forensic contexts limit opinions to those supported by data collected through
procedures recognized in the field as legitimate.
MANDATED MEASURES
The psychologist maintains responsibility for conducting an examination ade-

quate to answer the referral questions. It is the psychologist’s responsibility to
determine the procedures that comprise an adequate examination in each
case. Retaining parties may make requests for psychologists to administer
specific tests. If the psychologist believes that different, or additional, mea-
sures should be used than those requested, an attempt should be made to
explain the reasoning behind the preferred measures and seek to establish an
understanding with the retaining party of the importance of the psychologist
making such test selection based upon professional expertise (Bush, Barth,
et al., 2005). If the retaining party indicates that the measures preferred by
the psychologist are “allowable” but will not be reimbursed, the psychologist
must determine how to proceed in an ethically appropriate manner. Possible
The Evaluation 93
courses of action include administering the additional tests pro bono or refus-
ing to perform the examination. The psychologist is ethically obligated to doc-
ument in the report any restrictions placed on selection of methods and
procedures. The psychologist maintains responsibility for instrument or tech-
nique selection and should accept, modify, or reject recommendations based
on their appropriateness for a given examination (Bush, Barth, et al., 2005).
The National Academy of Neuropsychology produced a position statement
that specifically clarifies that it is the responsibility of the neuropsychological
examiner, rather than other parties in a legal matter, to select the assessment
methods that are to be used (Fazio et al., 2018). Surely this principle applies
to other areas of forensic psychology as well.
There may be instances in which the psychologist is asked to provide the
retaining party or the examinee’s counsel with a list of the examination mea-
sures in advance of the examination. To minimize the possibility of successful
coaching of the examinee, the psychologist may elect to provide general
information. Such information might include a description of the cognitive or
psychological domains to be assessed, such as intelligence, achievement, per-
sonality, or impression management, or a list of all measures at one’s disposal,
without stating specifically which measures will be selected for the evaluation
in question (Bush, Barth, et al., 2005).
THIRD-PARTY OBSERVERS
Interest in observing forensic psychological evaluations for other than train-

ing purposes is to ensure that the examinee receives an appropriate and com-
petently performed evaluation and to ensure that the examinee is not asked
legally objectionable questions. Thus, in personal injury litigation, it is often
the plaintiff’s attorney who has an interest in observing an evaluation con-
ducted by a psychologist who has been retained by the defense. In criminal
settings, the defense attorney may request observation of an evaluation per-
formed by the prosecution’s expert. In examinations of children or alleged
victims of emotionally laden incidents, plaintiff’s counsel or the victim advo-
cate may request the presence of an observer to prevent the examiner from
further traumatizing the examinee. Although motives of ensuring adequacy
of the psychological evaluation and protecting the examinee’s legal rights
may justify requests to have counsel or other designees present during test-
ing, potential threats to the evaluation’s validity and test security must be
considered.
Effects on Performance
Empirical evidence demonstrates that allowing observation of cognitive testing

affects the examinee’s performance (Constantinou, Ashendorf, & McCaffrey,
2002, 2005; Duff & Fisher, 2005; Gavett, Lynch, & McCaffrey, 2005; Gavett &
McCaffrey, 2007; Horwitz & McCaffrey, 2008; Howe & McCaffrey, 2010;
Lewandowski et al., 2016; McCaffrey, 2005; Yantz & McCaffrey, 2009). The
social psychology literature has demonstrated that people perform differently
when being observed (Guerin, 1986). This phenomenon, referred to both as
social facilitation and as reactivity, refers to a change in one’s behavior when
and because it is under observation (Russell, Russell, & Midwinter, 1992).
Observation has been found to facilitate performance on easy tasks and inhibit
performance on more difficult tasks (Green, 1983). In addition, studies of the
effects of observers on psychological test results have revealed that examinees
perform differently when observers are present.
Specifically, performance on measures of attention, processing speed, and
verbal fluency was found to be negatively affected when a significant other
observed test administration, whereas motor and cognitive flexibility results
were not significantly affected (Kehrer, Sanchez, Habif, Rosenbaum, & Townes,
2000). Similarly, performance on a measure of delayed memory was nega-
tively impacted by a third-party observer, whereas motor performance was
not (Lynch, 1997). Yantz and McCaffrey (2005) found that even the presence
of a supervisor adversely affects performance on memory tests. These authors
also found that the presence of a parent affects the validity of a child’s perfor-
mance on neuropsychological testing and concluded, “no neuropsychological
assessment should be assumed to be valid if administered in the presence of a
parent” (Yantz & McCaffrey, 2009). They advised that efforts to help reduce a
child’s test-taking anxiety should occur prior to testing, so that the child is
comfortable when testing begins.
Further, the effects of third-party observers on test results extend to the
use of recording devices. Audio recording has been found to negatively
affect verbal learning and recall but not motor performance (Constantinou,
Ashendorf, & McCaffrey, 2002), and video recording was found to nega-
tively affect immediate and delayed memory performance but not motor
performance or recognition memory (Constantinou & McCaffrey, 2003).
Thus, research studies indicate that both direct observation and indirect
observation via recording devices may have an effect on psychological test
performance. Such influences pose a threat to the validity and reliability of
subsequent interpretation of test results.
The adverse effects of the presence of an observer are not limited to testing.
The APA Committee on Psychological Tests and Assessment (2007) noted that
because some examinees may be less likely to share personal information if the
examinee believes that others are observing or could observe the examinee’s actual
statements or behavior (e.g., Sattler, 1998), the validity of non-standardized or
non-test assessment procedures such as interviews or observations may also be
affected by the perceived or actual presence of a third party. (p. 2)
Experience has revealed that the presence of an attorney or an attorney’s

representative can be quite disruptive to the flow of the interview, can be a
hurdle to the development of rapport with the examinee, and can inhibit the
examinee’s responding. Attorneys have also disrupted interviews conducted
The Evaluation 95
via live video feeds (Denney, 2005b). Consequently, some forensic examiners
choose not to allow a third party to be present in person or via live video feed
when interviewing examinees.
Ethical Requirements and Professional Guidelines
The APA Ethics Code (Standard 9.02a, Use of Assessments) requires psychol-
ogists to use assessment techniques and instruments “in a manner and for
purposes that are appropriate in light of the research on or evidence of the
usefulness and proper application of the techniques.” Allowing a third party
to be present during cognitive testing represents a deviation from standard-
ized administration and will have unknown effects on a given examinee and
the validity of the examinee’s test data. Test publishers specifically state that,
with few exceptions, only the examinee and examiner should be present
during the evaluation (e.g., NCS Pearson, Inc., 2009; Reynolds & Kamphaus,
2003). In those instances in which nonstandard test administration occurs,
psychologists must “indicate any significant limitation of their interpreta-
tions” (Standard 9.06, Interpreting Assessment Results). Based on the
research related to observation of testing, the implication of Standards 9.02a
and 9.06 is that psychologists who allow observation of evaluations must
indicate that such observation likely had an effect on the information obtained
and that, if memory testing was performed, such observation likely had a
negative effect on the results. The extent and nature of observer effects on
any individual case are unknowable, and this should be indicated as well.
In addition to the necessity of following standardized testing procedures,
the APA Ethics Code mandates that psychologists maintain test security
(Standard 9.11, Maintaining Test Security); this standard is violated when
nonpsychologists observe test administration.
The position of the National Academy of Neuropsychology (2000) on third-
party observers is that “neuropsychologists should strive to minimize all influ-
ences that may compromise accuracy of assessment and should make every
effort to exclude observers from the evaluation” (p. 380). The American Acad-
emy of Clinical Neuropsychology (AACN; 2001) makes a distinction between
involved observers (e.g., an attorney) and uninvolved observers (e.g., psychol-
ogy students and other health care professionals). The position of AACN
(2001) is that “it is not permissible for involved 3rd parties to be physically or
electronically present during the course of an evaluation assessment of a plain-
tiff examinee with the exception of those situations noted below” (p. 434).
Exceptions include adults with extreme behavioral disturbances and children.
The APA Committee on Psychological Tests and Assessment (2007) noted that
“the inclusion of a third party in psychological evaluations raises complex and
sometimes paradoxical issues,” (p. 3) and that “the overall goal of any situa-
tion surrounding the formal psychological evaluation of an individual is to
maximize the assessment conditions to complete the most valid and fair eval-
uation in order to obtain the best data possible” (p. 4).
The SGFP Guidelines provide the following guidance regarding the matter
(SGFP Guideline 10.06, Documentation and Compilation of Data Considered):
When contemplating third party observation or audio/video-recording of exam-
inations forensic practitioners strive to consider any law that may control such
matters, the need for transparency and documentation, and the potential impact
of observation or recording on the validity of the examination and test security.
(p. 16)
A primary responsibility of psychologists when providing assessment ser-

vices is to limit construct-irrelevant barriers to the attainment of valid assess-
ment results, thereby reducing measurement error (American Educational
Research Association, APA, & National Council on Measurement in Edu-
cation, 2014); third-party observation is a significant construct-irrelevant
barrier.
Laws
Jurisdictional laws may require that, in some contexts, examinees be allowed

to record the evaluation and/or have an observer present. For example, the
New York State Workers’ Compensation Board Statement of Rights and Obligations,
Independent Medical Examinations (Section 137 WCL) states that “the claimant
has the right to videotape or otherwise record the examination” and “has the
right to be accompanied during the exam by an individual/individuals
of his/her choosing.” Similarly, the Florida Supreme Court, in U.S. Security
Insurance Co. v. Cimino (2000), concluded that when an independent medical
examination (IME) is necessary for either party: (a) the parties’ relationship is
clearly adversarial, (b) the doctor performing the IME should be treated as the
requesting party’s expert witness, and (c) for the protection of the examinee,
the presence of a third party (attorney, court reporter, or recording device)
is not precluded. The burden falls on the retaining party to establish why an
observer should be excluded.
Despite laws granting examinees the right to have an observer present,
psychologists have the right to refuse to perform an evaluation under
such circumstances and should particularly consider exercising that right
when cognitive testing is performed. In those employment contexts in which
psychologists are required to evaluate examinees with a third-party present,
psychologists should strive to reduce the impact of the observation and to
change the policy by educating those involved in making such decisions and
participating in the observation.
Essential Use of Third Parties
In some instances, observers serve an important function in facilitating the

psychological evaluation. For example, interpreters may be needed when
the examiner is not fluent in the language of the examinee. When inter
preters are needed, psychologists must first assess the potential biases or other
The Evaluation 97
influences of proposed interpreters. Interpreters who may have a stake in the

outcome of the evaluation should be avoided. Once an appropriate inter-
preter has been selected, the examiner must
obtain informed consent from the client/patient to use that interpreter, ensure
that confidentiality of test results and test security are maintained, and include
in their recommendations, reports, and diagnostic or evaluative statements,
including forensic testimony, discussion of any limitations on the data obtained.
(Standard 9.03c, Informed Consent in Assessments)
The use of interpreters in forensic assessment is more fully explored later in

this chapter.
In addition to the use of interpreters, the presence of a third party may be
indicated when evaluating persons who have substantial behavioral problems
or when the purpose of the evaluation is to assess the interaction between
two or more people. In forensic practice with children, the request sometimes
arises for a child’s therapist to accompany the child in an interview or evalu-
ation session to accommodate the child’s need for a trusted ally in the room.
Although there may be merit in allowing therapist attendance, the potential
contamination of the therapist’s presence on the child’s presentation should
be carefully weighed. The therapist is an advocate for the child, and possibly
for a particular view of history constructed through their therapy sessions
together, potentially regarding the very issues cogent to the evaluation. If the
therapist is present, the child may feel compelled to stay true to the version of
history constructed through the therapist’s interpretative work. A mutually
agreed upon neutral third party, such as a guardian ad litem (i.e., appointed
by the court), a former babysitter, or a neighbor, might be a more benign
alternative, but any such accommodation should also be considered in the
context of research demonstrating that even parental presence can impact the
child’s performance to an unacceptable degree (Yantz & McCaffrey, 2009).
Recommendations Regarding Observers
The issue of allowing a third party into the examination session is compli-
cated. Persuasive arguments are offered both for and against such presence.
When considering allowing third parties into the psychological evaluation
setting, forensic psychologists are cautioned to carefully consider the poten-
tial effects of the third party on the validity of the data and on test security.
For the reasons previously described, efforts should be made to resist having
a third party present during forensic psychological evaluations. It is particu-
larly important to avoid having a third party present during psychological
testing. Parties requesting observation of an evaluation, whether the pro-
posed observation is direct or indirect, should be educated about the potential
effects of the observation on the conclusions drawn, and should also be
warned that any potential effects must be reported. Similarly, retaining par-
ties should be informed of the manner in which the psychological results,
opinions, and testimony will be weakened if a third party is present during
the evaluation; armed with such information, they can assist in advocating
for exclusion of third parties.
When observers are permitted during a psychological evaluation, the situ-
ation should be structured to minimize the intrusion, with clear ground rules
established before the examinee is present. The APA Committee on Psycho-
logical Tests and Assessment (2007) suggested some potentially useful ground
rules, including the following:
1. Seat the observer behind the examinee and ensure the observer consents
not to speak or otherwise influence the examinee during the assessment, or
seat the observer behind a one-way mirror.
2. Recommend audio recording or video recording as a less intrusive option

than having an individual present to observe; audio recording is less intru-
sive than video recording. In case of recording; take steps to limit the avail-
ability of such recordings to only those who are directly involved in the
litigation and consider seeking a protective order from the judge obligating
all parties to maintain test security and to destroy the recordings at the con-
clusion of legal proceedings.
3. Document and assist in clarifying the reasons for which observation was
ultimately permitted.
4. Inform the examinee that the results of the evaluation may be altered by the
observation process when seeking the examinee’s consent to be observed.
5. Document in the report the potential limitations wrought by the presence of

the observer.
Because of competing ethical and legal requirements and certain practical

demands, this issue of allowing third parties to be present during forensic
psychological evaluations is extremely complex and subject to debate among
psychologists. What is clear is that having a third party be present, in person
or electronically, during cognitive testing affects the validity of the test data
and therefore may skew the forensic opinions offered by the practitioner.
Deviations from standardized procedures and from ethical guidelines should
be carefully considered, the advantages and disadvantages weighed, and the
likely impact described in the report.
DIVERSITY CONSIDERATIONS
Psychological functioning is influenced by one’s sociocultural background.

Despite commonalties that exist among members of the same races, ethnic
backgrounds, and cultures, considerable intragroup differences exist (Manly
& Jacobs, 2002). Therefore, forensic psychological evaluations should include
a thorough exploration of the examinee’s unique racial and ethnic identity
and cultural background. Failure to consider factors such as race, nationality,
place of birth, immigration status, the level at which the culture of origin is
The Evaluation 99
maintained, perception of health care institutions and professionals, cultural

factors in family roles and interactions, and importance of religious influences
to the examinee may result in significant misunderstanding of the examinee
and an increased potential for error in psycholegal opinions (DeJesus-Zayas,
Buigas, & Denney, 2012). In addition, some of the traits and abilities assessed
by psychologists may differ from those that are valued by members of differ-
ent cultures, and the expression of certain traits and abilities may differ
(DeJesus-Zayas et al., 2012; Iverson & Slick, 2003; Manly & Jacobs, 2002;
Peery, Byrd, & Strutt, 2017). Furthermore, failure by examiners to consider
their own feelings toward, and understanding of, members of different groups
may also contribute to misunderstanding of the examinee’s psychological
functioning.
Diversity considerations are not limited to race and ethnicity. Differences
in sexual orientation, gender identity, economic status, religion, disability
status, and other aspects of diversity can be very important to consider in the
forensic psychological evaluations. APA General Principle D: Justice states
that all individuals are entitled to access to and benefit from psychological
services of equal quality. Psychologists must be proactive in ensuring that
biases and limitations of competence do not interfere with the provision
of their services. Standard 2.01, Boundaries of Competence, subsection (b),
requires sensitivity to the impact of culture, disability, and other diversity
factors on one’s professional competency. Knapp and VandeCreek (2003)
stated, “It is not an ethical violation to provide less optimal treatment to
members of . . . any groups; it is only a violation if the knowledge that is lack-
ing is essential for providing services” (p. 303).
Standard 9.02b requires psychologists to use assessment instruments that
have established validity and reliability for use with members of the popula-
tion that the examinee represents. In the absence of such validity or reliabil-
ity, psychologists must describe the strengths and limitations of the test results
and interpretation. Subsection (c) states that psychologists should use mea-
sures that are appropriate given the examinee’s language preference and
competence, unless use of an alternative language is relevant to the examina-
tion. SGFP Guideline 10.02, Selection and Use of Assessment Procedures,
provides essentially the same guidance.
However, some of the psychometric challenges faced in the assessment of
racial or ethnic minorities are potentially insurmountable (Iverson & Slick,
2003). Neither conceptual nor metric equivalence has been established for
many tests, including nonverbal tests, administered to ethnic minorities. Stan-
dard 9.06, Interpreting Assessment Results, requires psychologists to “take
into account” the various factors that may affect the accuracy of their interpre-
tations. However, due to the number of potentially invalidating factors, “in
some situations, it is impossible to determine if the interpretations made by
psychologists under these circumstances could be valid” (Iverson & Slick,
2003, p. 2078).
Standard 9.03, Informed Consent in Assessments, addresses, in three
subsections, informed consent in assessments relevant to cultural diversity.
Section (c) describes the need for psychologists to obtain informed consent
before using the services of an interpreter. Determinations regarding the need
for and selection of interpreters are challenging, and universal conclusions are
not feasible. What can be stated with confidence is that interpreters should
(a) be sufficiently fluent in both the examinee’s primary language and culture
and the language and content of the test to be able to translate the test instruc-
tions and explain the examinee’s responses, (b) follow standardized procedures
(SEPT, 3.14). To be fully informed, the examinee and/or designated represen-
tatives should be told that the interpretation and translation may result in a
degree of imprecision in the test results, and the degree of imprecision will be
greater the more divergent the dialect or regional variation of the language of
the interpreter and the examinee. Standard 9.03(c) notes that it is the respon-
sibility of psychologists to ensure that their interpreters follow requirements
to maintain confidentiality of test results and maintain test security. The APA
Ethics Code emphasizes the need to state the limitations of one’s interpreta-
tions and opinions, and culture, ethnicity, or use of interpreters all potentially
call for limiting statements (Standard 9.06, Interpreting Assessment Results).
SGFP Guideline 10.03, Appreciation of Individual Differences, cautions
forensic practitioners to strive to identify any significant strengths and limita-
tions of their procedures and interpretations. It is not sufficient to state that
test results were interpreted “with caution.” The potential impact of linguistic
and cultural factors must be described with as much specificity as possible.
When measures are used that have not been standardized on the population
of which the examinee is a member, interpretations should include a state-
ment that the test results may misrepresent the examinee’s true psychological
state. When cognitive tests lacking adequate standardization with the specific
population have been administered, the possible underrepresentation of the
examinee’s true ability should be stated.
In addition to cultural issues related to psychological testing, cultural diver-
sity issues may affect the interview process and data collected from examinees
and collateral data sources. Authors have described the unique considerations
that may be relevant in interviewing collateral contacts, particularly the defen-
dant’s family members, in forensic evaluations of capital defendants for sen-
tencing (Cunningham & Reidy, 2001; DeMatteo, Murrie, Anumba, & Keesler,
2011). Subcultural variations in speaking to outsiders about private family
matters, in revealing history of domestic violence or substance abuse, shame
about poverty, and other such factors may cause the family members to be
incapable of providing accurate information, particularly if given only one
opportunity to do so. Special effort may be required to ensure that the collat-
eral contact understands the importance of providing an accurate picture of
(a) the background from which the defendant came, (b) being forthcoming
about the defendant’s early symptoms of difficulty and the relative availability
or absence of effective tools for intervention, (c) the history of chemical depen-
dency that may have influenced the defendant’s behavior, and (d) other such
issues that may be reflexively denied or hidden. Multiple interviews, occur-
ring over time and in the home or neighborhood of the collateral contact,
The Evaluation 101
may be necessary in order to overcome resistances borne of cultural issues.

The uniqueness of these kinds of assessment and the potential gravity of the
outcome warrant special consideration of cultural variations and particular
emphasis on the possible limitations of the psychological techniques employed
(Cunningham & Reidy, 2001).
Ethical challenges in the consideration of ethnic and cultural diversity pose
considerable difficulty for psychologists, as these considerations cut across
practice settings, age ranges, and psychopathological conditions. These chal-
lenges are faced not only by psychologists representing dominant U.S. demo-
graphics but also by those psychologists who are members of the minority
groups with whom they work, as many psychological measures were not
developed with such variations in mind and were not standardized on diverse
groups or specific populations (Bush, 2005a). Sustained attention and effort
on the part of the psychologist are required in order to obtain valid evaluation
results from members of ethnic or racial groups that differ from those upon
which the psychological measures used were developed and normed. How-
ever, with awareness of potential ethical pitfalls and ways to avoid them,
forensic psychologists can make appropriate referrals, seek assistance in trans-
lation or in cultural contours at play, and make appropriate statements about
assessment results (DeJesus-Zayas et al., 2012).
RECORD OR PEER REVIEWS
The majority of this chapter has focused on the psychological evaluation of

individuals; however, psychologists practicing in forensic contexts may also
be asked to make determinations about cases based solely on an examination
of records. These record or peer reviews often take one of two forms. First,
psychologists may be asked to render opinions about the work product (e.g.,
methods used and conclusions drawn about an examinee) of colleagues,
opinions that may impact the lives of those evaluated by colleagues. Second,
psychologists may be asked to render opinions about individuals involved in
a forensic matter based on review of records, without having personally eval-
uated the individuals. Psychologists who perform, or are considering per-
forming, such reviews should understand the relevant ethical standards and
guidelines, including the APA Ethics Code and Guidelines.
The APA Ethics Code directly addresses the issue of record review and
similar consultation. “When psychologists conduct a record review or provide
consultation or supervision and an individual examination is not warranted
or necessary for the opinion, psychologists explain this and the sources of
information on which they based their conclusions and recommendations”
(Standard 9.01c, Bases for Assessments). Thus, the APA Ethics Code deems it
to be consistent with ethical practice to rely on record review alone, in the
appropriate context; when that occurs, the psychologist needs to be clear in
representing the information upon which opinions are based.
The SGFP guidelines offer essentially the same guidance. SGFP Guide-
line 9.03, Opinions Regarding Persons Not Examined, was drafted with the
anticipation that forensic work may at times involve record review, consulta-
tion, or supervision that does not warrant an individual examination. SGFP
Guideline 9.03 cautions psychologists to follow Standard 9.01, Bases for Assess-
ments, to limit written or oral commentary about the psychological character-
istics of an individual to only those opinions for which the forensic examiner
has sufficient information or data to form an adequate foundation. SGFP Guide-
line 9.03 suggests making reasonable efforts to obtain data and documenting
those efforts, and when it is not feasible to examine the individual about
whom an opinion is being offered, striving to “make clear the impact of such
limitations on the reliability and validity of their professional products, opin-
ions, or testimony.” In that case, “forensic practitioners seek to identify the
sources of information on which they are basing their opinions and recom-
mendations, including any substantial limitations to their opinions and recom-
mendations.” Thus, there is consistency between the APA Ethics Code and the
Guidelines. Nonetheless, this issue may be a focus of cross-examination when
testimony is offered based on file review or without benefit of direct examina-
tion. Ultimately, when a skilled objection is put forth, the court may arbitrate
whether to allow such testimony or may provide instructions to the factfinder
on the weight to give testimony based on records review alone.
CASE 3: CUSTODY EVALUATION
The following case provides a sample of ethical challenges in court-mandated

child custody evaluations.
Case Facts
The custody evaluation of a family comprised of two parents and their chil-
dren was court mandated, and preliminary information provided by the court
support staff noted that the mother was a psychiatrist and the father was an
engineer. In meeting with each parent for initial discussions regarding the
evaluation, it became apparent that the mother was familiar with psycho
logical testing in general and that both parents were sophisticated consumers
of services, likely to have ready access to information about forensic psycho-
logical assessment.
The evaluator wanted to gather data using multiple reliable methods, but it
appeared that psychological testing might yield little reliable material, regard-
ing the mother specifically, under these circumstances. Uncertain whether to
proceed with the standard approach that she understood to be the most effica-
cious evaluation protocol, based on experience and training, or whether to
try to find alternative methods of measuring relevant domains, the evaluator
undertook an analysis of the ethical contours of the situation.
The Evaluation 103
Case Analysis
Using the mnemonic CORE OPT (Bush, Allen, & Molinari, 2017), the eval-
uator sought to clarify the ethical issue; identify the obligations owed to
stakeholders; utilize ethical and legal resources; examine personal beliefs
and values; consider options, solutions, and consequences; and put a plan
into practice. Then, she would take stock, evaluate the outcome, and revise
as needed.

The primary ethical issue was identified as a need to use a fair and just approach
to the assessment that would not necessarily advantage one parent over the
other. As part of obtaining informed consent, the evaluator intended to inform
these people, whose evaluations were court ordered, of the nature of the antic-
ipated services and to document this notification and the assent of the parties.
If the evaluator decided to forego the standard psychological testing she
ordinarily utilized and rely exclusively on document review, interviews, and
collateral contacts, she recognized that this would limit the multisource or
multimethod assessment recognized as important in a forensic examination;
yet she was not at all confident that testing would increase the reliability of
her opinions.
A secondary ethical issue was the possibility that the evaluator would over-
identify with the mother, a psychiatrist, or assume the mother had greater
parental insight or sensitivity because of her training. The evaluator felt a
keen need to examine whether this factor would impair her objectivity in any
way in performing her duties. She was sensitive to the father’s fears that the
mother would have an unfair advantage.

The evaluator considered her obligations to the stakeholders. These included
each parent and the children whose lives would be significantly affected by
the court’s ultimate determination of parenting time and responsibility.
Further, the court was clearly a stakeholder; the judge had ordered the eval-
uations in order to obtain relevant and reliable information to include in the
calculation of an appropriate determination of the children’s best interest. It
was by no fault of either parent that there was a significant difference in their
levels of sophistication regarding psychological testing, and yet both parents
could be affected, deleteriously or positively, by one or another assessment
protocol. Notably, the father had raised the concern during the preliminary
session, saying he recognized that his estranged wife was likely to do very
well on any psychological testing, because she understood the nature and
construction of the instruments and would know how to “throw” them.
There were two considerations at play, the actual fairness of the evaluator’s
protocol and the appearance of fairness. Even if the foreknowledge of testing
did not advantage the mother, the father might feel that she had a significant
advantage in the process.

The evaluator consulted the resources available for consultation, including
the APA Ethics Code and the SGFP Guidelines, her professional liability attor-
ney consultant, the attorney consultant made available to her by the certify-
ing organization that granted her board certification in forensic psychology,
and two trusted colleagues with whom she regularly consulted about difficult
professional matters. A review of pertinent sections of the APA Ethics Code
reminded the evaluator that her work must be based on established scien-
tific and professional knowledge of her discipline (Standard 2.04, Bases for
Scientific and Professional Judgments). Standard 3.10, Informed Consent,
was the evaluator’s guide in informing the parties at the outset that multiple
sources and methods would be employed. Finally, the evaluator examined
whether she might grant special respect to the mother as an allied profes-
sional (Standard 3.06, Conflict of Interest). She felt confident that her view
of the mother’s training would not impair her objectivity, competence, or
effectiveness in performing her function as a custody evaluator. She deter-
mined that the very fact she had considered this as an area of concern in the
first place reflected the exercise of appropriate caution and consideration,
and sensitivity to the father’s fears that the mother would have an unfair
advantage.
The guidelines point to the importance of multiple data sources in forensic
examinations (SGFP Guideline 9.02, Use of Multiple Sources of Information).
However, the guidelines also highlight the concerns held by the evaluator
regarding the need, in interpreting assessment results, to take into account the
test-taking abilities and other characteristics of the person being assessed that
might affect judgments or reduce the accuracy of interpretations (SGFP Guide-
line 10.03, Appreciation of Individual Differences, citing Standard 9.06, Inter-
preting Assessment Results).
The forensic evaluator called on trusted colleagues to consider with them
the alternatives she was considering. The advice and counsel she received
highlighted the importance of using the same methods of assessment for each
parent, using the methods that the evaluator regularly used in such assess-
ments, and including a discussion of the potential impact of the mother’s
foreknowledge in her interpretations and report. Her colleagues pointed out
that even though the mother had knowledge about the structure of the test
scales, she nevertheless could be quite honest and forthcoming in answering
questions. Further, through the multiple data sources, including interviews
with each parent, the children, and collateral sources of information, a con-
tradictory presentation of her functioning would very likely stand out if she
did attempt to manage the impression she was making by the answers she
provided. Finally, the discussion with her colleagues refined the evaluator’s
appreciation for the assessment of impression management included in the
protocol she regularly employed.

The evaluator next examined her personal beliefs and explored the possibility
that she felt threatened or intimidated by the mother’s training in a related
The Evaluation 105
field. In actuality, she was not sure how much training or experience the
mother had with psychological testing, and certainly she recognized that her
own training and experience was quite solid. She did not perceive herself to
feel intimidated and felt confident she could perform the evaluation as com-
petently as she generally did.

Options available were identified to include (a) omitting all testing from both
parents’ assessments, (b) omitting testing from the mother’s assessment but
including it in the father’s assessment, or (c) using less well-known instru-
ments to measure the domains of interest in the hope that the mother would
be less likely to be familiar with those instruments. The multimethod data
collection she regularly utilized included psychological testing, and eliminat-
ing that data source seemed too extreme a solution. Similarly, using less well-
known instruments, which lacked the research database of the instruments
she usually relied on, seemed to be a compromise that, while it might reduce
risk of the mother being familiar with them, was not fully justified. It did not
seem that this option would increase the father’s sense of the fairness of the
evaluation, because he would likely be unaware of the differential exposure
the mother might have had to each instrument. And certainly there was little
to recommend the option to administer the familiar battery to the father and
some less well-established battery to the mother. The likely consequences of
not proceeding with the assessment procedures that the evaluator ordinarily
employed in custody evaluations were that insufficient data would be gener-
ated to support her decision making, an unjust legal determination could
result, and one or more parents and/or the children could be harmed.

The psychologist used her typical assessment methods and procedures, being
particularly mindful of the potential for impression management on behalf
of the mother because of her possible familiarity with some assessment
measures.

As it turned out, the testing was quite productive of important considerations,
both for the mother and for the father. As the evaluator reflected later, in
taking stock and assessing whether her decisions were the right ones, she
recognized that a great deal of important data might have been lost had she
opted to limit or change her testing protocol in this case. The rich material
coincided with or underscored several important factors and strengthened
the evaluator’s findings. She included a paragraph in her report to the court
discussing the mother’s background and familiarity with psychological test-
ing, and the father’s expressed fear that she would be advantaged. In testi-
mony this issue was explored at some length, and the evaluator found that
she could confidently respond to challenges about how she had reasoned the
appropriate methods to employ and about the impact of the findings from
testing.
CONCLUSION
The forensic evaluation is the mainstay of most work performed by forensic

psychologists. It forms the basis for opinions offered in consultation and testi-
mony. Although guidelines and standards provide a framework for determin-
ing the correct course of action in many aspects of assessment, forensic
psychologists nevertheless may be faced with areas of ambiguity. For exam-
ple, determining the appropriateness of an online search for data regarding an
examinee, determining whether a supplanted test must be “retired” from
usage, or facing pressure from counsel or a court to alter one’s examination
paradigm can be challenges for which no easy answer is found in standards
and guidelines. Just as a multisource and multimethod process of data collec-
tion advances the formation of evidence-based forensic opinions, a structured
approach to ethical decision making that involves use of multiple resources
and consideration of an empirical evidence base promotes sound ethical
determinations regarding forensic psychological assessment.
5
Documentation of Findings
and Opinions
D ocumentation is the primary vehicle for preserving and conveying foren-

sic evaluation findings and opinions to attorneys, triers of fact, and other
decision-makers, with discussion and testimony being additional possible
means of conveying the information. The manner in which the forensic prac-
titioner’s evaluation results and conclusions are documented has implications
for their usefulness, and the nature and maintenance of the records are gov-
erned by ethical and legal requirements. This chapter describes ethical consid-
erations in the documentation of psychological findings and forensic opinions.
Specific issues that are covered include (a) forensic psychological records;
(b) scope of interpretation, (c) monitoring self-bias, (d) forensic reports,
(e) requests for raw test data and test materials, and (f) feedback about the
findings of the evaluation. A personal injury case illustration is also provided,
illustrating the dangers of neglecting steps in the CORE OPT model (see
Chapter 1, this volume, and Table 1.2) and of not maintaining a personal and
professional commitment to ethical practice.
FORENSIC PSYCHOLOGICAL RECORDS
Consumers of forensic psychological services have a right to expect and

receive competent services. For services to reflect competence, the opinions
offered must arise from “information and techniques sufficient to substantiate
http://dx.doi.org/10.1037/0000164-006
107
their findings” (American Psychological Association [APA], 2017a; Ethical

Principles of Psychologists and Code of Conduct; APA Ethics Code, Standard 9.01a,
Use of Appropriate Methods). The law requires that expert opinions, includ-
ing the methods of data collection and reasoning upon which they are based,
derive from techniques generally acceptable within the professional commu-
nity (Frye v. United States, 1923) and sufficiently grounded to withstand scientific
scrutiny (Daubert v. Merrell Dow Pharmaceuticals, Inc., 1993). It is generally the
documentation of one’s work that allows a reviewer to determine whether the
evaluation performed was relevant, reliable, and valid.
To enable review, psychologists have an ethical obligation to appropriately
document and maintain records of their work (Standard 6.01, Documentation
of Professional and Scientific Work and Maintenance of Records), and the
documentation must be accurate (Standard 5.01b, Avoidance of False or
Deceptive Statements). To address questions about which materials are con-
sidered “documentation,” the Specialty Guidelines for Forensic Psychology (SGFP;
APA, 2013) Guideline 10.06, Documentation and Compilation of Data Consid-
ered, states,
This documentation includes, but is not limited to, letters and consultations;
notes, recordings, and transcriptions; assessment and test data, scoring reports
and interpretations; and all other records in any form or medium that were
created or exchanged in connection with a matter.
Although practitioners may not naturally consider electronic communica-

tions with others to be part of the record, information obtained, expressed, or
exchanged via email or text messages or stored as voicemail may be subject to
discovery and review and should be preserved along with other case data.
SGFP Guideline 10.06 states, “Forensic practitioners are encouraged to rec-
ognize the importance of documenting all data they consider with enough
detail and quality to allow for reasonable judicial scrutiny and adequate dis-
covery by all parties.” However, determining the nature of documentation
that is “sufficient to withstand scrutiny in an adjudicative forum” and “the
best documentation possible” may be a difficult task. Documentation linked
to a competent evaluation and of sufficient detail to allow an independent
peer reviewer to arrive at similar conclusions or clearly identify how the con-
clusions in a report or testimony were reached would most likely withstand
adjudicative scrutiny.
Documentation throughout the process of forensic evaluation or treatment
is necessary to ensure that competent services are provided and to assist the
legal decision-maker. Following the provision of services, the availability of the
documentation for reviewers helps to establish that competent services were
provided. In addition, such documentation protects examinees, the public, and
the psychologist (APA, 2007; Barsky, 2012). The foreknowledge by forensic
psychologists that their records may be reviewed provides considerable incen-
tive to ensure that all facets of the evaluation process are performed in a
manner that reflects highest professional standards. Thus, maintaining appro-
priate records is consistent with the general ethical principles of beneficence,
Documentation of Findings and Opinions 109
nonmaleficence, and justice, and is an underpinning of competent forensic

psychological services to which consumers have a fundamental right.
SCOPE OF INTERPRETATION
The integration of scientific data and reasoning is important for relevant and
reliable psychological decision making. Psychological conclusions of value to
the trier of fact tend to be based on a combination of individualized (ideo-
graphic) and group referenced (nomothetic) approaches to data interpreta-
tion. Information specific to the examinee is collected and compared to the
performance of one or more groups of interest. Cognitive, psychopathologic,
or behavioral data that differ from the comparison groups must be under-
stood in terms of the individual’s unique life circumstances, with an emphasis
on variables that are known to affect such performance. Opinions based on
reasoning that lack either the ideographic or nomothetic approach are weaker
than when based on the combined approach. Standard 2.04, Bases for Scientific
and Professional Judgments, states, “Psychologists’ work is based upon estab-
lished scientific and professional knowledge of the discipline.” An opinion that
is not grounded in objective data and scientific principles may be insufficient
to meet the requirements of this standard.
Legal decision making tends to be dichotomous in nature, with referral
sources and triers of fact preferring definitive statements regarding diagnosis,
proximal cause, and other determinations relevant to the forensic issues at
hand. Requests or demands for definitive statements tend to conflict with the
more probabilistic statements that are generally acceptable to clinicians and to
clinical referral sources. There is risk in offering definitive statements in forensic
contexts that would traditionally have been offered as statements of possibility
in clinical contexts. Such statements may be seen as inaccurate or misleading,
in violation of Standard 5.01, Avoidance of False or Deceptive Statements, and
counter to SGFP Guideline 11.01, Accuracy, Fairness, and Avoidance of Decep-
tion. It is important for the psychologist, having conducted a thorough evalua-
tion, to assert opinions as strongly as the data merits, but to also describe the
limitations of those opinions. Opinions reported “with a reasonable degree of
psychological certainty” allow for the expression of confident opinions while
maintaining an acknowledged margin for potential error.
Psychological capacities are a component of many legal questions, such as
criminal responsibility, civil commitment, multiple legal competencies, and
custodial arrangements, and psychologists are often retained to evaluate and
comment on psychological issues pertaining to such questions. However, there
are occasions when the psychologist’s opinion regarding the legal question
itself is requested. There is vigorous debate on this issue within the forensic
community (Packer & Grisso, 2011; Pivovarova, 2017). There is no federal pro-
hibition against answering the legal question, often referred to as the “ultimate
issue,” and Federal Rule of Evidence (FRE) 704 (House of Representatives,
Committee on the Judiciary, 2018), with a specific exception regarding
criminal responsibility opinions provided in front of a jury, explicitly permits it.

In fact, 18 U.S.C. § 4247(c)(4) (General Provisions for Chapter, 2017) requires
the ultimate issue opinion within court-ordered forensic mental health reports
performed in the criminal setting. Additionally, most U.S. states permit or
require forensic experts to offer opinions about ultimate issues. However,
Heilbrun (2001) stated that the ultimate legal opinion is generally not the
appropriate focus for forensic mental health evaluations. Melton et al. (2018)
noted that when forensic practitioners venture to opine on the ultimate issue
before the court, they risk overstepping the bounds of competency by opining
about issues outside their areas of expertise or unsupportable by the data. Addi-
tionally, Grisso (2003) said, “An expert opinion that answers the ultimate legal
question is not an ‘expert’ opinion, but a personal value judgment” (p. 477).
Having reviewed the very limited empirical literature on this topic, Pivovarova
(2017) concluded that the “findings suggest that there may be no empirical
basis for prohibiting ultimate issue opinions by practitioners” (p. 266). An ulti-
mate issue opinion, which includes a description of the supporting evidence, is
one piece of information that the trier of fact can consider in making a determi-
nation. Refusing to offer such an opinion when asked may frustrate the legal
decision-maker who may not put great stock in differentiating the value-laden
ultimate opinion from the scientifically derived expert opinion, making it harder
for them to understand how the psychological factors of interest interact with
the legal matter.
Psychologists who practice in contexts in which it is expected or required
that they answer the legal question may make a special effort to temper their
opinions, by including cautionary language and caveats regarding the limita-
tions of, and potential influences on, their opinions. The following example
may be useful to consider when responding to an ultimate legal question. The
forensic psychologist is asked, “How do you think the court should apportion
parental responsibility for caregiving for this child?” The psychologist might
first briefly hesitate to allow time for objection to be offered. Then the psy-
chologist might preface the response by making an explicit statement about
that being the ultimate issue and, therefore, within the province of the trier
of fact, and then couch the opinion within that limitation, saying something
to the effect of,
Although that question is, of course, a matter for the court to determine, and the
court may have a great deal more information than I do to arrive at that deter-
mination, I can offer the following observations and opinions, based on the data
that I have collected. It is my opinion that . . .
Psychologists may be retained by attorneys or others to answer specific,

rather than general, questions. In such instances, psychologists may wonder
to what extent they should document potentially related issues that fall out-
side the question posed. For example, a psychologist may be asked to deter-
mine whether a plaintiff has objective memory deficits subsequent to a motor
vehicle collision. If the results of the evaluation reveal no cognitive deficits
but are consistent with adjustment-related depression, would it be appropriate
for the psychologist to simply state that memory was within normal limits, or
is the psychologist also responsible for reporting emotional disturbance? SGFP
Guideline 11.02, Differentiating Observations, Inferences, and Conclusions,
states, “Forensic practitioners are encouraged to explain the relationship
between their expert opinions and the legal issues and facts of the case at
hand.” SGFP Guideline 11.01 further states,
When providing reports and other sworn statements or testimony in any form,
forensic practitioners strive to present their conclusions, evidence, opinions, or
other professional products in a fair manner. Forensic practitioners do not, by
either commission or omission, participate in misrepresentation of their evi-
dence, nor do they participate in partisan attempts to avoid, deny, or subvert the
presentation of evidence contrary to their own position or opinion.
However, the forensic practitioner is also cautioned not to include data or

information extraneous to the legal question at hand (SGFP Guideline 11.04,
Comprehensive and Accurate Presentation of Opinions in Reports and
Testimony). To answer the hypothetical question posed at the beginning of
this paragraph, a thorough and appropriate response would be to describe the
adjustment-related depression and the potential impact of such emotional dis-
tress on the examinee’s subjective sense of concentration or memory problems
in daily life.
Although the psycholegal questions investigated by psychologists and
documented in reports may be specifically defined by the retaining party, the
psychologist’s responsibility in many instances extends beyond the narrow
scope of the referral question. For example, some referral sources may not
fully appreciate the potential psychological issues involved and, thus, may
not know how to pose the question they want answered. In addition, the con-
cept of due diligence underscores the psychologist’s ethical and professional
responsibility to address and document substantial medical or psychological
problems that are relevant but were not included in the referral question (Bush,
Barth, et al., 2005). Bush, Barth, et al. (2005) described the issue this way:
If failure to document another condition can result in harm to the examinee, the
option of nondisclosure may not be ethically viable. If this becomes a point of
concern, the neuropsychologist should seek clarification from the retaining
party regarding the reason for the limitation posed, present his/her reasoning
regarding the presence of a different condition, and consider the judiciousness
of accepting cases in which limitations are placed on independence. (p. 1001)
Similarly, even though the court may have narrowly defined a custody
evaluation referral, the psychologist would nevertheless need to include in
reports any other psychopathology or parenting behavior that would likely
impact upon the child’s well-being. For example, a psychologist asked to eval-
uate the potential impact of alleged alcohol abuse of one of the parents upon
that parent’s ability to provide for the needs of the child would also need to
describe issues of depression or anger that may coexist with alcohol abuse and
affect the child’s well-being, if such a situation was encountered. This does
not mean, however, that the evaluator must report extraneous data that,
however interesting or outrageous, has nothing to do with the child’s best

interests. An example might be the admission, on the part of the litigant, of a
transgression that occurred one time, many years before. If the litigant has
since demonstrated a clear pattern of acting more appropriately with respect to
that behavior or issue, and there is no apparent impact of the earlier behavior
on current functioning, then it may be inappropriate to include it in the report.
It would, nevertheless, be in the evaluator’s notes and records and thus be
discoverable.
Likewise, psychological evaluations conducted in criminal settings often
have quite specific referral questions, such as whether the defendant was
insane at the time of the alleged offense or competent to waive the Miranda
warning and confess at a particular time in the past. Ordinarily, it is prudent to
limit the scope of documented opinions regarding such matters to the referral
question, as well as the underlying clinical basis for the opinion. However,
when referral questions do not address current competency to proceed, and the
evaluator has concern about the defendant’s ability to understand the nature
and consequences of the proceedings or to assist properly in the defense, the
evaluator has an ethical responsibility to raise the question of the defendant’s
competency (APA General Principle A: Beneficence and Nonmaleficence).
Evaluators in the criminal setting have an ethical obligation to safeguard
defendants’ U.S. Constitutional rights—the 14th Amendment right to due pro-
cess necessitates a defendant’s competency to proceed (Denney, 2012a; Youtsey
v. United States, 1899). Because prosecuting an incompetent defendant violates
the defendant’s due process rights, evaluators must be cognizant of examinee
competency and raise the issue when worrisome mental health issues arise
that could affect competence to proceed.
The range of issues to be explored and potentially addressed in the report
should be anticipated so that the entire range of possibilities can be included
when gaining informed consent or providing notification of purpose. The
litigant needs to know and have time to consider, for example, that questions
may be asked about acting out in adolescence. When there is a sealed record
of juvenile adjudication, the litigant may need to have time to consult with
counsel regarding rights and responsibilities in responding to the examiner’s
question. Where an issue is irrelevant, because it has no impact upon the
question before the court, it legitimately can be, and generally should be,
omitted from the report. However, in global assessment of psychological func-
tioning, such as might be requested in a parenting assessment, virtually no
issue can automatically be assumed to be irrelevant, and caution is in order
when considering whether to omit a finding.
MONITORING SELF-BIAS
Forensic psychologists must be keenly aware of the internal and external

challenges to objectivity in both their data collection and documentation as
there are invariably great stakes in the outcome and reasons for each side in
the adversarial legal process to view things quite differently. It is essential to

strive to maintain independence and autonomy from external pressures and
to carefully monitor one’s efforts to identify and exclude internal tugs at
partisanship. Failure to consider the possibility of self-bias in forensic prac-
tice may represent compromised professional integrity.
SGFP Guideline 9.01, Use of Appropriate Methods, states,
When performing examinations, treatment, consultation, educational activities,
or scholarly investigations, forensic practitioners seek to maintain integrity by
examining the issue or problem at hand from all reasonable perspectives and
seek information that will differentially test plausible rival hypotheses.
Psychologists involved in forensic practice must be sensitive to potential sources

of bias and guard against the impact of such biases on their work. Although
biases may impact data collection and interpretation, their influence tends to
become evident in the practitioner’s documentation and testimony.
Financial Incentive
The potential for immediate or future financial gain provides considerable

incentive for professionals to obtain and present findings that support the
position of the retaining party. Although it may be that some attorneys are
interested in objective psychological conclusions, whether or not their posi-
tions are supported, it is certain that a substantial number of attorneys only
want to receive psychological reports that unequivocally support their posi-
tion. Psychologists must guard against threats, however subtle, to their objec-
tivity resulting from financial considerations or from the social pressure to be
a part of “the team.” Boccaccini, Murrie, and colleagues (Boccaccini, Turner,
& Murrie, 2008; Murrie, Boccaccini, Johnson, & Janke, 2008) found that
forensic psychologists who conducted assessments of future danger among
allegedly sexually violent predators for purposes of legal determinations of
the need for civil commitment opined in the direction of the retaining party,
scoring tests in a way that would support the finding. A subsequent experi-
mental study found that this scoring pattern occurred even when experts
were randomly assigned to sides, ruling out the possibility of it being attribut-
able to attorneys being shrewd in selecting only those experts who they
believed would be favorable to their side (Murrie, Boccaccini, Guarnera, &
Rufino, 2013). This important research confirmed the worst suspicion that
practitioners might tend to “dance with whomever brought them,” a most
distressing finding and one that should serve as a wake-up call to all forensic
psychologists. These researchers (Chevalier, Boccaccini, Murrie, & Valora,
2015) found evidence of adversarial allegiance in test score interpretation and
“bias blind spots” in how instruments were scored and data were integrated.
They found that evaluators could acknowledge the possibility of bias in other
evaluators but not in themselves. These findings alert forensic psychologists
to the need for continuous monitoring and for assuming bias will creep into
work in an adversarial setting.
Inferential Bias
Coexisting with the potential for financially motivated or partisan bias is the
susceptibility of psychologists to inferential bias (Deidan & Bush, 2002). The
use of general rules (e.g., heuristics) in the inferential process can result in
biases (Faust, 1986) and lead to ethical misconduct. Inferential biases include
(a) the availability and representative heuristics, (b) fundamental attribution
error, (c) anchoring, (d) confirmatory hypothesis testing, and (e) reconstruc-
tive memory. Adverse effects of inferential bias for psychologists include mis-
diagnosis, inappropriate treatments, exacerbation of symptoms, and inaccurate
expert opinions. Although these biases may occur in nonforensic psychology
practices, the potential for referral sources to repeatedly select practitioners
with biases that support their positions may reinforce the bias for the practi-
tioner. Brief descriptions of these five inferential biases follow.
Availability and Representative Heuristics

The availability heuristic (Kahneman & Tversky, 1973) occurs when the psy-
chologist attempts to determine the frequency of occurrence of a particular situ-
ation, such as a certain diagnosis. Situations stemming from information that
is readily available in the psychologist’s memory (e.g., frequently encountered
diagnoses) are perceived as being more likely to occur, and the psychologist is
unlikely to search for less accessible alternative explanations.
The representative heuristic (Kahneman & Tversky, 1973) involves catego-
rizing information according to how closely it approximates the characteristics
of certain groups. For example, psychologists may classify examinees as prob-
able malingerers or unlikely malingerers based on their experience with prior
examinees with similar traits, symptoms, injuries, or other characteristics.
Fundamental Attribution Error

Fundamental attribution error is the tendency for individuals involved in a
situation to overattribute their behaviors to situational requirements and for
observers of the same situation to over attribute the individual’s behaviors
to stable personal characteristics (Ross, 1977). This dynamic makes it more
likely for psychologists to attribute examinee symptoms or issues to character
traits, although examinees will be more likely to attribute their symptoms or
issues to external factors.
Susceptibility to this type of error may result from education and training
paradigms and from philosophical positions that psychologists may adopt as
a result of their experiences. Psychologists make judgments about diagnostic
conditions based on their professional experiences and their interpretation of
the psychological literature. For example, an expert with considerable expe-
rience evaluating persons with a history of traumatic brain injury (TBI) may
erroneously diagnose TBI-related problems when symptoms have psychi-
atric etiology, whereas a psychologist experienced in evaluating and treating
psychotic disorders may infer psychogenic etiologies for TBI sequelae. Some
examiners hold extreme positions with regard to certain diagnoses, to the
extent that the specific details related to a certain case may have little impact
on the opinions rendered. Applying predetermined or formulaic conclusions
to individual cases is inconsistent with ethical practice (Standard 9.06, Inter-

preting Assessment Results; Standard 3.01, Unfair Discrimination).
Anchoring
Anchoring involves failure to revise initial impressions, beliefs, or preconcep-
tions despite being faced with new, contradictory information. In psycholog-
ical practice, anchoring may be seen (a) in the formation of preconceptions or
opinions from information attained prior to meeting, interviewing, or evalu-
ating an examinee (i.e., prior knowledge); or (b) in the formation of precon-
ceptions or opinions from previous conditions or diagnoses associated with an
examinee (i.e., labeling; Cantor & Mischel, 1979). Psychologists’ opinions
may also become biased by the timing of receipt of information about an
examinee, with information obtained first carrying greater weight than infor-
mation obtained later. Preconceived impressions tend to remain durable;
once formed, they are difficult to change. This primacy effect may be some-
what ameliorated by arranging to hear from parties adverse to the source
of initial input on the assumption that some “recency bias” might counter
balance the earlier effect.
Confirmatory Hypothesis Testing Bias

Use of a hypothesis-testing approach for gathering background information
or selecting tests is useful for pursuing information that is considered to be
most relevant to specific referral questions and the unique circumstances of
each case. However, pursuing information in such a manner as to selectively
influence the information obtained in order to support initial beliefs is known
as confirmatory hypothesis testing bias (Snyder & Campbell, 1980). Confir-
matory hypothesis testing bias can result in psychologists eliciting incomplete
or inaccurate information.
Reconstructive Memory
Filling in gaps in memory or altering memory to make it consistent with cur-
rent experience is known as reconstructive memory (Wells, 1982). Although
reconstructive memory decreases the likelihood that information will be recalled
accurately, people nevertheless tend to be overconfident in their memories and
their ability to reconstruct events, conversations, or other important events
and information after a period of time has lapsed. This type of bias in examin-
ers may be particularly relevant for practice activities that involve evaluation
or other psychological services provided for a number of hours across multiple
sessions. Delays in completing notes or reports increase the likelihood that
some information will be forgotten and later replaced by information that
confirms current opinions.
Addressing Self-Bias Proactively
Remaining aware of the potential for bias in formulating opinions is neces-

sary but not sufficient to avoid falling victim to bias. Taking steps to minimize
potential sources of bias and their impact on psychological opinions should
be considered an integral component of the forensic evaluation (Brodsky,

2013; Martelli, Bush, & Zasler, 2003; Neal, 2017; Sweet & Moulthrop, 1999).
Strategies designed to minimize the potential for bias may involve consider-
ation of alternative explanations that may disconfirm initial hypotheses (Arkes,
1981; Arnoult & Anderson, 1988; Neal & Brodsky, 2016), writing explicit argu-
ments for and against proposed opinions (Fischhoff, 1982), and generating
self-examination questions when formulating opinions (Sweet & Moulthrop,
1999). To reduce the potential influence of inferential biases, Deidan and Bush
(2002) offered multiple recommendations specific to each of the inferential
biases discussed above.
FORENSIC REPORTS
The written report is the primary vehicle by which the forensic psychologist
communicates opinions about the forensic issues of interest that may assist
the legal decision-maker. Although written reports are not required for all
forensic services, the vast majority of forensic referrals result in a written
report (Melton et al., 2018). Forensic psychological reports tend to differ from
clinical reports. Authors of forensic mental health texts describe the elements
to be included in forensic reports (e.g., Barsky, 2012; Bartol & Bartol, 2019;
Heilbrun, 2001; Karson & Nadkarni, 2013; Melton et al., 2018; Otto, DeMier,
& Boccaccini, 2014). Minimally, a forensic report includes the purpose of the
evaluation, the methods and procedures employed, the results, and the con-
clusions. The report should be sufficiently detailed and scientifically based to
allow the reader to follow the genesis of the writer’s conclusions or opinions
(Heilbrun, 2001). Although in some cases the report is the end product of the
forensic consultation, in other cases testimony, by deposition or in court, is
required, and an organized and well-supported report can serve as the foun-
dation for organized, well-supported testimony (Heilbrun, 2001). In contrast,
a poorly written report may be used to discredit and embarrass the practi-
tioner (Melton et al., 2018). Careless errors such as (a) wrongly stating the
age or gender of the examinee, (b) cutting and pasting from a template and
failing to thoroughly redact material from a prior assessment, (c) failing to list
all instruments administered, (d) spelling instrument names incorrectly, and
(e) other such errors detract significantly and reduce the examiner’s credibility
and professionalism in the eyes of the consumer.
SGFP Guideline 11.03, Disclosing Sources of Information and Bases of
Opinions, states,
Forensic practitioners are encouraged to disclose all sources of information
obtained in the course of their professional services, and to identify the source
of each piece of information that was considered and relied upon in formulating
a particular conclusion, opinion, or other professional product.
In addition to listing sources of information used, full disclosure includes

acknowledging those resources that may have been of value but were
unavailable.
Psychologists may be asked to modify reports with regard to format and/or

content. However, any submitted report should be considered final for its
purpose. When factual errors are found subsequent to the release of the
report or the referral question has not been adequately addressed, the exam-
iner may elect to append the corrected or additional information in an amend-
ment or addendum to the report or create a corrected version of the report.
In such instances, the practitioner clearly documents within that report that
it is a corrected version and provides the rationale for the change. An amend-
ment or addendum, rather than a revision, may be preferable because it is less
likely that confusion will arise about the final opinion, and how it clarifies or
adds to any earlier conclusions. The question, “Doctor, just how many reports
of yours on this matter are floating around out there?” would be an unpleasant
one to face. An amendment or addendum, clearly titled as such, is less vul-
nerable to such criticism.
A request to modify a report that comes from an invested party and reflects
that party’s self-interest in the outcome of a case represents a request for the
psychologist to become a biased advocate, rather than an objective expert
(Bush, Barth, et al., 2005). Such requests should be considered cautiously.
There are very few acceptable reasons to modify reports once they have been
completed, and any modification must ultimately reflect the beliefs of the
psychologist rather than those of any other party.
Reproducing Examinee Statements
In criminal evaluation contexts, reproducing defendants’ statements in psycho

logical reports has the potential to violate the defendant’s due process rights.
This issue clearly arises when evaluating the sanity (mental state at the time
of the alleged offense) of a defendant whose competency to proceed has not
been established; however, it can also arise during a simple competence
examination. When a defendant’s competency to proceed is questionable, his
or her ability to fully appreciate the limits of confidentiality and right to waive
Fifth Amendment rights to silence and avoidance of self-incrimination are
also potentially questionable. Within the federal jurisdiction, there are statu-
tory safeguards (FRE 12.2[c][4], House of Representatives, Committee on the
Judiciary, 2018) that ostensibly do not allow statements or “fruits” of the
statements made to the examiner to be admitted into evidence against a
defendant for criminal prosecution (Denney, 2012b); however, counsel for
defense understandably tends to remain wary in such situations. When a
potentially incompetent defendant discloses self-incriminating information
during a competence to proceed examination, it is incumbent on the forensic
examiner to limit disclosure of that material within the report to the mini-
mum required to support the clinical and forensic decision making (Denney
& Wynkoop, 2000).
To determine whether the defendant has a rational as well as factual under
standing of the alleged crime, it is important for the examiner to discuss the
defendant’s perception of the allegations and his or her recollection of his
behaviors at the time of the offense (whether they relate to the allegations or
not). Covering this material during interviews allows the examiner to estab-
lish that the defendant has recollection sufficient to aid counsel in assisting
with a defense and it also investigates the defendant’s reasoning related to
the alleged offense. Oftentimes it suffices for the examiner to write that the
defendant was able to recall events and his behaviors at the time of the alleged
offense without disclosing details of those actions. However, when the defen-
dant is mentally ill, those abnormal thoughts or manner of expressing his
thoughts at the time may be part of the basis for the diagnostic and forensic
formulations and may need to be disclosed in the report. The examiner should
seek to limit incriminating details when possible. In instances where the
examiner must disclose details because they demonstrate severe mental ill-
ness (and/or incompetence), the examiner’s ethical dilemma is to determine
how to disclose these necessary details while trusting the court to protect the
rights of the defendant. One possible way to alleviate some of that concern is
to contact the court directly and voice those concerns (in the case of court-
ordered or prosecution-referred examination). In defense-referred examina-
tions, the examiner need only discuss the issue with the defendant’s counsel
to seek how best to proceed.
Evaluating sanity generally requires, among other procedures, interviewing
the defendant about the details of the alleged offense to better understand the
defendant’s intent, motivation, planning, organization, thought process, and
general mental status at the time of the offense (in essence, it assumes the
behaviors constituting the offense truly occurred). Reproducing a defendant’s
recollected details of a crime has the potential to further the prosecutorial
investigation by providing important clues and “leads” that were previously
unknown. As a result, the defendant could inadvertently provide a confes-
sion that gives the prosecution additional information to follow up on and use
against him or her (FRE 12.2[c]; House of Representatives, Committee on the
Judiciary, 2018, notwithstanding). There is little concern when the defendant
is clearly competent to decide how much incriminating information he or she
wants to provide the evaluator. The issue is also moot when the defendant
does not provide incriminating information. However, when the competency
of the defendant is clearly questionable or the information the defendant
provides is not only incriminating but also an integral factor in the clinical
formulation for a diagnosis or ultimate-issue opinion, the psychologist faces
the same dilemma outlined above regarding competency examinations—
whether to provide incriminating information in the report regarding a ques-
tionably competent defendant or not be able to explain the rationale for the
forensic opinion. Both situations are ethically onerous. As noted earlier, one
effective strategy in dealing with this dilemma is contacting the court directly
prior to writing the report to voice the concern (in the case of a court-ordered
or prosecution-referred examination) or contact the defense counsel directly
in a defense-referred examination.
Court-ordered examinations oftentimes include the requirement to exam-
ine both competence to proceed and sanity at the same time. One option to
resolve the conundrum of potentially incriminating self-disclosure during

sanity-related interviewing is to provide separate documents—a report
addressing the defendant’s competency and an addendum addressing the
defendant’s sanity. The main report contains all the standard clinical informa-
tion leading to a diagnosis, as well as current mental status and competency
issues. The addendum contains information relating to the investigative details
of the offense, the defendant’s explanation and description of the offense, and
the forensic opinion regarding sanity. The examiner still needs to remain
mindful of limiting inclusion of potentially incriminating self-report in the
competency portion of the report, however. This method of report writing
works particularly well when responding to court-ordered evaluations, because
the report and addendum can be sent to the court with a cover letter explain-
ing that the two topics were separated due to Fifth Amendment issues. This
information provides the court with the opportunity to release competency-
related material first to resolve questions of the defendant’s competency. The
addendum can then be released to the defense for consideration of a sanity
defense and to the prosecution if the defense intends to pursue a sanity
defense. In this manner, the court effectively protects the defendant’s consti-
tutional rights, and the forensic examiner avoids an ethical conundrum. The
issue is generally less of a concern when the evaluation is requested by the
defense, depending on work product rules in that particular jurisdiction
(Melton et al., 2018).
Preliminary Reports
It is the practice of some psychologists who perform clinical evaluations and

treatment in a forensic context to write a report that is considered, and may
be labeled, a preliminary report, with the expectation that a “forensic” report
may later be requested and produced. Such reports may list the differences
between preliminary-clinical reports and more conclusive-forensic reports in
the body of the report. This practice invites the establishment of dual and
conflicting roles that occur when transitioning from a clinical examiner to a
forensic examiner.
In addition to inviting role conflicts, the use of preliminary reports may be
problematic because they are generally offered when not all of the data have
been collected, with the caveat that the report will be supplemented when
the remaining data are available. The problem with such a practice is that it
demonstrates that the evaluator has come to a conclusion of some sort with-
out data that were considered to be important enough to have been sought.
The following sections are taken from a hypothetical “Preliminary Psycho-
logical Examination Report”:
Introduction section. The purpose of this preliminary psychological evaluation was
to examine the patient’s psychological functioning from the perspective of her
self-reported symptoms, cognitive abilities, emotional state, personality traits,
behavioral presentation, disability status, and causality. This evaluation is consid-
ered preliminary because (a) not all potentially relevant background information
has been reviewed; (b) self-reported information has not been corroborated by
additional, reliable sources; and, (c) psychometric assessment of symptom valid-
ity has not been performed; and (d) alternative explanations for reported and
observed difficulties have not been thoroughly considered.
Conclusions section. The results of the evaluation are consistent with a post-
traumatic stress disorder. The disorder is causally related to the event in ques-
tion. The nature and extent of psychological deficits is consistent with a total
disability. However, the background information reported by the patient was
taken at face value and requires verification by additional sources. . . . This eval-
uation, despite being preliminary, is considered complete and objective.
The lines from this hypothetical report raise questions of appropriateness

for a number of reasons. First, the report is labeled “preliminary,” suggesting
that it is being released prematurely, before the necessary information has
been obtained and considered. Despite these limitations, the examiner goes
on to address forensic issues, such as causality and disability status, in the
absence of information that the examiner acknowledges is important. Finally,
the examiner makes the unsupported self-appraisal of objectivity, despite the
existence of statements that are consistent with partiality. As noted in Chap-
ter 3, use of preliminary reports should be avoided. Reports that are released
should be considered final for the purposes for which they are provided.
Requests for preliminary reports can be addressed by educating the requesting
party about the limitations and risks of providing opinions based on incomplete
information. If a tentative formulation must be provided, the confidence placed
in the opinion should be tempered, with notation of the specific implications of
not having all relevant information.
TEST SECURITY AND RELEASE OF RAW DATA
The disclosure of raw test data to nonpsychologists, as may be required in

forensic practice, presents a unique problem for psychologists (Rapp, Ferber,
& Bush, 2008). The problem involves determining how to balance the discov-
ery rules, which provide disclosure of the underlying data parties will rely on
at trial, against the psychologist’s ethical responsibilities and contractual obli-
gations regarding the test publisher’s proprietary testing materials. For litiga-
tion purposes, there is a well-established necessity to disclose the sources of
information and methods upon which an expert’s opinions are based. FRE 705
(House of Representatives, Committee on the Judiciary, 2018) states that “the
expert may testify in terms of opinion or inference and give reasons therefore
without first testifying to the underlying facts or data, unless the court
requires otherwise. The expert may in any event be required to disclose the
underlying facts or data on cross-examination.” In contrast to the benefits of
disclosure in litigation, far reaching negative consequences may flow from
wide dissemination of psychological evaluation methods and procedures. As
a result, psychologists working in forensic contexts may struggle with how to
negotiate the competing legal demands (e.g., copyright law vs. discovery law)
and competing legal and ethical requirements.
The APA Ethics Code distinguishes test materials from test data. “The term
test materials refers to manuals, instruments, protocols, and test questions or
stimuli” (Standard 9.11, Maintaining Test Security). Test materials do not include
test data (as defined in Standard 9.04a). Standard 9.11 states, “Psychologists
make reasonable efforts to maintain the integrity and security of test materials
and other assessment techniques consistent with law and contractual obliga-
tions, and in a manner that permits adherence to this Ethics Code.” Thus, the
APA Ethics Code recognizes the importance of safeguarding psychological tests
to avoid potential damage that would result to the profession and potential
examinees and parties in future cases if such measures were made available to
those who were not qualified to use them.
In contrast to test materials, test data are defined in Standard 9.04a, Release of
Test Data, as “raw and scaled scores, client/patient responses to test questions
or stimuli, and psychologists’ notes and recordings concerning client/patient
statements and behavior during an examination.” In order to address the
problem of physically separating the test data from the test materials, Stan-
dard 9.04(a) states, “Those portions of test materials that include client/patient
responses are included in the definition of test data.” Clarification from the APA
Ethics Office indicated that once test materials have responses written on
them, they “convert” to test data (Behnke, 2003). This position suggests that
test materials, which enjoy protection under Standard 9.11, Maintaining Test
Security, are no longer test materials and no longer enjoy such protection once
they have answers written on them. This same premise apparently applies to
test materials that are reproduced by examinees as their responses, such as
verbal learning tests and visual reproduction tests.
Despite the efforts of the drafters of the APA Ethics Code to separate test
materials and test data, such separation is artificial and impossible for many
commonly used tests. For example, with a list learning test, the words that
are repeated back by examinees (test data) are exactly the same as the words
that were read to them (test materials). The same situation occurs with visual
reproduction tests: the examinee’s reproduction (if correct) is considered test
data and is exactly the same as the stimulus that was shown to the examinee
(test materials). Thus, the test data and materials are exactly the same in these
instances and cannot be separated as the APA Ethics Code attempts to do.
Bush et al. (2010) stated that “test materials and test data deserve equal protec-
tion under the general rubric of test security” (p. 179).
Regarding release of test data, Standard 9.04(a) states, “Pursuant to a client/
patient release, psychologists provide test data to the client/patient or other
persons identified in the release.” That is, according to the APA Ethics Code,
psychologists are to provide test data to anyone that the client/patient speci-
fies. In many forensic contexts, the attorney or court may determine to whom
the data are released. Standard 9.04(a) does offer exceptions to the obligatory
release at the behest of the client/patient:
Psychologists may refrain from releasing test data to protect a client/patient or
others from substantial harm or misuse or misinterpretation of the data or the
test, recognizing that in many instances release of confidential information
under these circumstances is regulated by law.
Celia Fisher, PhD, former chair of the APA Ethics Code Task Force, defined
substantial harm as “reasonably likely to endanger the life or physical safety of
the individual or another person or cause equally substantial harm” (Fisher,
2003, p. 12). Fisher cautioned, however, that before refusing to release test
data under the “substantial harm” clause in Standard 9.04(a), psychologists
should carefully review relevant law.
The misinterpretation or misuse clause may pose greater challenges for psy-
chologists. Psychologists may wonder, “How could data not be misinterpreted
or misused in the hands of those not trained to interpret them?” They may
further wonder, “How could misinterpretation or misuse not be harmful?”
When psychologists have undergone years of education and training to be
competent to interpret psychological tests, they may find it unlikely that people
who lack such training could interpret those tests appropriately. Bush, Rapp,
and Ferber (2010) noted that a client’s test answers are meaningless without
the psychologist’s analysis and, therefore, are likely to be misinterpreted by
anyone other than a qualified psychologist.
Psychologists should avail themselves of additional sources of ethical
and legal authority that address this issue. The Standards for Educational and
Psychological Testing (SEPT; American Educational Research Association,
American Psychological Association, & National Council on Measurement in
Education, 2014) Cluster 3 (Test Security and Protection of Copyrights)
informs test users of their responsibility to protect the security of tests. SEPT
Standard 9.21 states, “the rigorous protection of test security is essential, for
reasons related to the validity of inferences drawn, protection of intellectual
property rights, and the costs associated with developing tests” (p. 147). Addi-
tionally, SEPT Standard 9.23 indicates that clinicians should inform patients
(i.e., retaining parties in forensic cases) of copyright issues and prohibitions
on the disclosure of test items. The SGFP guidelines offer general statements
regarding test data. “Forensic practitioners seek to provide information about
professional work in a manner consistent with professional and legal stan-
dards for the disclosure of test data or results, interpretation of data, and the
factual bases for conclusions” (SGFP Guideline 10.05, Provision of Assessment
Feedback). The SGFP guidelines do recognize the importance of test security in
the context of third party observers (SGFP Guideline 10.06, Documentation
and Compilation of Data Considered). When responding to discovery requests
and providing sworn testimony, forensic practitioners strive to have readily
available for inspection all data which they considered, regardless of whether
the data supports their opinion, subject to and consistent with court order,
relevant rules of evidence, test security issues, and professional standards
(SGFP Guideline 11.01, Accuracy, Fairness, and Avoidance of Deception).
Laws regarding access to medical records must also be considered. Courts
are frequently more interested in relevant laws than in psychological ethics.
Additionally, laws supersede ethics. Kaufmann (2009) noted,
Best record release practices recognize the supremacy of the law, and that legal
requirements vary with the jurisdiction in which the case is being heard.
Psychologists managing a forensic consulting practice must be aware of jurisdic-

tional law governing their roles, even when the court and the attorneys involved
may not. (p. 1140)
There are multiple legal justifications for psychologists to maintain test

security. The discovery laws defined by the Federal Rules of Civil Procedure
(Fed. R. Civ. P.; House of Representatives, Committee on the Judiciary, 2019)
should be considered. According to Fed. R. Civ. P. 26 (House of Representatives,
Committee on the Judiciary, 2019), litigants are entitled to have access to
“any matter, not privileged, which is relevant to the subject matter involved in
the pending action . . .” (Fed. R. Civ. P. 26[b][1]; House of Representatives,
Committee on the Judiciary, 2019). However, Fed. R. Civ. P. 26 (c)(7); House of
Representatives, Committee on the Judiciary, 2019) allows the court to “make
any order which justice requires to protect a party or person.” Specifically, this
rule empowers the court to “enter an order that a trade secret or other confidential
research, development, or commercial information not be disclosed or be disclosed
only in a designated way . . .” [emphasis added]. There is no federal statutory
psychologist nondisclosure privilege regarding test data and test materials spe-
cifically, although many states recognize the importance of protecting the
integrity of psychological tests and appropriate test interpretation.
Psychologists also have contractual obligations regarding intellectual prop-
erty rights. Federal law grants copyright owners (e.g., test publishers) the
exclusive right to copy and distribute copyrighted works (Exclusive Rights in
Copyrighted Works, 2017) When psychologists purchase tests and test forms,
they agree to comply with federal copyright law.
Statutory laws provide guidelines for psychological practice in general but
frequently do not adequately address the activities of psychological specialties
such as forensic psychology. In such instances, case law can provide clarifica-
tion. In Detroit Edison Co. v. NLRB (1979), the U.S. Supreme Court determined
that psychologists should not release raw data and psychological test materials
to nonpsychologists. Additionally, although protective orders may be consid-
ered as a means of safeguarding test security in litigation, all of the U.S. Supreme
Court justices in this case expressed reservations regarding the effectiveness
of protective orders, noting potential problems with both inadvertent and
intentional wrongful disclosure by the parties that are allowed access to the
records. Courts have held that components of the Minnesota Multiphasic
Personality Inventory are protected by copyright law (e.g., Applied Innovation,
Inc. v. Regents of the University of Minnesota, 1989), and it has been argued that
standardized tests, such as those designed to evaluate cognitive and emo-
tional functioning, may be copyrighted as “secure tests” (Carpenter v. Superior
Court, 2006), similar to the Law School Admission Test (see Chicago Board of
Education v. Substance, Inc., 2003 [involving the Chicago Academic Standards
Exams]).
In Ochs v. Ochs (2002), a New York court determined that the defendant
should not have access to the raw psychological test data used by a forensic
psychologist in a child custody dispute. Kaufmann (2005) noted that the
court emphasized that disclosure of such material leads to a lengthy and

expensive critique of the psychologist’s methodology rather than the psychol-
ogist’s conclusions. The court stated that such lengthy examination of neuro-
psychological evaluation techniques undermines the future effectiveness of
the tests, because responses to item by item analysis would read psychometric
test items directly into the public record of the court proceeding and that such
disclosure should occur only for circumstances such as deficiency, bias, or
other error in the report. A U.S. District Court in the District of Columbia
ruled in Chiperas v. Rubin (1998) that neuropsychological test data should not
be disclosed to a psychiatrist who did not have the qualifications and train-
ing necessary to understand such data. These cases demonstrate that courts
understand the importance of test security.
Finally, the question arises of the obligation to include test data as part of
the records that must be released under the Health Insurance Portability and
Accountability Act of 1996 (HIPAA). In forensic evaluation contexts, some
HIPAA constraints may not be relevant (Connell & Koocher, 2003; Fisher,
2003). HIPAA states that information compiled in anticipation of use in civil,
criminal, and administrative proceedings is not subject to the same right of
review and amendment as is health care information in general. In contrast,
Borkosky, Pellett, and Thomas (2014), having considered this issue in detail
from multiple perspectives, noted that HIPAA has no exclusion criteria based
on type of service, only inclusion criteria for providers, and concluded that
“the evidence strongly suggests that, for those forensic mental health prac-
titioners who are covered entities, HIPAA does apply to forensic evaluations”
(p. 1). Additionally, Fisher (2003) opined that “HIPAA does not recognize the
protection of test materials as a legitimate reason to withhold designated
record sets appropriately requested by a client/patient” (p. 12). Lamade (2017)
advised,
To understand their HIPAA obligations, forensic practitioners must consider the
setting in which they are providing services and determine if they are employed
by a HIPAA-covered or exempt entity, as well as clearly define the services they
are providing. . . . Applicable rules may be less obvious for practitioners in private
practice . . . forensic evaluations are not always subject to HIPAA penumbra . . .
forensic therapeutic services, including legally mandated therapy services and
treatment provided to those in legal custody, are likely to fall into a gray area. For
those who practice in these contexts, consultation with appropriate authorities to
address questions and clarify HIPAA requirements can help ensure compliancy.
(pp. 84–85)
Scholars continue to describe the application of the HIPAA Privacy Rule as

complex, unclear, and difficult to understand, particularly in forensic contexts
(e.g., Knapp, VandeCreek, & Fingerhut, 2017). Psychologists whose practices
involve hybrid roles consisting of both direct forensic services (e.g., hired by
attorneys) and clinical services provided in medicolegal contexts are more
likely to be subject to HIPAA requirements. If the HIPAA rule applies for even
one patient, then the entire practice is subject to the requirements at that
time (Bennett et al., 2006; Knapp et al., 2017).
Fisher (2003) stated, “The extent to which HIPAA, state privacy rules, and
Standard 9.04 of the Ethics Code will conflict with test copyright laws will be
determined over time” (p. 12). Such clarification was provided by Richard
Campanelli, Director of the Office for Civil Rights at the U.S. Department of
Health and Human Services, the Office responsible for the administration of
HIPAA. Mr. Campanelli stated,
Any requirement for disclosure of protected health information pursuant to the
Privacy Rule is subject to Section 1172(e) of HIPAA, “Protection of Trade
Secrets.” As such, we confirm that it would not be a violation of the Privacy Rule
for a covered entity to refrain from providing access to an individual’s protected
health information, to the extent that doing so would result in a disclosure of
trade secrets. (Pearson Assessments, 2018)
Thus, HIPAA does not prohibit psychologists from withholding test materials
and data that incorporates test materials when the disclosure would reveal
trade secrets.
The APA Ethics Code (Standard 9.04b, Release of Test Data) permits psy-
chologists to release data, without client/patient consent, in response to a
court order or other legal authority. However, psychologists need not auto-
matically release data in such situations without taking steps to safeguard test
materials. When conflicts between legal and ethical requirements exist, psy-
chologists should strive to meet the requirements of both demands (Stan-
dard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing
Legal Authority). In cases in which no solution adequately satisfies both
demands, psychologists “ultimately must let their own personal conscience
guide them” (Iverson & Slick, 2003, p. 2032). They should be cognizant, how-
ever, that running afoul of their professional ethics code and/or the law may
place them in a difficult situation.
Access to raw test data and materials can be limited to psychologists, or a
protective order can be obtained, to maximize test security and minimize the
potential for harm, and still conform to discovery rules. In instances in which
a psychologist is required by a court to release raw test data or materials to
nonpsychologists, the psychologist should make known the relevant con-
cerns, in writing or “on the record,” and then follow the directive of the law,
which is consistent with the Introduction and Applicability section of the
APA Ethics Code. Kois (2017, p. 137) offered specific language that can be used
as a warning regarding the appropriate and permissible use of the materials.
The warning covers the copyright issues, the importance of not further dis-
seminating the materials, and the need for only appropriately trained profes-
sionals to interpret the measures.
Axelrod et al. (2000) and the National Academy of Neuropsychology (2003),
emphasizing the importance of maximizing test security in the context of
requests for test data or materials, offered specific steps to safeguard test
materials. Kaufmann (2009) also provided a stepwise approach to managing
the multiple components that comprise this complex issue, and Bush et al.
(2010) offered a number of solutions for handling requests for raw test data
and emphasized the importance of a proactive approach that involves advance
planning and preparation. The steps typically range from providing a narra-
tive report with test scores only; to offering to release the data to a psycholo-
gist colleague to a variety of legal options, such as filing a motion to modify or
quash the subpoena; to seeking an in camera review (i.e., when the judge
reviews evidence outside the presence of others to determine whether it
should be provided to other parties) of the data; and to moving for a protec-
tive order. The APA Committee on Legal Issues (2006) also provided sugges-
tions for practitioners whose records are subpoenaed. Psychologists releasing
raw test data to those not qualified to interpret them, in the absence of a court
order, should carefully consider their motivations for departing from the
authority of the majority of legal scholars.
CLINICIANS THWARTING DISCLOSURE
In their desire to protect their examinees or clients or to avoid scrutiny of their

own work, some practitioners may attempt to prevent disclosure of their
records. The following strategies are sometimes used to inappropriately thwart
disclosure: keeping minimal records, keeping double sets of records, coding
information in their records, doctoring or disposing of records and documents,
or outright lying (Barsky, 2012). Each of these actions, regardless of the
underlying motivation, represents ethical misconduct, with the exception that
psychotherapy notes may indeed be maintained as a separate set of records.
Psychotherapy notes, as defined by HIPAA, may be kept separate from other
client records, and their disclosure may be withheld except in response to a
specific authorization. Maintaining records sufficient to serve the clinical or
forensic purposes of the treatment or evaluation is a primary means of avoid-
ing ethical misconduct and of demonstrating a commitment to sound prac-
tices. Forensic practitioners in most contexts should anticipate receiving legally
valid requests for review or copies of their records with appropriate release
authorization, and they should maintain documentation accordingly.
FEEDBACK
Psychologists in clinical settings and in some forensic contexts typically share

test results and interpretations with the test taker (Standard 9.10, Explaining
Assessment Results; SEPT Standard 9.16). SGFP Guideline 10.05, Provision of
Assessment Feedback, states,
Forensic practitioners take reasonable steps to explain assessment results to the
examinee or a designated representative in language they can understand. . . .
In those circumstances in which communication about assessment results is
precluded, the forensic practitioner explains this to the examinee in advance.
Judicial referrals represent one exception to the ethical and professional

requirement to provide feedback. In the context of examinations by psycho-
logical experts retained by opposing counsel (e.g., Independent Medical
Examinations), psychologists typically do not provide examinees with feed-

back regarding results, conclusions, or recommendations. Reports are released
to the retaining party and not to examinees or their family members, doctors,
lawyers, or other representatives without the permission of the retaining
party. Similarly, in court-ordered child custody evaluations, the evaluator may
elect to release the report to the court and the attorneys, without giving feed-
back directly to the parties, and in fact, it is not unusual for the court to direct
the manner in which the evaluator’s findings will be released. HIPAA does not
seem to protect the examinee’s right to access and amend psychological records
in forensic contexts (Connell & Koocher, 2003; HIPAA, 1996). The examinee
should be provided with clear information regarding the extent and nature of
the feedback that will be provided, if any, and by whom as well as to whom it
will be provided, before the evaluation is begun.
CASE 4: ANTICIPATING INVOLVEMENT

IN A PERSONAL INJURY CASE
The following case reveals ethical challenges that can emerge when treatment
cases develop a forensic component.
Case Facts
A single 35-year-old accountant sustained a severe brain injury when thrown

from his horse while riding on his own property. He recovered fairly well.
Although he was able to live independently, persisting cognitive deficits pro-
hibited his return to work. Emotional distress emerged. He began treatment
with a psychologist during inpatient rehabilitation and continued psycho-
therapy on an outpatient basis in her new private practice, paying out of
pocket. Treatment covered the patient’s accident-related changes as well
as longstanding, sensitive family problems. A caring therapeutic relationship
developed.
The psychologist kept detailed notes of the therapy as well as test results
from early in treatment. A few months into treatment, the patient mentioned
that his family was considering a lawsuit against the hospital, although he was
unsure of the details. Within a week, the psychologist received a request for
her records, accompanied by a signed consent to release, from the attorney
representing her patient. She went back through her progress notes and found
very sensitive and personal information. She briefly considered what to do.
Case Analysis
Using the mnemonic CORE OPT (Bush, Allen, & Molinari, 2017), the evalu-
ator sought to clarify the ethical issue; consider the obligations owed to stake-
holders; utilize ethical and legal resources; examine personal beliefs and values;
consider options, solutions, and consequences; and put a plan into practice.
Then, she would take stock, evaluate the outcome, and revise as needed.

The psychologist did not want to release sensitive patient information. She
did not have a strong opinion about releasing raw test data and materials and
did not see that as a sensitive issue. She did not want to be called to testify.
She was unprepared for a situation that would inevitably arise in a practice in
which she evaluated and treated people who were injured in accidents.

The psychologist was treating the patient in her independent practice, with
no institutional support and little immediate collegial support. Her primary
obligation was to the patient’s treatment and his wishes regarding to whom
information about him was to be released. She also has an obligation to the
legal system, including complying with appropriate requests for records to be
used in litigation and otherwise participating in the legal process as required.
She had an additional obligation to the profession of psychology to protect
tools of the trade (i.e., psychological tests) from widespread dissemination
and inappropriate use.

Multiple ethical, professional, and legal resources were available to the psy-
chologist. A review of these resources, had it occurred, would have revealed
the following. Her desire to protect her patient was consistent with the prin-
ciple of beneficence (General Principle A: Beneficence and Nonmaleficence).
Due primarily to a lack of experience in this treatment context, she was
unaware of potential courses of action that would best serve her patient,
herself, the profession of psychology, and the legal system (Standard 2.01,
Boundaries of Competence). Altering and destroying records would violate
Standard 6.01, Documentation of Professional and Scientific Work and
Maintenance of Records, and producing notes with new and potentially dif-
ferent content would be inconsistent with Standard 5.01, Avoidance of False
and Deceptive Statements, and with the law. The psychologist’s state laws
prohibited destruction of medical records until a specified period after the last
service was rendered.
Releasing testing materials and raw test data, when presented with an
appropriate signed release, without taking steps to safeguard them, seemed
to be inappropriate, according to some sources of ethical authority (Axelrod
et al., 2000; National Academy of Neuropsychology Policy and Planning
Committee, 2003; see also SEPT Cluster 3, copyright law, and case law). The
principle of Justice could be considered applicable to both sides of this issue.
Releasing the materials and data would serve the justice system, as well as
help her patient’s case (Beneficence). However, the potentially adverse con-
sequences of uncontrolled dissemination of test materials and data could
include invalidation of the tests, which could potentially deny future exam-
inees their right to access to and benefit from the contributions of psychology,
thus potentially harming the public. Further, test developers and publishers
who may have spent great effort and cost to bring the tests to market, and
who have copyrights, would be damaged by uncontrolled distribution and
resultant invalidation of the instruments if she released actual test materials.
Such damage to test developers and publishers would have repercussions for
psychological practice. When conflicts exist between or within principles, a
determination or judgment regarding the potential for the greatest harm and
the greatest benefit must be made. The psychologist’s state laws were consis-
tent with the release of all records with the patient’s consent.
Discussing the potential therapeutic and personal implications of releasing
sensitive information with her patient would reflect appreciation of the impor-
tance of individual autonomy (APA General Principle E: Respect for People’s
Rights and Dignity).

The psychologist’s primary motivation was the wish to help her patient. She
believed that protecting her patient would justify almost any behavior she
chose, including the destruction and modification of records. She had never
given much thought to the issues surrounding release of data. She was aware
that, with signed consent from the patient, the APA Ethics Code not only
allowed but essentially required her to release her records, and she gave that
issue no further thought.

The psychologist briefly considered releasing her current record as it was.
She then considered revising her progress notes to eliminate the sensitive
personal information that the patient had shared and to focus on accident-
related content. She considered making up details to fill in notes in which
session content was uncertain or scantily recorded. She briefly considered
calling a colleague but could not think of anyone to call. She also considered
posting her dilemma on a professional Listserv and asking for advice. She did
not consider any of contacting the ethics committee of a professional organi-
zation; taking time to weigh the potential advantages and consequences of
various courses of action, making notes of the issues being weighed; or dis-
cussing the potential ramifications of disclosing sensitive materials and other
such issues with her patient.

The psychologist rewrote some of her notes, shredding the originals. She then
copied and sent to the court the remaining entire record, including the revised
notes, test reports, and test data. The psychologist acted without giving much
thought, if any, to other possible courses of action. She opted to do what she
considered to be in the patient’s best interest, without regard for the potential
ethical and legal implication.

No one ever knew that the psychologist modified and destroyed records. The
release of raw test data was supported by her state laws and the APA Ethics
Code and, therefore, created no problems. The violation of copyright laws,
which would have occurred with the release of test materials, was never
alleged. Treatment continued as it had before, although the psychologist
anticipated that subsequent notes would be subject to review by others and
thus omitted detailed sensitive information. Based on her experience with
this patient, she modified her informed consent and note-writing procedures
to avoid such problems in the future.
Comment
The psychologist engaged in inappropriate professional behavior by destroying

and altering her records, violating ethical and legal requirements in the pro-
cess. Consultation with a knowledgeable colleague when she found herself in
an unfamiliar and uncomfortable situation could have led to an appropriate
course of action. For example, an efficient way to have dealt with the issue of
sensitive information being in her records was simply to contact the patient,
explain to him that she received the request with his consent included, and
remind him that there was some sensitive information in her records and clar-
ify whether he really intended for her to share it. Such a discussion would
have resolved the issue quickly, if he had confirmed his wish to have the infor-
mation released. Alternatively, he may have elected to rescind his consent,
with the understanding that the possible litigation would be impacted.
In addition to the unethical and illegal altering and destruction of records,
releasing testing materials and raw test data to nonpsychologists (e.g., the
court) without taking steps to safeguard them or identify an appropriately
qualified expert to whom they could be released was a poor choice. Multiple
ethical and legal resources address the importance of maintaining test secu-
rity and the steps that can be taken to do so. Had the psychologist thought
through, ideally with an experienced colleague, the potential ethical and legal
implications of her options before acting, she would have been in a better
position to serve her patient, herself, and the profession of psychology.
This case illustrates that neglecting steps in the decision-making process,
such as failing to review relevant resources or consult with colleagues, or a
lack of commitment to high standards of ethical practice, can result in inap-
propriate decisions about ethical (and legal) aspects of practice. Addition-
ally, psychologists can follow the CORE OPT model and still choose to select
an inappropriate course of action. Personal integrity and a commitment
to high standards of ethical practice are necessary for use of the decision-
making model to be effective. Although the psychologist’s decision to destroy
records went unknown by others in this case, she risked facing severe ethical
and legal consequences that could have impacted her ability to continue
practicing.
CONCLUSION
Generating and maintaining appropriate documentation is an essential aspect

of sound forensic psychology practices. The documentation is the primary
method by which practitioners communicate the nature of the services that
were provided and the conclusions that were drawn. Appropriately inclusive
and accurately detailed documentation serves well examinees, retaining par-
ties, and triers of fact, whereas incomplete, misleading, or illegible documen-
tation is likely to adversely affect the involved parties, including leading to
unjust forensic decisions. Forensic practitioners have ethical and legal respon-
sibility to generate and maintain appropriate documentation and to safeguard
and release records in manner consistent with psychological ethics, other
professional resources, and relevant laws.
6
Testimony and Termination
T he psychologist’s activities in a forensic matter may change as the status

of the case changes, progresses, and nears conclusion. Care must be taken
at case transition points to ensure that services already provided do not con-
flict with or contaminate anticipated activities, and that future activities do
not undermine services that were previously provided. Testimony and termi-
nation are transition points at which psychologists are well served by clarify-
ing prior understandings with the retaining party, reaffirming a commitment
to accuracy, understanding attorney tactics, and anticipating responsibilities
associated with the conclusion of the case. This chapter reviews ethical and
professional considerations related to roles, accuracy, ultimate legal issues,
attorney tactics, and maintenance and disclosure of records in the context of
testimony and termination.
ROLE CLARIFICATION
Clarification of the roles that psychologists and clients establish at the outset of
professional interactions may be necessary at multiple points during the pro-
vision of forensic psychological services. The transition from treatment or eval-
uation to testimony is one point at which role clarification may be particularly
important. Forensic testimony often provides enticement or unintended oppor-
tunity for psychologists to engage in two or more roles with a single client or
http://dx.doi.org/10.1037/0000164-007
133
examinee. Some attorneys and courts have a preference for treating psychol-
ogists (versus independent experts) to provide testimony regarding forensic
issues and may instruct or entice psychologists to blur role boundaries or to
engage in clear dual roles. When asked or required to testify, practitioners
should assess the potential for deviation from the role agreed upon at the
outset of service provision. When considering adopting dual or multiple roles,
psychologists should carefully consider the potential for reduced objectivity
and effectiveness and for exploitation or harm to the patient or examinee
(S. A. Greenberg & Shuman, 1997, 2007; Heilbrun, 2001; Richards & Wortzel,
2015; Stafford & Sadoff, 2011).
Treating psychologists can be called to testify as either fact witnesses or
expert witnesses. Fact witnesses are not paid expert fees; they must limit their
testimony to what they know firsthand; and they cannot rely on hearsay
information. Fact witnesses also have very little freedom to draw conclusions
or provide opinions. Treating psychologists who are called to testify as expert
witnesses are also called percipient experts (Caudill & Pope, 1995). They are
experts because of specialized training and/or experience but were not retained
for the purpose of litigation. Treating psychologists do not properly provide
ultimate issue opinions, and they must be aware that offering expert testi-
mony about such forensic issues is risky for three primary reasons. First, in
treatment contexts, the nature and extent of the background and evaluation
data obtained may be insufficient for making forensic determinations, and the
manner in which they were obtained may lack the skepticism required for
critical review (American Academy of Psychiatry and the Law [AAPL], 2005).
Second, the existence of an established treatment relationship reduces the
impartiality required for unbiased testimony regarding forensic issues. Treat-
ing psychologists tend to be appropriately empathic, wanting the best for
their patients; however, this stance is inconsistent with impartiality (S. A.
Greenberg & Shuman, 1997, 2007; Richards & Wortzel, 2015). Third, assum-
ing the role of forensic evaluator may interfere with the patient’s treatment.
For these very types of reasons, the need to generally avoid potentially harm-
ful dual or multiple relationships is an established principle (AAPL, 2005;
American Psychological Association [APA], 2013, 2017a; Melton et al., 2018)
and should be considered cautiously by treating psychologists when first asked
to testify. Knapp, Younggren, VandeCreek, Harris, and Martin (2013), in dis-
cussing risk management, went so far as to conclude that treating experts
cannot provide opinions that go beyond diagnostic and prognostic judgments,
even if attorneys attempt to manipulate them into providing such ultimate
issue opinions while on the witness stand.
The need to inform the examinee, in a manner that can be understood, of
the nature of the psychologist–examinee relationship is fundamental to the
informed consent/notification of purpose process. Deviations from the initial
mutually agreed upon relationship should generally be avoided. Psychologists
are advised to be vigilant to attorneys’ efforts, throughout the provision of
Testimony and Termination 135
psychological services, to induce them to take on multiple roles; for example,

there may be tendencies for attorneys to ask questions during testimony that
would require the psychologist to cross role boundaries.
ACCURACY
Expert testimony is an integral component of forensic psychological services,

even though it is required in only a minority of cases. Testimony, as an exten-
sion of the written report, should be based upon the integration of relevant
research and the information gathered in the conduct of the evaluation.
Anchoring conclusions to the data reduces the potential for bias to sway the
evaluator when articulating opinions in reports and testimony (Heilbrun,
2001; Otto, DeMier, & Boccaccini, 2014).
Effective expert testimony requires attention to both style and substance of
presentation (Heilbrun, 2001; Otto et al., 2014). Effectiveness in style alone,
or in substance without style, considerably limits the psychologist’s contri-
bution to the court. Although a communication style that resonates with the
trier of fact adds considerably to the value of the expert’s testimony, psycho-
logical ethics traditionally focus solely on the accuracy, rather than style, of
communication. Ethical Principles of Psychologists and Code of Conduct (APA Ethics
Code; 2017a) Standard 5.01, Avoidance of False or Deceptive Statements,
states, “Psychologists do not knowingly make public statements that are false,
deceptive, or fraudulent.” The APA Ethics Code also requires psychologists to
base the opinions expressed in their reports and forensic testimony on infor-
mation and techniques sufficient to substantiate their findings (Standard 2.04,
Bases for Scientific and Professional Judgments; Standard 9.01, Bases for
Assessments). In addition, the Specialty Guidelines for Forensic Psychology (SGFP;
APA, 2013) Guideline 11.01, Accuracy, Fairness, and Avoidance of Deception,
notes that when testifying, psychologists should not, either actively or pas-
sively, engage in partisan distortion or misrepresentation.
THE ULTIMATE LEGAL ISSUE
As was introduced in Chapter 5, controversy exists within forensic psychol-

ogy about whether experts should offer opinions and testify about the ulti-
mate legal issues before the court (Packer & Grisso, 2011), such as whether
(a) a given disorder is causally related to an accident, (b) a criminal defendant
had diminished capacity or lacked responsibility at the time an offense was com-
mitted, or (c) custody of a child should be awarded to one parent or the other.
Those who oppose experts testifying about such issues do so on the grounds that
the determination is of a legal or moral nature and, therefore, should be made
by the trier of fact. Proponents take the position that the expert simply provides
a professional opinion, which the trier of fact can consider or disregard in its
decision making.
The Federal Rules of Evidence (FRE) 704 (House of Representatives,
Committee on the Judiciary, 2018) permit psychological experts, like other
experts, to provide testimony about the ultimate legal issue. Although sec-
tion (b) was added to FRE 704 in 1984 to prohibit oral opinions about a
criminal defendant’s mental state at the time of an offense before a jury,
many states have not adopted the addition, and some states specifically
include language in their statutes that call for experts to provide opinions
about this issue (Packer & Grisso, 2011). Although not addressing the ques-
tion of ultimate issue testimony directly, SGFP Guideline 11.04, Comprehen-
sive and Accurate Presentation of Opinions in Reports and Testimony, states,
“The specific substance of forensic reports is determined by the type of psy-
cholegal issue at hand as well as relevant laws or rules in the jurisdiction in
which the work is completed.” Appropriate testimony requires thoroughness
when providing opinions and describing the underlying basis, including
data, and reasoning for the opinions. For this reason, it is best practice to
clarify this issue with the referral source prior to writing a report, and cer-
tainly prior to testimony.
ATTORNEY TACTICS
Retaining attorneys may misrepresent the expert’s opinions to the court or

may attempt to elicit distorted or inaccurate testimony from the expert on the
stand. When this occurs, it may be that the attorney has misunderstood the
expert’s opinion or it may be a not so subtle attempt to move the opinion
closer to what the attorney wishes it to be. This can be avoided in most cases
by clear communication with the attorney. When psychologists become aware
of such attempts, it is necessary to correct the misinformation. SGFP Guide
line 11.01, Accuracy, Fairness, and Avoidance of Deception, and Standard 1.01,
Misuse of Psychologists’ Work, are relevant in this situation. Standard 1.01
states, “If psychologists learn of misuse or misrepresentation of their work,
they take reasonable steps to correct or minimize the misuse or misrepresen-
tation.” Similarly, on the stand during direct examination, when the retaining
attorney attempts to restate the expert’s opinion in some way that reflects a
distortion, firmly correcting the misstatement is in order.
Opposing attorneys may inaccurately restate an expert’s opinion during
cross-examination. In such instances, it may be beneficial to pause before
answering, thus allowing the retaining attorney an opportunity to object. If
such objection is not forthcoming, the psychologist should restate the correct
opinion, as forcefully as is necessary. SGFP Guideline 11.01 provides no restric-
tion to forceful representation of the data and reasoning upon which one’s
opinion is based as long as the information is presented accurately. During
testimony, it is always wise to maintain a professional demeanor and to
continue the same demeanor during cross-examination as was on display

during direct examination. Forceful presentation of opinion does not require
an argumentative or harsh tone.
COMPLETION OF THE CASE
In a specific case, the relationship between the forensic psychologist and the
retaining party typically ends when the report has been submitted, testimony
has been provided, or payment for services has been received. As part of the
contract for services established at the outset of the relationship, the psychol-
ogist and the retaining party should agree on the point at which the case will
be considered completed; this issue should be revisited when the case appears
to be at a close as well. The SGFP Guidelines note that the psychologist has
responsibility to complete the agreed upon services, but the forensic psycho-
logical services can be terminated prior to completion if the terms of the
agreement have been violated by the retaining party (SGFP Guideline 3.04,
Termination of Services). Like the initial agreement, premature
termination of services should be explicit and preferably communicated in writ-

ing. Any ambiguity in a practitioner’s relationship and responsibility to a client,
patient, or examinee can potentially leave unclear the duty of care owed by the
practitioner to other parties and give rise to claims of malpractice and abandon-
ment. (Lamade, 2017, p. 80)
In some cases, an examinee may request treatment from the psychologist

after the conclusion of the case. S. A. Greenberg and Shuman (1997) noted
that ethical concerns exist in “the subsequent provision of therapy by a psy-
chologist or psychiatrist who previously provided a forensic assessment of
that litigant” (p. 50). The contrasting position is that if the examination rela-
tionship has ended and the forensic action that initiated the examination has
been completed, the psychologist may consider providing such treatment.
However, the psychologist who, as the former forensic examiner, elects to
subsequently provide therapy must be prepared to defend the decision not to
refer the examinee to another qualified professional. The primary concern is
for the welfare of the potential patient.
There are treatment-related reasons to avoid assuming this secondary role
with prior adult forensic examinees, a principle reason being that the more
investigative and less empathically resonant posture of the examiner is quite
different from that of the treating clinician, and may thus lay a predicate for
a nontherapeutic environment (S. A. Greenberg & Shuman, 1997). Addi-
tionally, the forensic evaluator who stands to gain financially from recom-
mending ongoing treatment is vulnerable to compromised objectivity when
considering such a recommendation. A recommendation that the examinee
return to the forensic examiner for therapy would typically represent a con-
flict of interest.
In child custody cases, the best interests of a child are the priority. The eval-
uator’s role as impartial expert to the court continues, in a sense, until the child
reaches the age of majority. For a psychologist to take on a treatment relation-
ship with a party from a prior forensic matter may deprive one of the parties or
the court of the advantage to be gained by further access to the impartial and
objective opinion of the expert who was originally court-appointed or who did
an evaluation by agreement of the parties. The Guidelines for Child Custody Eval-
uations in Family Law Proceedings (Child Custody Evaluation Guidelines; APA,
2010) state that conducting psychotherapy with current or former child cus-
tody examinees represents a potentially harmful multiple relationship and that
fact is an explainable and understandable reason to avoid providing such treat-
ment (Child Custody Evaluation Guideline 7: Psychologists strive to avoid
conflicts of interest and multiple relationships in conducting evaluations). An
examination of the forensic evaluator’s obligations to the parties and the courts
would likely bring into focus the perilous nature of entering into this multiple
relationship (Knapp et al., 2013).
In practice, then, it is nearly always ill-advised to accept this second role of
psychotherapist following forensic evaluation (Knapp et al., 2013). Neverthe-
less, in rare situations it may be deemed appropriate for a former forensic
examiner to assume a subsequent role as a therapist. For example, a forensic
examiner who (a) is found by an adult examinee to possess traits that the
examinee considers important for a therapist, and (b) is contacted by the for-
mer examinee one or more years following the resolution of the forensic
matter (and there is no possibility for appeals or other forensic involvement)
may consider assuming a therapist role with the former examinee. However,
once that treating relationship has been established, further independent
examinations would be prohibited (Bush, Ruff, et al., 2005; Denney, 2005a;
Knapp et al., 2013); it would be impossible to assure independence in an exam-
ination update or reexamination.
RETENTION OF RECORDS
Psychologists are required to retain records of their professional work, includ-

ing matters in which reports or testimony have been provided, and to produce
that information when appropriate requests are made (APA, 2007; Stan-
dard 6.01, Documentation of Professional and Scientific Work and Mainte-
nance of Records; Standard 6.02, Maintenance, Dissemination, and Disposal of
Confidential Records of Professional and Scientific Work). In treatment con-
texts, because patients or their legal representatives have made their psycho-
logical status a matter of legal scrutiny, relevant information may no longer
have the previous confidentiality protections. Confidentiality requirements
should be carefully considered, with requested information provided to autho-
rized parties in a methodical, well-documented fashion.
CASE 5: DISCLOSURE OF TEST RESULTS

USING A CRIMINAL CASE EXAMPLE
The following case involves an evaluation for competency to stand trial.
Case Facts
A forensic psychologist received a referral from a criminal defense attorney to

evaluate an individual regarding competency to stand trial. This is his first
referral from this attorney. The defense attorney said the defendant received
multiple blows to the body and head at the time of his arrest 3 months earlier
and now appears to suffer from severe posttraumatic stress; the attorney
thinks this currently renders him incompetent to stand trial. The psychologist
performed an evaluation that included an interview, record review, personal-
ity inventory, and symptom validity assessment. Additionally, the psychologist
interviewed the defendant about specific issues and requirements pertaining
to his understanding of his legal situation and assessed his ability to assist in his
own defense. Evaluation results revealed considerable emotional distress;
however, symptom validity was variable. Scores on the validity scales within
the personality inventory were within normal limits. In contrast, performance
on a free standing symptom validity test (SVT) reflected a tendency to endorse
numerous symptoms in an unusual manner, consistent with possible symp-
tom fabrication or exaggeration. The evaluator concluded, however, that the
defendant’s performance on the SVT was explained by legitimate severe emo-
tional distress. He provided a verbal account of his findings to the defense
attorney, reporting that he believed the defendant was not able to assist prop-
erly in his defense and, thus, was not competent to stand trial due to severe
posttraumatic stress disorder. At the request of defense counsel, he then wrote
a preliminary report outlining the evaluation results and opinion. The attor-
ney reviewed the report and noted that it was excellent; however, he recom-
mended that the psychologist streamline the results section slightly to reduce
the report length and to better focus the report on the defendant’s competence
to proceed, which ultimately eliminated the discussion of the stand-alone SVT
findings. Although the psychologist noticed this omission, the psychologist
viewed it as unimportant because those results were considered reflective of
the examinee’s severe emotional distress anyway.
During preparation for testimony, the attorney requested the psychologist
recount results of the clinical tests, but not “muddy the waters” by discussing
the stand-alone SVT results, since the interpretation of the personality inven-
tory results, as reported, reflected emotional distress rather than malinger-
ing. The psychologist was concerned about presenting only a portion of the
results, but the attorney seemed strongly committed to providing only infor-
mation that “facilitated the defense strategy.” The psychologist wanted to do a
good job with this case in order to generate more referrals from this attorney
in the future.
Case Analysis
Using the mnemonic CORE OPT (Bush, Allen, & Molinari, 2017), the psy-
chologist sought to clarify the ethical issue; consider the obligations owed to
stakeholders; utilize ethical and legal resources; examine personal beliefs
and values; consider options, solutions, and consequences; and put a plan
into practice. Then, he would take stock, evaluate the outcome, and revise
as needed.

The psychologist was instructed by the attorney not to discuss during testi-
mony the aspects of the test results that might reflect negatively on the crim-
inal defendant because doing so would not “facilitate the defense strategy.”
The expert agreed with the attorney’s representation of the basic thrust of his
opinions as they were to be communicated through testimony, but felt
uncomfortable not outlining potentially contradictory test results and explain-
ing them. He also realized, in retrospect, that it may have been a mistake to
agree to strike that discussion from his report. He was now faced with a
dilemma regarding withholding data, on the basis that they were irrelevant
and potentially confusing to the trier of fact, when actually such withholding
was being requested to advance defense aims. He certainly did not wish to
unnecessarily “muddy the water,” but he now realized he was concerned
about his ethical obligation and may have been unwittingly led down a ques-
tionable path by omitting that section in his report.

The legal setting demands that mental health experts answer questions posed
by attorneys. Experts do not control the nature of the questions, and there is
considerable variability in the amount of “off topic” responding an expert can
do. In this instance, the evaluator knew beforehand that the attorney intended
to draw forth testimony about the personality inventory, while avoiding tes-
timony about the stand-alone SVT. When prepared regarding the question
“Doctor, please tell the court about the manner in which you determined the
test results were valid,” the expert was asked only to present a portion of
the information. Even though testimony is structured by attorney questions, the
law requires the witness to tell “the truth, whole truth, and nothing but
the truth.” Additionally, professional ethics require psychologists to refrain
from partisan distortion of their findings. The psychologist was concerned
about doing the right thing for the defendant; he did not want to unnecessar-
ily harm the defendant. He was also concerned about his professional rela-
tionship with the defense attorney; he was hopeful that he might receive
additional cases from this referral source. Thus, the psychologist felt he had
obligations to the multiple stakeholders; however, the overarching obligation
was to justice, by providing the trier of fact with complete and accurate infor-
mation about the results of the psychological evaluation.

The psychologist, in his deliberations about the dilemma, considered biomed-
ical ethical principles and referred to the APA Ethics Code, the SGFP Guidelines,
and relevant texts. The psychologist considered the principle of nonmalefi-
cence but had some difficulty discerning which parties would be harmed if he
testified either in full or in part. Testifying fully about the invalid SVT results
might harm the defendant’s case; however, the psychologist considered that
his primary obligation was to the truth and justice, not to the defendant or to
the defense attorney. The psychologist thought failure to acknowledge the SVT
results might be harmful to the justice system and potentially to society, but,
most importantly, seemed inconsistent with the principle of Justice. The psy-
chologist found sound guidance within the published sources.
The APA Ethics Code instructs psychologists to avoid false or deceptive
statements, including statements in legal proceedings (Standard 5.01, Avoid-
ance of False or Deceptive Statements). Failure to testify about test data that
potentially contradict his opinions could be considered deceptive. In addition,
psychologists must describe any significant limitations of test data interpreta-
tion (Standard 9.06, Interpreting Assessment Results); the examinee’s perfor-
mance on the SVT posed a clear limitation on his interpretation that should
have been addressed in reports or testimony.
SGFP Guideline 11.01 reveals that “forensic practitioners make reasonable
efforts to ensure that the products of their services, as well as their own public
statements and professional reports and testimony, are communicated in
ways that promote understanding and avoid deception.” Further SGFP Guide-
line 11.01 points out that
forensic practitioners do not distort or withhold relevant evidence or opinion
in reports or testimony. . . . Forensic psychologists do not, by either commis-
sion or omission, participate in a misrepresentation of their evidence, nor do
they participate in partisan attempts to avoid, deny or subvert the presentation
of evidence contrary to their own position.
In his review of professional literature, the psychologist found a consistent

theme reflecting the ethical obligation of psychologists to fully disclose the
nature of their findings, not only during testimony but also to include rele-
vant important findings in the report (Grisso, 2003; Heilbrun, 2001; Melton
et al., 2018; Otto et al., 2014). He learned it was important to discuss any
findings that were contrary to his opinion (e.g., “alternate hypotheses”) and
provide his explanation for how he weighed that information. That issue cer-
tainly included contrary SVT results in a competency to proceed case (Rubenzer,
2018). The psychologist realized the obligation to “fully disclose” would
include those evaluation findings that were potentially contradictory to the
conclusions reached but were ultimately dismissed or were accounted for in
a manner that was consistent with the conclusions reached.

The psychologist takes seriously his legal mandate to “tell the whole truth,
and nothing but the truth” during testimony. He believes that just as it is not
helpful to leave out important and relevant aspects of the data, it is also not
helpful to discuss a laundry list of marginally relevant points. In this instance
the psychologist was faced not only with external pressure from the attorney
but also internal pressures to serve this referral source well and to appropriately
avoid doing something that might unnecessarily harm the defendant’s case.

The psychologist was aware of his unease about limiting his testimony and
addressing only the “favorable” symptom validity results. He also realized that
he regretted having agreed to excising the information about the SVT results
from his report. First, he considered complying with the attorney’s request
under the reasoning that this was a legal case—the attorney’s case at that—so
he should just do what she said and not worry about it. To do so, however, he
would have to ignore his discomfiture and worry that he was not telling the
“whole truth.” Second, he considered the option of agreeing to this plan with
the attorney but testifying in a forthcoming way when asked about validity
issues. He realized this broadsiding of the attorney would be dishonest as
well. He wanted to balance doing the right thing with being forthright and
reasonable. Third, he considered openly addressing his concerns with the
defense attorney prior to testifying. He considered that an honest conversa-
tion with the attorney about these issues may reveal that the attorney did not
want him to misrepresent his findings or opinion, and that she was probably
so focused on defense strategy that she was not thinking through the issues.
By following this course of action and standing up for his own principles, he
could actually increase the attorney’s respect for him. Additionally, the psy-
chologist now believed that a willingness to provide the alternate hypothesis
(related to validity issues) and rationale for his conclusions during his testi-
mony would increase his credibility before the judge (Otto et al., 2014); it
would also account for and correct the omission in the report.

The psychologist determined he simply could not omit the SVT results from his
testimony. He also could not mislead the attorney by agreeing to do so and
then doing the opposite when testifying. He decided it was more professionally
appropriate to demonstrate respect for the attorney and her client by being
forthright and direct about the matter. He respected her expertise, but also
knew that her professional mandate—to provide zealous representation—was not
the mandate under which he must practice. He needed to follow his own con-
science, the rules of testimony, and his ethical obligations as he now under-
stood them. He told the attorney it was inappropriate for him to omit the SVT
results and recommended they take the time during testimony to explain the
importance of using multiple measures of symptom validity and integrating
the test results and clinical findings in their entirety. He pointed out that
including and explaining even potentially negative results would advance his
own credibility as a responsible expert. In essence, it also preemptively takes
the “wind out of the sails” of an aggressive cross-examination. He also
expressed his conviction that he would not be testifying to the “whole” truth
if he did not explain these potentially negative test results.

After some hesitancy, the defense attorney agreed that full disclosure could
potentially increase the psychologist’s credibility, and that they could take the
time, in testimony, to carefully explain the results. She conceded she did not
want him betray his obligation to tell the truth. When he testified and
explained the results in their entirety, the testimony went well. After the
hearing, the attorney voiced her appreciation for his professionalism and
agreed that, by explaining even potentially negative aspects of the results, the
principle points of his testimony were made stronger. She said that she hoped
to share other cases with him in the future.
CONCLUSION
Testimony offers forensic psychologists opportunities to explain important

constructs, methods, and conclusions to forensic decision makers in a manner
that is difficult to do solely within a written report. Such testimony commonly
represents the culmination and conclusion of the psychologist’s involvement
in the legal matter. The foundation for successful testimony begins to take
shape from the beginning of the interaction with the retaining party, when
agreements are established about expectations for the case. Through published
and interpersonal resources, psychologists can begin getting a sense of attor-
ney tactics that may pull for professional compromises or the sacrificing of
professional ethics and personal values. Advance preparation, including an
awareness of relevant ethical guidelines and literature on forensic practice,
reduces the likelihood for ethically perilous surprises.
7
Addressing Ethical
Misconduct
A s the previous chapters illustrate, many factors can contribute to ethically

questionable conduct or clear misconduct on the part of psychologists.
Some ethical misconduct is intentional and some is unintentional. Forensic
practice exposes psychologists’ work to greater scrutiny than is typical in
other areas of practice. Such critical review by colleagues exposes ethical
transgressions, to be certain, but can also unearth genuine disagreements
between experts about the appropriateness of a methodology or other action;
these disagreements may be reasonably justified or may be petty. This chapter
presents ethical and professional issues to be considered when forensic prac-
titioners encounter possible or clearly unethical conduct by colleagues. The
chapter includes a systematic framework for addressing perceived ethical mis-
conduct of colleagues, and a family law case is used to illustrate the issues.
Often, psychologists base their conclusions on multiple sources of data,
some of which are inconsistent and/or subject to interpretation (Heilbrun,
2001). The inconsistent aspects of the data, if not appropriately addressed by
the examiner, can become a source of contention between the examiner and
an independent reviewer. Heilbrun (2001) noted that “there are sometimes
reasonable alternative explanations or conclusions that would be possible
within the context of a single case” (p. 227). Disagreement regarding potential
explanations or conclusions can become points of contention, particularly
among psychologists who are strongly wedded to a certain perspective regard-
ing the condition being considered. Psychologists are often powerful and per-
suasive advocates of their positions, and may sometimes stretch the boundaries
http://dx.doi.org/10.1037/0000164-008
145
of appropriate or justified testimony to make poorly supported partisan state

ments or may engage in behavior intended to advance their positions.
Financial incentive can also contribute to ethical misconduct. Experts may
believe that their livelihood depends upon reaching conclusions harmoni
ously with the retaining party’s wishes. Compared with psychological practice
in many health care settings, forensic practice offers the potential for substan
tially greater income. In clinical settings, income typically is not tied directly
or indirectly to the findings of competent examinations. Motivation for
increased income may motivate some psychologists practicing in forensic set
tings to engage in practices that they might not consider in clinical settings. In
addition, the adversarial nature of forensic practice may result in strong and,
at times, personal feelings toward psychologists retained by the opposing side.
Such feelings may bias one’s perspective of the work of those colleagues.
FRAMEWORK FOR ADDRESSING PERCEIVED

ETHICAL MISCONDUCT
The factors described previously, as well as other aspects of forensic practice,

may contribute to psychologists perceiving the work of colleagues to be
unethical. Determining an appropriate response to perceived ethical mis
conduct can be extremely trying for psychologists involved in forensic prac
tice activities. When psychologists perceive the behavior of a colleague to be
unethical and consider possible courses of action, there are a variety of issues
advisable to consider (see Exhibit 7.1). These sections provide a framework
for addressing perceived ethical misconduct of colleagues. This multistep
EXHIBIT 7.1
Checklist for Reporting Ethical Violations
• Identify the problem or dilemma.

• Consider the relevant ethical issues.
• Identify and consider applicable laws and regulations.
• Consider the significance of the context and setting.
• Identify the obligations owed to the examinee/patient, referral source, and others.
• Consider the significance of the violation.
• Consider the reliability and persuasiveness of the evidence.
• Consult colleagues or ethics committees.
• Consider the possible courses of action.
• Consider the timing of any action.
• Consider the possible effects of any action or of inaction.
• Consider personal beliefs and values.
• Choose and implement a course of action, if needed.
• Assess the outcome of action or inaction and follow up as needed.
• Document the process.
Note. From Ethical Issues in Clinical Neuropsychology (pp. 304–305), by S. S. Bush and M. L. Drexler
(Eds.), 2002, Lisse, The Netherlands: Swets & Zeitlinger Publishers. Copyright 2002 by Swets &
Zeitlinger B. V. Adapted with permission.
Addressing Ethical Misconduct 147
framework is similar to the CORE OPT ethical decision-making model, but

there are three primary differences. This framework, although also a struc-
tured, systematic approach for addressing a complex problem, focuses on
whether, how, and when to address the perceived ethical misconduct of a
colleague, rather than guiding one’s own practices. Compared with the CORE
OPT model, in the present framework, forensic practitioners place more
emphasis on (a) consideration of the significance of the perceived ethical vio-
lation, (b) the reliability and persuasiveness of the evidence, (c) the timing of
any action, and (d) the possible effects of any action or inaction.
Identify the Problem or Dilemma
Psychologists may at times have a sense that something is “wrong” with the
professional behavior of a colleague. Clearly identifying the problem or
dilemma is the necessary first step in addressing it.
Consider the Relevant Ethical Issues
Psychological practices that may initially appear to be ethically questionable

may instead reflect acceptable variations in practice or in the understanding
of a psychological issue or condition. Before alleging unethical practice, psy-
chologists should attempt to identify the relevant ethical issues and their spe-
cific representation in the Ethical Principles of Psychologists and Code of Conduct
(American Psychological Association [APA] Ethics Code; APA, 2017a) or other
professional guidelines. A lack of mention in the APA Ethics Code of a suspect
practice does not necessarily mean that no ethical concern exists. The practice
may be questionable when understood in terms of aspirational ethical princi-
ples or the guidelines of a particular psychological specialty. In such instances,
open and constructive dialogue with the colleague may serve to educate one
or both parties regarding a preferred manner of practice. As has been empha-
sized throughout this book, there are many relevant sources of authority that
may guide forensic psychologists in their ethical, professional, legal, and moral
decision making. Psychologists who avail themselves of all of these resources
tend to be well prepared when attempting to clarify the ethical issues relevant
to a colleague’s behavior in a specific situation.
Identify and Consider Applicable Laws and Regulations
State licensing laws establish regulations for the practice of psychology. State
laws also mandate that particular practices be followed, such as reporting
child abuse. Other state and federal laws, legal decisions, and regulations may
provide further guidance regarding acceptable practice parameters.
Consider the Significance of the Context and Setting
The importance of considering context and setting when addressing per-

ceived ethical misconduct in forensic psychology cannot be overstated. Relevant
factors differ both across and within the primary practice activities and popu-
lations served. As a result, there are many parameters for ethical practice.
Psychologists judging the appropriateness of colleagues’ work must consider
that differences in practices may reflect the different demands or allowances
of the specific context. At the same time, some ethical issues transcend con-
text and setting and are universally relevant. Practitioners who are unsure of
the requirements of a specific setting benefit from consulting with appro-
priate colleagues.
Consider Obligations Owed to the Examinee,

Referral Source, and Others
Early in the process of addressing ethical misconduct, it is necessary to con-

sider the parties to whom obligations are owed. For example, determination
of who holds the privilege or owes confidentiality regarding communications
may dictate the manner in which the concern is addressed. The purpose and
nature of the service provided, the retaining party or referral source, and the
context in which the service was provided also have implications for how
ethical misconduct is addressed. Understanding the obligations that are owed
to various parties helps guide the decision-making process.
Consider the Significance of the Violation
Forensic practitioners employ differing practices in establishing and maintain-

ing professional relationships, obtaining examinee data, interpreting data,
managing records, and performing other professional activities. Such differ-
ences are not necessarily ethically problematic or indicative of failure to per-
form forensic psychological services at an acceptable level. Blau (1998) stated,
“Variations will undoubtedly occur, but they should stand the tests of being in
the client’s best interests and falling well within the expectancies and con-
straints of professional ethics, the law, and standards for the delivery of pro-
fessional services” (p. 29). In addition, differences in professional practices
can serve the constructive function of contributing to the advancement of the
field. In contrast, behaviors that fall well beyond the usual and customary
standards of practice likely justify further examination and concern. A pri-
mary consideration is the severity of the potential misconduct.
Shuman and Greenberg (1998) examined distinctions between the appli-
cability or relevance of ethical rules in the context of admissibility decisions
for expert testimony compared to their applicability more broadly. Their
observation that ethical rules vary in their significance according to context
pertains to the broad topic of addressing perceived ethical misconduct of
colleagues. The following distinctions were offered:
Ethical rules addressing advertising or form of practice, for example, have little
bearing on the reliability of the resulting professional’s information and there-
fore, violations of these rules should have little bearing, if any, on admissi-
bility decisions. Ethical rules addressing integrity, objectivity/independence, or
diligence/due care, for example, have a significant impact on the reliability of

the resulting professional information and therefore, violations of these rules
should have a significant bearing on admissibility decisions. The ethical rules
that require psychiatrists and psychologists to avoid conflicting roles . . . are
examples of rules that have a significant effect on the reliability of the resulting
professional information, and for which unexcused violations should have a
significant impact on admissibility decisions. (Shuman & Greenberg, 1998, p. 9)
The degree of potential harmfulness of ethical misconduct determines

whether formal or informal resolution is preferred and whether the mis
conduct is addressed prior to the completion of a legal case or following case
resolution.
Consider the Reliability and Persuasiveness of the Evidence
Information and documentation obtained directly by the psychologist are

more reliable and persuasive than is information obtained second hand.
During adversarial proceedings, information obtained second hand may be
intentionally or unintentionally misrepresented due to self-serving motiva-
tions of the person providing the information. Forensic practitioners tend to
be well served by being critical of information provided by examinees, attor-
neys, and opposing experts. A reasonable degree of skepticism about the
accuracy of such information can lead to a more factual accounting of events.
To increase the reliability and persuasiveness of the information, forensic
practitioners should attempt to independently establish its accuracy (Heilbrun,
Warren, & Picarello, 2003).
Consult Colleagues or Ethics Committees
Consultation with experienced forensic psychology colleagues or ethics com

mittees is fundamental to addressing ethical misconduct. Both local colleagues
and those practicing outside of the local area can offer valuable insights and
information about an apparently ethically troubling practice of a colleague.
They can help to reinforce or dispel initial concerns by facilitating increased
understanding of issues at hand. Such consultation may be of value at each
step in the decision-making process. It is advisable to request permission from
the colleagues or committee representatives to document and cite by source
their consultation (Martindale & Gould, 2004), and to ask them to maintain
a record of the consultation as well.
Consider Possible Courses of Action
When the behavior of a colleague appears to reflect ethical misconduct, the

action to be taken must be carefully considered (Deidan & Bush, 2002; Grote,
Lewin, Sweet, & van Gorp, 2000; Martelli, Bush, & Zasler, 2003). As the
Introduction and Applicability section of the APA Ethics Code indicates, psy-
chologists in the process of making decisions regarding professional behavior
must consider the APA Ethics Code, applicable laws, and psychology board
regulations. They may also consider other guidelines that have been endorsed
by psychological organizations, the dictates of their own conscience, and advice
from colleagues.
Potential actions that psychologists may take to address perceived ethical
misconduct include informal resolution which, depending on the nature of
the apparent violation and any confidentiality restrictions, is generally the
preferred first step in clinical situations (Standard 1.04, Informal Resolution
of Ethical Violations). In contrast, in litigation contexts, it is typically inappro-
priate to contact directly a witness for the opposing side. In cases involving
substantial harm or when informal resolution has been ineffective or would
be otherwise inappropriate, such as forensic cases, additional or alternative
action is required (Standard 1.05, Reporting Ethical Violations). Such action
includes filing reports with institutional authorities, ethics committees that
have adjudicative authority, or state licensing boards. In all cases, confidenti-
ality restrictions should be considered. The psychologist may benefit from dis-
cussing the matter and possible appropriate actions with the retaining party.
Consider the Timing of Any Action
When considering raising an ethical challenge during the course of proceed-

ings, forensic practitioners need to consider the distinction between an aggres-
sive challenge of the expert’s opinions and an implication of ethical misconduct.
The adversarial process calls for challenging the underlying basis of an expert’s
opinions, including both the qualifications of the expert to offer the opinion
and the methodology used to formulate the opinion. An expert’s opinion
can be challenged aggressively with no implication that the expert behaved
unethically in formulating or offering that opinion. However, the attorney
conducting the cross-examination may find it useful to query whether (a) the
expert’s methodology meets threshold criteria established by psychological
ethical standards, and (b) the methodology and opinions offered are in keep-
ing with aspirational principles of the profession and with professional guide-
lines that inform sound and ethical practice. Having one’s professional
opinions aggressively challenged during adversarial proceedings may under-
standably result in strong emotional reactions, prompting one to interpret
such challenges as challenges to one’s ethics and as potentially unethical per-
sonal attacks.
It may be natural to want to sort out and address questions of ethical
misconduct immediately. However, the risk of addressing perceived ethical
misconduct before the conclusion of a case lies in the possibility of real or
perceived specious reporting designed to tarnish the credibility of the other
expert (American Academy of Clinical Neuropsychology [AACN], 2003). In
addition, the intensity of negative personal feelings toward a colleague and
the perceived importance of the ethical issues may dissipate following con-
clusion of the proceedings. Thus, except for egregious ethical violations, it is
often preferable to postpone ethics complaints until the conclusion of any
adversarial proceedings that could benefit the complainant (AACN, 2003).

Filing ethics complaints as a litigation strategy to remove an opposing expert
from a case is clearly unethical (Standard 1.07, Improper Complaints). Nagy
(2000) stated, “the ultimate purpose of filing a complaint is to protect some-
one from harm, not to ‘get even’ with another psychologist” (p. 206) or to
manipulate the other psychologist in some fashion.
Consider the Possible Effects of any Action or of Inaction
The goal of addressing apparent ethical misconduct is to end or correct the

misconduct. Failure to address ethical misconduct, when appropriate client
authorization has been given or is not required, may result in continued harm
to the recipients of psychological services, to the public, and to the profession
of psychology. However, taking such action may have undesirable conse-
quences as well. Filing a complaint with an ethics committee or a state psy-
chology board may result in a counterfiling, a complaint against the psychologist
who made the initial complaint. Filing a complaint may also result in litigation
against the complainant for slander or defamation of character. Complaints
filed during the case in which the inappropriate behavior occurred may be
perceived as an attempt to discredit the opposing expert, thus having the effect
of discrediting the complainant and weakening the case of the party that
retained the complainant. Although psychologists may have an obligation
to report apparent ethical misconduct (Association of State and Provincial
Psychology Boards, 2018, section L., subsection 1), consideration of the poten-
tial seriousness of the matter, the consequences of such action, and the appro-
priate timing is prudent.
Consider Personal Beliefs and Values
Psychologists may have strong feelings about various sections of the APA
Ethics Code and about practices that are not specifically addressed by that
Code. When such practices are performed in a manner that seems to be inap-
propriate, it may be natural to want to react forcefully. Such feelings can
serve an important mobilizing function, but they can also skew one’s perspec-
tive. Situations in which strong personal feelings are experienced may be
those in which consultation with colleagues can be particularly beneficial.
In addition to examining personal feelings toward the ethical issues, foren-
sic practitioners have an obligation to examine their feelings toward the spe-
cific colleague whose work they are reviewing or toward whom allegations of
ethical misconduct may be made. The adversarial nature of forensic work can
result in contentious relationships with colleagues. Reviews of one’s work may
be perceived as being, or may actually become, personal attacks. It may be
natural for psychologists to want to respond in kind. However, forensic practi-
tioners must strive to maintain a distinction between their feelings toward the
work of colleagues and the colleagues themselves.
Choose and Implement a Course of Action, if Needed
Determine whether action is necessary; if so, determine the appropriate time

to take the action. Then, when the timing is appropriate, implement the course
of action.
Assess the Outcome and Follow Up as Needed
Assess the effects of any action or inaction. If the issue was addressed, evalu-
ate the manner in which the colleague or the relevant organization responded.
Consider and implement additional or alternative courses of action as needed
to bring a satisfactory resolution to the issue.
Document the Process
Detailed documentation of each step in the process is essential to (a) explicate

the rationale and procedures underlying decisions to report, or not report,
perceived ethical misconduct of colleagues, and (b) help clarify the psycholo-
gist’s internal process so that the psychologist can use the experience to
address future questions of ethical misconduct by colleagues.
CASE 6: REPORTING ETHICAL VIOLATIONS:

A FAMILY LAW EXAMPLE
The following case illustrates ethical and professional challenges that can emerge
when a colleague’s professional behavior is believed to be inappropriate.
Case Facts
A psychologist accepted court appointment to evaluate the mother, father,

and 4-year-old daughter in a disputed custody matter following marital dis
solution. The psychologist learned that the mother had been taking the child
to a privately retained psychologist for “play therapy, to see if something may
have happened to her,” because she was exhibiting signs of distress following
visits with the father. She was reportedly fussy, clingy, and demanding, was
having nightmares, and was exhibiting odd behavior toward the mother and
her mother’s boyfriend. Specifically, she was trying to catch glimpses of her
mother’s boyfriend’s “privates” as he came out of the shower following after-
noon swimming at their home, and she was trying to pull her mother’s blouse
down to expose her breast. Finally, her mother had observed her playing with
her “privates” at bath time, and even saw her trying to insert a toy boat in her
vagina.
The psychologist who was treating the child in play therapy offered testi-
mony that sexual abuse had occurred to this child, as evidenced by these signs
and by her drawings, in play therapy, of her family in which her father was
drawn with heavy, shaded lines, and her mother and she were drawn more
normally. She also played roughly with the anatomically detailed dolls the
therapist had introduced into the play therapy to facilitate discussions with
the child of what might have happened to her. In the first six play therapy
sessions, the child had insisted nothing had happened to hurt her during vis-
itation with her father, but over time with the therapist, she “opened up, and
finally revealed the abuse.” She said her dad had touched her “private,” when
drying her after her bath, when her parents first separated, which was shortly
after she had turned 2 years of age. She reported he had not done that since
she turned 3 years old.
Based on these findings, the play therapist testified that the child should
not visit the father without supervision. She had not evaluated the father or
the mother, and her treatment of the child consisted of 13 play therapy ses-
sions. She had met with the mother first individually, for an intake session,
and then before and after each session, briefly in the waiting room to hear
reports of the child’s behavior or to report to the mother what had transpired
in therapy. The father’s effort to meet with her, when he learned she was
treating his child, had been rebuffed; she indicated she did not believe it
would be appropriate, as her office was the child’s “safe place,” and she pre-
ferred to protect the boundaries.
The court-appointed psychologist evaluator became aware of this testi-
mony after the judge made a preliminary ruling regarding continued play
therapy treatment and supervision of the father’s time with the child. In this
ruling, the judge, without giving a reason but perhaps because the play ther-
apist’s evaluation was insufficient for forensic purposes, rejected the recom-
mendations of the play therapist and ordered continuation of the parents’
shared responsibility for, and time with, the child, without supervision. She
further ordered that the child not be taken to the play therapist for further
sessions. The mother was to undergo some classes and individual didactic
sessions to address her growing hostility toward the father, which was exhib-
ited in ways evidenced by other testimony. The court essentially made a find-
ing that the child’s best interest would be served by no further exploration of
the allegation of sexual abuse, but she deferred disposition of the final parent-
ing plan pending the forensic evaluator’s findings.
Case Analysis
This case is considered according to the framework for addressing perceived

ethical misconduct of colleagues.
Identify the Problem or Dilemma

The court-appointed psychologist believed that the treating therapist’s profes-
sional conduct was inappropriate. The primary problem was that the therapist
overstepped the bounds of her treating relationship to offer testimony regard-
ing the specific legal question. In doing so, she offered opinions and recom-
mendations that far exceeded the information and data upon which they
were reportedly based. The therapist’s training and experience in child therapy,
particularly in the context of litigation, also came into question. Faced with
unacceptable professional conduct on the part of another psychologist, the
court-appointed psychologist considered how best to address the issue, if at all.
Consider the Relevant Ethical Issues

The play therapist’s work in the legal arena was not based upon established
scientific and professional knowledge of child custody practice (Standard 2.04,
Bases for Scientific and Professional Judgments). Guideline 12 of the Guidelines
for Child Custody Evaluations in Family Law Proceedings (APA, 2010), Section II
(Procedural Guidelines: Conducting the Child Custody Evaluation) states,
When psychologists are not conducting child custody evaluations per se, it may
be acceptable to evaluate only one parent, or only the child, or only another
professional’s assessment methodology, as long as psychologists refrain from
comparing the parents or offering opinions or recommendations about the
apportionment or decision making, care-taking, or access. (p. 866)
The play therapist, who may well have been a competent practitioner of
play therapy in clinical contexts, clearly failed to perform the necessary
evaluations or to appropriately limit her testimony in the forensic arena
(Standard 2.01, Boundaries of Competence).
Identify and Consider Applicable Laws and Regulations

The ethical and legal resources to be considered included not only the APA
Ethics Code but also state board rules of conduct for psychological practice.
The administrative rules of practice for psychologists in the state essentially
echoed the APA Ethics Code, identifying as substandard practice the offering
of a professional opinion without benefit of adequate data.
Consider the Significance of the Context and Setting

The play therapist, working in an agency setting in which the mission of the
agency was to provide assessment and treatment of abused children, was
clear in testifying that her agency policy was to accept what children alleged
at face value, without questioning alternative hypotheses, and then work to
ensure the safety of and provide treatment for the child alleging abuse. Within
that context and setting, there may have been general support for the care
she provided. Within the context of the courtroom, however, in which a
higher degree of objectivity, suspended judgment, and convergence of data
are sought, the evaluation of the child by the play therapist fell far below
the acceptable standard within the forensic context. Questionable treatment
competence, however, was not the court-appointed psychologist’s primary
concern. Although the court-appointed psychologist believed that the “con-
text” of the agency treatment setting might justify the play therapist’s advo-
cacy stance in the therapy room, it did not mitigate the egregiousness of the
apparent violation regarding making recommendations to the court without
adequate data.
Consider Obligations Owed to the Examinee,

Referral Source, and Others
The court had already essentially dismissed the testimony and recommenda-
tions of the treating therapist. As a result, the child and the family were no
longer at risk of ongoing damage from the play therapist and presumably
were not permanently harmed by the actions of the therapist in offering
unsubstantiated opinion in court. Nonetheless, it could be argued that she
harmed the father’s reputation and certainly the relationship between the
parents, which likely affected the child’s future in unforeseen ways.
Additionally, the potential for the therapist to perform similarly inappropriate
behavior in another case remained. Therefore, the court-appointed psycholo-
gist considered her obligations to the legal system and the public. She had an
obligation to protect the legal system and society from the potential harm that
could be caused by a psychologist practicing beyond her area of expertise and
competence. The court-appointed psychologist also had an obligation to the
profession of psychology to take action when one of its members tarnished
the credibility of the profession in the courtroom, with the family, and beyond.
Consider the Significance of the Violation

The play therapist’s behavior had the potential to significantly harm members
of the family and their relationships (APA General Principle A: Beneficence
and Nonmaleficence; Standard 3.04, Avoiding Harm). Offering misleading
information, however unintentional, to the court had the potential to result
in an inappropriate custody determination (APA General Principle D: Justice).
Consider the Reliability and Persuasiveness of the Evidence

The court-appointed psychologist believed that she had strong evidence of
the professional misconduct. In addition to the potentially less reliable verbal
reports of those involved in the case, she received a copy of, and carefully
reviewed, the court transcript of the play therapist’s testimony.
Consult Colleagues or Ethics Committees

Before consulting with colleagues or filing a report with any authority, the
psychologist first addressed the issue of confidentiality. To protect confidenti-
ality of the play therapist’s testimony dealing with sensitive material, all com-
munications regarding it were accomplished with sufficient redaction of names
and other identifiers to protect the child’s privacy. Instead of relying only
on the child’s initials, for example, Jane Doe initials were used and references
to the parents and their workplaces were also redacted.
Upon consultation with colleagues, the psychologist learned that (a) the
play therapist had previously been sanctioned by the state board for offering
an opinion about the diagnosis of a party without benefit of evaluation or
review of prior treatment records, and (b) the play therapist had attended a
continuing education workshop conducted by one of the colleagues con-
sulted in this matter within the past year and had received clear instruction
about the inappropriateness of making custody or access recommendations

without examining one of the parties (handouts for the workshop included
Otto, Buffington-Vollum, & Edens, 2003; APA Ethics Code; Guidelines for Child
Custody Evaluations in Family Law Proceedings; and Specialty Guidelines for Forensic
Psychology). Colleagues opined that it was the duty of the court-appointed
psychologist to report the play therapist’s actions to the board and to the APA
Ethics Committee.
Consider Possible Courses of Action

Having consulted appropriate authoritative sources, the forensic psychologist
was convinced of the following: It was necessary to take some action, whether
that be an attempt at an informal resolution or reporting the matter to the
state licensing board or the APA Ethics Committee. The state licensing board
rules did not require that a complaint be filed. Consultation with the forensic
psychologist’s own counsel revealed that, without the injured party filing a
complaint, it was likely that the matter would not be investigated by the state
licensing board. The APA Ethics Code, on the other hand, did support the
importance of taking action. Owing to the somewhat less than extreme nature
of the apparent wrongdoing, it might be preferable to approach the play ther-
apist directly with the concern before taking the matter further (Standard 1.04,
Informal Resolution of Ethical Violations). (Examples of more outrageous pro-
fessional behavior that would require immediate action might include engag-
ing in a felonious criminal action, such as sexual exploitation of a patient,
sexual abuse of a child, extorting money from a patient, filing insurance claims
for parties never seen.) The timing, following the culmination of the hearing,
was appropriate in that the consultation with the alleged offender would likely
not be construed as witness tampering or other attempted manipulation of the
case outcome.
Consider the Possible Effects of any Action or of Inaction

The option of speaking with the play therapist directly could have an edu-
cational effect. However, because the play therapist had been formally sanc-
tioned in a similar circumstance earlier, the court-appointed psychologist
was concerned that an attempt at an informal resolution would not have the
intended effect of protecting those who could be harmed from future mis
conduct. The court-appointed evaluator was confident that failure to act more
incisively could only result in further misconduct.
The next option, then, was to file a formal complaint. Although this action
could have greater potential to achieve the desire goal of protecting the public,
it could also interfere with clients of the agency receiving much-needed clin-
ical services. To make this important decision, the court-appointed evaluator
considered a number of factors. In the transparent setting of the courtroom,
and in an adversarial proceeding, there was a good opportunity for the
allegedly unethical behavior to yield its just due—lessening the credibility of
the wrongdoer and invoking, in the end, an outcome unfavorable to the
play therapist psychologist’s apparent intention. However, that the litigants

may have suffered considerably in the process, and the profession of psy-
chology was harmed by the egregious behavior of the play therapist, was
almost certain.
The case did not, at this point, involve a civil action against the alleged
offender for failure to meet the standard of care. If it had, then the court-
appointed psychologist would have had no responsibility to report, in that the
standard of practice issue would be decided by the court, and the alleged victim
could enjoy some redress. Further, if the play therapist was sued for practicing
below the standard of care, the therapist would then have been obligated to
report the court action to the state board.
Consider Personal Beliefs and Values

The court-appointed psychologist had strong personal convictions that zeal-
ous advocacy of a stance in a forensic arena could interfere with professional
objectivity. Perceiving the play therapist to potentially suffer from clouded
judgment in the matter at hand, the court-appointed psychologist had to
weigh whether impatience with that posture was motivating a state board or
ethics complaint. Holding a personal belief that children are often harmed by
such intervention, there was a tendency toward outrage that a terrible wrong
may have been perpetrated onto the child and the parent if the accusation of
sexual abuse was unfounded. It would have been easy to displace some
aggressive energy to the process of filing a complaint, and the psychologist
gave consideration to this issue.
Choose and Implement a Course of Action, if Needed

The psychologist determined that she had an obligation to report the offense
to the state licensing board. There was no reason for the psychologist to
attempt to invoke a companion complaint from the allegedly injured party
(the father, who was the object of the play therapist’s recommendation for
supervised visitation), although the state board staff counsel indicated, when
the psychologist called to inquire about making a report, that it would be
easier to investigate if the report were made directly by an injured party. The
court transcript was available to assist the state board in investigating the
matter, and the psychologist was able to obtain the transcript and provide a
redacted or blinded version of it to the state board to supplement the com-
plaint. A complaint to the APA Ethics Committee was also warranted. The
APA Ethics Code (Standard 1.05, Reporting Ethical Violations) states that
If an apparent ethical violation has substantially harmed or is likely to substan-
tially harm a person or organization and is not appropriate for informal resolu-
tion under Standard 1.04, Informal Resolution of Ethical Violations, or is not
resolved properly in that fashion, psychologists take further action appropriate
to the situation. Such action might include referral to state or national commit-
tees on professional ethics, to state licensing boards, or to the appropriate insti-
tutional authorities. This standard does not apply when an intervention would
violate confidentiality rights or when psychologists have been retained to review
the work of another psychologist whose professional conduct is in question.
However, a review of the APA membership directory revealed that the play
therapist was not an APA member. Therefore, APA could not impose sanc-
tions, if indicated, on the alleged offender. Thus, the psychologist was left
with the best option to be reporting to the state licensing board.
Assess the Outcome and Follow Up as Needed

Having filed a complaint with the state licensing board, the court-appointed
psychologist found that there was little else that could be done to ensure that
the alleged offender would adhere to the ethical standards and guidelines that
require the withholding of an unsubstantiated opinion. The outcome of the
complaint process was that the play therapist was again sanctioned by the
state board, but shortly moved out of the area, so the court-appointed psy-
chologist did not have further interaction with her. The process of researching
options, especially the collegial consultations, proved time consuming but
educative, and the forensic psychologist recognized that further action toward
the play therapist might generate liability without an increasing probability
of successful resolution. There was the further possibility that through the
adversarial process of the family courts, the alleged offender’s actions would
continue to elicit the natural consequence of reduced credibility, and although
vulnerable individuals might nevertheless be deprived of just services, the
overarching value of justice would likely prevail.
Document the Process

It is wise to document the process of analyzing any ethical issue, and the
matter of reporting a colleague for a possible ethics violation is no exception.
The court-appointed psychologist maintained detailed documentation of all
consultation-related matters involving this case, including the steps taken
once the potential professional and ethical misconduct was detected. The
thorough documentation served her particularly well when she filed the
complaints.
GETTING IT RIGHT AFTER GETTING IT WRONG
Even competent, well-intentioned practitioners who strive to achieve and

maintain high ethical standards make clerical mistakes and diagnostic errors.
Despite appropriate training and best efforts, it is unrealistic to believe that
a forensic practitioner can practice error-free over the course of their career.
Such errors can range from minor mistakes involving test scoring to incorrect
diagnoses, which can have considerable legal implications. Although many
errors likely go undetected and, therefore, remain unknown by the practi-
tioner, forensic contexts often allow for one’s methods and conclusions to be
carefully and critically reviewed by colleagues.
Differences of opinion frequently exist among qualified practitioners,
with no ethical implications. However, forensic practitioners who are con-
fronted with persuasive evidence that mistakes were made or their original
conclusions were incorrect, either via reports from opposing colleagues or

during testimony, have the opportunity and ethical responsibility to acknowl-
edge and correct the mistakes and revise their original conclusions. Although
no responsible professional likes to learn that they made a mistake, it is how
the mistake is handled after being made aware of it that has more direct
ethical implications than whether the mistake was made. The APA Ethics
Code (APA General Principle C: Integrity) advises psychologists to “seek to
promote accuracy, honesty, and truthfulness in the science, teaching, and
practice of psychology.” Acknowledging and correcting errors when they
are brought to one’s attention reflects professional integrity. In contrast,
taking a more defensive stance may reflect failure to consider whether the
available evidence supports the original conclusions or partisan bias. Striving
to balance confidence and humility helps position forensic practitioners to
acknowledge and correct mistakes that are brought to their attention.
CONCLUSION
Forensic practice provides a context for colleagues, who often hold differing
perspectives on both practice issues and the evidence base that underlies pro-
fessional options, to review each others’ work. Whether retained specifi-
cally to perform a peer review or simply observing the practices of colleagues
involved in a case, such exposure to other psychological work products affords
psychologists the opportunity and responsibility to critically examine their own
practices as well as those of colleagues. When substandard and potentially
harmful practices are evident in one’s own work or the work of a colleague,
steps should be taken to address and improve the practices. A structured pro-
cess for approaching the apparent ethical misconduct of colleagues can facil-
itate the process. All practitioners are vulnerable to making mistakes and
diagnostic errors over the course of a career; it is how one handles the situa-
tion when made aware of the mistakes that reflects one’s professional integ-
rity and commitment to ethical practice.
Afterword
P sychologists who are ethically competent and committed to high standards

of ethical practice provide a valuable service to the justice system. How
ever, the practice of forensic psychology is susceptible to ethical misconduct
on many fronts, from unintentional missteps to strong enticements to sacri-
fice moral principles. Maintaining professional competence and ethical behav-
ior requires a lifelong commitment to high moral standards and continuing
education. We believe that, in the abstract, nearly all psychologists would
embrace a commitment to the highest standards of ethical practice. However,
embracing a commitment to ethical practice in the abstract, such as while one
is discussing cases with colleagues at a conference, is quite different from
embracing it when faced with a sympathetic examinee, persuasive attorney,
or considerable financial incentive.
Forensic psychologists must reaffirm their commitment to the highest stan-
dards of ethical practice not just when practice is going smoothly but particu-
larly when faced with enticement to ethical misconduct. Such enticements
may take many forms, such as receiving a referral for which professional com-
petence may be lacking or the promise of remuneration for offering opinions
that lack proper support. For example, forensic psychologists may, at some
point, experience something similar to the following:
An attorney calls and says, “I received your report. It was great. Thanks very
much. I’m putting your check in the mail right now, and I want to talk to you
about a couple of new cases, but first, I have a question about that last sentence
http://dx.doi.org/10.1037/0000164-009
161
162 Afterword
of your report. Would you mind changing the statement “. . . and seems to be
disabled due to the emotional distress that emerged or worsened following the
accident” to “. . . is permanently disabled as a result of the accident”?
It is precisely when we consider engaging in professional conduct that we

suspect or know to be ethically inappropriate, or our colleagues may consider
ethically questionable, that we must reaffirm our commitment to high ethical
standards of practice.
Although the financial temptations associated with forensic practice may at
times represent the most obvious and most emphasized threats to ethical prac-
tice, psychologists in forensic practice confront wide-ranging ethical challenges.
The challenges associated with becoming and remaining knowledgeable about
ethical standards and guidelines, overcoming personal biases, and recognizing
the potential for harm, are equally important.
A proactive approach to ethical practice may help to reduce the occurrence
of, or problems that arise from, ethical dilemmas. That is, anticipating ethical
issues and challenges can help to avoid dilemmas or to address dilemmas
when they occur. In addition to continuing education, forensic psychologists
are advised to pursue informal peer consultation that focuses specifically on
professional ethics. For example, psychologists may find it beneficial to period-
ically send a copy of a report to a respected colleague, asking that the report
be reviewed for the existence of ethically questionable statements or practices.
Honest, objective feedback about one’s practices can help to refine behaviors
so that high ethical standards of practice are maintained. Although agreement
among forensic psychologists, including those who present and write about
ethics, regarding what constitutes ethical practice in all situations is not unani-
mous, differences of opinion can further an understanding of the complexity of
an issue and heighten awareness of potential ethical pitfalls. Obtaining the per-
spectives of colleagues, whose opinions may differ from one another or from
one’s own, can be of considerable value in improving ethical compliance and
avoiding ethical misconduct.
Forensic psychologists bear a considerable responsibility to individuals, insti-
tutions, and society when providing services. Once a commitment to maintain-
ing the highest ethical standards has been affirmed, published and interpersonal
resources can help psychologists negotiate the unique details of a given ethical
challenge. The American Psychological Association’s (APA’s; 2017a) Ethical
Principles of Psychologists and Code of Conduct and the APA’s (2013) Specialty Guide-
lines for Forensic Psychology are among the many published resources of value to
forensic practitioners. The practice of forensic psychology can be both challeng-
ing and rewarding; perhaps the greatest challenge is in keeping one’s values in
perspective. As forensic psychologists, we must remember that we are scientists
and scholars as well as practitioners, and it is the understanding of science and
ability to apply the science within the justice system that makes our services
valuable.
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INDEX
A
AACN (American Academy of Clinical AERA (American Educational Research
Neuropsychology), 26, 27, 95 Association), 26
AAPL (American Academy of Psychiatry Affiliation bias, 47
and the Law), 26 Allen, R. S., 32
ABA (American Bar Association), 15, 26 Alliance, 16–17
ABFP (American Board of Forensic Amendments, to written reports, 117,
Psychology), 6, 48–49 119
ABN (American Board of Professional American Academy of Clinical Neuro
Neuropsychology), 26 psychology (AACN), 26, 27, 95
ABPP (American Board of Professional American Academy of Psychiatry and the
Psychology), 7 Law (AAPL), 26
Accuracy American Bar Association (ABA), 15, 26
in testimony, 135 American Board of Forensic Psychology
of third-party information, 62–63 (ABFP), 6, 48–49
Actions American Board of Professional Neuro
considering courses of, 149–150 psychology (ABN), 26
considering effects of, 151 American Board of Professional Psychology
selection of, 152 (ABPP), 7
timing of, 38, 150–151 American Educational Research Association
Addenda, to written reports, 117, 119 (AERA), 26
Addressing ethical misconduct, 145–159 American Psychological Association (APA).
case illustration of, 152–158 See also APA; Ethical Principles of
framework for, 146–152 Psychologists and Code of Conduct (APA);
improving practice following, 158–159 Specialty Guidelines for Forensic Psychology
Adoption, of new tests, 89–90 (SGFP);
Adversarial environment Guidelines for Child Custody Evaluations in
considering ethical misconduct in, 150 Family Law Proceedings, 138
determination of experts in, 20 Guidelines for the Practice of Telepsychology,
forensic psychologists in, 21–22 90–91
Advocacy, by trial consultant, 45–47 professional guidelines of, 26, 27
Advocates, 44–45 Anchoring, 115
179
180 Index
APA Code of Ethics. See Ethical Principles of Beneficence

Psychologists and Code of Conduct (APA) affected by competence, 48
APA Committee on Legal Issues, 126 as bioethical principle, 22
APA Committee on Psychological Tests and in psycholegal contexts, 23
Assessment, 94, 95, 98 Bennett, B. E., 30, 31
APA Task Force on the Assessment of Biases
Competence in Profession Psychology, addressing of, 115–116
6–7 in documentation, 112–116
APPCN (Association of Postdoctoral due to multiple roles of psychologists, 46
Programs in Clinical Neuro and ethical misconduct, 145–146
psychology), 27 examination of personal, 37
Archer, R. P., 83 and financial arrangements, 50–51
ASAPIL (Association for Scientific risk of, 30–31
Advancement in Psychological Injury in third-party information, 62–63
and Law), 27 toward viewpoint of retaining party, 43–45
ASPPB (Association of State and Provincial in validity assessments, 87
Psychology Boards), 27 Bieliauskas, L. A., 79
Assent, to evaluation, 74–75 Bioethical principles
Assessment measures in ethical decision-making model, 35
adoption of new, 89–90 in forensic contexts, 22–24
computerized, 90 Blau, T. H., 87, 148
mandated, 91–92 Bloom, L. J., 83
selection of, 81, 85 Board certification, 7
test security and release of raw data, Boccaccini, M. T., 113
120–126 Borkosky, B. G., 29, 124
translation and interpretation of, 100 Bottom-line ethics, 7
Association for Scientific Advancement in Bow, J. N., 83
Psychological Injury and Law Brodale, D. L., 83
(ASAPIL), 27 Brodsky, S. L., 45
Association of Postdoctoral Programs in Buffington-Vollum, J. K., 82, 83
Clinical Neuropsychology (APPCN), 27 Bush, S. S., 7, 9, 32, 84, 111, 121, 122,
Association of State and Provincial 125–126
Psychology Boards (ASPPB), 27
Atkins v. Virginia, 82
C
Attorneys
as adversarial, in court, 21 Campanelli, Richard, 125
lack of role clarification by, 46 Canadian Psychological Association (CPA),
tactics of, 136–137 27
as third-party observers, 94–95 Cases
Audio recordings, of assessments, 94 capital sentencing, 63
Autonomy, respect for. See Respect for child custody, 138
autonomy competency restoration, 47
Availability heuristics, 114 completion of, 137–138, 150–151
Axelrod, B., 125 Children
interviews with, 79–80
third-party observers in examinations
B
with, 97
Background information Childress, A. F., 9, 22, 24, 35–36
collection of, and cultural diversity, Chiperas v. Rubin, 124
100–101 Civil law, 14
forensic review of, 57 Clients, in forensic evaluation services, 16
Barr, W., 83 Clinical evaluations
Barth, J. T., 111 forensic vs., 15
Bartol, A. M., 14 treatment vs., 18
Bartol, C. R., 14 Collateral interviews, 80
Beauchamp, T. L., 9, 22, 24, 35, 36 Collateral sources, of information, 62–63
Behavioral observations, 77–79 Colleagues
Behnke, S. H., 31, 35 consulting, in considering ethical
Beliefs, personal, 37, 151 misconduct, 149
Index 181
consulting with, on ethical issues, 162 Documentation, 107–131

personal feelings about, 151 case illustration involving, 127–130
as resource, 36 of ethical misconduct complaints, 152
reviewing the records of, 101–102 and feedback, 126–127
Communication forensic psychological records, 107–109
effectiveness of, 135 forensic reports, 116–120
electronic, 108 as risk management strategy, 31
Competencies. See Professional scope of interpretation, 109–112
competency(-ies) self-bias in, 112–116
Competency, of defendants test security and release of raw data,
and examinee statements, 117–118 120–126
and scope of examination, 112 thwarting disclosure of, 126
Competency restoration cases, 47 Due diligence, 111
Completion of case, 137–138, 150–151 Due process rights, 112
Confidentiality
limits of, 75–76 E
and record retention, 138
Confirmatory hypothesis testing bias, 115 Edens, J. F., 82
Conflicts of interest, 19 Education and Training Guidelines for Forensic
Connell, M. A., 28–29, 32 Psychology (Forensic Specialty
Consequences, considering potential, 37–38 Council), 6
Consultation. See also Trial consultants Electronic communication, 108
with colleagues, 36, 149, 162 Enlightened consent, 74
Ethical decision-making model, 31–38
with ethics committees, 149
Ethical decision-making process, 5
Context, significance of, 147–148
Ethical issues, 7–8
Contingency fees, 50–51
clarification of, 32–34
Continuing education, 30, 48, 162
consideration of relevant, 147
Cooper, V. G., 83
related to trial consultants, 46–47
Copyright law, 123
sources of, 162
Core competencies. See Professional
Ethical misconduct
competency(-ies)
addressing, 145–159
CORE OPT model, 11, 32–38, 147
in validity assessments, 85–88
Correctional environment, 47
Ethical Principles of Psychologists and Code of
behavioral observations in, 78
Conduct (APA), 4
privacy concerns in, 79 on adoption of new tests, 89
CPA (Canadian Psychological Association), applied to forensic contexts, 24–25
27 on confidentiality, 75–76
Criminal Justice Standards on Mental Health on conflicts of interest, 47
(ABA), 15 on consideration of diversity, 99
Criminal law, 15 on considerations of ethical misconduct,
Cube model, of forensic psychology, 6 149–150
Cultural diversity, 100–101 on documentation, 108
on examiner deception, 89
D on feedback, 76
on integrity, 159
Data on multiple roles, 19
multiple sources of, 17, 60 on opinions, 77, 109
release of raw, 120–126 and perceived ethical violations, 147
Daubert v. Merrell Dow Pharmaceuticals, Inc., on record reviews, 101
91, 92 as resource, 162
de Armas, A., 79 on testimony, 135
Deception, in validity assessments, 88–89 on test material and test data, 121, 122,
Definitive statements, 109 125
Denney, R. L., 32, 45 on third-party observers, 95
Detroit Edison Co. v. NLRB, 123 used in ethical decision-making model, 35
Disclosure, thwarting of, 126 on use of interpreters, 100
Diversity considerations, 98–101 Ethical requirements, for third-party
Djanogly, S. E., 79 observers, 95–96
182 Index
Ethical resources, 34–36 documentation required for, 108

Ethics information in bases for, 59–60
of answering ultimate legal issue, 109–110 offered by treating clinicians, 18
bottom-line, 7 and trial consultation, 46
conflicts between laws and, 29–30 Expert witnesses
continued commitment to, 161–162 advocates vs., 44–45
as foundational competency, 5–7 court cases dealing with admissibility of,
general bioethical principles, 22–24, 35 91–92
information on, 22 financial arrangements for, 51
positive, 8–9, 31–32 legal qualifications to testify as, 49
psychological, 24–25, 35 treating clinicians as, 134
related to forensic psychology, 4 treating clinicians vs., 17–18
Ethics committees, 149
Evaluation(s), 71–106
F
adoption of new tests in, 89–90
assent to, 74–75 Fact witnesses, 134
behavioral observations in, 77–79 Family law, 14–15
case illustration of, 102–105 Federal laws, 35–36
diversity considerations in, 98–101 Federal Rules of Civil Procedure (Fed. R.
examiner–examinee relationship, 71 Civ. P.), 123
feedback in, 76–77 Federal Rules of Evidence (FRE)
informed consent for, 72–74 on answering of ultimate legal issue,
interviews in, 79–80 109–110
language used to describe, 15 on determinations of experts, 49
legal considerations in methods selection on expert testimony, 136
for, 90–91 on release of raw data, 120
limits of confidentiality in, 75–76 on relevance and reliability of evidence,
mandated measures in, 91–92 60
notification of purpose for, 73 Feedback
psychological testing in, 80–83 and documentation, 126–127
record or peer reviews in, 101–102 in evaluation, 76–77
symptom and performance validity Ferber, P. S., 122
assessments in, 83–89 Fifth Amendment issues, 119
technology in, 90–91 Financial arrangements
third-party observers in, 92–98 as cause of bias, 113
Evaluative experts, 15 and ethical misconduct, 146
Evidence, reliability and persuasiveness of, for referrals, 49–51
149 Fisher, C. B., 122, 124, 125
Examinees Florida Supreme Court, 96
bioethical principles and, 23 Flynn, James, 44
feedback provided to, 126–127 Forensic evaluations. See also Evaluation(s)
hostile view of examiner by, 21 alliance in, 16–17
information received from, 16 clinical vs., 15
obligations owed to, 148 multiple data sources needed for, 17
relationship of examiner and, 71 purposes and uses of, 15–16
respecting rights of, 23 Forensic evaluation services, 15–17, 51
right of third-party observers for, 96 Forensic expert, 42–45
treatment of, following case completion, Forensic psychological records, 107–109
137–138 Forensic psychology, 13–39
who lack the understanding to consent, and adversarial environment, 21–22
74–75 consideration of jurisdictional laws in,
Examinee statements, 117–119 28–30
Examiner deception, in validity assessments, ethical decision-making model for,
88–89 31–38
Examiner–examinee relationship, 71, 134 general bioethical principles in, 22–24
Expert opinions information on ethics in, 22
bases of, 135 involvement in, 9–10
challenging, in adversarial environment, primary subspecialties within, 14
150 psychological ethics in, 24–25
Index 183
related professional guidelines on, 25–27 reliability and persuasiveness of, 149
risk management strategies in, 30–31 review of records, 60, 62
roles for psychologists in, 14–21 social media, 64–66
Specialty Guidelines for Forensic Psychology third-party, 62–63
on, 25 Informed consent
Forensic reports, 116–120 about use of interpreters, 100
Forensic Specialty Council, 6 for evaluation, 72–74
Fouad, N. A., 6 of examiner–examinee relationship,
Foundational values, 35, 57–58 134
Four As of Ethical Practice, 9 lack of understanding for, 74–75
FRE. See Federal Rules of Evidence (FRE) Integrity, following ethical misconduct,
Frye v. United States, 91, 92 159
Fundamental attribution error, 114–115 Internet, information collected from,
64–65
Interpreters, 96–97, 100
G
Interviews
General bioethical principles, 22–24, 35 affected by cultural diversity, 100–101
Glancy, G. D., 64 in competency-related examinations,
Gould, J. W., 19–20 118
Greenberg, L. R., 19–20 in evaluation, 79–80
Greenberg, S. A., 137, 148–149 Iverson, G. L., 99
Grisso, T., 6, 28, 110
Grote, C. L., 64
J
Guidelines for Child Custody Evaluations in
Family Law Proceedings (APA), 138 Jurisdictional laws
Guidelines for the Practice of Telepsychology consideration of, 28–30
(APA), 90 on third-party observers, 96
used in ethical decision-making model,
35–36
H
Justice
Hall v. Florida, 82 as bioethical principle, 22
Handel, R. W., 83 in collection and review of information,
Harris, E., 83, 134 57–58
Health Insurance Portability and Account- in psycholegal contexts, 23
ability Act (HIPAA), 28–29, 124–125
Heilbrun, K., 18, 42, 46, 59, 80, 89, 110, 145
K
Hirschfeld v. Stone, 58
Hybrid role, of psychologists, 19–20 Kaufmann, P. M., 122–125
Keilin, W. G., 83
Knapp, S., 31, 83, 99, 134
I
Kois, L., 125
Identification, of dilemma, 147 Koocher, G., 28–29
Inconsistencies, addressing, 145 Kumho Tire Company v. Carmichael, 91–92
Incriminating information, 118–119
Independent medical examinations (IMEs),
L
15, 96. See also Evaluation(s)
Independent psychological examinations, LaDuke, C., 83
15. See also Evaluation(s) Lally, S. J., 83
Inferential bias, 114–115 Lamade, R. V., 124, 137
Information, 57–70 Laws
in bases for opinions, 59–60 conflicts between ethics and, 29–30
case illustration of using, 66–69 consideration of applicable, 147
collection of, affected by cultural related to release of test data, 122–124
diversity, 100 on third-party observers, 96
disclosing sources of, 116 Lees-Haley, P. R., 79
on ethics, 22 Legal considerations, in methods selection,
multiple data sources model, 61 90–91
obtaining, 63–64 Legal resources, 34–36
as purpose of forensic evaluations, 16 Loftus, Elizabeth, 44
184 Index
M Odland, A. P., 83
Options, considering, 37–38
Mandated examinations, 73–74
Otto, R. K., 82
Mandated measures, 91–92
Outcomes, of decision making, 38
Martin, J. N., 83, 134
Outcomes, of ethical misconduct complaints,
Martin, P. K., 83
152
Massey, C., 48
McCaffrey, R. J., 94
Melton, G. B., 16, 59, 110 P
Mental illness, related to defendants’
Packer, I. K., 6, 28
competency, 118
Peer reviews, 101–102
Miller, M. O., 30
Minor, assent of, 75 Pellett, J. M., 29, 124
Misrepresentation, of experts’ opinions, Percipient experts, 17, 134
136 Performance, effects observation on, 93–95
Modifications, to written reports, 117 Performance validity assessments, 83–89
Molinari, V. A., 32 Personal beliefs and values, 37, 151
Moulthrop, M. A., 43, 44 Pivovarova, E., 110
Multiple data sources, 17, 59–60 Positive ethics, 8–9, 31–32
Multiple data sources model, 60, 61 Potion statements, 36
Multiple roles Preliminary reports, 119–120
affiliation bias in filling, 47 Privacy, rights to, 58
bias due to, 45–46 Professional competency(-ies)
blurring of, 18–21 and diversity considerations, 99
following the completion of forensic ethics as foundational, 5–7
work, 137 for forensic psychology, 6–7
Murrie, D. C., 113 in referrals, 47–49
reflected in documentation, 107–108
and risk management, 30
N Professional guidelines
Nagy, T. F., 151 and perceived ethical violations, 147
National Academy of Neuropsychology publication of, 4–5
(NAN) related to forensic psychology, 25–27
on assessment selection, 93 on third-party observers, 95–96
professional guidelines of, 27 used in ethical decision-making model, 35
on test security, 125 Professional liability, 31
on third-party observers, 95 Professional liability insurance carriers, 31, 36
National Council on Measurement in Professional resources, 8
Education (NCME), 26 Psychological ethics, 24–25, 35
Neal, T. M. S., 43, 45 Psychological evaluations, 15–16
New York State Workers’ Compensation Psychological testing
Board, 96 affected by cultural diversity, 100
Nonmaleficence in evaluation, 80–83
affected by competence, 48 Psychologists
as bioethical principle, 22 forensic roles for, 14–21
in psycholegal contexts, 23, 24–25 maintenance of independence by, 20–21
North American values, 35 responsibilities of, 23–24
Notification of purpose Psychotherapy notes, 126
for evaluation, 73 Publicly funded court-ordered evaluations,
examiner–examinee relationship in, 134 49
O Q
Objectivity Quinnell, F. A., 83
and financial arrangements, 49–51
in role of forensic expert, 42–45
R
and treating clinicians, 134
Observations Rabin, L. A., 83
behavioral, 77–79 Rapp, D. L., 122
by third parties, 92–98 Raw data, release of, 120–126
Ochs v. Ochs, 123–124 Reactivity, 94
Index 185
Recency bias, 115 SEPT (Standards for Educational and

Reconstructive memory, 115 Psychological Testing), 81, 122
Recording, of assessments, 94 Setting, significance of, 147–148
Record retention, 138 SGFP. See (APA); Specialty Guidelines for
Record reviews Forensic Psychology (SGFP)
in evaluation, 101–102 Shapiro, D. L., 92
information from, 60, 62 Shuman, D. W., 137, 148–149
Referral(s), 41–55 Slick, D. J., 99
advocacy in role of trial consultant, 45–47 Social facilitation, 94
case illustration of, 52–55 Social media information, 64–66
financial arrangements for, 49–51 Society for Clinical Neuropsychology
objectivity in role of forensic expert, 42–45 (SCN; APA Division 40), 26, 27
obligations owed to source of, 148 Sociopolitical advocacy, expert witnesses
professional competence in, 47–49 and, 44–45
retaining party–examiner relationship, Specialty Guidelines for Forensic Psychology
41–42 (SGFP; APA), 4, 25
Referral questions, 109–112 on assent to examination, 74
Regulations, 147 on assessment selection, 85
Release of raw data, 120–126 on bases of opinions, 59
Reporting, of ethical violations, 146 on collateral information, 65
Representative heuristics, 114 on competence, 49
Resources on confidentiality, 76
colleagues as, 36 on conflicts of interest, 45, 47
ethical and legal, 34–36 on consideration of diversity, 99–100
professional, 8 on disclosure of information sources,
professional guidelines as, 162 116
using ethical and legal, 34–36 on documentation, 108
Respect for autonomy on examiner deception, for validity
as bioethical principle, 22 assessments, 89
in collection and review of information, on examiner integrity, 113
57–58 on feedback, 76–77, 126
and retaining party–examiner relation- on financial arrangements, 50
ship, 41–42 forensic psychology defined by, 25
Response validity assessments, 84 on informed consent, 72
Retaining party–examiner relationship, on misrepresentations of psychologists’
41–42 work, 136
Retention of records, 138 on multiple roles, 20
Risk, 30 on multiple sources of information, 62
Risk management strategies, 30–31 on opinions, 109, 111
Rodolfa, E., 6 on record reviews, 102
Rogers, M. L., 79 on referral, 41
Role clarification, 133–135 as resource, 162
Ryba, N. L., 83 on test data, 122
on testimony, 135, 136
on third-party observers, 95, 96
S
on use of assessments, 80–81
Sales, B. D., 30 on use of interpreters, 97
Sanity, evaluations of, 118–119 on validity assessments, 84
Sbordone, R. J., 79 Stakeholders, obligations to, 34, 148
Scholarly publications, 36 Standards for Educational and Psycho
Schroeder, R. W., 83 logical Testing (SEPT), 81, 122
SCN (Society for Clinical Neuropsychology; State laws
APA Division 40), 26, 27 concerning forensic services, 29
Self-bias, 112–116. See also Biases consideration of applicable, 147
Self-examination used in ethical decision-making model,
of bias toward retaining party, 43–45 35–36
following ethical misconduct, 159 Statement of Right and Obligations, Independent
Self-report measures Medical Examinations (New York State
concerns with, 79 Workers’ Compensation Board), 96
incriminating information from, 119 Stone, Alan, 30
186 Index
Stredney, R. V., 83 Trier of fact

Subspecialties, in forensic psychology, 14 primary obligation of psychologist to,
Substantial harm, 122 16, 21
Supreme Court of the United States ultimate legal issue decided by, 135
on assessment selection, 82
on mandated assessment for
U
unrepresented individuals, 73
on test security and release of raw Ultimate legal issue
data, 123 ethics of answering, 109–110
Surreptitious behavioral observation, 78 testimony on, 135–136
Sweet, J. J., 43, 44, 87 treating clinicians’ testimony about, 134
Symptom validity assessments, 83–89 Unjust harm, 34
Unrepresented individuals, 73–74
U.S. Security Insurance Co. v. Cimino, 96
T
U.S. Supreme Court. See Supreme Court of
Technology, 90–91 the United States
Telephone conversations, in correctional
environments, 79
V
Test data, 121
Testimony, 133–143 Validity assessments
accuracy in, 135 background information in, 59
and attorney tactics, 136–137 examiner misconduct in, 85–86
case illustration of, 139–143 of records for review, 60, 62
and completion of case, 137–138 Values
retention of records related to, 138 foundational, 35, 57–58
role clarification related to, 133–135 North American, 35
on ultimate legal issue, 135–136 personal beliefs and, 37, 151
Test materials, 121 VandeCreek, L., 31, 83, 99, 134
Tests, adoption of new, 89–90 Video recordings, of assessments, 94
Test security, 120–126 Video surveillance, 65–66, 78
Third-party information, 62–63
Third-party observers, 92–98
W
Thomas, M. S., 29, 124
Thomas, V. A., 79 Williams, C. W., 79
Thwarting disclosure, 126 Written forensic reports, 116
Timing, of actions, 38, 150–151
Treating clinicians
Y
expert witnesses vs., 17–18
testimony of, 134 Yantz, C. L., 94
as third-party observers, 97 Younggren, J. N., 83, 134
Trial consultants
advocacy in role of, 45–47
Z
financial arrangements for, 50–51
and multiple roles, 19 Zapf, P. A., 83
ABOUT THE AUTHORS
Shane S. Bush, PhD, ABPP, is director of Long Island Neuropsychology, PC,

a neuropsychologist with the VA New York Harbor Healthcare System, and an
adjunct faculty member in the department of psychology at the University of
Alabama. He is board certified in clinical neuropsychology, rehabilitation psy-
chology, clinical psychology, and geropsychology. Dr. Bush has been awarded
fellow status in Divisions 12, 18, 20, 22, 40, and 42 of the American Psycho-
logical Association. He is a past president and fellow of the National Academy
of Neuropsychology. He has also held elected positions or served as a commit-
tee member for the American Academy of Clinical Neuropsychology, the
American Board of Professional Psychology, the American Board of Profes-
sional Neuropsychology, the American Board of Geropsychology, and multiple
divisions of the American Psychological Association. Dr. Bush is currently a
member of the American Board of Professional Psychology Ethics Committee.
He has served as an editorial board member of Applied Neuropsychology, Archives
of Clinical Neuropsychology, Clinical Gerontologist, Ethics and Behavior, Journal of
Forensic Neuropsychology, Journal of Head Trauma Rehabilitation, Journal of Pediatric
Neuropsychology, Psychological Injury and Law, and The Clinical Neuropsychologist.
Additionally, Dr. Bush has presented on issues relevant to forensic psychology at
national and international conferences. He has more than 130 publications,
including journal articles, book chapters, position papers for professional organi-
zations, and more than 20 books, many of which are directly relevant to the
practice of forensic psychology. In 2014, Dr. Bush was awarded the Outstanding
Supervisor of the Year Award by the Department of Psychiatry at Stony Brook
University Medical School. In 2019, he was the recipient of the American
Psychological Association’s Award for Distinguished Contributions to Indepen-
dent Practice. He is a veteran of both the Marine Corps and Naval Reserve.
187
188 About the Authors
Mary Connell, EdD, ABPP, is board certified in forensic psychology and in

clinical psychology by the American Board of Professional Psychology and is
in independent practice in Fort Worth, Texas. Presently she works as a con-
sultant and testifying expert in military courts-martial in matters primarily
involving intimate partner violence, sexual assault, and child sexual abuse;
in her local practice, Dr. Connell has focused on family court matters and
currently engages in civil litigation regarding child sexual abuse. She has
been active in professional organizations and has served on the Ethics Com-
mittee and the Committee on Professional Practice and Standards, as well as
in office and on boards and committees for the American Psychology-Law
Society, the American Academy of Forensic Psychology, and the Texas Psycho-
logical Association. Dr. Connell has published in the areas of child custody/
access matters; parenting examinations; treatment considerations for chil-
dren pending court litigation of sexual abuse allegations; ethics in forensic
practice; interstate practice; death penalty mitigation; and on alcohol, black-
outs, and sexual assault.
Robert L. Denney, PsyD, ABPP, is board certified in forensic psychology

and clinical neuropsychology by the American Board of Professional Psychol-
ogy. He is a fellow and a past president (2009) of the National Academy of
Neuropsychology and fellow of APA Division 40 (Society for Clinical Neuro-
psychology). For over 20 years Dr. Denney was a forensic psychologist and
neuropsychologist at the U.S. Medical Center for Federal Prisoners in Spring-
field, Missouri, and for 16 years he taught neuroanatomy, neuropathology,
and neuropsychology courses at the Forest Institute. He currently maintains
a consulting practice for prosecuting and defense attorneys, judges, and the
insurance industry, in addition to holding a neuropsychology staff position
at the Missouri Memory Center and Neurology Clinic at Citizens Memorial
Hospital, Bolivar, Missouri. Dr. Denney has published over 50 book chapters
and peer-reviewed papers in the scientific literature on such subjects as
neuropsychological evaluation of criminal defendants, malingering, evaluating
psychological damages, trauma and violence, ethical issues, and professional
licensure. Additionally, he has served on the editorial boards of The Clinical
Neuropsychologist, Applied Neuropsychology, Journal of Forensic Neuropsychology,
and Archives of Clinical Neuropsychology. He is coeditor of Clinical Neuropsychology
in the Criminal Forensic Setting (2008), coauthor of Detection of Deception (2007),
and coeditor of Detection of Response Bias in Forensic Neuropsychology (2002).
Dr. Denney has also presented throughout the United States and Canada on
neurolitigation, the application of neuropsychology to criminal and civil
forensic matters, neuroanatomy, brain injury, malingering, and admissibility
of scientific evidence.

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Ethical

EthicalPracticeInForensicPsych-TitlePP.indd 1 9/3/19 3:29 PM

Shane S. Bush, Mary Connell, and Robert L. Denney

EthicalPracticeInForensicPsych-TitlePP.indd 2 9/3/19 3:29 PM

Typeset in Meridien and Ortodoxa by Circle Graphics, Inc., Reisterstown, MD

Printer: Sheridan Books, Chelsea, MI

Library of Congress Cataloging-in-Publication Data

Printed in the United States of America

3. Collection and Review of Information 57

5. Documentation of Findings and Opinions 107

6. Testimony and Termination 133

7. Addressing Ethical Misconduct 145

EthicalPracticeInForensicPsych-TitlePP.indd 1 9/3/19 3:29 PM

T houghts of forensic involvement evoke mixed reactions from psycholo-

is intended to help fulfill both of those requirements by emphasizing the

This second edition provides an update on common ethical issues confronting

ETHICS AS A FOUNDATIONAL COMPETENCY

Professional competence is the foundation of ethical practice in psychology in

When career paths within forensic psychology change or consultation is

a multitrait, multimethod, and multi-informant process that occurs throughout

ETHICAL ISSUES AND CHALLENGES

• Third-party requests for services

• Test security/release of test data

Forensic practitioners should understand the potential relevance of these issues

UNDERSTANDING, ADOPTING, AND APPLYING

Psychologists have at their disposal a variety of ethics resources for determining

POSITIVE ETHICS AND THE 4 As OF ETHICAL PRACTICE

et al., 2017). Positive ethics is proactive; practitioners strive to promote exem-

For example, a neuropsychologist may be subpoenaed to testify about the

CONTENTS AND FORMAT

Following this introduction, Chapter 1 provides an overview of the inter-

In this chapter, we describe (a) primary subspecialties within forensic psy-

PRIMARY SUBSPECIALTIES WITHIN FORENSIC PSYCHOLOGY

FORENSIC ROLES FOR PSYCHOLOGISTS

Forensic Evaluation Services

The Distinction Between Expert Witness and Treating Clinician

Blurring of Professional, Clinical, and Forensic Roles

accuracy of judicial determinations. The Ethical Principles of Psychologists and

psychologists may ethically have it both ways. They described a “hybrid

In addition to potentially biasing relationships between psychologists and

THE ADVERSARIAL ENVIRONMENT

Expert witnesses play a prominent role in the American litigation process

THE NEED FOR INFORMATION ON ETHICS

APPLYING GENERAL BIOETHICAL PRINCIPLES

The differences between clinical and forensic contexts notwithstanding, we

Applying Psychological Ethics in Forensic Arenas

A Note About Nonmaleficence

decision-making process is consistent with ethical practice and should be the

SPECIALTY GUIDELINES FOR FORENSIC PSYCHOLOGY:

The Guidelines consist of an introductory section followed by eleven guide-

RELATED PROFESSIONAL GUIDELINES

The 11 Specialty Guidelines for Forensic Psychology

Data from APA (2013).

during the process of making decisions about professional behavior. To go a

TABLE 1.1. Professional Guidelines and Position Statements Relevant

Organization Year Title

TABLE 1.1. Professional Guidelines and Position Statements Relevant

CONSIDERATION OF JURISDICTIONAL LAWS

constitute health care, according to HIPAA; and, as a result, psychologists

Conflicts Between Ethics and Law