I have an “Oh No!” file. The “Oh No!” file is filled with psychological reports from my peers that are filled with procedural and ethical errors. This blog focuses on standards of practice. We’re all human, and I’ve made my fair share of mistakes. But the goal for the Court should be excellence.
The typical role of a forensic psychologist is to provide information to the trier of fact 1. The expectation is that the forensic psychologist will provide relevant impartial testimony that meets the requirements of an expert. The minimal legal test is that the expert provides testimony that meets the Frye or Daubert standard, depending on the state. In other words, the expert must provide testimony that is based on scientific methods that are sufficiently established and generally accepted (Frye 2), and more recently FRE 702 3 (Daubert) which specifies:
(a) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) The testimony is based on sufficient facts or data;
(c) The testimony is the product of reliable principles and methods; and
(d) The expert has reliably applied the principles and methods to the facts of the case.
The standard may seem straight forward, but it is not. Specifically, who determines what is “sufficiently established and generally accepted?” Or the criteria for “reliable principles and methods?” I’ve read many reports that provide factual background and case information, only to end with an expert opinion that rests on nothing more than one’s speculation or opinion without any scientific or technical reference or foundation of reliable principle and methods. All too often the “expert” provides a clinical opinion based on “years of experience” or even worse, the ipse dixit position of “because I said so.”
Most attorneys have limited knowledge of psychology, let alone forensic psychology. Where should an attorney turn when faced with a forensic report containing wafer thin opinions and specious conclusions? The answer: psychological standards of practice. Standards of practice provide reliable, established and accepted methods and principles for various aspects of psychology proposed by a cadre of experienced psychological experts.
I’ve listed various standards of psychological practice below. The list is not exhaustive, and begins with ethics for psychologists, followed by forensic psychological practices. For a dizzying list of professional ethics and standards of forensic and clinical practice for psychologists, psychiatrists, social workers, professional counselors and marriage and family therapists, see the exhaustive website maintained by Dr. Kenneth Pope at www.kspope.com.
- American Psychological Association: Record Keeping Guidelines
- American Psychological Association: Specialty Guidelines for Forensic Psychology
- American Psychological Association: Rights and Responsibilities of Test Takers: Guidelines and Expectations
- American Psychological Association Guidelines: for Child Custody Evaluations in Family Law Proceedings
- Association of Family and Conciliation Courts: Model Standards of Practice for Child Custody Evaluation
- Association of Family and Conciliations Courts: Guideline for Brief Focused Assessment
- American Academy of Matrimonial Lawyers: Child Custody Evaluation Standards
- Association of Family and Conciliation Courts: Guidelines for Examining Intimate Partner Violence
- American Professional Society on the Abuse of Children: Position Paper on Allegations of Child Maltreatment and Intimate Partner Violence in Divorce/Parental Relationship Dissolution
When reviewing a forensic psychological evaluation, check to see if the opinions flow directly from the fact pattern and relevant research. It’s unfortunately common to find the content of an evaluation emphasizing history, mental status and test results without linking the data, the referral question and the expert’s opinion. It is a rare report that cites any relevant research, which, in turn, omits the “scientific or technical” knowledge forming the basis of the expert’s testimony. Finally, review the content and structure of the psychological report to determine which, if any, standards of practice were followed.
It isn’t unusual for a busy attorney to lack the time or knowledge to review adequately review a psychological report for these factors. Depending on the significance of an evaluation for one’s case and the financial means of the client, retaining an expert to review the work product of the evaluating psychologist may be a wise investment.
1 There are exceptions, such as when an attorney retains a forensic psychologist for consultation or to evaluated a client without the knowledge of opposing counsel.
2 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3 Federal Rules of Evidence, The Committee on the Judiciary, House of Representative, USGPO (2014).