The Psychological Forensic Expert Witness: Ethical Considerations
Michael S. Cardwell M.D., J.D., M.P.H., M.B.A
Department of Obstetrics & Gynecology
Texas Tech University Health Sciences Center
Continuing education materials forthcoming.
The Psychological Forensic Expert Witness: Ethical Considerations
Psychologists are often called upon to provide testimony and evidence in judicial matters. In these roles the professional psychologist is either a psychological expert witness or providing their services as a forensic psychologist (American Psychological Association [APA], 2003). A forensic psychologist as defined by the APA (1991) is a member of the profession of psychology and has a special responsibility for the quality of psychology practiced in the legal system. O’Brien (1998) refers to the fields of forensic psychiatry and psychology as “growth industries” due to the proliferation of journals, professional meetings, and societies representing these areas. Division 41 of the APA is dedicated to this specialized area of psychology. Members of this division are also members of the American Psychology-Law Society and may become certified in forensic psychology by the American Board of Forensic Psychology.
Most professional psychologists will never assume the role of a forensic psychologist. However, most psychologists at some point in their career, either voluntarily or involuntarily, will be placed in the role of the psychological forensic expert witness in judicial proceedings (Bank, 2001). These situations include civil proceedings (e.g., child custody), criminal proceedings (e.g., determination of a defendant’s competency to stand trial), and professional negligence lawsuits (Cohen, 2004). Occupying the role of the forensic expert witness, the professional psychologist must be cognizant of the ethical considerations that governed their conduct in judicial proceedings. This article will succinctly present the ethical considerations as applied to the psychological forensic expert witness.
Qualifications of the Psychological Forensic Expert WitnessDual Roles
The psychological expert witness serves dual roles—therapeutic and forensic. As will be discussed later, it is the presence of these dual roles that bring to the surface ethical concerns. Greenberg and Shuman (2007) opined that explicit ethical precepts are violated when a therapist provides psychological expert testimony for the same litigant-client. The authors argue that therapeutic and forensic services are so different and specialized that special competencies must be demonstrated for both. Furthermore, even if a professional psychologist has competencies in both areas, their judgment is likely to be impaired if both types of services are offered.
Not all professional psychologists agree with Greenberg and Shuman (2007). Heltzel (2007) asserts that professional psychologists are able to ethically and competently fulfill the roles of the therapist and the psychological forensic expert witness simultaneously. If professional psychologists are prohibited from providing credible opinions in judicial proceedings, the professional reputation of psychologists would be irreversibly harmed. Likewise, the public would be without credible experts in civil and criminal matters—an essential element in all of these proceedings. Heltzel’s stance is currently the one most widely accepted in the area of professional psychology. However, the Ohio State Board of Psychology issued the following guideline in 2003: “Prevailing standards essentially demand that you define and remain within one role with a given client.” This guideline may be interpreted as proscribing a dual forensic role with an existing client.
Qualifications of the Psychological Forensic Expert Witness
The professional psychological forensic expert witness must be competent in the area where they are testifying or presenting evidence. At a bare minimum, the psychological forensic expert witness must possess the qualifications of the Federal Rules of Evidence: a witness must be qualified by knowledge, skill, experience, training, or education. However, these federal qualifications are quite liberal. For example, a retired psychologist, ten years out of practice, would be allowed to testify in federal proceedings. The guidelines of professional societies such as the APA are more defined and restrictive. The APA’s (1991) Specialty Guidelines For Forensic Psychology states that the psychologist must have the psychological and legal knowledge, training, experience, and skills necessary to provide the required services. The psychologist must also demonstrate competency in the area of inquiry by having board or sub-board certification or by providing evidence of active practice and current knowledge in the area of inquiry.
Heilbrun (1996) opines that the APA’s (1991) guidelines are necessary but the psychological forensic expert witness must also have other qualifications. The psychological forensic expert witness must be sufficiently aware of relevant law. Heilbrun suggests that the Villanova Conference classification concerning forensic psychology should be adopted by the courts. A professional psychologist, based upon their training and experience in the legal field, would be categorized as informed, proficient, or specialized. An informed psychologist would have knowledge of relevant law in important areas by means of graduate or post-graduate courses or continuing educational courses. An uninformed psychologist would not be allowed to testify in judicial matters. To be proficient, a psychologist must have sufficient expertise with a given population and must have experience in using this expertise in forensic contexts. Post-graduate courses in forensic psychology are necessary. A psychologist who is specialized is proficient in a defined area (e.g., multiple personalities) rather than in a more general area and is allowed to offer testimony and present evidence in judicial proceedings in their area of specialization.
Ethical Guidelines for the Psychological Forensic Expert Witness
The 1992 revision of the APA’s Ethical Principles of Psychologists and Code of Conduct provided the first inclusion of standards pertaining to the practice of forensic psychology. The APA decided to include these standards because of the nature and number of ethical complaints that were brought before the Ethics Committee concerning the practice of forensic psychology (Fisher, 2003). However, during the subsequent revision (2002), the specific standards on forensic psychology were deleted. The Ethics Committee considered the increased activity in the field of forensic psychology—professional meetings, post-graduate courses, and inclusion of forensic psychology in graduate programs—as the basis for why these standards should be eliminated; there was no longer a need to provide specific ethical guidance because of these other sources.
The 2002 revised APA Code, however, provides ethical guidance for the psychological forensic expert witness. Standard 2.01f, Boundaries of Competence, states, “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their roles.” While this standard is not as stringent as the Villanova Conference classification previously discussed, it does obligate the psychological forensic expert witness to be knowledgeable of the relevant law regarding the evidence during their testimony. For professional psychologists who practice in a field such as correctional mental health or act as trial behavior consultants, sufficient and specialized legal knowledge is not only requisite, it is included in determining the overall competency of the psychological expert witness (Fisher, 2003).
The APA (2002) Code also includes other standards applicable to the psychological forensic expert witness. These standards include: 3.05c, Multiple Relationships (See Dual Roles above.); 3.10c, Informed Consent; 9.01a, Bases for Assessments; 9.03c, Informed Consent in Assessments; 9.04b, Release of Test Data; 9.10, Explaining Assessment Results; and 10.02b, Therapy Involving Couples. The interested reader may refer to these standards for specific information.
Besides the APA, other professional societies have issued guidelines pertaining to psychological forensic expert witnesses including the American Psychotherapy Association (2005), the American Bar Association (1989), and the American Psychology-Law Society (APA, 1991). These guidelines generally track those of the APA (1992; 2002) and the Federal Rules of Evidence. Most state psychology associations have also adopted the current APA Code. Likewise, most state boards of psychology, with the previously mentioned exception of Ohio, have also adopted the APA Code.
In view of the prior discussion, a psychological forensic expert witness acts ethically if they have the competency to give testimony or to present evidence as demonstrated by their training, knowledge, and experience; is in the active practice of psychology and currently knowledgeable in the subject matter at issue; is sufficiently aware of the relevant law in the area they intend to testify on or to offer evidence; and complies with the APA (2002) Ethical Principles of Psychologists and Code of Conduct and any other relevant code of ethics adopted by the state board of psychology or other professional societies of which they are a member. The above qualifications apply not only for the infrequent psychological expert witness, who may be only offering testimony as a fact witness, but also for the professional or forensic psychologist (Bank, 2001; Cohen, 2004). The next sections will present specific ethical issues in forensic psychology.
Specific Ethical Issues in Forensic PsychologyThe Unethical Forensic Colleague
One of the challenges facing a psychological expert witness is confronting an unethical forensic colleague. Judicial proceedings, by their nature, are adversarial. However, the psychological expert witness should not be adversarial or be an advocate for a party or a cause. The psychological expert witness is expected to testify or offer evidence in a truthful, unbiased manner (Cohen, 2004). The APA Code specifies under General Principle C: Integrity that “psychologists seek to promote accuracy, honesty, and truthfulness in the science, teaching, and practice of psychology” (2002).
What should a psychological expert witness do when they become aware that a forensic colleague is acting unethically? Standard 1.04, Informal Resolution of Ethical Violations, allows a psychologist to resolve an ethical issue informally when appropriate (APA, 2002). Brodsky and McKinzey (2002) offer practical guidelines on informal resolution of ethical violations in the judicial setting. They recommend a short letter or email to the forensic colleague addressing the issues and areas of concern. This gives the colleague the opportunity to clear up any misunderstanding and to rectify any prior testimony or evidence in a timely manner.
This approach has significant benefits: avoidance of formal actions, timely resolution of the ethical violations, and perseverance of the colleague’s reputation and dignity. However, if a resolution is not forthcoming through informal means, the psychological forensic expert witness must use formal means as noted under Standard 1.05, Reporting Ethical Violations, of the APA (2002) Code. These formal actions include notifying the judge and filing a complaint with the state board of psychology or other official committees.
The Use of Short Forms in Forensic Psychological Assessments
Psychological forensic expert witnesses are often asked to conduct an assessment of a party to a judicial proceeding. In some instances a specific test is requested. A recurring issue in forensic settings is the use of short forms. Most psychological assessments include a psychological examination of the client/patient and psychological testing. Validity and reliability have been established for most, if not all, of the standard tests used in psychology (e.g., the Wechsler IQ test). Over the years, short versions or forms of these standard tests have been developed and many--but not all--have been checked for validity and reliability. The psychological forensic expert witness may be inclined to use these short forms in forensic psychological practice.
Crespi and Politikos (2005) advise against the use of short forms in judicial settings. There is no doubt that there is widespread use of these forms and that they are time-saving devices. However, their reliability and validity for specific populations (e.g., juvenile delinquents) have not been established. An abbreviated test or short form may also miss material information that would be vital in a judicial determination. Standard 9.02b, Use of Assessments, of the APA (2002) Code requires psychologists to use assessment instruments whose validity and reliability have been established for the members of the population tested.
Predicting Future Violence
An issue that psychological forensic expert witnesses are frequently asked to deliver opinions about is whether the defendant, future parolee, or inmate is likely to commit future acts of violence. The standards present in the field of psychology do not allow a psychologist to predict the risk of future violence with an accepted degree of certainty >(Tolman & Rotzien, 2007). However, the legal system requires an assessment of risk in order to resolve matters at hand. This creates a legal-ethical dilemma for the psychological forensic expert witness.
The APA (2002) Code does not address this issue specifically. However, Standard 9.01, Bases for Assessments, requires psychologists to base their opinions on information and techniques sufficient to substantiate their findings and if asked to render opinions based on insufficient information and data, psychologists should appropriately limit the nature and extent of their conclusions and recommendations. In addition, Standard 1.02, Conflicts Between Ethics and Law, Regulations, or Other Governing Legal Authority, requires psychologists in the event of a legal-ethical conflict to make known their commitment to the Ethics Code and take steps to resolve the conflict. If the conflict remains irresolvable, the psychologist may adhere to the law. If the involvement of the psychological forensic expert witness is voluntary, they should excuse themselves from the role of the psychological forensic expert witness. However, if the psychological forensic expert witness role is involuntary (e.g., compelled by a subpoena) the psychologist must follow the guidelines as discussed.
SummaryThe professional psychologist may be asked to assume the role of the psychological forensic expert witness either on a voluntary or involuntary basis. The psychological forensic expert witness is essential to a myriad of judicial proceedings including professional negligence lawsuits, civil proceedings, and criminal proceedings. In most of these situations, the professional psychologist assumes dual roles—therapeutic and forensic. The psychologist must be cognizant of the possible conflicts that might result from the dual roles of the therapist-forensic expert.
The psychological forensic expert witness must be competent in the areas in which they intend to testify or offer evidence. Competency is established by knowledge, training, and experience. The psychological forensic expert witness must be actively engaged in the field of psychology and currently knowledgeable with the issues in question. The expert must be sufficiently aware of the relevant law in important areas. Prior experience in forensic matters is desirable but not required by the Code of Ethics.
The Code of Ethics provides the ethical framework for the psychological forensic expert witness. The current Code of Ethics is broad enough to encompass most - if not all - pertinent areas that may involve the psychological forensic expert witness. The Code of Ethics also provides means to resolve potential legal-ethical conflicts. Most state boards of psychology have adopted the Code of Ethics. However, depending upon the specific circumstances, the psychological forensic expert witness may also be subjected to other ethical codes of professional societies where they might hold a membership.
RecommendationsThe psychological forensic expert witness is essential to many judicial proceedings. In spite of the APA (2002) Code, problems still remain, especially that of the “hired gun” and the expert-advocate. The “hired gun” is a psychological expert witness whose main source of income and professional time is devoted to providing expert testimony. The fees for acting as an expert witness are very lucrative, often providing a source of income greater than that of a professional practice. These “hired guns”, or professional witnesses, will shade their testimony or provide false or misleading testimony to get within the good graces of their employers; usually an attorney. These professional witnesses damage the reputation of professional psychology. Their actions may cause outside parties, such as governmental agencies or consumer groups, to recommend external oversight of the profession rather than self-discipline, which is the standard with professional organizations.
Shuman, Cunningham, Connell, and Reid (2003) drafted a model act for interstate forensic psychology consultations. The model act has three components:
(1) the psychological expert witness services constitute the practice of psychology; (2) a psychologist holding a valid license in another state is automatically granted a temporary license (30 days) in the state where they intend to testify, but limited to psychological consultation; and (3) that nothing in the act restricts the practice of psychology by a licensed psychologist. This model act was proposed to prevent the current practice of “hired guns” moving from state-to-state to provide services unencumbered by potential actions of state boards of psychology. At this point in time, however, no state has enacted the model act as proposed.
The expert-advocate is not as problematic as the “hired gun.” The expert-advocate, while not providing false or misleading testimony, often offers shaded testimony favoring the party that has engaged them. Education and enlightenment on this issue may be enough to affect change for these psychological expert witnesses. Since this is an ethical issue, informal resolution is often available. However, formal ethical resolution processes may have to be engaged if informal ethical resolution is not possible. Shuman and Greenberg (2003) summarized the importance of the impartial, ethical psychological forensic expert witness: “If the testimony of mental health experts is not based on the principles of competence, relevance, perspective, balance, and candor, it is unlikely to be trustworthy…and it is unlikely to be beneficial to the courts, the professions, or the litigants who retain them” (p. 223).
Michael S. Cardwell, M.D. J.D., M.P.H., M.B.A. is an Associate Professor at the Texas Tech University Health Sciences Center in El Paso, Texas. He has served in the role of psychological forensic expert witness for the past twenty-six years, specializing in the areas of medical negligence, product liability, family court proceedings, adverse hospital credentialing actions of professionals, and medical board actions. Dr. Cardwell is a life member of ACFEI and serves on the Board of Forensic Medicine. Dr. Cardwell is currently working on a Doctorate in Health Psychology
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