Psychologists Who Make Unqualified Public Statements About Litigants Whom They Have Not Examined

Jack S. Annon^*

ABSTRACT: Psychologists who provide expert testimony in court without properly qualifying their opinions may be violating ethical codes and specialty guidelines.  The relevant sections of the Ethical Principles of Psychologists and Code of Conduct and the Specialty Guidelines for Forensic Psychologists are discussed in terms of this issue.

The field of forensic psychology continues to expand as more and more attorneys ask psychologists to perform continually evolving tasks.  Unfortunately, some psychologists, perhaps with good intentions, leap to the challenge, and, possibly without awareness, find themselves violating ethical codes and specialty guidelines.

I was asked by an attorney to read a report by a psychologist relating to the lawyer's client, a defendant in an alleged child sexual abuse case arising in the middle of a bitterly contested divorce case.  I was frankly shocked by the report.  The psychologist was given depositions of the plaintiff and the defendant along with those of several other people involved in the case, police reports, and a statement of the charges against the defendant.

Based on these materials and his "training and experience," the psychologist gave his "professional opinion" in a 10-page report that the defendant had sexually abused the child and cited seven major reasons for his findings which were taken from the sexual abuse literature in general.  I also read the transcripts of the two depositions the psychologist had given, and he made similar points in his depositions.

To further complicate the situation, the opposing attorney had cited, out of context, several quotations from the psychologist's report in order to buttress completely different point in a memorandum to the court.  Because there was a possibility that the psychologist might not be available to testify, the opposing attorney had moved to have the report and depositions given to the jury in lieu of testimony.

I wrote an affidavit to the court stating that, in my judgment, the report did not meet the mandatory ethical standards applicable to psychological evaluations, diagnoses, and intervention in a professional context, and did not meet the mandatory standard applicable to psychological activities in general and to forensic examination in particular.  It was further my opinion that the report, or testimony to a similar effect if offered, would be found in violation of a number of psychological ethical standards and guidelines.

I cited the Ethical Principles of Psychologists and Code of Conduct (APA 1992); and the guidelines set forth in the Specialty Guidelines for Forensic Psychologists (APA, Division 41, 1991).  As a member of two professional organizations ethics committees, similar cases as the above are, unfortunately, not uncommon.

It is important for psychologists to remember that the Ethical Standards are enforceable rules for conduct as a psychologist, and membership in APA commits all members to adhere to the APA Ethics Code and the rules and procedures used to implement them.  As the introduction to the code states, even if psychologists are not members of APA, they "should be aware that the Ethics Code may be applied to them by state psychology boards, courts, or other public bodies."  For a psychologist to lose his or her license to practice is serious matter indeed.

In the hope of resensitizing psychologists to their relevant ethical provisions, the following particular principles are cited, as was done in the affidavit:

1.15 Misuse of Psychologists' Influence.  Because psychologists' scientific and professional judgments and actions may affect the lives of others, they are alert to and guard against personal, financial, social, organizational, or political factors that might lead to misuse other influence.

This particularly applied to the case cited earlier, where the attorney used only selected portions of the psychologist's report to buttress an argument that the psychologist did not intend.  It is important to instruct attorneys not to quote any work out of context, unless the psychologist agrees that the quote is accurate by itself

2.01(b) Psychologists' assessments, recommendations, reports, and psychological diagnostic or evaluative statements are based on information and techniques (including personal interviews of the individual when appropriate) sufficient to provide appropriate substantiation for their findings.  (See also Standard 702, Forensic Assessments.)

It is imperative that the psychologist conduct a personal assessment of an individual before making any diagnostic statements about that individual.

2.05 Interpreting Assessment Results.  When interpreting assessment results, including automated interpretations, psychologists take into account the various test factors and characteristics of the person being assessed that might affect psychologists' judgments or reduce the accuracy of their interpretations.  They indicate any significant reservations they have about the accuracy or limitations of their interpretations.

In the case cited above, the psychologist never once qualified any of his statements about the defendant.  This is extremely important to do if your data base is limited.

7.02 Forensic Assessments. (b) Except as noted in (c) below, psychologists provide written or oral forensic reports or testimony of the psychological characteristics of an individual only after they have conducted an examination of the individual adequate to support their statements or conclusions.

7.02 Forensic Assessments. (c) When, despite reasonable effort, such an examination is not feasible, psychologists clarify the impact of their limited information on the reliability and validity of their reports and testimony and they appropriately limit the nature and extent of their conclusions or recommendations.

7.04 Truthfulness and Candor. (b) Whenever necessary to avoid misleading, psychologists acknowledge the limits of their data or conclusions.

While the above appears obvious, it is unfortunate that many psychologists fail to note the limitations of their data base, and to properly qualify their opinions.  This applies to reports as well as to psychological testimony given in deposition or in court.

There are also relevant guidelines set forth in the Specialty Guidelines for Forensic Psychologists (APA, Division 41, 1991).  Many psychologists, however, say that these are only guidelines and do not carry the weight of the Ethics Code.  However, attorneys often use the General and Specialty Guidelines of the profession as "Standards of Practice" for the psychologist, and may argue such to the jury or judge.

In addition, it should be pointed out that the preamble to the General Guidelines for Providers of Psychological Services (APA, 1987) clearly states:

Providers of psychological services have the same responsibility to uphold these specific General Guidelines as they would the corresponding Ethical Principles.

Furthermore, the introduction to the Ethical Principles also states:

If neither law nor the Ethics Code resolves an issue, psychologists should consider other professional materials ...

And in a footnote it goes on to clarify:

Professional materials that are most helpful in this regard are guidelines and standards that have been adopted or endorsed by professional psychological organizations.

In regard to the Forensic Guidelines advanced by Division 41 of the APA, many psychologists also feel that they do not apply to them because they do not consider themselves to be "Forensic" psychologists.  However, look closely at the definitions that the Guidelines provide:

I. B. Scope.

1. The Guidelines specify the nature of desirable professional practice by forensic psychologists, within any subdiscipline of psychology (e.g., clinical, developmental, social, experimental), when engaged regularly as forensic psychologists.

a. Psychologist'' means any individual whose professional activities[sic] is defined by the American Psychological Association or by regulation of title by state registration or licensure, as the practice of psychology.

b. "Forensic psychology" means all forms of professional psychological conduct when acting, with definable foreknowledge, as a psychological expert on explicitly psycholegal issues, in direct assistance to courts, parties to legal proceedings, correctional and forensic mental health facilities, and administrative, judicial and legislative agencies acting in an adjudicative capacity.

In regard to the case first cited, the reader can see that similar issues that were raised in the Ethics Code, are raised in greater detail here.

VI. Methods and Procedures, C.  In providing forensic psychological services, forensic psychologists take special care to avoid undue influence upon their methods, procedures and products, such as might emanate from the party to a legal proceeding by financial compensation or other gains.  As an expert conducting an evaluation, treatment, consultation or scholarly/empirical investigations, the forensic psychologist maintains professional integrity by examining the issue at hand from all reasonable perspectives, actively seeking information which will differentially test plausible rival hypotheses.

VI. Methods and Procedures, F.1.  While many forms of data used by forensic psychologist are hearsay, forensic psychologists attempt to corroborate critical data which form the basis fir their professional conduct.  When using hearsay data that have not been corroborated, but are nevertheless utilized, forensic psychologists have an affirmative responsibility to acknowledge the uncorroborated status of that data and the reasons for relying upon such data.

VI. Methods and Procedures, E3.  When a forensic psychologist relies upon data or information gathered by others, the origins of those data are clarified in any professional product.  In addition, the forensic psychologist bears a special responsibility to ensure that such data, if relied upon, were gathered in a manner standard for the profession.

VI. Methods and Procedures, H.  Forensic psychologists avoid giving written or oral evidence about the psychological characteristics of particular individuals when they have not had an opportunity to conduct an examination of the individual adequate to the scope of the statements, opinions or conclusions to be issued.  Forensic psychologists make every reasonable effort to conduct such examinations.  When it is not possible or feasible to do so, they make clear the impact of such limitations on the reliability and validity of their professional products, evidence or testimony.

VII. Public and Professional Communications, A.  Forensic psychologists make reasonable efforts to ensure that the products of their services, as well as their own public statements and professional testimony are communicated in ways that will promote understanding and avoid deception given the particular characteristics, roles, and abilities of' various recipients of the communications.

VII. Public and Professional Communications, B.  Forensic psychologists realize that their public role as "expert to the court'' or as "expert representing the profession" confers upon them a special responsibility for fairness and accuracy in their public statements.  When evaluating or commenting upon the professional work product or qualifications of another expert or party to a legal proceeding, forensic psychologists represent their professional disagreements with reference to a fair and accurate evaluation of the data, theories, standards and opinion of the other expert or party.

VII. Public and Professional Communications, D.  When testifying, forensic psychologists have an obligation to all parties to a legal proceeding to present their findings, conclusions, evidence or other professional products in a fair manner.  This principle does not preclude forceful representation of the data and reasoning upon which a conclusion or professional product is based.  It does, however; preclude an attempt, whether active or passive, to engage in partisan distortion or misrepresentation.  Forensic psychologists do not, by either commission or omission, participate in 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 closing my affidavit, after citing all of the above, I pointed out that, although the psychologist's report indicated he had not evaluated either the Plaintiff or the Defendant and had reviewed only a small selective portion of available information, he in no way limited or qualified his conclusions.  I concluded that if the psychologist were to testify to the same conclusions that were in his written report, it would most likely be in violation of ethical standards and guidelines for psychologists.

After reviewing my affidavit, the judge ruled that all statements and conclusions the psychologist had made about the defendant were to be eliminated, and only the psychologist's general statements about various types of sex offenses could be offered.  Subsequently the jury acquitted the defendant.

I hope that this cautionary note has resensitized readers to the ethical and professional issues involved in psychologists making public or written statements in general, and in legal issues in particular.

References

American Psychological Association (1987). General Guidelines for Providers of Psychological Services ().

American Psychological Association (1992). Ethical Principles of Psychologists and Code of Conduct ().

American Psychological Association, Division 41 (1991). Specialty Guidelines for Forensic Psychologists (N/A).