Forensic psychologists must deal regularly with two related aspects of principled practice that warrant further elaboration. The first of these concerns the obligation of practitioners to prevent their personal values from affecting their professional conduct. The second aspect concerns the professional responsibility of forensic psychologists to resist expectations or demands of attorneys that, although falling within the law, run counter to psychology’s ethical principles and standards.
The Ethics Code calls on psychologists to be cognizant of how their values as well as their limitations might affect their work (APA, 2002, Justice Principle & Section 3.01). Forensic practitioners must be conscientious not only in presenting the factual bases of their opinions and their level of certainty about their inferences but also by being sensitive to the possible impact of their personal needs and beliefs on their interpretation of the data. The nature and extent of this value-based impact may not always be apparent, but being alert in every case to this possible threat to their integrity is no less important for forensic psychologists than being sufficiently competent to deal effectively with the substance of the case.
This is not to say that experts will conduct their professional affairs completely free of prejudices derived from their values. However, it is one thing for psychologists to accept a case involving issues about which they have some opinion but nevertheless strive to remain objective and neutral in their work on the case; it is quite something else for psychologists to seek out forensic opportunities in order to promote certain causes or advance some sociopolitical agenda, in which case their neutrality and objectivity would most certainly be suspect. As suggested by Hess (1998), experts should ask themselves several questions before committing to participate in a case in which their values might cloud their judgment: Would they be using the expert role to provide objective expertise or to exercise moral advocacy? Are they qualified by knowledge, skills, education, experience, or training to provide information that will be helpful to the fact finders in the case? Will their involvement in the case be probative (truly informative) or prejudicial (one-sided argumentative)? To what extent will the adversarial nature of the legal system distort the implications of whatever evidence they provide?
Hence the ethical concern is not whether psychologists serving in expert roles have values but whether these values constitute a dedicated purpose that compromises the objectivity and neutrality they bring to their evaluations and testimony in certain cases. Suppose, for example, that a male psychologist loses custody of his own child and subsequently becomes determined that no other father should lose custody of his child. In pursuit of this mission, he comes to believe that the father in every child custody case in which he consults should be awarded custody, and his reports always conclude that the father is the more suitable parent. This obvious intrusion of personal beliefs on professional conduct would have eroded the psychologist’s integrity, damaged the examinees, and undermined the legal process as well.
Forensic psychologists are entitled to their personal beliefs, including a conviction that fathers should always be awarded custody. However, proper platforms for promoting such causes might include a presentation to a legislative body or participation in a sociopolitical action group, but they do not include testifying as an expert witness. Forensic practitioners who pursue a personal agenda or moral cause when objective opinion is expected and neutrality is required transgress ethical standards and invite malpractice claims. Forensic psychologists should limit their expert witness involvement to cases in which they will have no difficulty suspending motivation to impose their own values, and they should neither seek nor accept professional opportunities to espouse partisan positions in the courtroom.
Forensic practitioners at times have to take responsibility for resisting attorney expectations and demands that reflect adversarial aspects of the judicial system and fall within the boundaries of the law but are not consistent with practicing principled forensic psychology. Lawyers who try cases are accustomed to opposing each other, with a winner and a loser in each instance, and they are obliged to do whatever they can, within the rules of procedure and evidence, to win cases on behalf of their clients. This adversarial stance may define how some attorneys view their experts as well as their clients, in which case forensic psychologists must take care to avoid such consequent problems as inappropriate agency, multiple relationships, geographical intrusion, and misused expertise.
Inappropriate agency in forensic practice derives from the fact that lawyers are agents for their clients and are committed to working for their benefit. As one problematic consequence of this adversarial posture, attorneys may regard forensic psychologists they retain as likewise being agents for their clients who will advocate along with them on their behalf and share their commitment to winning their cases. Except when forensic psychologists have been retained as consultants to provide behind-the-scenes advice on case management, rather than as expert witnesses, they must resist being inappropriately cast as agents for the attorney’s client. When they are retained to evaluate an attorney’s client and provide expert testimony, their client is the attorney who retained them, not the person they are evaluating, and they have no responsibility for serving this person’s best interests or advocating on his or her behalf (APA, 2012a, 4.01).
Nor are forensic psychologists agents of the attorney who retains them, and they are no more responsible for serving the attorney’s best interests than they are for serving the best interests of the attorney’s client. Forensic psychologists have no professional obligations to the parties in a case other than to conduct a competent evaluation and report their findings clearly, accurately, and honestly, whatever these findings may be, and independently of any motivation to win or lose. Fisher (2009) argues in this regard that identifying who should and should not be considered the forensic psychologist’s client in a case is less important than having a clear sense of the practitioner’s ethical responsibilities to each of the parties in the case.
However it might be defined, avoiding inappropriate agency and thus remaining free of an adversarial posture is an essential element of complying with the Ethics Code. If an examining psychologist’s findings appear to strengthen a retaining attorney’s case, all well and good; should the findings seem likely to undermine the attorney’s chances of winning a case, this eventuality should be construed as the lawyer’s problem, not the psychologist’s problem, as in the following case.
The plaintiff in a personal injury case was seeking damages for allegedly experiencing an incapacitating stress disorder subsequent to being falsely accused of shoplifting in a department store. A psychological examination revealed few of the kinds of test patterns commonly found in persons with a stress disorder. To the contrary, the obtained data painted a picture of a psychologically resourceful woman with many personality strengths and above-average capacity to deal with stressful situations without becoming unduly upset by them. The psychologist informed the retaining attorney that the results of the examination were likely to work against his client’s case. Acting in accord with allowable adversarial procedures, the attorney declined to have a report written and did not identify the psychologist as an expert witness in the case, thereby shielding the psychologist’s information from discovery. To the psychologist’s surprise, however, the attorney thanked him for these seemingly unhelpful results. He had suspected some exaggeration on his client’s part and now had some dependable basis for attempting to persuade her to drop or at least reduce her claims, which would make it less difficult for him to represent her.
Concerning the potential for multiple relationships, attorneys may at times ask or expect practitioners to include therapeutic services in their work with a client they have referred for a forensic evaluation. At other times, an attorney may ask a client’s therapist if he or she would be willing to write an evaluation of the person for use in a forensic matter. The Ethics Code and the Specialty Guidelines urge practitioners to avoid such dual roles, out of concern that providing forensic and therapeutic services to the same or closely related individuals might impair their objectivity and risk doing harm to the recipient of their services. If asked to undertake 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 qualified provider” (APA, 2002, 3.05; APA 2013, Standard 4.02). Should practitioners be required by law, institutional policy, or external circumstances to serve in more than one role in a judicial or administrative proceeding, the guidelines recommend explaining the potential drawbacks of such multiple relationships and striving to minimize any negative consequences of the particular circumstance.
As for geographical intrusion, lawyers are ordinarily free to bring both fact and expert witnesses into court from wherever they reside. Psychologists are likewise free to give testimony wherever they are called upon to do so. However, should a forensic consultation involve conducting an evaluation or engaging in other activities that constitute practicing psychology, the provision of such services in a state in which one is not licensed is a geographical intrusion that can evoke ethical complaints or legal action. Attorneys may not know or be concerned about this practice constraint when they retain out-of-state experts, but licensing laws can pose serious obstacles to practicing outside of states in which one is licensed. It falls to forensic psychologists to take responsibility for learning about and complying with the local regulations whenever they practice across state lines, and these regulations vary from state to state. As reported by Goodstein (2012), 11 states allow no practice at all by psychologists who are not licensed in their state; 23 states allow some practice by out-of-state psychologists, but only after prior approval by the state licensing board; and most states that allow interstate practice with or without prior approval limit the allowable number of days that psychologists can engage in this practice.
Misused expertise is a regrettable turn of events that can occur as a consequence of attorneys being accustomed to an adversarial system in which everyone is entitled to a defense. Psychologists may respect this tenet of the law, but they are not professionally bound by it, nor are they obliged to assist in a defense when it seems inadvisable or improper for them to do so. Whereas lawyers may be assigned by the court or their firm to construct the best possible defense of a client, no matter how weak the case, forensic psychologists are ordinarily free to accept or decline requests to serve as an expert witness, as they see fit. In exercising this freedom, practitioners do well to avoid cases in which their expertise might be misused to shore up a foolish, poorly conceived, or contrived defense. Testifying as an expert when psychological knowledge has little bearing on the issues in a case or, worse yet, when a manufactured defense borders on the psychologically absurd, can be damaging to a forensic psychologist’s reputation and reflect poorly on the profession. The practitioner in the following situation showed professional responsibility by declining to become involved in two cases that he anticipated could damage his reputation and the respectability of forensic psychology.
A psychologist received separate calls from two attorneys in a firm to which he had been recommended as a consultant. One of the attorneys wanted help with defending a student who had been caught cheating by copying answers from other students examinations. The attorney had theorized that the cheater could not refrain from scanning his environment in search of answers due to an innate tendency that caused his eyes to wander. He sought to entice the psychologist’s participation by offering to work with him in developing this theory and going public with a “wandering eyes syndrome” that could bring both of them some degree of fame and fortune. The other attorney wanted to pursue whether an innate sensitivity to threat might justify his client having beaten his brother-in-law to death, before the brother-in-law could beat him to death, without their being any evidence that the murdered man had acted aggressively or in a threatening manner toward the client. The psychologist felt strongly that participating in either a wandering eyes syndrome defense or an innate threat sensitivity defense would constitute misuse of his professional expertise and expose him to ridicule in his professional community. Preferring to preserve his reputation and reserve his testimony for cases in which his expertise would be used responsibly, he passed on the opportunity to participate in these cases.