Forensic Assessment

Forensic assessment is a part of the broader category of psychological assessment. The purpose of forensic assessment is distinct from that of traditional therapeutic assessment, and as such forensic evaluators have different training and practice guidelines. The settings in which forensic evaluations occur are vast, including law enforcement, correctional, and civil and criminal court settings. Forensic assessment may include traditional psychological assessments and specially designed forensic measures.

Psychological assessment refers to all the techniques used to evaluate an individual’s past, present, and future psychological status. The primary goals of assessment involve providing explanations for past and present behavior and making predictions about the parameters of future behavior. Furthermore, psychological assessment may involve the use of psychological tests or measuring devices. Forensic assessment is a category of psychological assessment that is used to aid a legal fact finder and is one of the most common applications of psychology to the law, prevalent in a variety of legal settings. A relatively new specialty, forensic assessment is one of the fastest growing areas in clinical psychology. Increasing numbers of psychologists are conducting, analyzing, and presenting psychological data in various legal settings. It has been estimated that hundreds of thousands of forensic assessments are conducted annually by psychologists and other mental health professionals.

Differences between Therapeutic and Forensic Assessment

Unlike therapeutic assessment, which occurs at the request of the patient, forensic assessment is commonly conducted at the bequest of the legal system. As such, forensic assessment is often not voluntarily sought by the person being evaluated and has more limited confidentiality than traditional therapeutic assessment. The person undergoing forensic assessment may resist the evaluation or may knowingly or unknowingly try to influence the assessment to further his or her legal situation. Attempts to feign mental illness or present oneself in a positive light are more common in forensic assessment than in traditional therapeutic assessment and should always be considered.

Traditional assessment is concerned primarily with the examinee’s view of the problem or events. Although forensic assessment does pay attention to the examinee’s perspective, it is more concerned with the accuracy of events than is traditional therapeutic assessment. Unlike therapeutic assessment, which casts the examiner in a supportive or helping role, the forensic evaluator’s duty is to the legal fact finder, which may or may not assist the person being evaluated. In other words, the client in traditional therapeutic assessment is the person being evaluated, whereas in forensic assessment, the client is the legal fact finder.

Finally, the scope of the two types of assessment differs. Therapeutic assessment typically covers broad clinical issues such as diagnosis, personality, and treatment. Forensic assessment, in contrast, is solely determined by the legal question at hand and, as such, commonly concerns more narrowly defined issues or incidents than what is covered in traditional therapeutic assessment. Although an examinee’s mental health and therapeutic needs may be discussed in forensic assessments, such discussions occur only in the context of the larger psycholegal referral question.

Forensic Assessment Training and Practice Guidelines

In most cases, forensic assessment is performed by mental health professionals who may or may not have had specialized forensic training. Recent years have seen a rapid increase in the teaching, training, and supervision of psychology graduate students, interns, and postdoctoral fellows. Numerous conferences and continuing education opportunities have proliferated as well. In the mid-1980s, the American Board of Professional Psychology (ABPP) began signifying psychologists who have advanced knowledge and competence in forensic psychology by the awarding of diplomate status, and in the early 1990s the American Psychological Association (APA) recognized forensic psychology as an APA specialty.

In addition to the ethical codes of conduct in psychological practice as well as standards for testing (e.g., Ethical Principles of Psychologists and Code of Conduct [EPPCC] and Standards for Educational and Psychological Testing), there are general and specific guidelines for forensic practice. The Specialty Guidelines for Forensic Psychologists (SGFP) were published in 1991, and a revision is under way. The SGFP are general in nature and apply to all areas of forensic psychological work. Unlike the EPPCC, which contain rules of conduct that are enforceable for APA members, the SGFP are aspirational and advisory. The SGFP inform psychologists about the nature and development of competent and responsible forensic practice with the goal of continuous improvement and enhancement. In addition to the SGFP, specialty guidelines and standards have been developed for certain areas of forensic work (e.g., Guidelines for Psychological Evaluations in Child Protection Matters and Standards for Psychology Services in Jails, Prisons, Correctional Facilities, and Agencies).

Several general instructions should be kept in mind when conducting forensic assessments. First, the conclusions and opinions need to be formed from a scientific basis. Quality forensic reports substantiate opinions with data and outline the reasons for the conclusions drawn. Forensic examiners must be prepared to defend the method of data collection and its scien-tific basis. Therefore, data should be collected carefully, and the limits of any data collected should be recognized and reported. Interpretations made during a forensic assessment should be based on multiple methods of data collection. The response style of the examinee should always be assessed for attempts to minimize or feign psychological impairment. The best method for conducting a forensic assessment and writing a subsequent forensic report is to imagine that all methods and conclusions are being critiqued by an opposing attorney. Finally, testing instruments, if used, should be related to the legal issue at hand and should be theoretically and psychometrically sound.

Forensic Assessment Settings

Typically, when people speak about forensic assessment they are referring to psychological assessments as part of civil or criminal court cases. The broad definition of forensic assessment used in this entry also encompasses forensic assessment in law enforcement and correctional settings. Overlap may exist between settings; also, a forensic assessment might be conducted for use in more than one setting or might be completed for one setting only to be used later in another setting.

Law enforcement is, of course, a broad term for the work of police officers in a variety of settings. Psychological assessment in law enforcement settings may involve criminal profiling and psychological autopsies as well as direct work with police officers. Psychological assessment of police officers can include screening of police candidates, fitness-for-duty evaluations, and promotional evaluations.

Psychological assessment in correctional settings may be involved at any phase of incarceration or correctional involvement. Forensic assessment might be conducted to provide insight into and predict criminal behavior with the goal of preventing future criminality. This area of risk or dangerousness assessment has been quite popular in both clinical and research arenas, with much attention given to isolating the variables associated with recidivism, especially violent recidivism. Assessment in correctional settings can also be used to assess amenability to treatment and/or rehabilitation and may be subsequently used in reaching sentencing and parole decisions. Psychological assessment may also be used to evaluate the mental health needs of jail and prison inmates, as well as the psychological effects of imprisonment.

Both civil and criminal courts increasingly request and use psychological data. Civil courts handle disputes between citizens; criminal courts handle disputes between a citizen and the state. Examples of where forensic assessment might be involved in civil courts include divorce and child custody cases, competency to consent to treatment or provide care for oneself, examinations of testamentary competence, or civil suits where psychological or neurological injury might be involved (e.g., malpractice cases or automobile accidents).

Certain types of cases have been traditionally categorized as civil but, given the potential deprivation of liberty involved, have been labeled as “quasi-criminal” by scholars in the field. The two types of quasi-criminal cases are civil commitment hearings and juvenile delinquency cases. Forensic assessment is invaluable in civil commitment hearings, in which most states require a finding that the person is mentally ill and is a danger to self or others or in need of care or treatment. There are many stages in juvenile delinquency proceedings where forensic assessment can be of assistance. Issues that used to occur primarily in the adult criminal justice system, such as competency to stand trial, are increasingly being raised in juvenile cases. In addition, juveniles may be evaluated for their amenability to treatment in the juvenile justice system. If they are not considered amenable, their case may be waived to adult court. A child who is tried through the juvenile justice system may undergo a presentence evaluation to determine the best disposition of his or her case.

Forensic assessment can be involved at all levels of criminal proceedings, starting with evaluations of a defendant’s capacity to waive Miranda rights at the time of arrest and concluding with evaluations of a defendant’s competency to be sentenced or competency to be executed. Forensic assessment is most commonly requested in criminal cases to evaluate a defendant’s competency to stand trial, with approximately 60,000 such evaluations performed annually. Evaluations of a defendant’s criminal responsibility (insanity defense evaluations) are probably the second most common question posed in criminal forensic assessment, although the insanity defense is raised in less than 1% of all felony cases. Sometimes, competency to stand trial and criminal responsibility are confused, and the terms are used interchangeably. Competency-to-stand-trial evaluations focus on a defendant’s current mental functioning, whereas criminal responsibility evaluations focus on the defendant’s mental state at the time of the offense. Other types of criminal forensic assessment include evaluations of competence to waive counsel and competence to plead guilty.

Tests and Forensic Assessment Instruments

Forensic assessment, as mentioned earlier, may involve the use of psychological tests or assessment instruments. The decision about how and when to use a test as part of a forensic assessment involves consideration of the relevance of the test to the legal question or to the psychological construct that underlies the legal issue. Whether a given test is relevant should be determined by the specific issues involved in the psycholegal referral question. Only tests or instruments with a sound theoretical and psychometric base should be used. Forensic examiners should assess any research findings concerning correlations between testing results and legally relevant behaviors. Testing results and generated hypotheses should be corroborated with archival or third-party data. Corroboration is crucial in forensic contexts because examinees may knowingly or unknowingly present themselves in a manner that helps their legal situation. Third-party data are often more important than testing in cases that involve retrospective inquiries about a person’s prior psychological functioning (i.e., criminal responsibility evaluations). Finally, examiners should be concerned about how the selected test will be received by the legal system and should take pains to ensure that the test and its applicability to the legal question at hand are fully explained. The volume of tests that may be used in forensic settings is so vast that it is impossible to mention all types or examples. However, three general classifications exist, reflecting the degree of direct relevance the test has to a specific legal issue.

The first category includes tests and assessment techniques that were developed for the assessment, diagnosis, and/or treatment planning of nonforensic populations in primarily therapeutic contexts. Research has shown that in addition to clinical interviewing, this test category is the one most commonly used in forensic assessment. However, despite their widespread use, caution is advised when selecting these tests to aid in forensic assessment. Conventional psychological tests have limited use in forensic contexts because they were not devised to address psycholegal questions and typically do not use forensic populations in their development or validation. If such tests are used, it is essential that the link between the test and the legal issue at hand be adequately established. Examples of this category include tests to measure achievement, personality, or intellectual ability (e.g., Woodcock Johnson Tests of Achievement-Third Edition, Personality Assessment Inventory, Wechsler Adult Intelligence Scale-III).

The second category includes tests that were not specifically developed for addressing legal issues but are considered to be forensically relevant in that they address clinical constructs that are often pertinent to persons involved in legal situations. Perhaps the most popular of forensically relevant instruments are measures that assess an examinee’s response style, specifically evaluating minimization or feigning of problems (e.g., Minnesota Multiphasic Personality Inventory-II or Structured Interview of Reported Symptoms). Other forensically relevant instruments include tests that may help in child custody assessments (e.g., Parenting Stress Index) or measures of psychopathy (e.g., Hare Psychopathy Checklist-Revised).

Forensic assessment instruments designed to address specific legal issues comprise the third category. These tests are directly relevant to the assessment of psycholegal capacities, abilities, or knowledge. Such instruments can enhance the quality of a forensic assessment by providing relatively standardized assessment procedures and methods for classifying or quantifying an examinee’s responses. The use of forensic assessment instruments may serve to reduce examiner bias and/or error and may allow for meaningful comparisons over time or between different examiners. Forensic assessment instruments range from simple interview guides that help structure interviews around the appropriate legal issues to instruments that are constructed and validated with a solid research base. In conjunction with the rise in forensic assessment and the need for psychological input in legal cases, the development and validation of specialized forensic assessment instruments is becoming more critical.

Forensic assessment instruments exist in most areas of forensic assessment. For example, the Inwald Personality Inventory was developed to assess police officer candidates for behavior and maladjustments that might negatively affect their performance as police officers. The Jail Screening Assessment Tool was developed to identify inmates during intake who may require a more formal mental health assessment. In addition to their usefulness in law enforcement and correctional settings, forensic assessment instruments are especially prevalent in civil, quasi-criminal, and criminal settings. Instruments in civil settings include measures of parenting capacity, daily decision making, and competency to consent to research or manage health care decisions (e.g., MacArthur Competence Assessment Tool for Treatment). Quasi-criminal settings that use forensic assessment instruments are primarily juvenile justice proceedings. The majority of forensic assessment instruments used with juveniles were designed primarily for use with adults (e.g., Competence Assessment for Standing Trial for Defendants with Mental Retardation), although instruments created specifically for addressing forensic issues with juveniles are on the rise (e.g., Juvenile Adjudicative Competence Interview). Forensic assessment instruments are most well-known for their use in adult criminal court settings and are especially prevalent in the area of competency to stand trial (e.g., Fitness Interview Test-Revised, MacArthur Competence Assessment Tool-Criminal Adjudication, and Evaluation of Competence to Stand Trial-Revised), although measures exist for other areas of criminal forensic assessment (e.g., Grisso’s Instruments for Assessing Understanding and Appreciation of Miranda Rights and Rogers Criminal Responsibility Assessment Scales).

A marked increase in commercially available forensically relevant and forensic assessment instruments has occurred in recent years, with this trend showing no signs of slowing down. Measures have been developed and published in two ways. The first is more methodical and scientific in that a test is made commercially available only after it has been researched, peer-reviewed, and refined with the normative data collected. The second, and more questionable, method involves publication of an instrument after only preliminary research has been conducted. Prevailing testing standards and the SGFP caution against the use of tests that have not undergone adequate research and development.

In addition to these cautions, each state has varying requirements for the admissibility of expert testimony. Until recently, the standard employed by all states was that established in Frye v. United States (1923), whereby the tests used in reaching expert opinions must have “general acceptance” in the field. In many states, the Frye standard was supplemented by the standards established in three, more recent cases, Daubert v. Merrell Dow Pharmaceuticals (1993), General Electric Co. v. Joiner (1997), and Kumho Tire Company v. Carmichael (1999). These three cases increased the number of challenges made by attorneys regarding the instruments used by clinicians in reaching their expert opinions. Admissibility standards associated with these cases include increased scrutiny of the development, reliability, validity, peer review, and general acceptance of the tests or instruments used in forming expert opinions.

References:

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