The field of forensic psychology, or the application of psychological theories to issues in the law, has grown in the past twenty years since it became its own division (D41) within the American Psychological Association (APA). Initially, beginning around the early 1900’s the forensic psychologist concentrated on the application of social psychology research to answer legal questions such as providing information to the court concerning the impact of sex discrimination on children in segregated schools (Brown v Board of Education), the scientific accuracy of classification of children in schools using intelligence tests, and psychological impact of forensic evidence such as eyewitness testimony or polygraph examinations. Later, as psychologists began to develop specialties and proficiencies, the clinical forensic psychologist began to offer assistance to the courts when criminal defendants appeared to lack the requisite mens rea or state of mind due to mental illness. Competency-to-proceed-to-trial as well as insanity cases now routinely utilize the clinical forensic psychologist’s skills. Child custody disputes utilize the skills of the clinical forensic examiner to address the issue of what is in the best interests of the child. The forensic neuropsychologist addresses the psychological impact of brain damage from toxicity or other causes in personal injury lawsuits and the practitioner testifies to the community standard of care when licensing board complaints or malpractice actions are filed. These and other legal issues provide the mainstay of the clinician who also practices in the legal arena.

One of the most important skills that the clinical psychologist has to offer to the courts is the ability to use standardized assessments to augment the clinical interview in evaluating the cognitions, emotions, and behavior of the litigant. However, the interpretation of the responses to these assessment tools is different when used in answering legal questions. This article will suggest issues to think about when applying clinical assessment instruments to a forensic population. We also describe some of the forensic psychological assessment instruments that are now available in situations such as violence risk, competency, or impact from trauma. Finally, we emphasize the importance of integrating the results of the tests, clinical interview, and observations, together with the documents reviewed to place the results within the context of the current legal question and other behavioral descriptions.

Use of Standardized Psychological Tests

Do the Test Norms fit the Population?

The normative population in most forensic cases is usually quite different from the population(s) on which most psychological tests have been normed. This is especially true for criminal defendants who tend to be over represented by those who are poor, less educated, and from a minority group whose native language may not even be English. Although recent statistics from the U.S. Department of Justice (2006) suggest that over 50% of those people held in jails or prisons in the nation have had a mental illness at some time in their lives, it is probable that the majority were not diagnosed by psychologists using a standardized test battery.

The interpretation of traditional psychological tests that have been normed in primarily clinical populations may need to be modified to take account of the very specific constraints met in forensic practice. For instance, interpretive statements coming from an MMPI-2 interpretative report or textbook suggestions need to be modified, depending on the context. In a clinical population, an item like “there are people controlling my actions” would suggest possible paranoid thinking, while in an incarcerated population it may mean nothing more than the fact that the correctional officers tell an inmate when to leave and return to his or her cell. High F scales may simply be a reflection of the unusual situations or discomfort of someone not used to being in a small cell with only an uncomfortable bed. Similar cautions exist when interpreting a test that has been given to a woman who is the survivor of domestic violence as items that sound like “someone is out to get me” may be true and must be reinterpreted in light of the specific context. In personal injury cases, an item like “there are people following me” may reflect the reality that the opposing side has hired an investigator to follow them, rather than it being evidence of a delusional system. In child custody matters “people say insulting and vulgar things about me” may only reflect the posturing of the attorneys in the midst of the litigation, rather than a hypersensitivity that would be true in a clinical population.

These differences from the traditional norms should be stated in a written report or reported during testimony. This is also true if the test is modified due to the inability to set appropriate testing conditions. Difficulties in concentration on the WAIS-III may be due to poor testing conditions in the jail including an officer’s refusal to remove the defendant’s handcuffs, rather than neuropsychological problems. Or, perhaps even more difficult is the interaction effects of extraneous noise for a person with a hearing loss. Cross examination may require the psychologist to report reliability and validity scores, so it is important to understand test construction and the limits of the use of that test.

Corroboration of Interview Data

Another difference between the clinical and forensic psychological evaluation is in the approach to the data. In traditional clinical assessments the clinician rarely seeks outside or third party verification of the data obtained in the evaluation. A clinical psychologist may do in depth interviews and administer a battery of psychological tests, but rarely will interview collateral sources or review large numbers of records. This necessity to utilize third party observations, review records, interview many people outside of the person being examined, and integrate all these sources of data is essential in a forensic assessment. Forensic assessments that do not integrate outside data and look for consistencies across data sources, are not only poorly executed forensic psychological assessments but may not be admissible in many legal proceedings.
There are also issues specific to forensic assessment that rarely have to be considered in traditional clinical assessments such as malingering and dissimulation. In clinical assessments, while we may consider the fact that, due to certain defense mechanisms, a client may not be totally forthcoming, the idea that someone may be deliberately distorting assessment results for self gain is virtually nonexistent. In forensic contexts, it is an essential part of the assessment. People in litigation have a variety of motives for concealing or exaggerating pathology. In child custody contexts, for instance, litigants may be motivated to present themselves as overly virtuous and downplay any hints of emotional problems in order to maintain custody of a minor child. Or they might exaggerate signs and symptoms into non-existent or unscientific disorders such as Psychological Munchausen-by-Proxy or Parental Alienation Syndrome in order to gain advantage in the lawsuit. In personal injury cases, the size of a monetary award can be influenced by exaggerating the degree of impairment. In criminal cases, if a defendant is found unrestorably incompetent, he or she may never have to face criminal charges. Similarly, if a defendant is successful in feigning an insanity defense he or she may well be released from subsequent hospitalization since he or she will not meet the criteria for hospitalization.

Ethical Dilemmas Specific to Forensic Cases

Ethical dilemmas frequently surface during legal cases that are very rarely encountered in traditional clinical settings. For instance, it is commonplace for a forensic psychologist to receive a subpoena demanding the production of raw psychological test data to someone who is not qualified to interpret it. In the former APA Code of Ethical Conduct the psychologist was able to rely on the ethical standard that cautioned against releasing data to someone not qualified to interpret it but in the current version, the ethical standard has been modified to comply with HIPAA rules and may make it more difficult not to turn over these data to attorneys who may well misinterpret the results for their own purposes. In the forensic context, the legal rules of discovery make it clear that any expert must be prepared to reveal all the data that assisted her or him in reaching an opinion. In some states, such as Florida, the licensing board has passed a rule in the administrative code that prevents the psychologist from releasing raw test data, which is interpreted to mean clinical notes and test protocols, to people who are not licensed psychologists. Obviously, this type of administrative code rule assists both judges and psychologists in protecting clients against the misuse of their data while still assuring that the client does own his or her data in clinical situations.

A second ethical dilemma unique to forensic assessment is the issue of informed consent. While informed consent is necessary in clinical contexts as well, in forensic contexts the issue of the extent of disclosure is always problematic. For instance, if part of one’s assessment is to determine malingering, does one disclose that to the examinee ahead of time? Can such deception be justified because this is a forensic assessment? This issue is particularly salient when performing what is called an ‘independent psychological evaluation’ in civil cases but really is an examination for the defense or when criminal defendants choose to use a defense that permits the state to hire their own expert to perform an evaluation that is often not in the defendant’s best interests.

Finally, while the APA Ethics Code reminds us that our opinions must be based on data sufficient to substantiate a finding, the amount of data needed to reach that threshold is usually considered much higher in forensic than in clinical work. It is important to remember that many of our tests are in the public domain and some of our clients may have been coached in how to respond to our questions (Tara & Abeles, 2006). Keeping these introductory remarks as a backdrop, let us turn to the use of specific tests in forensic contexts.

Forensic Assessment Techniques with Standardized Tests

Cognitive Assessment
Wechsler Scales (WAIS-III, WASI, WMS, WIAT)

The assessment of cognitive functioning in forensic situations is similar to its assessment in clinical, school, and neuropsychological settings. The gold standard is the Wechsler Adult Intelligence Scale, Third Edition (WAIS-III). In some situations that do not require precise measurement a standard clinical interview is used to estimate that a person is functioning within the normal range of cognitive abilities. However, in many forensic situations accurate assessment of cognitive abilities may make an important difference in the outcome of the case. This is particularly true if a criminal defendant is charged with a serious crime such as in the case of a 15 year old who is waived into adult court for killing someone or if a mentally retarded person is facing the death penalty. In civil personal injury cases, the WAIS-III results that indicate a large difference between verbal and performance IQs might corroborate the damage from an accident and suggest further neuropsychological testing and rehabilitation that is necessary.

See Table 1 for a listing of the tests described in this article. Please be aware that this is only a limited sample of tests in each of the categories to be assessed.

The Wechsler Abbreviated Scale of Intelligence (WASI) calls for the administration of four of the subtest, two in the verbal and two in the performance areas and is a better test to use than choosing several WAIS-III subtests, if time is limited and cognitive functioning is not a primary concern in the legal questions to be answered. However, not administering all of the WAIS-III subtests makes it impossible to discuss working memory and other index scores that may be even more important in forensic cases questioning cognitive abilities than in clinical cases.

Obviously, interpretation of this and other cognitive tests must consider culture and language background as well as impact of emotional functioning on the person’s cognitive abilities. The Test of Non Verbal Intelligence (TONI) may be substituted for the WAIS-III in those whose knowledge of English is poor. Forensic examiners use tests that can assess for reading level [Wide Range Achievement Tests (WRAT), Wechsler Achievement Tests (WIAT)] and other areas of academic achievement together with the WAIS-III that can help determine competency to enter into contracts or other legal issues requiring cognitive ability or what is often called, ‘knowingly’ in the law. Neuropsychological tests such as the Weschler Memory Scale (WMS), Repeatable Battery for Neuropsychological Screening (RBANS), and parts of the Halstead-Reitan or Luria Nebraska Batteries are also used by the practitioner although the actual batteries require neuropsychological training.

Personality Assessment

The best practice in forensic assessment of emotional or personality functioning is to use both objective and subjective assessment instruments. Subjective assessment utilizes many of the behavioral assessment inventories as well as the Rorschach test using the Exner scoring system. The traditional clinical observational techniques of the psychologist are often subjected to cross-examination for reliability and validity issues under the Frye and Daubert admissibility standards so structured assessment inventories are more acceptable in court testimony. The objective tests include the Minnesota Multiphasic Personality Inventory (MMPI-2) and the Personality Assessment Inventory (PAI). The latter is being used more frequently in courts as more psychologists have been trained in its interpretation. While there are many other objective tests published, we will discuss these as they remain the most popular ones offered to and accepted by the court.

MMPI-2 & MMPI-A

We have already noted, with the MMPI-2, some of the situational or contextual constraints necessary to properly interpret findings in a forensic context. Nevertheless, provided one does not rely blindly on these results, the MMPI-2 has several scales that make it helpful in a forensic context. The traditional validity scales, coupled with more recent developments such as consistency and stability scales make it useful when one is trying to determine the likelihood that a particular configuration reflects current stressors, pre existing stressors, and whether or not the current mental state is likely to persist over time. New scales, such as the ‘Fake Bad Scale’ consisting of mostly physical complaints, have proven useful in adjudicating personal injury cases. The Fp scale may be of some assistance in determining malingering of extremely psychotic symptoms. NCS has programs for various forensic contexts (criminal, personal injury, child custody) which may be of some assistance, but do not provide normative data for these different types of assessments. The Caldwell Report generates a list of Forensic Critical Items, consisting of items which forensic psychologists have frequently noted reflect situational as opposed to pathological interpretations. The items are provided as an interview guide for the clinician.
The MMPI-A is constructed of similar items that are for use with adolescents. This can be of assistance when evaluating someone under the age of 18 as the MMPI-2 norms do not cover this population. Given the need to assess the emotional stability of adolescents, this test is gaining in popularity in the courts.

PAI

The Personality Assessment Inventory, is relatively recent compared to the MMPI, but it shows great promise in forensic contexts. Its use of a Likert scale gives the examinee a more finely tuned set of a responses than the true and false on the MMPI. In addition, it has a number of scales that are helpful in forensic work that the MMPI does not. It has a number of scales that measure complex PTSD from trauma, a dimension not adequately assessed by the MMPI-2. Its validity scales are also configured differently, and are potentially more useful in forensic work. Finally, the PAI does have actual norms based on correctional populations which the MMPI-2 does not.

Rorschach

The Rorschach Technique, although denounced by some critics because of its subjectivity, can in fact be very valuable in forensic contexts, especially when using the more objective Exner administrative and scoring system. For instance, the Special Scores provide information on the formal structure of a thought disturbance such as schizophrenia. An individual trying to malinger a mental illness can certainly fake the content of such an illness (i.e. say he or she is hearing voices), but is less likely to fake the formal structure of a thought disorder that would be reflected in the Special Scores. Therefore, a discrepancy between claimed symptoms and the absence of a formal thought disturbance can alert the examiner to the possibility of malingering. The scores that Exner refers to as D and Adjusted D may be very helpful in determining, both in civil and in criminal cases, the temporal stability of a poor stress tolerance. In criminal cases, is it just reflecting the effects of incarceration, or does it also suggest that the individual had such difficulties around the time of an offense? In personal injury cases, is the incapacity to tolerate stress, both recent and situational, reflecting possibly the effects of a recent trauma, or was it more chronic, suggesting the impact of a pre-existing condition?

In addition to these specific areas, the Rorschach assists the examiner to understand how the person perceptually organizes his or her world when there is little to no structure. For example, does she or he see one small detail that determines the final perception or does she or he use the entire area of the card to form concepts. The standardization of card presentation in the Exner system helps clarify some of the former inconsistencies noted by critics of the test. The Rorschach’s subjectivity may actually complement the findings on the WAIS-III especially if someone has what we call ‘street smarts’ rather than formal intelligence or comes from a culture where the WAIS-III norms have not been tested. And, it offers a nice balance to the more formal questions found on the standardized objective tests to better understand the complexity of emotional functioning in an individual.

Assessment of Malingering

As noted above, the assessment of malingering is critical in forensic work. Many assessment instruments have been developed and validated within the past ten to fifteen years. They assess malingering both of psychosis and of cognitive deficits. We give these as examples.

Structured Interview of Reported Symptoms (SIRS)

Perhaps the best known of these instruments for assessing malingering of psychiatric symptoms is the Structured Interview of Reported Symptoms (SIRS), developed by Rogers. Rogers essentially took the major areas of malingering, and developed scales based on each. He has, for example, scales based on improbable and absurd symptoms, unusual symptom combinations, exceedingly rare symptoms, symptoms that occur suddenly, symptoms that are overly specified, symptoms that are exaggerated, and symptoms that are inconsistently described over time

Test of Memory Malingering (TOMM)

The Test of Memory Malingering (TOMM) may be very helpful in looking at the malingering of cognitive impairment. The TOMM provides norms of honest responders who have traumatic brain injury or dementia and compares those to people deliberately trying to do poorly.

Validity Indicator Profile (VIP)

The Validity Indicator Profile (VIP) is a more complex test that compares an individual’s performance on tests of varying degrees of difficulty, both verbal and non-verbal, to individuals who are honest responders, deliberately doing poorly, or are careless, or distractible. Both the VIP and the TOMM reported above, are based on symptom validity testing, a forced choice situation where, by chance alone, an examinee will get 50% of the items correct.

Assessment of Trauma

The assessment of the impact from trauma has become an important tool for the forensic psychologist given the numbers of cases involving physical, sexual and psychological maltreatment of children and violence against women. There are a number of tests now available

We only discuss the following here:

• Trauma Symptom Inventory (TSI),
• Trauma Symptom Checklist for Children (TSCC), & Trauma Symptom Checklist for Youth (TSCY)

Perhaps the most widely used standardized test to measure the impact from interpersonal trauma is the self administered Trauma Symptom Inventory (TSI) developed by Briere. Used as a research tool by those who assessed for trauma over the past twenty years, it has been published as a clinical and forensic tool with norms based on clinical and forensic populations. The adult version, the TSI, lists 100 symptoms using a likert scale and the results are shown in a graph similar to the MMPI-2 with the mean set at 50 and the standard score at 10. There are two validity and reliability scales and ten clinical scales that correspond to those psychological problems known to impact trauma victims such as anxious arousal, depression, irritability, intrusive experiences, dissociation and sexual concerns. The computerized scoring version has three summary scales that can assist in separating out recent and chronic abuse problems. One major limitation to using this test is the person’s language skills and reading level, especially comprehension of the items.

There are three versions of these trauma tests that are useful when child abuse is alleged. Two are directly administered to children, one with (TSCC) and one without (TSCC-A) questions about impact from sexual abuse. Although geared to a third grade reading level, it may be necessary to read the symptoms to the child and help him or her respond to the proper four-point likert scale items. A new test that uses parents’ responses to children’s symptoms (TSCY), especially those younger than eight years old which is the cut off range for the TSCC, has just appeared in the marketplace. Given the need to assess the reliability and validity of children’s abuse claims, these tests may be helpful in child maltreatment, dependency, and custody cases.

Detailed Assessment of Posttraumatic Stress (DAPS)

The Detailed Assessment of Posttraumatic Stress (DAPS) is another standardized test developed by John Briere to assess for the level of PTSD in those who have been exposed to trauma. It is a more complicated test to administer as first the various types of trauma exposure must be ascertained, the one for which the person has current complaints chosen, and then questions are answered based on the selected traumatic event. Results have reliability and validity indexes as well as pre and post trauma responses discussed and shown on a graph.

Specific Forensic Assessment Tests

These tests are developed specifically to measure a specific psycholegal issue unlike the other tests that have other clinical uses in addition to assessing for forensic problems. Developers of these tests note that many courts have become disenchanted with traditional clinical assessment because it does not deal directly with legal issues. For instance, a personality test may tell us that someone is psychotic, but it does not directly assess the issue of a person’s mental state at the time of an offense. An intelligence test may tell us that a person is mentally retarded but it does not tell us whether that individual was competent to waive their Miranda Rights or whether he or she is competent to stand trial. Forensic assessment instruments try to do just that: they take a legal construct and try to operationalize it.

Competency Assessment

Function of Rights in Interrogation

Grisso has a series of instruments, called the Function of Rights in Interrogation, designed to assess whether a juvenile or an adult defendant was competent to waive Miranda rights. The instrument consists of four parts. The first deals with the defendant stating in his or her own words what each legal right means. The second part of the test asks the defendant to compare each of the statements to other legally relevant statements and see whether they are the same or different. The defendant is then asked to define each term, and finally to use their understanding in a series of scenarios dealing with right to silence, assistance of counsel, and behavior in a courtroom.

MacArthur Competency Assessment Tool – Criminal Adjudication

The MACCAT-CA is an instrument for the assessment of competency to stand trial. It divides competency into knowledge, appreciation, and reasoning, giving the defendant several scenarios from which they have to show their ability to reason it through and discuss it coherently with their attorney. It has the distinct advantage, over other briefer competency assessments, in that it actually assesses ability to assist counsel, which other instruments do not.

Criminal Responsibility Assessment Scales

The Rogers Criminal Responsibility Assessment Scales are essentially a complex coding system that takes all of the material from psychological assessments, clinical interviews, third party information, and collateral records and contacts, puts them into a decision tree that assists in a determination of criminal responsibility.

Violence Risk Assessment

MacArthur Studies

The MacArthur studies of violence (Monahan & Steadman, 2002) was a fifteen year project that looked at existing studies about the risk of predicting violence and analyzed both the strengths and deficiencies in them. They identified over thirty risk assessment domains that needed to be accounted for when providing a risk assessment of an individual. They further broke down these domains into psychological, sociological, contextual, demographic, and biological areas. Using these domains, new risk assessment instruments have begun to appear in the marketplace.

Historical Clinical and Risk Factors (HCR-20)

The HCR-20 provides a structured interview format based on current available research to aid the clinician in inquiring into areas that have been found important in current research on violence risk assessment. This is one of the few assessment instruments in this category that measures both static or unchangeable demographic factors together with changes from clinical treatment.

Actuarial Assessment

Another approach to assessment of violence has been the use of actuarial assessments. While psychologists maintain that we cannot predict whether violence will occur, we can assign an assessment of risk based on actuarial tables. Most of these actuarial assessments are based on values given to fixed items that have been found to be associated with people who continue to commit violent acts. Thus, a person who has committed one violent act at age 16 might be more likely than one who committed his or her first violent act at age 50 to reoffend. Using complicated mathematical formulas it is possible to compare one individual using these variables to others who have similar characteristics. Psychologists are most likely to use these actuarial instruments when asked for an opinion on someone’s risk for further violence, such as when someone is seeking an early parole from prison, or for predatory sex offenders who are being considered for release or involuntary hospitalization in a forensic setting.

Violence Risk Assessment Guide (VRAG)

One of the most popular violence risk actuarial instruments is called the VRAG. It is based on static variables such as age, sex, family composition etc. that can be applied to an individual to determine his or her risk of future violence. It has been normed on people who have been incarcerated. It can give the likelihood of recidivism over seven, ten, and fifteen year periods. A major limitation is that it does not take into account any dynamic variables such as response to treatment or situational life changes that might change someone’s risk of using violence.

Sexual Offender Risk Assessment Guide

The Sex Offender Risk Assessment Guide (SORAG) is is an actuarial similar to the VRAG that gives the same type of risk assessment of an individual’s likelihood of reoffending sexually. It has some different variables that have been found to be important in differentiating the predatory sex offender from the violent criminal.

Psychopathy Check List – Revised (PCL-R)

PCL-R is a structured interview that Hare identified as defining psychopathy which he divided into two factors: anti-social behavior and interpersonal style. The psychopath has fascinated people throughout history because of his (rarely but sometimes, her), lack of empathy for others and no remorse when engaging in hurtful behavior. Although the concept fell out of favor for awhile, research continued to point to a biological basis for the psychopath’s behavior, requiring forensic psychological examination. The PCL-R requires significant training in proper administration and scoring but may provide the forensic examiner with a detailed understanding of a particular type of criminal and is highly correlated with the potential for violent behavior.

Summary

In summary, we have attempted to provide an overview of the specific tools the clinical forensic psychologist has in providing clinical assessments in many different types of legal situations. A discussion of representative tests in each of the major categories and their uses and limitations has also been provided here. Cautions for the interpretation of standardized clinical tests found in a traditional assessment battery have also been issued. Although the clinical practitioner can be very useful in the forensic arena, it is important to recognize the similarities and differences between a forensic and clinical evaluation. The essential point to be kept in mind in doing a forensic assessment is that no one piece of data, test, or interview should be depended upon in reaching a psycholegal conclusion. One must take multiple sources of data and look for consistencies across these data sources in order to render a final forensically useful conclusion.

References

Dorfman, W. & Walker, L.E.A. (2007). The First Responders’ guide to abnormal psychology.

James, D. & Glaze, L. (2006). Mental health problems of prison and jail inmates. Bureau of Justice Statistics, Special Report NCJ213600. Washington, DC:US Department of Justice.

Victor, Tara L.; Abeles, Norman (2004). Coaching Clients to Take Psychological and Neuropsychological Tests: A Clash of Ethical Obligations. Professional Psychology: Research and Practice, Vol 35(4), pp. 373-379.

Monahan, J. & Steadman, H. (2002). Rethinking Risk Assessment.

Shapiro, D.S. (2000). Criminal responsibility: A manual for practice. Sarasota, FL: Professional Resources

Walker, L.E.A. & Shapiro, D.L. (2004). Introduction to Forensic Psychology: Clinical and Social Psychological Perspectives. New York: Kluwer/Springer.