Forensic Assessment




Forensic assessment falls under the broader umbrella of psychological assessment. Its distinct purpose sets it apart from traditional therapeutic assessment, resulting in specialized training and practice guidelines for forensic evaluators. These evaluations take place in a wide range of settings, encompassing law enforcement, correctional facilities, as well as civil and criminal court proceedings. Forensic assessment encompasses both conventional psychological assessments and tailor-made forensic instruments.

Psychological assessment, in a general sense, encompasses various methods employed to evaluate an individual’s historical, current, and future psychological state. Its principal objectives include providing insights into past and present behavior and making predictions regarding future behavior. This process may encompass the utilization of psychological tests and measurement instruments. Forensic assessment, as a subcategory of psychological assessment, serves the purpose of assisting legal fact-finders and represents one of psychology’s most prevalent applications to the legal field. A relatively recent specialty, forensic assessment has emerged as one of the rapidly growing domains within clinical psychology. An increasing number of psychologists are involved in conducting, analyzing, and presenting psychological data in diverse legal contexts. It has been estimated that psychologists and other mental health professionals perform hundreds of thousands of forensic assessments each year.

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Differences between Therapeutic and Forensic Assessment

Therapeutic assessment typically arises from the patient’s voluntary request, while forensic assessment is frequently initiated by the legal system. Consequently, forensic assessment tends to have more limited confidentiality compared to traditional therapeutic assessment. Individuals undergoing forensic assessment might exhibit resistance to the evaluation or, whether knowingly or unknowingly, attempt to manipulate it to their legal advantage. Instances of simulating mental illness or portraying a biased image are more prevalent in forensic assessment than in traditional therapeutic assessment and should be taken into account.

While traditional assessment primarily focuses on the examinee’s perspective on the problem or events, forensic assessment places greater emphasis on the accuracy of events. Unlike therapeutic assessment, where the evaluator typically assumes a supportive or therapeutic role, the forensic evaluator’s primary allegiance is to the legal fact-finder, which may not necessarily benefit the person being assessed. In other words, in traditional therapeutic assessment, the individual undergoing evaluation is the client, whereas in forensic assessment, the client is the legal fact-finder.

Furthermore, the scope of these two assessment types varies. Therapeutic assessment generally encompasses comprehensive clinical matters such as diagnosis, personality, and treatment. In contrast, forensic assessment is solely driven by the specific legal question at hand, often addressing more narrowly defined issues or incidents than what is covered in traditional therapeutic assessment. While an individual’s mental health and therapeutic requirements may be discussed within forensic assessments, these discussions occur exclusively within the context of the broader psycholegal referral question.

Forensic Assessment Training and Practice Guidelines

Forensic assessment is often conducted by mental health professionals who may or may not possess specialized forensic training. Recent years have witnessed a significant expansion in teaching, training, and supervision for psychology graduate students, interns, and postdoctoral fellows, with numerous conferences and continuing education opportunities made available. In the mid-1980s, the American Board of Professional Psychology (ABPP) initiated the recognition of psychologists with advanced knowledge and competence in forensic psychology by awarding diplomate status. Subsequently, in the early 1990s, the American Psychological Association (APA) officially acknowledged forensic psychology as an APA specialty.

In addition to the ethical codes of conduct in psychological practice, as well as standards for testing, such as the Ethical Principles of Psychologists and Code of Conduct (EPPCC) and Standards for Educational and Psychological Testing, there exist both general and specific guidelines for forensic practice. The Specialty Guidelines for Forensic Psychologists (SGFP) were first published in 1991, with a revision currently in progress. The SGFP are of a general nature, applicable to all domains of forensic psychological work. Unlike the EPPCC, which include enforceable rules of conduct for APA members, the SGFP are aspirational and advisory. They serve to inform psychologists about the nature and evolution of competent and responsible forensic practice, with the objective of fostering continuous improvement and enhancement. Alongside the SGFP, there are specialized guidelines and standards tailored to certain areas within forensic work (e.g., Guidelines for Psychological Evaluations in Child Protection Matters and Standards for Psychology Services in Jails, Prisons, Correctional Facilities, and Agencies).

When conducting forensic assessments, several fundamental principles should be upheld. Foremost, all conclusions and opinions should be rooted in a scientific foundation. High-quality forensic reports substantiate their opinions with data, elucidate the rationale behind the conclusions, and anticipate the need to defend the method of data collection on scientific grounds. Therefore, data collection should be meticulous, and any inherent limitations in the data gathered should be acknowledged and reported. Interpretations derived during a forensic assessment ought to be based on a multitude of data collection methods. The examinee’s response style should consistently be evaluated for potential attempts to minimize or feign psychological impairment. A sound approach to conducting a forensic assessment and crafting a subsequent forensic report is to envision that all methodologies and conclusions will undergo scrutiny from an opposing attorney. Lastly, if testing instruments are utilized, they should be relevant to the legal issue at hand, and they should meet rigorous theoretical and psychometric standards.

Forensic Assessment Settings

Typically, when discussing forensic assessment, it commonly pertains to psychological evaluations within the context of civil or criminal court cases. This comprehensive definition of forensic assessment, as addressed in this entry, also encompasses its applications in law enforcement and correctional settings. There may be instances of overlap between these various settings, and a forensic assessment may be conducted with the intent of serving more than one context, or it might be initially performed for a specific setting and later applied in another.

Law enforcement is an umbrella term encompassing the diverse roles of police officers across various contexts. Psychological assessment in law enforcement settings extends to activities such as criminal profiling, psychological autopsies, and direct interactions with police personnel. Evaluations of police officers may encompass aspects such as screening prospective candidates, assessing fitness for duty, and conducting evaluations for promotions.

Psychological assessment within correctional settings plays a role at different stages of incarceration and involvement in the correctional system. Forensic assessments can offer insights into and predictions of criminal behavior, with the aim of preventing future criminal activities. The domain of risk and dangerousness assessment, particularly concerning recidivism, has garnered significant attention within both clinical and research spheres. Assessments in correctional settings may also be employed to gauge an individual’s suitability for treatment or rehabilitation, and these findings can subsequently inform sentencing and parole determinations. Moreover, psychological assessment can be instrumental in evaluating the mental health requirements of jail and prison inmates, as well as assessing the psychological repercussions of imprisonment.

Forensic assessment is increasingly in demand in both civil and criminal courts. Civil courts handle disputes among citizens, whereas criminal courts address conflicts between individuals and the state. Forensic assessment plays a pivotal role in various civil cases, encompassing instances such as divorce and child custody proceedings, evaluations of the ability to consent to treatment or self-care, examinations of testamentary competence, and civil lawsuits involving psychological or neurological injuries, like malpractice cases or automobile accidents.

Some cases, though traditionally classified as civil, have been deemed “quasi-criminal” due to the potential liberty deprivations involved. These quasi-criminal cases encompass civil commitment hearings and juvenile delinquency cases. In civil commitment hearings, forensic assessment is instrumental, with many states mandating a determination of the person’s mental illness and their potential danger to self or others, or their need for care or treatment. In juvenile delinquency proceedings, forensic assessment serves various stages, addressing issues that were once primarily associated with the adult criminal justice system, such as competency to stand trial, which is increasingly raised in juvenile cases. Additionally, juvenile defendants may undergo evaluations to gauge their suitability for treatment within the juvenile justice system. If they are considered not amenable to such treatment, their case may be transferred to adult court. Juveniles processed through the juvenile justice system may also undergo presentence evaluations to determine the most appropriate case disposition.

In criminal proceedings, forensic assessment is integral at every stage, beginning with evaluations of a defendant’s capacity to waive Miranda rights upon arrest and culminating in assessments of a defendant’s competency for sentencing or execution. Among the most frequent requests in criminal cases are evaluations of a defendant’s competency to stand trial, with approximately 60,000 such assessments conducted annually. Evaluations of a defendant’s criminal responsibility (insanity defense evaluations) represent the second most common question in criminal forensic assessment, though the insanity defense is raised in less than 1% of all felony cases. There is sometimes confusion between competency to stand trial and criminal responsibility, and these terms are at times used interchangeably. Competency-to-stand-trial assessments focus on a defendant’s current mental capacity, whereas criminal responsibility evaluations delve into the defendant’s mental state at the time of the offense. Other types of criminal forensic assessment encompass evaluations of competence to waive counsel and competence to plead guilty.

Tests and Forensic Assessment Instruments

As previously mentioned, forensic assessment may involve the incorporation of psychological tests or assessment instruments. The decision on how and when to employ a test as part of a forensic assessment necessitates a thorough evaluation of the test’s pertinence to the legal question or the psychological construct underlying the legal matter. The determination of a test’s relevance should be contingent on the specific issues inherent to the psycholegal referral question. Only tests or instruments grounded in robust theory and psychometrics should be utilized. Forensic examiners should scrutinize any research findings that link testing results to legally significant behaviors. In forensic contexts, corroboration is of paramount importance because examinees may intentionally or unintentionally present themselves in a manner that aligns with their legal situation. Third-party data often hold greater significance than testing results in cases that involve retrospective inquiries into an individual’s past psychological functioning (e.g., evaluations of criminal responsibility). Examiners should also be mindful of how the selected test will be perceived by the legal system and should ensure a comprehensive explanation of the test and its applicability to the specific legal question. The array of tests that can be used in forensic settings is vast, making it impossible to enumerate all types or examples. Nevertheless, there are three general classifications that reflect the degree of direct relevance a test holds for a particular legal issue.

The first category encompasses tests and assessment techniques initially designed for the assessment, diagnosis, and/or treatment planning of nonforensic populations in predominantly therapeutic settings. Research has indicated that, alongside clinical interviews, this category of tests is most commonly utilized in forensic assessment. However, exercising caution when employing these tests for forensic assessment is advisable. Traditional psychological tests have limited applicability in forensic contexts because they were not specifically crafted to address psycholegal questions and typically do not incorporate forensic populations during their development or validation. If such tests are used, it is imperative to establish a well-supported connection between the test and the legal issue at hand. Examples within this category include tests for measuring academic achievement, personality traits, or intellectual ability (e.g., Woodcock Johnson Tests of Achievement-Third Edition, Personality Assessment Inventory, Wechsler Adult Intelligence Scale-III).

The second category encompasses tests that were not expressly developed to address legal matters but are considered forensically relevant as they pertain to clinical constructs often applicable to individuals involved in legal contexts. Among the most widely used forensically relevant instruments are those assessing an examinee’s response style, specifically evaluating tendencies toward minimizing or feigning problems (e.g., Minnesota Multiphasic Personality Inventory-II or Structured Interview of Reported Symptoms). Other instruments within this category include tests that aid in child custody assessments (e.g., Parenting Stress Index) or those designed for measuring psychopathy (e.g., Hare Psychopathy Checklist-Revised).

The third category comprises forensic assessment instruments specifically designed to address distinct legal issues. These tests are directly pertinent to the evaluation of psycholegal capacities, competencies, or knowledge. The incorporation of such instruments can enhance the quality of a forensic assessment by offering relatively standardized assessment procedures and methodologies for categorizing or quantifying an examinee’s responses. The use of forensic assessment instruments may help mitigate examiner bias and/or error, permitting meaningful comparisons over time or among different examiners. These instruments span from straightforward interview guides that structure interviews around the pertinent legal issues to comprehensive instruments constructed and validated with a strong research foundation. As forensic assessment continues to gain prominence and the demand for psychological input in legal cases grows, the development and validation of specialized forensic assessment instruments become increasingly crucial.

Forensic assessment instruments span a wide range of forensic assessment areas. For example, the Inwald Personality Inventory was created to assess police officer candidates, specifically targeting behaviors and maladjustments that might adversely affect their performance as police officers. The Jail Screening Assessment Tool, on the other hand, was designed to identify inmates during intake who might necessitate a more formal mental health assessment. These forensic assessment instruments find utility in law enforcement and correctional settings, but they are also highly prevalent in civil, quasi-criminal, and criminal settings.

In civil contexts, instruments are used for various purposes, including assessing parenting capacity, daily decision-making abilities, and the competency to consent to research or manage health care decisions (e.g., MacArthur Competence Assessment Tool for Treatment). Quasi-criminal settings, such as juvenile justice proceedings, predominantly use forensic assessment instruments, many of which were originally developed for adults but are increasingly being tailored for juvenile forensic issues (e.g., Competence Assessment for Standing Trial for Defendants with Mental Retardation and Juvenile Adjudicative Competence Interview).

In adult criminal court settings, forensic assessment instruments are most recognized and are particularly prevalent, especially in the realm 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). Instruments also exist for various 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 notable increase in commercially available forensically relevant and forensic assessment instruments has emerged in recent years, showing no signs of abating. These measures are developed and published through two primary methods. The first method is more rigorous and scientific, with a test becoming commercially available only after undergoing thorough research, peer review, and refinement with collected normative data. In contrast, the second method is less robust and involves publishing an instrument after only preliminary research. The prevailing testing standards and the Specialty Guidelines for Forensic Psychologists (SGFP) advise against the use of tests that have not undergone adequate research and development.

Additionally, it’s essential to note that the admissibility of expert testimony varies from state to state, with each state having its own requirements. Historically, the standard used by all states was the one established in the Frye v. United States case (1923). This standard mandated that the tests employed in forming expert opinions must have “general acceptance” in the field.

However, in many states, the Frye standard has been supplemented by the criteria set forth 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 cases have led to a higher number of challenges made by attorneys regarding the instruments utilized by clinicians in forming their expert opinions. The standards for admissibility associated with these cases include more stringent scrutiny of the development, reliability, validity, peer review, and general acceptance of the tests or instruments used in shaping expert opinions.

References:

  1. American Association for Correctional Psychology. (2000). Standards for psychology services in jails, prisons, correctional facilities, and agencies. Criminal Justice and Behavior, 27, 433-193.
  2. American Educational Research Association, American Psychological Association, & National Council on Measurement in Education. (1999). Standards for educational and psychological testing (3rd ed.). Washington, DC: American Educational Research Association.
  3. American Psychological Association. (2002). Ethical principles of psychologists and code of conduct. American Psychologist, 57, 1060-1073.
  4. Archer, R. P., Buffington-Vollum, J. K., Stredny, R. V., & Handel, R. W. (2006). A survey of psychological test use patterns among forensic psychologists. Journal of Personality Assessment, 87, 84-94.
  5. Committee on Ethical Guidelines for Forensic Psychologists. (1991). Specialty guidelines for forensic psychologists. Law and Human Behavior, 15, 441-148.
  6. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
  7. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
  8. General Electric Co. v. Joiner, 522 U.S. 136, 118 S. Ct. 512 (1997).
  9. Grisso, T. (1998). Forensic evaluation of juveniles. Sarasota, FL: Professional Resource Press.
  10. Grisso, T. (Ed.). (2003). Evaluating competencies: Forensic assessments and instruments (2nd ed.). New York: Kluwer Academic.
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  12. Kumho Tire Company v. Carmichael, 526 U.S. 137 (1999).
  13. Melton, G. B., Petrila, J., Poythress, N. G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers (2nd ed.). New York: Guilford Press.
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  15. Rogers, R., & Shuman, D. W. (2005). Fundamentals of forensic practice: Mental health and criminal law. New York: Springer.
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