Attorneys encounter mental health professionals across varied legal settings. It can be challenging to understand and dispute the work of a professional without possessing their expertise. This article is intended to help legal professionals understand some common shortcomings in mental health professionals’ work product and avenues for cross-examination. It also aims to assist in assessing the quality of work product for your expert and potential issues that need to be addressed during direct examination.

            Mental health professionals do not possess the same areas of expertise or qualifications, nor are they equally equipped to serve as expert witnesses. The most common experts you will encounter include:

            Psychologists: These professionals hold a doctoral-level degree (e.g., Ph.D., Psy.D. or Ed.D.) and are licensed by the Oklahoma State Board of Examiners of Psychologists. They have extensive training in psychological testing and conducting therapy. Although they are usually familiar with prescription medications to treat mental illnesses, they are not licensed to prescribe medications. When they assess someone for a legal context, it will typically include both a clinical interview and objective psychological testing. According to state regulations, this is the only license that allows professionals to refer to themselves as psychologists and their work product by the term psychological (or any derivative thereof).

            Psychiatrists: These professionals hold a doctoral-level degree (e.g., M.D. or D.O.). They are licensed by either the Oklahoma Board of Medical Licensure and Supervision (M.D.) or the Oklahoma State Board of Osteopathic Examiners (D.O.). They are trained to prescribe medications to treat mental illnesses and conduct therapy. Although they may be familiar with some psychological testing, they are not typically trained to administer and interpret such tests. When they assess someone for a legal context, they usually rely on a clinical interview and their observations of the examinee without the benefit of objective testing.

            Master’s degree-level clinicians: These professionals (in Oklahoma) hold various types of master’s degrees, allowing them to be licensed at that level (e.g., licensed professional counselor (LPC), licensed behavioral practitioners (LBP), licensed marital and family therapist (LMFT), licensed clinical social worker (LCSW), etc.). They are licensed by their respective boards (e.g., the Oklahoma State Board of Behavioral Health for the first three listed and the Oklahoma State Board of Licensed Social Workers for the latter listing). Depending upon which profession we are discussing, some are trained in therapy, some are trained in objective testing, and some are trained in both. According to state regulations, these professionals are not allowed to refer to their work product by the term psychological (or any derivative thereof), which is why you often see them title their reports as a “mental health assessment” and not a “psychological evaluation.”

            I strongly recommend that if you are dealing with a proffered “expert,” you obtain details as to licensure (if any), degrees (i.e., accreditation) and the extent of their knowledge and authority to render opinions specifically on mental illness, objective testing and other clinical issues. Licensure is an important issue, especially when it comes to qualifying an expert in voir dire or during a Daubert challenge. I recommend that attorneys possess a copy of the ethical and professional guidelines for each type of licensed professional they are likely to encounter, along with knowledge of how to access their state board’s website to check for licensure, sanction history, etc. In addition, these sites typically provide the rules for various professionals, outlining their areas of expertise and limitations. A note of caution: In some instances, master’s degree-level clinicians sometimes also possess doctoral-level degrees, including the term “psychology” in the degree, but they are often obtained from programs that do not allow them to become licensed at the doctoral level (e.g., online degrees, degrees from programs not sufficiently accredited, etc.). Nonetheless, their respective boards do allow such professionals to use the title of “Dr.,” further confusing legal professionals as to their level of expertise. I would recommend that legal professionals focus not just on degree or title but on the highest level of licensure the person possesses. The person can, at times, be identified by a string of abbreviated certifications after their name. The legal professional should also be aware of “vanity diplomates” or other supposed credentials a proffered expert may tout, as many of them involve little more than paying to take an open-book test and receive a certification to present to the judiciary or clients. Legitimate board certification represents an additional, higher-level demonstration of credentialing, often including both written and oral examinations. However, like licensure, board certification does not ensure the quality of services. The quality of services is determined by examining methodology, reasoning and other factors within a particular case.

            The current article will attempt to inform the reader of the most common missteps of mental health professionals, how they can be identified and how an attorney can effectively bring such errors to light for the trier of fact.

EXAMINE THE ORIGINAL SOURCE DOCUMENTS

            Oftentimes, lawyers receive only the end work product in the form of a report with opinions. This report may or may not accurately reflect the underlying data. Some experts don’t even provide a “methods” section outlining the data upon which they relied, which should be a red flag. Unfortunately, mental health professionals are also not immune from misrepresentation and bias. Research shows that experts are prone to providing more favorable opinions to the attorneys retaining their services. This is not, in my opinion, usually an intentional slanting of opinions but our natural human inherent trait of providing what is requested. Although well-trained experts employ strategies to avoid bias, it is only upon questioning and closely examining the methodologies employed to arrive at an opinion if these strategies were implemented. An attorney’s ability to review and demonstrate in open court how a professional misrepresented data can be crucial in cross-examination. This could include a review of clinical notes, assistant’s notes, computer-generated reports and even the raw data from psychological testing.

            There are specific processes for obtaining test materials (e.g., test responses, computer-generated reports, etc.) because they are considered trademark secrets by the companies that issue them. Under most circumstances, experts are barred from releasing such materials directly to attorneys due to both ethical tenants and ownership agreements with the testing companies. Experts are allowed to forward test materials to other appropriately trained and licensed professionals, which will require you to hire such an expert if you have not already. It should be noted that this typically does not include some of the aforementioned professionals (i.e., psychiatrists, social workers, etc.) who do not have the appropriate educational background and training to receive such materials. The only other way to obtain test data is by court order.

            Many psychological “tests” are composed of self-report checklists with no measure of validity. All measures are not equally valid and reliable. In some cases, these checklists are presented as “tests” but are easily defeated by an examinee and do not hold up under cross-examination. Several years ago, I encountered an expert who claimed that a defendant charged with a violent sex offense did not have deviant sexual interests based upon his completion of a checklist with questions like, “Even when women claim they don’t want to be sexually touched, they really enjoy it.” Unless the examinee is of extremely low intelligence, they know how to answer this question to present themselves as less deviant. If the attorney was not armed with details about this “test,” the cross-examination might have gone very differently. Moreover, had the attorney who retained this expert been aware of the nature of this “test,” the attorney might have prepared differently. There are resource materials that can serve as useful aids in determining the quality of a test.[1] Tests are also frequently updated, so you should ensure a practitioner is using the current version.

            Once you have access to the underlying test data, you may be surprised by what can be revealed. It is not uncommon, in my experience, to find that psychologists made errors in simple addition, changing the scores and sometimes the interpretation. More egregious errors are also sometimes discovered. Not long ago, I was involved in a murder case where the opposing expert clearly stated in their report that a specific psychological test showed no evidence of aggression or a personality disorder. That expert, and the retaining attorney, curiously agreed to hand over all the data except for the computer printout from that one test. After it was obtained by court order, the test printout possessed by that expert revealed the expert’s claim was blatantly false, with the document specifically noting high scores related to aggression and a possible personality disorder. In another case from several years ago, it was discovered that a prominent psychologist had created a second false protocol without anyone’s knowledge.

USE OF ASSISTANTS

            Mental health professionals often choose to use lesser-qualified assistants who are not licensed professionals (e.g., “psychological technicians,” students, etc.). However, they do not always reveal this in their reports. The limitations of using assistants can be many, including cases where the assistant actually spends more time with the examinee than the licensed professional, misadministration or improper scoring of tests, poor or biased note-taking, overstepping their legally allowed role (i.e., clinical decision-making, etc.) or having limited experience. It may require the testimony of such an assistant in court to bring these issues to light when they are not readily apparent in the expert’s report.

CHERRY-PICKING DATA

            Mark Twain famously quipped, “There are three kinds of lies: lies, damned lies, and statistics.” This is a wonderful summation of how experts (in any field) sometimes manipulate facts by cherry-picking data. That is, they choose the data that fit their conclusions and omit (or minimize) the ones that do not. This can include both clinical data (e.g., observations, the examinee’s statements, the information contained in records, etc.) and test data. In some cases, scores on tests can have multiple, but very different, interpretations. The clinician then chooses which interpretation matches their opinion (i.e., confirmation bias), sometimes never informing the reader that the score might have other interpretations. Oftentimes, there may be competing hypotheses or diagnoses to explain behavior, but the expert focuses on just one to the exclusion of others. In other instances, experts reference uncorroborated data in support of their opinions, without informing the reader that the evidence is wholly questionable.

EXAMINEE RESPONSE STYLE

            Because of the subjectivity of psychological diagnosis, the response style of the examinee can play a pivotal role. Examinees will lie and misrepresent their functioning to experts for various reasons. Sometimes, it is to look more pathological (i.e., malingering) in an attempt to improve the outcome of a criminal case or win a civil lawsuit. In other instances, examinees try to appear more psychologically healthy than is the case, referred to as “faking good” (i.e., custody disputes, pre-employment exams, sex offender evaluations, etc.). The assessment of response style could comprise an entire article in itself and will not be extensively discussed here. Simply put, an expert should be prepared to explain how they considered the issue. In situations where the examinee would obviously be motivated to be less than honest, the examiner needs to seriously consider the need for an objective assessment of response style. There is absolutely no research to suggest that mental health professionals are effective “lie detectors” or can discern when malingering or “faking good” is taking place. Otherwise, there would have been little need to invent objective tests to measure it.

FACT VERSUS FICTION

            One of the most common pitfalls for mental health experts lies in the failure to differentiate what is alleged versus what has been demonstrated as true. While reliance on third parties for collateral information can be important, treating it as factual can be a fatal flaw in a case. When citing uncorroborated data, it should be so noted. For example, if told by a relative that an examinee suffered a traumatic brain injury, effective report writers cite it as a “reported” injury until confirmed. Even with the examinee themself, the expert should use this type of language. If an examinee indicated they began suffering from auditory hallucinations in college, it is “reported” and not written as factual. This helps the reader understand the strength of the data and avoids the risk of the expert being shown to be in error if later data is contradictory.

LACK OF COLLATERAL INFORMATION

            One of the common complaints I encounter from attorneys is a lack of the examiner doing anything other than meeting with an examinee. This concern is well-raised for some types of evaluations. Depending upon the purpose of the evaluation, the failure to order prior treatment records may significantly hinder an expert from reaching supportable conclusions. When examining an expert’s work product, consider whether prior treatment records, evaluation reports, school records, legal records, substance abuse testing or interviews of third parties would have led the examiner to different conclusions.

            It is advisable to use an expert who is thorough (as the case requires) if you expect their opinions to withstand scrutiny. At times, attorneys may seek to use an expert who is less thorough because it lowers the financial cost or who is superficial and does not uncover the potential negatives about the client. I recently had a colleague in another state receive an attorney request for a “less invasive” examination, which that colleague declined. Just recently, I was contacted by a corporation requesting a fitness-for-duty evaluation of an employee they were concerned might pose a threat. However, upon providing a fee agreement, their legal department altered the contract, eliminating the interview of third parties or seeking outside records. Some professionals might proceed with such an examination, but it is ill-advised in assessing dangerousness in the workplace and many other issues addressed by psychological evaluations.

DIAGNOSIS CAN BE FLAWED

            The social sciences are considered a “soft science” because they often rely upon subjective decision making. Symptoms are reported by examinees, and if they are not accurate, it can compromise diagnostic accuracy. Moreover, clinicians are not human lie detectors; in fact, research suggests they can be fooled by deceptive clients.[2] If no objective form of testing is utilized, it becomes even more difficult (at times) to arrive at accurate results. This is why the findings in many correctional centers, psychiatric hospitals and other settings can be questionable. The Rosenhan study (1973) demonstrated the problems with diagnosis decades ago. The study used confederates, none of whom actually had a mental illness, who presented themselves at psychiatric hospitals. They reported that they had experienced what sounded like an auditory hallucination but aside from this claim, presented without other symptoms of mental illness. After admission, they denied hallucinations and acted completely normal. Nonetheless, they were hospitalized for weeks, the medical staff did not discern that the study participants were not actually mentally ill, and the participants were assigned serious diagnoses (i.e., schizophrenia, bipolar disorder, etc.).

            Of course, if you have much experience with the mental health system, you have probably already encountered the fact that the same person may be assigned an array of subjective diagnoses depending upon who examines them. “Diagnostic momentum” occurs when a poor assessment and diagnosis is continued in subsequent reports and opinions with no critical analysis of how it was reached. These diagnoses often begin with a brief intake assessment, utilizing only a clinical interview. Once diagnosed, it can be very difficult to change perceptions, even if the initial diagnosis was inaccurate or the person’s symptoms changed over time. Skepticism should also be applied in considering the diagnoses obtained through Social Security disability income exams. Despite the evidence that research indicates malingering occurs in up to 50% of such evaluations, the U.S. Department of Health and Human Services (HHS oversees state Social Security programs) forbids the use of malingering tests and can severely limit the time and methods used to reach a diagnosis for their agency. In summary, not all evaluations are equal.

ADVERSARIAL ALLEGIANCE

            Last but certainly not least, attorneys are, no doubt, aware that experts are sometimes biased toward the side retaining them. This phenomenon has been captured and replicated in scientific studies. One of the first of these brilliant studies included over 100 forensic psychologists and psychiatrists who reviewed the same set of offender data to offer an opinion on dangerousness but believed they were being hired by either the defense or the prosecution.[3] Care to take a guess as to the results? It showed that those working for the prosecution tended to score the offender as higher risk, while those working for the defense scored the offender as lower risk. Obviously, this study does not demonstrate that all experts (or any one expert) are biased, but it points to an inherent problem of the adversarial system.

HIRED GUNS

            Although less common, some opinions are clearly for sale, as long ago asserted by the book Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice. In such cases, it often requires hiring your own expert to comb through the data and ascertain where the bias lies. It can also be useful for an attorney to research the expert’s background (i.e., prior court rulings, how often an expert works for one side of the adversarial system, etc.). In one case I participated in, the attorney found that a high-profile national expert’s work was admonished by another state’s court system. I would add that this expert was “board certified” and had been recognized with some of the most prestigious awards a national association has to offer. Given the expert’s impressive background, without discovering this information, the attorney might have had a difficult time demonstrating bias.

CONCLUSIONS

            While the field can be of great assistance in reaching legal conclusions, it is equally ripe for bias and a lack of objectivity. In my experience, the gatekeepers of accountability for mental health professionals’ work product fall to legal professionals, as the individual experts and their respective licensure boards will not necessarily ensure compliance with professional standards.

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ABOUT THE AUTHOR

Dr. Shawn Roberson is a licensed psychologist in private practice. He has conducted thousands of criminal and civil forensic examinations throughout Oklahoma and other states. Dr. Roberson previously served as the chairperson for the Oklahoma State Board of Examiners of Psychologists in addition to teaching at numerous universities.

 

 

 

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ENDNOTES

[1] Carlson, J.F., Geisinger, K.F. and Jonson, J. (2021). Mental Measurements Yearbook, Twenty-First Edition.

[2] Melton, G.B., Petrila, J., Poythress, N.G. and Slobogin, C. (2007). Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers, Third Edition. The Guilford Press: New York.

[3] Murrie, D.C., Bocccaccini, M.T., Guarnera, L.A. and Rufino, K. A. “Are Forensic Experts Biased by the Side That Retained Them?” Psychological Science (2013).