There are various guidelines in the United States of America that decide how tests may be used in legal cases. The three main systems are statutory, case law, and the one that corresponds to the American Psychological Association. Even though these three have the same principles and main points, they differ on their approach and the stipulations that they set for practitioners.
The more legal aspects of these procedures respond to either statute or case law. Mental health standards vary from state to state, including the competency to be applicable for capital punishment. There are federal statutes that must be complied with when taking psychological expertise into account. Most of these will be discussed later with the actual cases that led to the ruling.
As a whole, statues govern the inclusion of psychologist expertise into legal practice, the application and dissemination of tests, and the disclosure of the confidential information that a client may provide. There are also specific statutory guidelines for forensic psychological test administration. An example of this is that Special Victims Unit evaluations in the state of Texas have to include psychopathic measurement.
Psychologist tests should be applied according to the case that is being handled. In this sense, tests should only be administered when there is an identifiable reason for its application. When there is not one, the test should not be performed until this psycholegal issue is determined.
As for the American Psychological Association, its Guidelines for Forensic Psychology are outlined on their website, and include responsibility; competence; diligence; relationship; fees; informed consent, notification and assent; conflicts in practice; privacy, confidentiality and privilege; methods and procedures; assessment; and professional and other public communications. One of the most interesting and important areas to take into consideration are impartiality and fairness, values that a forensic psychologist must seek to uphold. These norms encourage the practitioners to “recognize the adversarial nature of the legal system” (American Psychological Association, 2016, n.p.).
In terms of psychological tests, they should focus on legally relevant factors, and choose tests carefully and accordingly. These should have established validity and reliability with the population that it is going to be used on. Furthermore, shy should state when they are straying from these set practices, stating that they are logical conclusions, yet that they are only conjectures. “Not only is maintaining test security an ethical obligation, but it is a legal requirement related to trade secrets and agreements made with the test publisher when materials are purchased” (Groth-Marnat, 2009, p. 50)
Individual differences should be respected and taken into account, including considerations on the way that any disabilities may affect the assessment procedure. “Numerous arguments against using intelligence tests for the assessment and placement of minorities have culminated in legal restrictions on the use of IQ scores” (Groth-Marnat, 2009, p. 121). Besides claims that they are biased against minority populations, many people also feel that one’s intelligence is a very personal piece of information, and should not be disclosed in such a public forum as a legal trial.
There have been many cases influential in bringing about the federal government’s involvement in the use of tests in the forensic setting. Psychologists are often called upon to offer testimony as to the motivation for the crime, the probability of the person committing crimes in the futures, the person’s psychological state when the crime happened and culpability (Fabian, 2003, p. 1). People v. Hawthorne was one of the most influential cases for the acceptance of psychological data and expertise in the courtroom.
Nevertheless, many people believe that Jenkins v. United States was the first case that recognized clinical psychologists as having useful testimony in important cases. This court ruled that some psychologists’ opinions could be useful in a court of law, but that this would depend on their knowledge, not on their mere title as a psychologist. “The legal/justice system is most likely to give weight to those individual assessment strategies that combine recidivism statistics, tests specifically designed to predict dangerousness, summed ratings, and double administrations of psychological tests over time (Groth-Marnat, 2009, p. 39).
One of the main points of psychological forensic test application is capital punishment. Psychologists “have been increasingly involved in death penalty cases since the Supreme Court ruled in Gregg v. Georgia (1976) that capital sentencing must be tailored to the individual offense and the person who committed it” (Fisher, 2013, p. 58). Furthermore, psychological assessment was even more necessary in capital cases when there was a hint of mental retardation, as Atkins v. Virginia regarded that employing the death penalty against people with mental retardation was unconstitutional (Fisher, 2013, p. 58). Finally, it is important to note that Panetti v. Quarterman ruled that people could not be put to death if they did not understand the reason for their execution.
There are also other areas in which psychological testing may be useful for forensic purposes. “No area of the legal system and mental health law is more controversial than the question of criminal responsibility and the insanity defense” (Acklin, , p. 157). Obviously, a mental health assessment report should be done by psychologists, making this an important task for them, in which they may use psychological tests depending on the state statutes, as stated above.
Finally, Hudgins v. Moore ruled that the answers obtained from the MMPI-A could not be admitted into the trail. In this sense, they stated that the integrity of the exam was compromised by not using it for the intended purpose required by the court. This reinstates the confidentiality that psychology requires, including the importance and secret that tests should have. As they are the main tools of assessment that psychologists have, they may contain very sensitive information intended for professional use only. A breach of this confidentiality would be disagreeable, not just for the client, but for the complete psychology profession.
As a whole, federal guidelines cannot completely determine whether assessment reports are accurate and unbiased. They attempt to regulate the practice of test taking so that it is as fair and objective as possible, yet it is almost impossible for it to regulate an expert’s opinion. The regulations attempt to lead the professional towards the correct path, yet it cannot really establish whether he or she acts adequately or not.
These regulations attempt to normalize the conduct of psychologists, leading them towards adequate ethics. Furthermore, they provide these professionals a legal standing that they did not enjoy before. By establishing objective and stable grounds on which psychologists may offer their expert opinions, these rulings have given significant guidelines as to how to manage expert advice on mental health in legal courts. The law cannot obligate psychologists to do their job in an ethical manner. Nevertheless, it attempts to establish guidelines so that their expertise may be adequate and useful in order for justice to be served and society to flourish.
Reference List
Acklin, Marvin. W. (2008). The Rorschach test and forensic psychological evaluation: Psychosis and the insanity defense. In C. B. Gacono, F. B. Evans, N. Kaser-Boyd, & L. A. Gacono (Eds.), The handbook of forensic Rorschach assessment (pp. 157-174). New York, NY. Routledge.
American Psychological Association. (2010). Guidelines for child custody evaluations in legal proceedings. American Psychologist, 863-867.
Fabian, J. M. (2003). Death Penalty Mitigation and the Role of the Forensic Psychologist. 27 Law & Psychology Review, 73. Retrieved from http://heinonline.org/HOL/LandingPage?handle=hein.journals%2Flpsyr27&div=7&id&page
Fisher, Celia B. (2013). Human Rights and Psychologists' Involvement in Assessments Related to Death Penalty Cases. Ethics & Behavior, 23(1) 58-61. DOI: 10.1080/10508422.2013.749761
Groth-Marnat, Gary. (2009). The handbook of psychological assessment. (5th ed.). Hoboken, New Jersey: Wiley.
