Principles of Forensic Report Writing [1 ed.] 1433813068, 9781433813061

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Principles of Forensic Report Writing

Forensic Practice in Psychology Series Bruce D. Sales, PhD, JD, Series Editor-in-Chief G. Andrew H. Benjamin, JD, PhD, ABPP, and Susan R. Hall, JD, PhD, Associate Series Editors

Principles of Forensic Report Writing Michael Karson and Lavita Nadkarni

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Principles of Forensic Report Writing

M i c h a e l K a r son L av i t a N a d k a r n i

A M E R I C A N

P S Y C H O L O G I C A L

WA S H I N G T O N,

D C

A S S O C I AT I O N

Copyright © 2013 by the American Psychological Association. All rights reserved. Except as permitted under the United States Copyright Act of 1976, no part of this publication may be reproduced or distributed in any form or by any means, including, but not limited to, the process of scanning and digitization, or stored in a database or retrieval system, without the prior written permission of the publisher. Published by American Psychological Association 750 First Street, NE Washington, DC 20002 www.apa.org To order APA Order Department P.O. Box 92984 Washington, DC 20090-2984 Tel: (800) 374-2721; Direct: (202) 336-5510 Fax: (202) 336-5502; TDD/TTY: (202) 336-6123 Online: www.apa.org/pubs/books E-mail: [email protected] In the U.K., Europe, Africa, and the Middle East, copies may be ordered from American Psychological Association 3 Henrietta Street Covent Garden, London WC2E 8LU England Typeset in Minion by Circle Graphics, Inc., Columbia, MD Printer: Maple Press, York, PA Cover Designer: Minker Design, Sarasota, FL The opinions and statements published are the responsibility of the authors, and such opinions and statements do not necessarily represent the policies of the American Psychological Association. Library of Congress Cataloging-in-Publication Data Karson, Michael. Principles of forensic report writing / Michael Karson and Lavita Nadkarni. p. cm. — (Forensic practice in psychology) Includes bibliographical references and index. ISBN-13: 978-1-4338-1306-1 ISBN-10: 1-4338-1306-8 1. Criminal investigation. 2. Forensic sciences. 3. Report writing—Psychological aspects. I. Nadkarni, Lavita. II. Title. HV8073.K254 2013 808.06'6363—dc23 2012044702 British Library Cataloguing-in-Publication Data A CIP record is available from the British Library. Printed in the United States of America First Edition http://dx.doi.org/10.1037/14182-000

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For the students of the Graduate School of Professional Psychology at the University of Denver. It is easier to know people in general than to know one person in particular. —La Rochefoucauld

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Contents

Preface

ix

Acknowledgments

xiii

Introduction 3 1.

The Functions of Forensic Reports

11

2.

Organization of the Report

29

3.

Converting the Legal Issue Into a Psychological Question

47

4.

Laying the Groundwork for an Opinion

57

5.

Citing Different Kinds of Evidence

73

6.

How to Present Your Opinion

89

7.

Critical Thinking in Forensic Analysis

107

8.

Legal and Ethical Pitfalls

119

9.

Culturally Competent Report Writing

129

10. Writing an Effective Report

145

Appendix: Two Sample Reports

155

References 177 Index 185 About the Authors 193 vii

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O

ne of the great things about working in the legal system is that its practitioners are not allowed to adopt the posture of not deciding— nothing is academic, everything counts. Forensic reports participate in that urgency and necessity. When the New Jersey Supreme Court (Berman v. Allan, 1979) was faced with a lawsuit for wrongful life, brought (technically) by a child with serious birth defects who would have been aborted if the physician had not misread the test results, the court was not allowed to say, in effect, that this was a fascinating existential problem and someone ought to write a play about it. Instead, they had to decide if the statutory and common law of New Jersey allowed damages for being born. (They said no, but they allowed the parents to recover the additional costs of having to care for a child with medical needs.) Much of the writing we do as clinicians before we enter the court system has value, but its effects on others are indirect and mediated. Nobody’s life, liberty, property, safety, or parenting time is likely to have depended on our writing. Forensic work presents an opportunity, even for intellectuals, to be doers as well as thinkers. Taking reports seriously is one way of acknowledging the effect we have on other people’s lives when we do forensic work. Writers must manage their emotions and motivations before they can write an emotionally neutral report. As individuals who grew up in families, we may have an opinion of what a good family is like and may lose objectivity when comparing parenting styles in a custody evaluation. ix

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Someone who hates child molesters probably ought not to evaluate them. Indeed, there are many incursions on objectivity besides emotions, and they should all be addressed by forensic clinicians in an effort to enhance objectivity. One of the most potent of these concerns is the costs and benefits of various opinions. When it comes to saving face, making money, and winning, there is a lot of pressure on the evaluator of a child molester to recommend the maximum loss of liberty allowed by law. If a civil commitment follows an evaluation of whether a man is a sexually violent predator, the clinician who recommended commitment has little to lose. If the suspected sexually violent predator is released into the community, the clinician who recommended release stands to lose a great deal by way of reputation, income, and self-confidence if the man reoffends. Typically, the clinician, of course, does not recommend release; instead, the clinician writes a report saying that there is not adequate evidence to commit the person; but to the clinician and to the community, it sure feels as if release was recommended. If you are not prepared to deal with weighty consequences of your writing, you should not do these evaluations at all. In the forensic context, stating an opinion can be costly. Because of the high stakes involved, our approach to teaching forensic report writing is incremental. At the University of Denver, we teach forensic report writing according to a developmental scheme, relying partly on Dana’s work (1984; Dana, Bolton, & West, 1983). At first, we train clinicians to translate data into ideas consistently. The trainees learn what a particular Minnesota Multiphasic Personality Inventory or Wechsler Adult Intelligence Scale score means and how to represent that meaning verbally. Their reports read as if they could have been written by any other clinician about that particular set of scores and as if any other evaluation subject had produced them. Supervisory feedback keeps them in line. So-called projective testing is difficult to manage in this stage because it is not easy to achieve reliability in translating narrative or unscored material into ideas. Eventually, trainees at Stage 1 come to feel skilled in the administration, scoring, and interpretation of tests. In Stage 2, trainees make personal, idiosyncratic, or original statements about evaluation subjects and referral questions. These statements often begin with phrases such as “in my opinion,” or “however, in Mr. X’s x

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case,” or “somewhat speculatively.” Because of trainees’ confirmation bias and inexperience and relatively elementary understanding of people and events, these statements are inaccurate or, at best, incomplete. This stage of training can be a fragile time. We have seen some trainees ignore the feedback and then retreat to Stage 1 for the remainder of their careers. Some clinicians who are open to corrective feedback proceed to Stage 3. In this stage, they continue to make original statements—that is, statements that only they could have made about only that assessment subject. Trial-and-error learning allows them to hone their efforts. Consistent errors of confirmation bias allow them to correct for their idiosyncratic expectations. General reading in literature, philosophy, and history, plus wider life experiences with different people in different situations, broadens their perspectives. By being committed to improving, by being robust about mistakes, and by being humble and curious about not knowing, clinicians learn to make accurate original statements. This stage is best mastered in nonforensic work in which the stakes are not so high for the assessment subject that mistakes can’t be taken in stride; when the stakes are high, it is even more difficult for clinicians to take responsibility for mistakes. In Stage 3, clinicians are making accurate original interpretations, but subjects are not necessarily accepting them. In Stage 4, clinicians learn to make accurate, unique interpretations of data that the subject accepts. The relevant feedback at this stage involves not only whether the idea was right but also whether the person accepted it as right. Clinicians must not only muster evidence for their ideas but also present the evidence in a way that is palatable for their audiences. When the recipient of the idea is a clinical patient, that means presenting it in a way that does not elicit undue defensiveness. When the recipient of the idea is another professional, it means adducing evidence in a manner that is convincing and addressing the other professional’s disconfirmed ideas in the report or discussion. It is not clear that forensic clinicians need to master Stage 4 with respect to the subject’s acceptance of ideas, because it is perhaps asking too much of a parent to be convinced that he is unfit or of a plaintiff to be convinced that her pain is subjective and performative rather than physical. However, even forensic clinicians need to learn how to convince other professionals, not to mention jurors. xi

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In teaching forensic report writing to graduate students, we have been impressed with the available guides to writing specific kinds of reports. There are also some good summary articles on report writing and checklists regarding what reports ought to cover. What we wanted, though, was a single volume that looked at report writing and reading as behaviors, informed by what we know about behavior, and that looked in-depth at the topic of applying general knowledge to particular situations. As is true for so many authors, this is the book we wish we’d read in graduate school. We offer these principles of forensic report writing as preparation for trainees, particularly those in Stages 1–3 of the developmental scheme described here, and also as reminders for professionals who have already written many reports.

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Acknowledgments

W

e would like to thank our students in the University of Denver’s Graduate School of Professional Psychology, where we both teach. Lavita is the director of forensic studies, and Michael is the director of field placements for the forensic master’s program. We also teach in the doctoral clinical program at the Graduate School of Professional Psychology, where Lavita leads a year-long seminar on forensic assessment and Michael teaches a required class on integrative assessment and report writing. Our students have challenged and changed us, generally for the good. They have inspired our continued passion for this field and our desire to do more to enhance their learning. We would also like to thank Judy Farmer for her refreshing and invaluable advice on how to teach, how to work together, and how to do both with humor. Our forensic colleagues Kim Gorgens, Lynett Henderson Metzger, and Neil Gowensmith make it a delight to come to work. We would also like to acknowledge the wonderful sense of collegiality and congeniality we find at work, with a special shout-out with respect to this project to Peter Buirski and Shelly Smith-Acuña. We are grateful to Bruce Sales, Andy Benjamin, and Susan Hall for giving us the opportunity to be part of the American Psychological Association’s exciting series on forensic practice. We also thank the thousands of assessment subjects whose lives and legal involvements have provided the reasons and foundations for our work. The members of the PSYLAW-L Listserv provided valuable input; it’s a terrific resource. Susan Herman in xiii

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the Books Department of the American Psychological Association is a wonderful editor. Michael would like to thank Janna Goodwin for the ongoing dialogue on everything that matters. Max, Ethan, Tara, and Milo are always on his mind. Lavita would like to thank Michael Wilson and Meena Nadkarni for sharing their passion for law and psychology with her—it has made for very interesting conversations. She would also like to thank Michael and Maya for their love and ongoing support.

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Introduction

Principle: Forensic reports are instances of communicative behavior written about specific people and for audiences with specific needs.

I

n the film The Caine Mutiny, Bogart’s Captain Queeg says of the sailors, “There are four ways of doing things on board my ship. The right way, the wrong way, the Navy way, and my way. They do things my way, we’ll get along.” Over time we have each developed a “my way” when it comes to forensic report writing. Lavita likes long reports that cover everything; Michael likes short reports that state opinions and the logic and evidence that support them. Lavita worries about ignoring or misconstruing a subject’s culture; Michael worries that emphasizing the subject’s culture ignores the subject’s uniqueness. Lavita perhaps focuses more on what is in the report; Michael perhaps focuses more on what ends up in the

http://dx.doi.org/10.1037/14182-001 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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reader’s head. What the two of us have in common, as trusted colleagues and friends, is years of experience in the field and in the classroom during which we’ve often disagreed about the “right way” of writing forensic reports but always agreed on which practices constitute the “wrong way.” We may disagree on implementation at times, but we agree on the underlying principles. The basic principles inform our dialogue about how to write reports. Our aim in this book is not to present a single recipe that you can follow for perfect results every time. Rather, we wish to help you ground your practice in sound ways of thinking about reports. We have focused our coverage and illustrated our key points at a level of detail that will be helpful for graduate students in their first practicum placement, seasoned clinicians who receive infrequent requests for evaluations, and experienced forensic psychologists who want to reexamine their report writing practices. We expect that readers will already know basic terms and concepts, such as prejudicial versus probative data, how evidence is judged to be admissible in court, the difference between nomothetic versus idiographic tests, and the criteria for determining a test’s validity and reliability. In reading most of what is out there on forensic report writing, we found one good resource after another, especially regarding specialized advice on how to write a report for a specific psych legal question. Missing from that array (with some exceptions) were ideas about report writing as a behavior, its reinforcers, its performative aspects, its cognitive influences, and its communicative impact. So what we offer here is an overview of forensic report writing through the lens of psychological ways of thinking about the topic.

Report Writing as Behavior Forensic clinicians can profitably consider the activity of report writing as an example of human behavior about which they have some expertise. For example, psychology (Skinner, 1953; White, 1959) teaches that people prefer to do things they already are good at or that they can see a 4

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path to becoming good at. Clinicians who have had success as writers take to report writing avidly. For others, a good rationale is needed to make the topic seem relevant to professional success. Thus, clinicians are told that reports are the primary product of forensic evaluations (Greenfield & Gottschalk, 2008), that reports allow them to present themselves as serious experts (Griffith, Stankovic, & Baranoski, 2010), that reports reveal their reasoning and their evidence for it (Melton, Petrila, Poythress, & Slobogin, 1997), and that reports can help them avoid testimony (Hecker & Scoular, 2004; Melton et al., 1997). Avoiding testimony is obviously a weaker motivator for clinicians who are already good at extemporaneous argumentation or for clinicians working on the types of cases that will require testimony regardless of a report’s quality, but it may be a good motivator for those who wish to help clients avoid spiraling costs in some kinds of cases. An important motivator for us, related to the issue of disliking one’s own incompetence, is the pleasure of finding things out, in physicist Richard Feynman’s memorable phrasing, over already knowing. Good report writing is a process of discovering your opinion, not just rendering it. The primary reinforcement for poor reports is typically negative: The clinician feels oppressed by the need to produce something in writing and removes the burden of obligation by dispatching a report. When dropping an envelope in the mail or hitting Send with an attachment is the primary reward, it does not matter all that much what is in the envelope or the attachment. The primary reinforcements for good reports are typically positive. The clinician takes pleasure in clarity of expression (including mastery of grammar), in furtherance of justice, and in promulgation of an attitude of scientific humility. Thus, even when local culture favors ipse dixit pronouncements, the provision of supportive evidence for their ideas rewards scientifically minded writers. The ultimate positive reinforcement for a good report writer is to reread a paragraph and to discover that it convincingly adduces evidence in support of its topic sentence. The culture of science may be seen as an effort to potentiate this experience as a reinforcer. 5

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Applying the General to the Specific Throughout this book, we explore the puzzle of applying general knowledge—nomothetic test scores, actuarial data, research outcomes— to individual cases. As scientifically informed practitioners, we turn to research for guidance in formulating our opinions about forensic issues, but we are also as scientists expected to critique the validity of the application of general rules to specific cases. Even the most expert AIDS physician will defer to the HIV test results if they contradict his or her clinical impression, but in psychology, there are no tests that good. The question of how well category membership can account for individuals pervades forensic work, and one of the great challenges of forensic report writing is to honor the empirical science done on groups of other people and to apply it accurately to a specific person. This tension informs our ideas about how to behave ethically (general rules, specific cases), scientifically (general tendencies, specific situations), and multiculturally (general categories, specific people). Even the mechanics of writing fit this dialectic—there are no exceptions to the placement of the comma or period inside adjacent quotation marks in American En­glish, but most other writing prescriptions have to be adapted to specific reports.

What This Book Covers For years, we have been teaching and writing about base rates, Bayes’ theorem, the benefits and hazards of categorization, confirmatory bias in assessment, and the use of critical thinking to correct for various human mistakes. Now, we find all this information in Kahneman’s (2011) book, Thinking, Fast and Slow. Because he won a Nobel Prize, his book may become that rarity in psychology, one that nearly everyone reads. So you could see our book as an application to forensic report writing of the problems, heuristics, and biases that Kahneman detailed. Witt (2010, p. 239) summarized impressive work on forensic report writing, especially Grisso’s (2010), with a useful checklist, reprinted here.

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▫ ▫ ▫ ▫ ▫ ▫ ▫ ▫ ▫ ▫

Forensic referral question stated clearly. Report organized coherently. Jargon eliminated. Only data relevant to forensic opinion included. Observations separated from inferences. Multiple sources of data considered, if possible. Psychological tests used appropriately. Alternate hypotheses considered. Opinions supported by data. Connection between data and opinions made clear.

You could also see our book as a commentary on this list, especially on how to use not only tests but also algorithms, actuarials, nomothetic data, and research studies appropriately. In considering the fact that report writing and reading are behaviors, we identify some of the relevant and extraneous reinforcers that operate on writers as well as the performative aspect of presenting your opinions. Also, we rely on Aristotle’s analysis of rhetoric—persuasive speech—to examine report writing for its appeals to logic, emotion, and authority. Finally, we emphasize writing as a communication and, therefore, consider who the audience is for the report and the effects of various strategies on the reader. What we do not cover is anything in the Publication Manual of the American Psychological Association (APA, 2010b), which is an excellent resource for grammar, style, and even writing tips. We assume you’ve read it. The structure of the book tracks the process of report writing. In Chapter 1, we provide a psychological overview of the behaviors of writing and reading reports to contextualize what comes after. In Chapters 2 through 7, we apply the psychological lens to various steps in assessment and report writing, from deciding how to arrange the report to ways of citing different kinds of evidence to refining your opinion on the basis of what you can say convincingly. Chapter 2 covers the organization of the report, exploring the advantages and disadvantages of various models. In

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Chapter 3, we address the important task of converting the legal issues that concern attorneys and their clients into clinical issues within the purview of your expertise. In Chapter 4, we explore the conceptual framework for various psycholegal questions, which in turn form the basis for a report’s argument. In Chapter 5, we tackle some of the problems inherent in citing different kinds of evidence, including hearsay, test scores, and narrative examples. Chapter 6 covers some problems related to the presentation of your opinion, including the degree of certainty expressed, avoidance of explanatory fictions, and management of disconfirming data. Chapter 7 covers critical thinking and its application to report writing. Throughout, we explore the scientific and legal problem of drawing conclusions about individual cases on the basis of nomothetic, categorical, actuarial, and general research data. In Chapters 8 and 9, we return to a broader perspective to consider legal and ethical requirements and culture. We see law, ethics, and culture as further examples of the problem of using general rules to get it right in a specific case. Finally, in Chapter 10, we address the mechanics of tying evidence to ideas, analogizing the forensic report to the closing argument of a trial (with some important differences). In the Appendix, we present two reports that illustrate many of the ideas in the book. Cervantes said that like begets like, and our book resembles us: hardheaded about evidence and critical thinking, informal in communicative style, essentially playful, and remarkably experienced with cases of child abuse. We acknowledge that a disproportionate percentage of our examples reflect Michael’s emphasis on child welfare work; however, it is our hope that our emphasis on principles rather than mechanics will allow you to fill in content from your own cases as needed.

How to Use This Book Behaviorists distinguish between rule-governed behavior and contingency-shaped behavior. Following rules avoids the cost of errors in trial-and-error learning and allows good ideas to be passed on. This book provides some useful rules for writing reports, but we do not intend for it to be used as a manual. The problem with manualized reports is the same 8

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one we find with manualized assessments and manualized treatments: They ensure a ceiling of averageness, constrict innovation, and substitute rulefollowing for education. Reports based on rules alone can never be closely tailored to a specific set of circumstances. Contingency-shaped behavior derived from trial and error can be closely tailored to a given set of circumstances, but it incurs the costs of errors. For contingency shaping, you have to write reports and get feedback on them. Feedback loops are often incomplete in forensic psychology; it is hard to find out what worked. A state-employed clinician may be well placed to see outcomes after rendering an opinion on competence to stand trial because the putatively competent defendant’s performance in court and the putatively incompetent defendant’s behavior in the hospital get back to the clinician. But in most assessments, the clinician would have to put in some unpaid effort to pursue outcomes, and even then the potentially useful information might be confidential and therefore unavailable, as in feedback on recommendations to place children in residential treatment or predictions of alcohol relapse. “Whether professionals have a chance to develop intuitive expertise depends essentially on the quality and speed of feedback, as well as on sufficient opportunity to practice” (Kahneman, 2011, p. 234). A good way to combine rules and contingency shaping when it comes to report writing is to take advantage of rehearsals. A rehearsal is an opportunity to engage in trial-and-error learning in which the errors do not really count. Two rehearsal spaces you may already be familiar with are the classroom (Goodwin, 2001), where students can try out ideas, and the therapy office (Karson, 2008b), where clients can try out emotions, thoughts, and identities. Rehearsals for report writers include graduate course work and also improvised spaces. You rehearse the way an actor uses a mirror when you read your own words out loud before submitting a report. You rehearse as if for a director when you ask an expert, paid or pro bono, to read a report you wrote. You rehearse as if for a preview audience when you ask a lay friend to read a redacted report and to tell you if they understood the key points and if they snagged on any of the language. If you show a report to an expert or a friend, you might consider 9

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redacting not only the information that identifies the subject but also the information that identifies you. Describe it as a report that you have to rebut, and they will find your weaknesses. If you are someone who takes pleasure in finding things out rather than in already knowing, exposure of your weaknesses in rehearsals will be an invigorating opportunity to improve. If you are someone who takes pleasure in already knowing— the kind of person who stopped reading literature and psychology and stopped seeking corrective feedback the day you received your terminal degree—you are not likely to seek out genuine rehearsal opportunities. Instead, you will ask supervisees for feedback, and they will tell you you are excellent. We recommend that readers use this book as part of their feedback loop. During the process of your report writing, you can use this book to check whether your work is building on solid principles or on some other, shakier, foundation. In each chapter, we offer excerpts from fictional forensic reports and highlight content and specific uses of language that illustrate the principle at hand. We ask targeted questions to get you thinking about your own cases and how you might use critical thinking to select assessment instruments or interpret test results. At the end of each chapter, we offer a list of the main points for quick reference. As noted previously, the Appendix offers two full-length reports you can use for classroom discussion or individual study. You may write very good reports already, but if that thought constituted a laurel to rest on, your reports would never get any better than they are now. Worse, report writing would get boring. What keeps report writing interesting is the prospect of improvement, the identification of unique challenges in the next report and unique ways of solving those challenges. If you want to be defensive and bewildered, take pleasure in knowing—you will never know more than a small percentage of what is out there. If you want to be excited and energized, take pleasure in finding things out—you will never run out of new worlds to conquer. You will also be good at assessment and psychotherapy, and your reports will improve.

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1

The Functions of Forensic Reports

Principle: Forensic reports are instances of communicative behavior written about specific people and for audiences with specific needs.

F

orensic reports function as the story the psychologist tells to account for the evaluation data. As such, they explain what the evidence means in a way that overcomes readers’ natural tendency to glean their preferred meanings from it. In contrast to clinical writing, forensic reports are used to answer a specific question rather than open new questions for exploration. They also function as an expert’s opinion in service to the truth.

Reports Tell a Story An assessment, like a good report, tells a story that accounts for data and answers a referral question (Griffith, Stankovic, & Baranoski, 2010; Gutheil & Dattilio, 2007; Melton, Petrila, Poythress, & Slobogin, 1997). http://dx.doi.org/10.1037/14182-002 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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Some readers may balk at the word story, which may connote fiction, but it need not; most trial lawyers see their job similarly (Mauet, 1996), that is, as providing the jury with a narrative that accounts for salient evidence and leads to their side winning. Trial lawyers choose an outcome depending on whose side they are on; you choose an answer to the referral question depending on your analysis and opinion of the evidence. Data must clear two important hurdles for inclusion in the story. First, data must be reliable enough to ensure that they actually happened or, in the case of test scores, would happen again (i.e., represent the subject and not measurement error)—such data may be included in the story. Second, some data are so compelling—whether because they indicate with so much validity how to answer the referral question, because they depart so much from expectations, or because they form a repeated pattern—that they must be included in the story. This view of assessment—a story that accounts for data—makes it clear that test results are not hypotheses, as some writers have claimed, and they are not used for confirmation or corroboration, as others have claimed. Test scores and responses are bits of evidence. The most salient and unexpected bits ought to be accounted for by the clinician’s story, but they should only be accounted for if they are reliable. For test results, reliability in this context means that the clinician is fairly certain that a similar score (or difference between scores, when the datum is the difference, say, between an IQ score and an achievement score) would be obtained again if the testing were repeated under similar conditions (Karson, 2005a). Writing a story that accounts for data, especially the most compelling and reliable data, fits the reader’s cognitive needs. People think in stories, enjoy stories, and recall stories (Kahneman, 2011), which is why trial attorneys work so hard to present a story to the jury (Mauet, 1996). Even when attorneys fail to present a story that jurors can use to make sense of evidence, jurors apparently do it for them (Pennington & Hastie, 1991). This explains why films and plays without a plot are so annoying. Indeed, legendary screenwriter Ernest Lehman said that a great screenplay leaves the audience with three memorable scenes. Alban (2012) advised report writers to leave readers with three take-home messages. We add that the 12

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audience member and the reader, in constructing their own version of the writer’s story, are more likely to create the same story as the writer if its arc must embrace those three memorable points. The problem, of course, is that we tend to believe whatever stories we tell, and we tend to evaluate their credibility not by comparing them with reality but by comparing them with the data set that gave rise to them (Kahneman, 2011). Imagine the clinician sitting at a table on which all the reliable and interpretable bits of data have been placed. Any piece of data not sufficiently reliable and interpretable has been booted off and forgotten, including differences between test scores that do not overcome measurement error, old events that lack contemporaneous documentation, and reports of behavior lacking reports of context. Redundant data are piled on top of each other so they do not take up much space and so the clinician can see that 17 reports of the same incident still amount to one incident. The most valid data for the purpose of the assessment are kept closer to the clinician (e.g., observed parenting behavior), and the least valid data pushed farther away (e.g., otherwise unremarkable employment history). Data that stand out (that make the experienced and prepared clinician go boing or that are statistically unexpected) are kept close at hand; the assessment must account for these data. Next, a large amount of empty space must be created, to remind the clinician of all the data that are not on the table but that could affect the assessment. Information that was requested but not obtained requires a special designation of extra emptiness, highlighting its absence (Gagliardi & Miller, 2007; Zavodny, 2012). In the center of this empty space, the clinician places the base rate of the category under consideration as an anchor for predictions and as a reminder of the unlikelihood of getting it right. After all these precautions, the clinician creates the story.

Reports Overcome the Reader’s Confirmation Bias Psychology has established that people see in large measure what they expect to see—confirmation bias operates on the reader, not just on the writer–clinician. In Chapter 7 of this volume, we discuss ways of 13

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managing the writer’s confirmation bias; here, we want to address the reader’s. One function of forensic reports is to overcome the reader’s expectations, and it is not always easy to accomplish this. Lengthy reports especially, but even relatively short reports, contain so much information that readers can pick out bits of data that confirm their points of view. Attorneys do this routinely because they are obligated to assimilate evidence into the story they are trying to tell. Others do it unconsciously, emphasizing the data and opinions in the report that are most consistent with their expectations. The child welfare attorney reads a litany of parental misconduct; the parent’s attorney reads a list of “not-that-bads.” The beneficiary of the will reads that the testator knew where he or she was and who the president was at the time of testing; the disinherited heirs read that he or she got dizzy halfway through the evaluation and had to take a break. The Social Security disability attorney reads a list of his or her client’s mental health symptoms; the government attorney reads a list of things the person can still manage to do. Good reports address the reader’s confirmation bias largely by explaining what the reported evidence means, that is, what the writer claims it means and why. Bad reports address this problem by omitting evidence. A one-sentence conclusive report (the defendant is competent to stand trial) would be immune to confirmation bias on the part of the reader—well, nearly immune, since a few readers would come away with the sentence, the defendant is incompetent to stand trial. More typically, bad reports achieve this level of clarity by offering a lot of context and many conclusions but still no evidence for the reader to misconstrue.

Stating What the Report Is About Confirmation bias also operates when readers misconstrue what the report is about. An adolescent girl accuses her stepfather of sexual abuse

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and goes to foster care, where she has a tantrum, destroying objects and damaging walls, leading to a psychiatric hospitalization. The psychiatrist does not want to prescribe neuroleptics unless she is psychotic. The psychologist interviews the girl, administers some tests, and opines that she is psychotic. The prosecutor will now try to prove that she has lost her grip on reality because of the abuse; the defense attorney will try to prove that the accusation was the result of faulty reality testing. The psychologist might have helped the girl by stating explicitly what the report was and was not about, by writing only about the link between evidence and drug choice (e.g., “She feels panicked to the point of believing the situation is more dangerous than it is, and this panic disorganizes her executive functions”) or by not writing a report at all and communicating impressions to the psychiatrist orally. Similarly, a report on substance abuse by a father can be misconstrued as an opinion on parental fitness. A report suggesting interventions for foster parents can be misconstrued as an opinion about the best interests of the child. A report on mitigating or aggravating factors prior to sentencing can be misconstrued as a prediction of recidivism risk. A report on competence to manage one’s own money can be misconstrued as an opinion on competence to make one’s own medical decisions. A report on the weakness of another clinician’s opinion on the voluntariness of a Miranda waiver can be misconstrued as an opinion on whether the waiver was valid. All these problems can be at least minimally addressed by stating clearly in the report what the report is about and, when misconstruing it is predictable, what it is not about.

Managing the Reader’s Frame Framing effects are well known (Goffman, 1974; Watzlawick, Bavelas, & Jackson, 1967). Kahneman (2011) provided the example of physicians who are more likely to recommend surgery if the 1-month survival rate is 90% than if the 1-month mortality rate is 10%. These statistically identical

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but emotionally different ways of describing how many patients live or die activate the availability heuristic, which simply means that when you talk about mortality, physicians think of people dying and the procedure is aversive, but when you talk about survival, physicians think of people living and the procedure is appealing. Framing effects are also activated when the writer presents individuals rather than percentages (Kahneman, 2011). The sentence “There is a 17% chance of recidivism” is much less prejudicial than the sentence “One man in six with these scores goes on to molest another child.” Forensic report writers should anticipate the framing effects and availability heuristics that are likely to affect their readers. The word mother, and even in the child welfare system the word grandmother, call to mind pleasant images that the clinician must counter to get an objective read. Siblings raised together has a similar effect. When a man convicted of a sex crime is evaluated for parole or for commitment as a dangerous person, it is easy to recall images of criminals behaving badly, and it is much harder to locate images of ex-convicts behaving well (even though the latter apparently outnumber the former by a large margin; Campbell & DeClue, 2010b).

Reports Answer One Question and Do not Open up New Questions One of the main differences between clinical and forensic reports is that a clinical report is about the reason for the work, whereas the forensic report often constitutes the reason for the work (Greenfield & Gottschalk, 2008). People generally pay clinicians to effect change or to explain behavior for the purpose of changing it, and clinicians’ reports typically document what they have done or suggest doing. People generally pay forensic clinicians to produce the report itself, to have an opinion that can lead to testimony. This difference makes the forensic report much more important to the forensic clinician than the clinical report is to the nonforensic clinician. It implies that the forensic clinician must take greater care in writing the report. 16

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The fact that other professionals scrutinize forensic reports also leads to greater care in writing them (Melton et al., 1997). Clinical reports are, of course, also scrutinized, but primarily by the people they are about. Clients get upset about all sorts of things in clinical reports, from minor factual errors to diagnoses, and their feelings of being misunderstood or mischaracterized are important data for the clinical enterprise. But clients do not typically have enough power in a clinical relationship to constitute a threat for the report writer. The prospect of facing cross-examination and, perhaps worse, public derision from other mental health professionals creates a challenging context that can give pause to the forensic report writer. The aggression in the adversarial system of justice enhances these challenges. Another difference between clinical and forensic reports is the consequentiality of forensic opinions, the potential cost of errors. Again, we do not think it is acceptable for clinical reports to pontificate without citing supporting data or to offer wild, unsupported hypotheses, but when they do, the harm is minimal. Forensic reports can impair people’s rights to raise their children, secure a fair trial, receive just compensation for injuries, or obtain asylum. Regardless of the stance one takes on clinical reports, it seems clear that the harm done by irresponsible forensic report writing is typically greater than wasting a few therapy sessions on bad ideas. Because of the potential for harm, forensic reports should contain less speculation than clinical reports. Unsupported hypotheses have a place in clinical reports as long as they are labeled as such. They can spur dialogue between clinician and client. In forensic reports, speculations have a way of attaching themselves to subjects and situations in a way that makes them hard to disprove. A common example is the speculation of sexual abuse in the background of virtually any child who behaves noticeably sexually. In a purely clinical report, such a speculation merely reminds the therapist to consider abuse or to look for mistrust by the client when things get intimate. In a forensic report, the speculation stays with the child forever and may have unintended consequences. 17

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Reporting Diagnoses Martindale (2005) explained how diagnoses can overly impact the reader’s interpretation of the report, citing Rosenhan’s (1973) famous study “On Being Sane in Insane Places” as an example of confirmation bias of this sort. Rosenhan’s accomplices got themselves diagnosed and hospitalized, and then clinicians could not see their overall mental health, blinded by what they expected to see because of the diagnoses. Thus, writers should report diagnoses carefully and accurately, with explanations, and they should omit so-called rule outs and speculative diagnoses because these may introduce ideas about the subject that have not been substantiated and clarified in the report.

Choosing Evidence That Will Stand up in Court Report writers must distinguish hearsay from reliable evidence (Karson, 2005b). Consider the subject of an evaluation who describes her father as an alcoholic. The clinician then uses the father’s alcoholism to explain the subject’s behavior. In clinical reports, the harm done is minimal, although the practice of taking hearsay at face value has done real damage when the allegation is of abuse and the conversation leaves the metaphorical space of therapy and becomes an accusation against the parent (Campbell, 1998). In forensic reports, which are much more likely to end up in the hands of third parties than clinical case notes, accepting the client’s characterization of other people as fact constitutes libel when the characterization turns out to be untrue. All clinicians should be cognizant of the fluidity and inaccuracy of descriptions, especially of remote behavior, and their reports should reflect that awareness. Beyond the avoidance of libel, clinicians should also keep in mind that it is often the client’s characterization of the person that is important, not the trait itself. A person who organizes her bad memories of her actually non­ alcoholic father around his drinking may be more likely to respond problematically to alcohol than a person who organizes her bad memories of her actually alcoholic father around his frustrations with her. “The remembering self is sometimes wrong, but it is the one that keeps score 18

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and governs what we learn from living, and it is the one that makes decisions” (Kahneman, 2011, p. 372).

Reports Advocate for the Truth Effective forensic reports use many devices from rhetoric to be persuasive. The risk of persuasion in forensic reports is that the writer will become an advocate for one side or the other in the underlying legal dispute. Many authorities have warned writers not to get caught up in the heat of battle between adversaries (Dvoskin & Guy, 2008). Cautionary tales include the famous psychiatrist who wrongly agreed that an episode of the television show he consulted with had forecast the defense, resulting in a mistrial (Yates v. State, 2005). Presumably, he wanted at that moment to assist the side that called and paid him and trusted the attorney’s memory over his own. Persuasiveness in reports can lead to even more confirmation bias, even more one-sided interpretations of evidence, than with reports that do not try to persuade. One need only recall the percentage of Black Americans (74% vs. 30% of Whites; ABC Good Morning America, 2005) who thought O. J. Simpson was innocent to understand how caring about the outcome affects the interpretation of evidence. Of all the warnings on this issue, perhaps the most trenchant is the reminder that from the standpoint of the legal system, report writers are just evidence (Dvoskin & Guy, 2008): A bloodstain should not have a point of view. A persuasive report is more likely than a disinterested report to put the writer’s face (Goffman, 1959) on the line. If report writers become emotionally invested in selling, not just presenting, their opinion, then they are more likely to lose face if it is not adopted and more likely to save face if it is. Once face is on the line, it makes writers dread the prospect of testimony and crossexamination because they view the opposing attorney as out to injure them instead of trying to tell the other side’s story. Systemically, the more report writers identify with one side, the more it makes the other side angry; the angrier the other side, the more writers try to protect themselves; the more they try to protect themselves by solidifying their allegiance with one side, the angrier it makes the other side. The risk is that escalation will undermine objectivity. Persuasive reports can read like a warning shot. 19

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How to Resist Emotional Report Writing Scientifically informed persuasive speech ought to emphasize logic and authority, not pathos, which is the emotional element of persuasive speech. Put differently, appeals to emotion discredit the performance of the role of scientific expert. When it comes to pathos, the forensic report writer often needs to work harder to modulate the reader’s emotionality than to excite it. The reader may have an emotional attachment to the idea that children should live with their mothers or their parents or that children should be protected from parents at all costs. Or the reader may feel angry at all criminality or think churches are always or never proper beneficiaries of wills. Emotionality is often indirectly addressed by clarifying the legal and psychological issues the report is about so the reader can see that the writer is not for or against parents or religion or self-determination (or immigration or the death penalty or whatever).

But the problem is not the use of rhetoric (persuasive writing). The problem is that report writers sometimes allow themselves to try to persuade the reader that one side of the legal case is in the right. Instead, they can be persuasive without taking a side. Attorneys are handed a side according to whom they represent. They have some leeway in choosing the most plausible story they can think of that accounts for the facts in a way that is favorable to their side, but generally they are advocates for one client or the other, not for the truth. Report writers ought to be advocates for the truth. Instead of being handed a perspective by the client, they need to form their own perspective, to formulate an opinion on the matter, and to write persuasively in support of their opinion. Persuasive writing need not be extremist; report writers can write persuasively to support the opinion, for example, that nobody knows whether a particular sex offender will recidivate or that there is not enough information available to form a credible opinion about the matter at hand. Once writers decide to write persuasively, the study of rhetoric has much to teach them. Aristotle pointed to logic, emotion, and authority as 20

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proofs, the modes of persuasion. Logic involves attaching reliable evidence to propositions and is explored throughout this book. Ethos, from the Greek for character, involves a performance, taking one’s role seriously enough to learn how to play it effectively. “Writers of forensic reports position themselves . . . as characters in their own stories” (Griffith et al., 2010, p. 33). Construing behavior as a performance suggests to many people that the behavior is insincere; indeed, the word hypocrite derives from the Greek word for answerer, which is what the first actors did when they were on stage. But respecting the need to perform authoritatively does not mean that the performance must be insincere; it merely means that the performance must be thoughtful. Consider the business of theater professionals who consult with trial attorneys (DeCaro & Matheo, 2004). They not only teach attorneys how to use the stage of the courtroom to augment their narrative but also teach truth-telling witnesses how to look like they’re telling the truth. This is accomplished by helping witnesses not discredit their own performance, rather like coaching presidential candidates before televised debates. Reports need not vary according to the party the writer is working for. What must vary is whether a report is written at all. Some clinicians are uncomfortable with the idea that a report or opinion unfavorable to the side that retained them will never see the light of day. Some of them refuse to do forensic work, and some will work only for the court or for both sides. Thus, forensic reports sometimes function to clarify psychological issues that are pertinent to legal matters, but often they function, in addition, to buttress one side’s case. Clinicians working for one side or the other have to be careful not to let their opinions be swayed by financial incentives. Also, they have to develop a good rationale for working for one side rather than working for the truth. That rationale will typically include the idea that they are, in fact, working for the truth, but one side gets to decide whether to introduce their piece of it to the trier of fact. It helps to read a little history of the adversarial system and why America has adopted it. It helps to know that the rules of procedure and the rules of evidence are the system’s efforts to operationalize the concepts of justice and fairness. 21

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Reports Give an Expert Opinion Compare two ways of citing evidence of repeated DUIs in support of the proposition that the subject is an alcoholic. One clinician writes, “Mr. X has been convicted twice of driving under the influence of alcohol, and research shows that alcoholics are much more likely than nonalcoholics to have two such convictions on their record.” This sentence abdicates authority and attributes it to research; the writer comes across as a consumer of expertise, not an expert. Another clinician writes, Mr. X’s dependence on alcohol is evidenced by his choosing to drive under its influence even after he had a prior conviction, even though he knew by then that it was unsafe and that it could cost him his license and therefore his job and possibly his liberty.

This sentence retains the authority of the writer, who is explaining why multiple DUIs are a sign of alcoholism rather than deferring to the research. Authority derives from being an explainer, especially an understandable one. If you use the word paranoia correctly, for example, it enhances your status because most people think it simply means suspicious or afraid. Your credibility is enhanced even further by explaining it. “By paranoia, I mean a method of managing a sense of insignificance or frustration or lack of power by assuming that hostile forces are responsible for life’s setbacks.” Owning Your Expertise Experts play their role most credibly by owning their expertise. This means not only writing in the first person but also writing with a specific voice. Trying to hide the fact that the opinion expressed is yours only leads to trouble. Usually, the camouflage is science, and some report writers dress up their reports with citations and statistics, as if they were writing a research paper. Even research papers, though, have switched to firstperson narratives and an active voice (APA, 2010b), partly for the sake of readability but also for the sake of honesty and forthrightness. 22

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Researchers—that is, people, not objective automatons—conduct research, and people write forensic reports. Trying to hide that fact leads to its ultimate disclosure and discredits the writer’s authority. Owning your subjectivity protects you against exposure (Goffman, 1959). Perhaps the most important way to come across as authoritative is to present your credentials, a word like credence derived from the word for trust. First, you must obtain credentials, insignia that inspire trust in the relevant audience, and then you have to reveal them in a fashion that does not overplay or underplay your hand. Generally speaking, the list of letters after your name yields diminishing returns with each new degree or certificate. On the other hand, you would not want to omit a certificate or status directly relevant to the particular report. It is a question of stating your accomplishments without looking like you are bragging, and whether an additional item is too much depends on local custom. We know of no local American culture, for example, in which it is customary to include the name of your undergraduate institution on your letterhead, so that would come across as reaching. The problem with reaching, like the problem with arch displays of objectivity, is that you are easily discredited, and then you have the performance problem of having been caught trying to look like an expert when presumably genuine experts do not have to try. The most easily discredited posture is one that lists vanity boards (credentials that require only cash to obtain) or other bogus insignia, such as ABD for all but dissertation or PsyD Cand. (candidate) for not having a PsyD. Some practitioners attach a copy of their curriculum vitae to the report. In a report to the court or the attorneys, especially when contested testimony is expected, this is a convenience to all parties. In some jurisdictions, the timely disclosure of the expert’s qualification to the other side is required if the expert is going to be allowed to testify (e.g., Ohio Rule of Criminal Procedure 16[K]; http://www.supremecourt.ohio.gov/ LegalResources/Rules/criminal/CriminalProcedure.pdf). Even then, a cover letter with the report and the curriculum vitae that explains the convenience can help protect the clinician from looking like a braggart. At the least, you should attach your highest relevant degree to your printed name (but if you add the degree to your handwritten signature, you risk coming 23

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across as overly proud of it). Probably, you should note the fact that you are licensed, or if you are not licensed, you should include your supervisor’s name and license. You should probably mention board certification in psychiatry or diplomate status with the American Board of Professional Psychology. Beyond that, less is more. A certificate in addiction counseling, for example, might play well in a report in part about substance abuse but might look like too much in a report on competency to stand trial. Again, the standard is that in most communities, genuine experts do not get caught trying to look like experts. The role of expert is easily discredited, and care should be taken not to facilitate the process. It is, of course, far better to say you do not know something than to be found out as incorrect. In face-to-face interactions, you can say you do not know something while presenting good posture and a firm stance, and you will communicate that not knowing something does not reflect poorly on your expertise. In writing, it is not as important to say you do not know something because no one is asking you questions. Instead, it is important to be correct about the things you purport to know. Nothing undermines authoritative credibility like statements that cannot stand scrutiny, for example, children never lie or compulsive masturbation in a child is a definitive sign of sexual abuse. Self-discrediting happens on a more subtle level with the commonly seen locution, “there is no evidence of ”—psychosis, impulsivity, or unfitness. Even a single bit of evidence refutes the statement and discredits the authority of the source. The no-evidence locution goes beyond succumbing to the cognitive fallacy of attending only to what is in front of you—Kahneman (2011) called this WYSIATI (what you see is all there is)—it celebrates that fallacy. Using Style to Enhance Your Credibility Dvoskin and Guy (2008, p. 206), summarizing Boccacini’s (2002) report on research about credible testimony, recommended a powerful speaking style (e.g., speaking with confidence and assertiveness: avoiding the use of intensifiers, hedges, and the excessive use of polite forms); expressing confidence in oneself when directed 24

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to do so; providing descriptive answers to attorneys’ questions; and avoiding hypercorrect speech (i.e., not using more formal vocabulary than one typically would).

These may be translated into recommendations for report writing. A powerful speaking style may mean the kind of authoritative writing voice described in this quote. Confidence may mean the calm presentation of relevant credentials and implicit acknowledgment of not knowing some things that we have already described. Descriptive answers are taken up in Chapter 5, in which we discuss using evidence illustratively. Avoiding hypercorrect speech when it comes to writing is illustrated by the old adage “When whom is correct, rewrite the sentence.” The problem facing the report writer is that incorrect grammar discredits the performance of an erudite expert, but correct grammar can lose the reader. Expository writing should not call attention to itself. Punctuation errors call attention to themselves only among those who care about punctuation, but these are often people you care about impressing. Precise grammar can call attention to itself when it sounds unnatural. Thus, we do not recommend using contractions (e.g., don’t, can’t) in reports, but we do think reports should read like comfortable speech as much as possible. Psychology also teaches that behavior is performative and that a key element of all performance involves the status accorded to the role one plays (Goffman, 1959; Johnstone, 1981). In other words, although clinicians certainly write reports to earn money, contribute to justice, and help clients, they also write reports to earn the respect of other people, and in the legal system, reports are often the only way in which the clinician is known to other professionals, so report writing might be the only way to get that respect. When respect is sought consciously, it addresses the mode of persuasion that Aristotle called ethos—the appeal of authority. (The other modes, discussed subsequently, are pathos—the appeal to emotion—and logos—the appeal to reason.) In other words, clinicians write reports to enhance their status, and poorly written or ungrammatical reports diminish their status, as do sloppy reports like those based on templates in which the writer does not change the pronouns to the right gender (Zavodny, 2012). Typically, poor writers claim that writing 25

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doesn’t matter. Although one can certainly make a good living as a clinician without writing reports, one cannot make a living as a forensic clinician without writing reports. Thus, almost as much as the dreaded prospect of testifying in court, report writing may be an important factor in determining which clinicians take the forensic route. Having taken it, you owe it to yourself to write well.

Understanding the Difference Between Expert Knowledge and Technical Skill Authoritative credibility is undermined by sloppiness, whether in grammar and punctuation, cutting and pasting, or factual errors. It is also undermined by quoting computerized interpretations of test results. We applaud the use of computerized interpretive programs as long as they are not used as a substitute for understanding the tests administered. Instead, we view these programs as being equivalent to a collection of reference books the clinician might own that translate test scores into English language statements, except that the computer program is an edited version so that only the statements relevant to the subject’s particular test scores are printed out. The problem with quoting the printout is a major variation of the problem of writing in such a way that the clinician defers to, rather than explains, research findings. The quotation presents the writer not as an expert who digests information and forms an opinion but as a technician who administers tests and enters numbers into a computer. The creators of the computer programs, no matter how knowledgeable they may be about the particular test, know nothing about your particular client or situation. Deferring to their expertise in a report by quoting them diminishes yours.

Conclusion Forensic clinicians have much to teach themselves about report writing by applying psychological knowledge pertaining to persuasion, performance, and the behaviors of reading and writing. 26

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Take-Home Messages   1. Consider and report only reliable data.   2. Keep in mind the data that you do not have.   3. Anticipate framing effects, especially benchmarks and reference groups.   4. Omit data and speculations that are prejudicial.   5. Do not commit libel by repeating other people’s erroneous allegations and comments.   6. Tell a story that accounts for the most salient data and answers the referral question.   7. Persuade with logic, not with authority or emotion.   8. It is not about you.   9. Do not discredit your performance of expertise by claiming to know things you cannot know. 10. Do not call attention to your writing. 11. Punctuate perfectly—it is not that difficult. 12. Explain jargon.

Questions to Ask Yourself Did you write in an expert voice? Does each sentence say only what you meant? n Have you examined your confirmation bias? n Do you have a financial, reputational, political, or value-based stake in this case? Have you taken that into account? n n

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2

Organization of the Report

Principle: The organization of the report ought to enhance communication of the writer’s opinion and reasoning to the reader.

T

he organization of a forensic report should generally enhance communication of the opinions and supportive data that the report contains. Virtually all commentators agree that reports ought to identify the subject and evaluator, provide the dates of contact and the date of the report, describe the legal posture of the evaluation, provide relevant data, articulate the evaluator’s inferences and opinions, and make recommendations when appropriate. There are a few debates in the field that affect the organization of the report. These include the amount of information to provide and overall length of the report, methods for separating facts from inferences, format of the report, and what level of detail to use when describing

http://dx.doi.org/10.1037/14182-003 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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the ­procedures used for the evaluation. Other considerations also apply, including statutory and regulatory requirements, ethical considerations, and local custom, and writers must address these in a way that minimally hinders communication.

Distinguish What to Read From What not to Read Analogous to the management of mandatory disclosures in psychotherapy, the idea is to comply with the rules and with their intent, while minimizing their potentially stultifying effect on communication. Writers can accomplish this by adhering to what is required as briefly as possible or by labeling adherence as such so the reader can skip that section of the report. Thus, for example, the Texas State Board of Examiners of Psychologists, through the Texas Administrative Code, requires psychologists to advise criminal defendants of nine facts, including the nature of the evaluation, its purpose and scope, its approximate length, and so on (Tex. Code Crim. Proc. Art. 46B.024, see also Art. 46B.025; http://www.statutes.legis. state.tx.us/Docs/CR/htm/CR.46B.htm). The psychologist could conceivably choose between so advising the defendant and not documenting it, documenting that the defendant was advised of all the required facts, or listing each fact and stating that the defendant was so advised. The problem with the first option is that local custom is likely to expect to see this list in any criminal report, and nondocumentation could be more trouble than it’s worth. A summary statement of advisement could work, saving space and time, but this too could lead to extra questions during testimony or balking by the court at accepting the report. In Massachusetts, in contrast, a court-made rule requires all mental health professionals to advise forensic subjects that the mental health professional is at the time of the evaluation not practicing psychotherapy. This rule can be met without further ado simply by writing that a nonconfidentiality warning was issued and understood. If readers expect a detailed explanation of the warning, or in Texas the facts attending to the nature of the evaluation, then the best way to include it in a report would 30

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be to provide a separate header, signaling that the reader can skip that section. The header might be Mandatory Advisements or Nonpsychotherapy Caution. Similarly, writers can dispatch with important information that is not directly related to the content of the report by using headers such as Informed Consent, Test Descriptions, or List of Collateral Contacts. For the purposes of communicating the writer’s opinion, all these amount to saying, “No need to read this section.” Conversely, the crucial sections need to be labeled in way that amounts to saying, “Read this.”

Exclude Prejudicial Data Some commentators suggest providing all the information obtained in the evaluation process (Fulero & Wrightsman, 2009). This is an exaggeration and is simply not possible, so they typically mean all the noteworthy information, all the test scores, and all the available psychosocial historical data. Other commentators caution against the invasion of privacy that follows from including too much data, especially data that are more prejudicial than probative (Grisso, 2010). For example, if a parent’s excessive drug experimentation in college seems to the evaluator to be just that—experimentation and not addiction—it may be unfair both to the parent and to the evaluator’s argument to include it. The same goes for episodes of promiscuity, radical political behavior, and the subject’s snide comments about the justice system. Another example would be the labeling of scales on which the subject received elevated scores. We prefer Scale 4 on the Minnesota Multiphasic Personality Inventory—2 (MMPI–2) over psychopathic deviate, and we prefer L scale or a scale whose items consist of self-congratulatory statements over the Lie scale. If you are going to use psychopathic deviate to describe the scale, then you ought to consider not reporting above average scores unless you think the subject is a psychopath. We would like to recommend never using the scale names, but this would contradict our recommendation to comply with test manuals, and the MMPI–2 scales are still named after the original diagnostic groups they were designed to identify (Hathaway & McKinley, 1989). 31

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Is a Bit of Data Prejudicial? When determining whether a bit of data is prejudicial, consider these factors: 77 Do you have reason to believe the fact would embarrass the subject or bias the reader against the subject? 77 Is it germane to a proposition you have to establish to make the case for your opinion? 77 Can the proposition be established without it? 77 Can the prejudicial effect be reduced or eliminated by clarifying your reasons for using the fact, by cautioning the reader against prejudice, or by contextualizing the fact?

Separate Facts From Ideas Another dialectic concerns the careful separation of facts from inferences. The recommendation to do so parallels the typical legal brief in which facts are presented in one section and the argument in another or the typical journal report of an experiment, with a discussion section separate from a results section. Sticklers for honesty about the degree to which facts, not just inferences, are susceptible to subjective interpretation might

Fact or Inference? In a sentencing evaluation, the court clinician had to make sense of the defendant’s mother’s statement that he had always been “cruel to animals” and had “tortured his sister since the day she was born.” The clinician chose to report both statements but contextualized them by noting that the defendant had not spoken to his mother or sister in over 10 years and that his mother had kicked him out at age 16 after he had an altercation with her boyfriend. Instead of using cruelty as an aggravating factor, the clinician presented the mother’s inference of cruelty as a form of hostility and cited that as a mitigating factor.

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call these stipulated or unlikely-to-be-disputed inferences instead of facts compared with contested or likely-to-be-contested inferences. When facts are presented, the reader ought to be able to tell where they came from, and any questions about their reliability—motivations of collaterals, measurement error, memory fallibility—ought to accompany them.

Determine the Right Length The length of reports is subject to much discussion. Some authorities insist on brevity. Simon (2007, p. 23) cited with approval a quotation from Pascal: “I have made this [letter] longer, because I have not had the time to make it short.” Others note that shorter reports are often “conclusory” (Melton, Petrila, Poythress, & Slobogin, 1997, p. 525). Of course, just because short reports are often exercises in ipse dixit does not mean they have to be. Between us, we have observed thousands of instances of end Tailoring the Report for the Audience 77 It is not possible or even desirable to include in every report every suggested remedy for every possible mishap. To do so would lengthen reports to the point of uselessness or at least to the point at which the reader would not bother to read any of the preparatory material and would just skip to the summary. Although this seems obvious, it is OK to simply ask your readers the length of the reports they are most satisfied with. 77 When everyone likely to see the report understands the legal posture and legal standards, they can be omitted (if it is legally permissible to omit them). 77 A simple statement of a nonconfidentiality caution can be substituted for a lengthy description of informed consent or assent unless the subject’s capacity to provide such consent is in dispute or ought to be. 77 Arguing Daubert admissibility is superfluous unless a Daubert challenge is likely.

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users reading reports. Though anecdotal, our experience is that the only people likely to read an entire report are the judge who is considering relying on the report and the attorney who needs to cross-examine its author; others read the last two pages. Report length is perhaps best considered a performance problem, not a communicative concern. From a communication standpoint, reports should be as long as they need to be to convey the writer’s main ideas and to link those ideas to the evidence that supports them. Performatively, the report needs to be long enough to justify the fee, to look substantial and comprehensive for the sake of credibility, and (like a cover letter in a job application) to avoid ridicule for brevity or prolixity. Brief reports may inadvertently communicate that the writer did not take the task seriously; long reports may inadvertently communicate that the author knows more about the subject than it is possible to know.

Use Executive Summaries It is often a good idea to include a section, just after stating the reason for referral, that supplies the answer to the referral question (Alban, 2012). In business and in white papers, this is often called an executive summary, but it could also be titled Conclusion and Overall Findings or Brief Overview. Alban (2012) recommended following this with a format similar to our point-by-point format, presented in the discussion that follows but with our final paragraph (listing the general propositions that support the conclusion) first.

Three Report Formats to Know When it comes to the heart of a forensic report (apart from its legal posture and purpose, identifying information, documentation of regulatory requirements, and other mandatory elements), the vast majority of reports tend to follow one of three formats (Karson, 2005b). Reports present data and inferences by procedure, by issue, or by legal or argumentative point. The format should reflect the content and local custom. 34

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Procedure-by-Procedure Procedure-by-procedure reports summarize the data obtained from each interaction, each collateral contact, and each assessment instrument in order. The advantages include the ease with which the reader can trace information to its source, the ability of the reader to detect bias in a source by having all the data from each source in one place, and the ability of the reader to follow the flow of information as the clinician became aware of it (assuming the procedures are listed in chronological order). The dis­ advantages include a tendency to integrate information only within sources instead of across sources and to attribute inferences to the tests themselves rather than to the clinician. Let’s review these one at a time. Evidence should be linked to its source when presented in a report. For example, if you want to make the case that the subject of the evaluation has been psychotic, at least occasionally, you might want to cite evidence of hallucinations. You can write, “He thought the antennas coming out of parked cars were flower stems, and he even saw roses sprouting from the tops of the antennas.” This would be good evidence of hallucinations, but the reader needs to know if it came from self-report, the collateral interview with the parking lot attendant, or the information provided by his attorney. When data in reports are presented procedure by procedure, the problem of linking data to their sources is taken care of automatically. The reader is entitled to be skeptical of bias in collaterals, self-report, and testing. It is obvious that a parent in a custody case may be biased against the other parent, and negative information from one parent about the other should be taken with a grain of salt. Likewise, criminal defendants are likely to spin stories that they think will benefit them. Some biases are not so obvious. An assessment subject could have a solid work history, come off well on interview, and perform well on several different psychological tests but blow the MMPI–2 because, say, the group norms are not valid for her in her circumstances. For example, people in recovery from substance abuse sometimes score high on MMPI–2 scales that are sensitive to historical rather than contemporary aberrance. If statements about impulsivity, authority problems, negative treatment indicators, and 35

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somatization are scattered throughout your report, it is hard for the reader to trace them all to the mismatch between former substance abusers and the norming group. But if you are diligent about identifying the source of each bit of data, the reader might notice that every piece of strong adverse data came from the MMPI–2. If the data are presented procedure by procedure, this would be obvious. Clinicians, like everyone else, are affected by the order in which information comes to them. This effect, known as anchoring in cognitive psychology, happens because one piece of information creates an expectancy set from which a subsequent piece of information is interpreted even if the first datum has nothing to do with the second (Tversky & ­Kahnemann, 1974). Even though good clinicians resist the effects of anchoring by e­ xercising critical thinking, the reader may benefit from knowing the order in which the information was acquired. Thus, an early-in-the-process accusation of sexual abuse can skew later data onto a continuum of more or less sexual perversity, whereas without the early accusation, the same data might not be deemed interpretable. For example, using the Internet to look at sexualized images might seem unremarkable if the father in a custody case is introduced as having a healthy sex life but might seem like a warning sign when the mother’s attorney initiates the evaluation with a suspicion of sexual misconduct. Procedureby-procedure reports, if presented in chronological order, allow readers to detect this source of bias. If not carefully managed, however, the presentation of information in chronological order can reproduce the same bias in the reader. Another advantage of the procedure-by-procedure format is that it tends to let the data speak for themselves. This is especially useful when the reader is an expert and the writer is not. Some reports are so badly written that the expert reader places no confidence in them. If they are conclusory reports (i.e., all inference and no data), the reader cannot even formulate his or her own inferences. The procedure-by-procedure format typically imposes a structure on the report that leads to reproducing comments by collaterals and test scores so that the reader can make up his or her own mind. It is not foolproof, however; we have seen very long 36

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(50 pages or more) procedure-by-procedure reports that provided no new useful data (not even a date of birth for the subject) and no test scores, just unsubstantiated impressions of the unreported data and long quotations from computer printouts. Propositions are more likely to be correct if they are supported by different types of data or data from different sources (Conroy, 2006; Grisso, 2010; Melton et al., 1997), and reports that rely on multiple sources of data are more useful to readers (Lander & Heilbrun, 2009). In procedure-byprocedure reports, even when multiple data sources support a proposition, the reader might have to hunt for the robust support across different procedures. One sometimes hears on the stand or in case conferences questions like, What does the MMPI say? or What does the Rorschach say? These questions contain several different mistakes. One is that the MMPI has an opinion; the MMPI provides evidence, not ideas. Another is that a psychological test can be strong enough in differentiating among alternative hypotheses that a very large proportion of clinicians would agree that a result has a specific meaning. In other words, What does the MMPI say? could be sensibly translated as, What would any reasonable clinician say about the MMPI scores? Thus, it would indeed make sense to say, What does the pregnancy test say? But there are no tests like that in psychology. A third mistake embedded in these questions is the assumption that one can usefully interpret test results out of context. You see this played out on the witness stand when the opposing attorney leads you through your procedures and asks you what you gleaned from each one. When you are finished, he or she points out that none of the procedures produced your conclusions. This is because good clinicians do not aggregate inferences derived from each procedure; they develop opinions based on all the (reliable) evidence available to them. Procedure-by-procedure reports run the risk of balkanizing clinicians’ assessments not only by segregating sources of data that could be usefully collected in support of a single proposition but also by creating conflict between sections. Of course, the writer can clarify what it means and how to think about the fact that the Rorschach results imply the person is disturbed and the MMPI results imply the 37

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person is not, but other report formats do not create the conflict for the reader in the first place. Issue-by-Issue Issue-by-issue reports present ideas and information according to some prearranged scheme that is informed by psychological theory. There may be sections on cognitive, social, sexual, and emotional functioning. Or sections might be organized according to the five-factor model (which in Cattell’s original iteration was actually a six-factor model because he included intelligence; Goldberg, 1993): intelligence, overall mental health, aggression, extraversion/introversion, control, and openness (or masculinity/ femininity, depending on who is naming the factors). Idiosyncratic sections would be appropriate if they are relevant to the referral questions. These might include substance abuse, conflict management, organizing principles, core beliefs, or attachment, for example. Issue-by-issue reports have the advantages of describing the person independent of the referral question, being organized according to the clinician’s scheme rather than the legal system’s, and providing better readability for other clinicians (or at least for those with the same theoretical orientation as the writer). Their disadvantages are that they can overly emphasize personality and their relevance to legal issues can be unclear. Some forensic reports will be used outside the legal system. For example, a child custody report that documents the child’s needs that a parent can or cannot meet will be useful to the child’s therapist, who will be trying to help the child get those needs met. An evaluation of dangerousness that lists troubling information about the subject can be used by treatment providers to monitor the implications of that information and to design responses to it. A legal dispute about whether a child in state custody needs residential care or foster care may produce a document that will be as useful to the child’s therapist as it is to the judge. For these kinds of assessments, a report that emphasizes a description of the child’s psychology over the immediate forensic question may be preferable, and writing an issue-by-issue report reflects that utility. 38

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Clinicians new to the forensic realm may feel more at home in writing a report that is organized like their clinical reports. If they are working with a referring attorney or if they have an experienced forensic consultant, they can write an issue-by-issue report and then, with their clinical understanding of the subject’s psychology fully articulated, they can have a conversation with the attorney or consultant about implications for the legal question. That conversation can produce a new section for the report on legal implications or recommendations. This would work only for the more psychologically generic forensic evaluations, such as child custody and parental competence, in which general functioning is relevant to the legal questions. In other legal contexts, an issue-by-issue report can implicitly misstate the relevance of personality to legal issues. The general psychological functioning of the person is barely relevant to competency to stand trial or testamentary capacity, for example. We say barely rather than not at all because overall cognitive functioning and propensity for psychotic states might still be relevant.

Point-by-Point Point-by-point reports are organized around an argument that answers the referral question. The points in the report may be the steps in the argument, or they may be the legal factors that courts or statutes identify as underlying the legal question. For example, in most states, and certainly in Colorado, testamentary capacity means that the testator is not operating under an insane delusion (a delusional belief that materially affects the will; Breeden v. Stone, 2000) and furthermore that the testator possesses sufficient active memory to retain five facts while the will is being executed. The five facts include what the testator owns, that he or she is making a will, who gets what under the will, whether the will represents his or her wishes, and who his or her heirs would be if he or she did not have a will (Cunningham v. Stender, 1953). It is easy to see how legal readers would appreciate a report organized around these seven points (insanity, memory, and the five things he or she has to know). Clinicians sometimes balk at the word argument. By this, we do not mean the belligerent use of words; we mean a verbal structure that 39

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­ resents propositions, supportive evidence, and other propositions logp ically derived from those established by evidence. We mean the use of critical thinking in evaluating and presenting evidence. Legal argument depends entirely on which side you are on; forensic psychological arguments should be like judges’ opinions, not like attorneys’ arguments. First, the judge or clinician must decide after examining all the available (admissible for judges, reliable for clinicians) evidence what that opinion is, and then that individual must structure the argument to produce that opinion as its endpoint. (Attorneys structure their arguments to end with their clients’ wishes rather than with their own opinions.) The steps in a point-by-point report may also represent rational building blocks toward a psycholegal conclusion rather than the components of a legal issue. For example, say your opinion is that a man should be released from prison to a halfway house rather than directly into the community because you think he will otherwise drink excessively, which will likely lead to fighting and reincarceration. The points in your argument, each of which needs to be established in the report by adducing supportive evidence, are, for example, that he is an alcoholic, he is angry when drunk, he has no reason not to drink, he needs to establish vocational and relational investments in not drinking, and a halfway house with daily urine monitoring gives him a chance to establish those investments before the decision to drink or not is fully under his control. The advantages of point-by-point reports are their direct relevance to legal issues, their better readability by legal professionals, their brevity, and their solution of the problem of how much information to include in the report. Their disadvantages are their lessened utility in other contexts, their exclusion of information that might be relevant to another clinician or an attorney’s development of an alternative opinion, and their tendency to be one-sided. The point-by-point report is about only the referral question. Writers include propositions and their supporting evidence only if they need them to build the argument that addresses the reason for the evaluation. This ensures their relevance and also makes them shorter because writers include only the data they need. The problem of how much information 40

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to include in the report is largely (but not completely) solved. The writer includes information needed to support a step in the argument and leaves out all other information. The writer discovers which information is relevant in the process of building the argument, in the process of making each step seem convincing to the reader. The problem of inclusion and exclusion, though, is not completely solved because a bit of evidence could be convincing in support of a proposition but still too prejudicial to include. For example, in arguing that a man under consideration for release from prison is an alcoholic (and therefore should be released only if his alcohol intake is monitored), you might have compelling evidence of his having engaged in tawdry or dangerous behavior while under the influence of alcohol. If the behavior cited is too tawdry or too dangerous, then it can prejudice the reader into thinking about whether the man deserves release rather than about whether he meets the legal criteria for safety. Point-by-point reports present an argument rather than a portrait of the subject. This makes them less useful outside of their immediate context. A treatment provider curious about what you have to say about a client would rather have an issue-by-issue or procedure-by-procedure report. Point-by-point reports ought to address competing hypotheses and explain why those have not been adopted, but this happens only when the competing hypotheses have been articulated by the time the evaluation occurs or when there is powerful evidence that seems to contra­dict the opinion expressed in the report. In these cases, a step in the argument needs to explain that the competing hypothesis is not true or that the powerful evidence does not contradict the opinion. Even then, the writer controls the presentation of evidence to support the clinical opinion that was formed by considering all the available evidence. If attorneys or other clinicians want to make up their own minds, then one of the other formats will suit them better. Of course, it is possible to combine types of reports to enhance communication, to make the report more convincing, and to allow readers to make up their own minds. For example, you could write procedure by procedure but stick to results and hold off on inferences. Then, in a summary or discussion 41

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section, you could write a point-by-point report, citing only the evidence from the earlier sections that you need to support your opinions. This will make for a long report, which as noted previously may be useful in avoiding testimony (in the sorts of cases in which a comprehensive report will lead to your not being called) and in looking like the fee was earned, but which also loses control of the reader’s confirmation bias because the reader is more likely to find corroboration for preexisting ideas in longer reports.

Describe the Procedures Used Some report writers offer long descriptions of their procedures, up to a single-spaced page, for example, explaining what the MMPI is. Others omit the test description entirely, and some include only a single sentence: The MMPI–2 is a long, true–false, self-report inventory offering scores on scales related to numerous clinical conditions. Long descriptions may be included in a labeled section such as Description of Tests and Other Procedures, or they may be included in an appendix to the report. Some test publishers, especially of effort tests, have asked clinicians not to list their tests in the procedure sections of reports. They are concerned that knowledge of the name of the test and an explanation of it will eventually result in strategies for outsmarting it. There are no immediate adverse effects of naming the test; publishers are concerned about longterm deterioration of a test’s utility. Some psychologists have responded by listing, for example, effort test, in the list of procedures and then reporting the interpretation of the score without the details. These psychologists readily answer, fully and honestly, any question posed to them by the subject’s attorney in a deposition or on the stand. (The subject’s attorney is the relevant one because effort tests are relevant only when the subject fails them.) Other psychologists continue to list the names of the tests in their reports. This issue, like many others in report writing, looks different depending on your perspective. If you identify with the test publisher whose intellectual property values are at stake or with the psychologist who makes a 42

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living by using the tests, then withholding disclosure until directly asked seems like a reasonable safeguard of test security. Standard 9.11 of the American Psychological Association’s (2010a) Ethical Principles of Psychologists and Code of Conduct requires “reasonable efforts” to maintain test integrity and security that are “consistent with law.” If you identify with the subject of the report, you may feel that holding on to the information until a deposition or hearing is an instance of delaying justice, which, as Justice Holmes said, is just another way of denying justice. Psychologists interpret a failed effort test in various ways, but to the subject of the evaluation, they all amount to calling the subject a liar. If you identify with the subject, you can see how the accusation of lying ought to be accompanied by a full disclosure of the basis of the accusation.

Other Considerations The report writer will have to decide between a generic name for the document (Psychological Evaluation) or a specific name (Evaluation of Commitability Under 35a). Should scores be listed in an appendix or only in the body of the report? Should recommendations be numbered? Arial or Times New Roman? The watchword is always communication: Which answer to these and other questions best communicates the writer’s opinion and expertise? What questions is the reader likely to have and can you answer them right then and there? We often recommend that the report writer ask referral sources for examples of reports with which they have been especially pleased and then discuss what was so useful about the example reports. This request has to be handled carefully, though, because it can undermine the performance of an expert and inadvertently communicate that the clinician is not sure how to write a report. “There are a number of different ways that I could communicate my findings, and I want to choose one that will be maximally useful.” Often, we admit, this is like asking the attorney what to wear to court. A surprising number of attorneys say “whatever you are comfortable in” instead of giving an opinion about what is likely to play best for a particular judge or a particular panel of jurors. 43

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Style Tips for Effective Communication Drilling down from the overall format of the report into style issues, we acknowledge some pet peeves and how to avoid them in your writing. 77 Including the phrase suffers from when reporting a diagnosis without evidence of the person’s experience of the condition (Zavodny, 2012). A better way to express this: “Mr. X has an impulse disorder.” 77 Empty statements about observed effort in situations in which motivation should be assessed by effort testing (Rubenzer, 2012), for example, “He appeared to try his best and he remained focused on the test materials, so the scores can be taken as an accurate indicator of his intellectual functioning.” Rewrite as “I do not know how hard he was trying,” or omit discussion of the effort entirely. 77 Selection of verbs that mean said on the basis of advice to mix things up—reported, stated, added—but without implying motivations— admitted, acknowledged, revealed (Zavodny, 2012; also Phillip Resnick, personal communication, August 15, 2005). Elmore Leonard (2007), who knows a thing or two about readability, said to just use said. Our view is that no prescription will do. Read your report out loud and change whatever is prejudicial or annoyingly repetitive; get feedback from others. We think it is also good advice to read a lot of essays by good writers (Ursino, 2012); something might sink in.

Conclusion Having formed your opinion by considering all the reliable data, reflecting on the potential importance of data you do not have, and taking steps to eliminate bias, present your data in a way that is maximally useful to the reader. This begins with the overall organization of the report and leads into the details of managing different kinds of evidence. In between the two, you need to convert the legal issue into a topic on which you are authorized to express an opinion, and you need a firm conceptual understanding of the psycholegal question you are writing about, which are the subjects of the next two chapters. 44

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Take-Home Messages 1. Select a report format that meets your readers’ needs and your professional obligations. 2. Identify the source of each bit of data. 3. Consider the source when considering information. 4. Link ideas to evidence. 5. Use effort testing in fake bad situations.

Questions to Ask Yourself 77 Do readers need only an answer to the referral question or do they also need a portrait of the subject? 77 Is there a local custom regarding the organization and length of reports? 77 Are there statutory or regulatory requirements that govern the organization of the report or its contents? 77 If the report is longer than a few pages, can you direct readers’ attention to the important parts?

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3

Converting the Legal Issue Into a Psychological Question

Principle: Explain behavior and the legal implications of the explanation.

A

s clinicians have become more immersed in the legal system, they have also become familiar with concepts that were not originally part of their training or even their field. This has led to debate about the extent to which they are entitled, or even required, to offer opinions about legal matters (Slobogin, 1989). The argument is that legal matters are outside their expertise (Tillbrook, Mumley, & Grisso, 2003). Social policy, not science, decides the level of impairment that would make going to trial unfair, how bad a parent must be at raising children to be labeled unfit, and how upset someone must be to qualify for asylum in the United States. Complicating the problem is the difficulty in distinguishing legal issues from clinical issues. The common law banned experts from testifying to

http://dx.doi.org/10.1037/14182-004 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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legal issues, but that started to change in the 20th century with Grismore v. Consolidated Products Company (Slovenko, 2006). Grismore was a 1942 Iowa case in which the expert testimony involved a question of whether the defendant’s feed killed the plaintiff’s turkeys. Allowing this testimony was perceived at the time as a somewhat revolutionary step that overturned many authoritative cases on the limits of expert testimony. Today, testimony on the cause of death would undoubtedly be seen as a clinical issue, not a legal issue. The ultimate issue, instead, would be the applicability of product liability law to the fact that the feed killed the turkeys. No wonder clinicians are cautioned to distinguish ultimate legal issues from penultimate issues (Slobogin, 1989). What used to be ultimate (i.e., an element of a crime) is now penultimate, and ultimate means guilty or not. Eventually, the Federal Rules of Evidence (FRE; 2011), passed by Congress in 1975, formally allowed expert testimony on legal issues under Rule 704: “Testimony . . . is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” Congress took a step back with the Insanity Defense Reform Act of 1984, a legislative response to the acquittal of the man who shot President Reagan. The amended FRE, Rule 740(b), prohibits expert testimony on the mental state of a defendant in a criminal case when it constitutes an element of the crime. Generally, though, Rule 702 allows expert testimony when it would “assist the trier of fact,” which the U.S. Supreme Court dubbed the “helpfulness” standard in Daubert v. Merrell Dow (1993). Indeed, the gist of the holding in Daubert, apart from its implications for the underlying science of expert testimony, is that it is up to the judge (under the FRE) and not up to the scientific community (as it had been under Frye v. United States, 1923), to decide which expert testimony is admissible. Thus, the FRE explicitly allowed the clinician to weigh in on legal matters and also allowed the judge to make determinations on matters of science.

Understanding Which Topics Are in Clinicians’ Purview Some commentators argue that clinicians are not trained to make judgments about legal issues, but the real problem is that they are not always authorized to make them. Judges receive little if any specialized training in 48

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how to decide which parent should get custody of a child, but the U.S. system of justice authorizes them to do so on behalf of the larger society. Conversely, intelligent clinicians who spend week in and week out contemplating competency to stand trial can develop a refined sense of what the constitutional issues are, of what a fair trial is. After all, if lay jurors can understand the legal issues and apply them to the facts of a case with no more instruction than the judge’s charge, then why would one not expect a professional person with years of instruction to be able to perform the same task? Again, the problem is not whether clinicians are competent to have opinions about legal issues but whether they are authorized to. That authorization, it seems to us, ought to depend on the judge. The judge can weigh in on the content of your report if there is an order. Otherwise, write what you know, and the judge can decide later whether you are entitled to know it. But do not overstep! You may be authorized to have an opinion about competence, but you are almost certainly not entitled to opine about due process. Clinicians’ proper role is to make sure that regardless of whether their opinions concern legal or clinical matters, they show their work (Dvoskin & Guy, 2008). Similar to the cautions against opining on legal matters is the caution against opining on nonclinical factual matters, such as whether battery or abuse took place. Most commentators want to leave these matters to the police. In Chapter 6 of this volume, we discuss the advantages of writing a conditional report of the general form “If the allegations are true, then I think this; if the allegations are false, then I think that.” Here, we want to question whether it is realistic to draw a firm distinction between a fact like the presence of psychosis and a fact like the presence of abuse. It has been instructive to watch the development of the medical subspecialty child abuse pediatrics. There are currently 25 fellowship programs in this field established in 16 states (http://www.helfersociety.org/­fellowships). These pediatricians make diagnoses of inflicted injury, weighing all that is known about the human body plus the adults’ and children’s statements about what occurred plus the physical evidence at the purported scene of the injury. Our emphasis on the word diagnoses is intended to highlight the idea that a diagnosis is any categorization made by a doctor that is relevant to a clinical condition, an idea that underlies the practice of child abuse 49

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pediatrics, rather than a categorization of a disease. This idea is not entirely new to mental health practitioners. Currently, under the Diagnostic and Statistical Manual of Mental D ­ isorders (4th ed., text revision; DSM–IV–TR; American Psychiatric Association, 2000), several diagnoses require the clinician to extend fact finding beyond the patient’s body and mind. For example, a diagnosis of reactive attachment disorder requires a finding of “grossly pathogenic care” (p. 127) and a diagnosis of posttraumatic stress disorder requires a finding that the patient “has been exposed to a traumatic event” (p. 467). Neither pathogenic care nor history of exposure to a traumatic event is evident in behaviors, thoughts, emotions, test scores, or physical data; both require the diagnostician to decide that something specific happened in the past, sometimes in agreement with the patient’s representation of events, sometimes perhaps not.

Developing Referral Questions Clinicians should work with referral sources to develop questions that they can answer in a report after an assessment (Hecker & Scoular, 2004). Our view is that it will not do to categorize certain kinds of questions (legal vs. clinical, investigative vs. clinical) as off limits. That is partly because there seem to be good reasons to think that legal and investigative questions might, at least sometimes, be within the clinician’s purview. It is also because the division between clinical questions and other questions may tend to leave clinical questions unexamined. Clinicians may undertake evaluations too quickly, and without examining what the report will be about, when the question is clearly clinical. For example, an attorney who really wants to know if a mother’s emotional lability interferes with her ability to provide a secure attachment for her child asks the clinician for a diagnosis instead. Or a child welfare caseworker who really wants to know why a father loses his temper and what might be done about it asks instead for a psychological evaluation. The goal of molding assessment questions jointly with referral sources will be facilitated if the mind-set of both parties is focused on the interplay of the clinician’s expertise with the referring person’s concerns rather than on categorizing the referral question as clinical, legal, or investigative. Some forensic referrals, such as those from attorneys, are likely to be crafted as 50

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part of a legal strategy. The attorney wants a report that supports the attorney’s argument for achieving the client’s goal. Others, including those from attorneys who are fishing for legal arguments or are confused about their client’s behavior or those from judges, caseworkers, and other professionals, might be genuinely open-ended. The range is from the attorney who says, “I need a report saying the father is not an alcoholic; if you cannot say that, then do not write a report” to the caseworker who says, “Tell me what you think about this boy.”

Answering the Referral Question One of our pet peeves is a tendency for some forensic reports not to address a specific question. Fairly frequently, a child welfare caseworker seeks a psychological evaluation of a parent with the implied question of whether the parent can improve and, if so, how best to achieve improvement. Instead, the caseworker gets back a long psychosocial history that regurgitates the information that the caseworker provided to the psychologist and a bunch of statements derived from unreported test results either cribbed from a computerized interpretive service or generically translating test scores into verbal hypotheses. “People who score similarly on this test are often found to be well-adjusted.” These reports tend to spring from a combination of a referral source who does not know how to demand a specific focus and a clinician who does not know or does not care about the utility of the report in a forensic context. Both problems can be addressed in the initial consultation. Sometimes, referral sources want something specific that they simply cannot obtain from an assessment. A caseworker calls you and asks if you can tell if the stepfather sexually abused the 1-year-old girl, or a lawyer wants to know if a psychological evaluation will reveal if a parolee will or will not recidivate. You have to explain the limits of what you can infer from an evaluation, and you are entitled to describe what you might be able to do. For example, you can develop a treatment plan for the girl, a safety plan for the father, and possibly an explanation of any bad behavior that the stepfather acknowledges or is otherwise proved. You can describe the aspects of the parolee’s situation that you think might be more c­ onducive to recidivism, and you can suggest prudent steps to take to reduce their effect. 51

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As we describe in the section Explaining Behavior, the single best remedy in our opinion to prevent useless reports is to focus on behavior. The referring party can implement this strategy by obtaining an agreement that the clinician will explain certain behaviors. “So you’ll explain why he keeps missing visits?” “Your report is only worth the money if you can tell me why she refuses to talk to me about the crime and whether there’s anything I can do about it.” The clinician, on the other side, can inquire into the behavioral basis of the psycholegal concern. “What did she do in court to raise a question about competence?” “What did he do to lose custody of his children?” “What does he do or say that makes you think he might have an injury?”

Assisting the Judge Some referral questions are answered not by the assessment clinician but by the judge. In these cases, the report writer can be construed as doing things the judge does not have time to do. For example, many evaluations for competency to stand trial could usefully be conducted by the judge in chambers or during colloquy in court. Indeed, most such evaluations begin this way. Then, either one of the attorneys raises the question of competence (depending on the jurisdiction) or the judge raises the question on the basis of what has happened in court. Evaluations for competency to plead and to represent oneself begin similarly. In theory, the judge could extend the colloquy to get details of the person’s understanding of the court process and the different party’s roles. It is not that the judge is not competent to conduct this inquiry (as noted previously, it is not competence that frequently determines who does what but authorization, and determinations of competency are within the judge’s authority, as are determinations of child custody, parental treatability, and the scientific basis of assessment techniques). Instead, the issue is the amount of time. For these sorts of referral questions, the clinician is in a role analogous to probation officers who put together background information prior to sentencing, and the report should be structured according to what helps the judge (who will typically expect a report that tracks the legal factors). Similarly, under the rubric of assisting the judge, you do not have to write to convince the judge in heavily contested reports like those in 52

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divorce proceedings. Instead, you can appreciate how useful it might be to the judge to hear two experts arguing with each other, respectfully and humbly, and you can write the report accordingly.

Explaining Behavior A mother’s boyfriend brutally injures her 3-year-old daughter, pleads guilty, and goes to jail. While he is in jail, she marries him, claiming that he is innocent. Wouldn’t it be great to get a clinical evaluation of the daughter that pointed out her specific problematic reactions and explained why it was important for this particular girl for her caregivers to recognize what happened, for them to privilege her emotional security above their own needs? Such a report would convey the legal grounds for demanding that the mother get on board. Wouldn’t it be great to get a clinical evaluation of the mother that explained why she refuses to believe incontrovertible evidence and why she married the man? Such a report would provide points of intervention and ideas about changing the mother’s narrative so that a sensible, specific treatment plan could be developed that would either change the family or, if it failed, lead to adoption. Instead, what one gets all too often is a report on the girl that says she has posttraumatic stress disorder and needs therapy and a report on the mother that says she does not have a major mental illness, that she may or may not have a personality disorder, and that she is on some measures more like parents who do not abuse their children than those who do. Using nomothetic measures like an abuse potential scale or a foster care prevention inventory makes sense as screening tools to sort large groups of people for extra services, but they are not easily applied to individual cases. The law demands justice for individuals. We like to imagine how we would feel if we were locked up and the deciding bit of data was something our parents had done a long time ago. Most courts will not allow evidence about a defendant’s character to prove that he acted in conformity with that character on a particular occasion (FRE, 2011, §404). Think of a psychological evaluation, test profile, or personality d ­ escription as evidence of character, and you can see that it offends justice to use that to prove what someone did in a specific situation. Thus, a high score on a nomothetic test can place 53

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a parent in a group that is more likely to abuse children than most parents are, but it does not establish that this parent will inflict abuse. This problem, in which scientists bet the odds and courts want individual proof, can be construed as a question of whether the decision maker has an obligation to false positives. In some situations, there is no such obligation. It is perfectly acceptable to refuse to hire a daycare worker who scores high on some abuse potential scale—the job denial does not impair any of the applicant’s rights. But to deny custody to a parent because of a score on a test is another matter. These predictions based on nomothetic sorting are especially frustrating when they come out contrary to the case history. In the current example, nobody seriously thinks the mother has physically abused the girl, so an observation that she is unlikely to do so is irrelevant, but it would be hard to know what to make of a high score when the parent has an ironclad alibi for an inflicted injury. When a parent looks incapable of abuse because of a conventional history and a low score on an abuse inventory, we have often had to point out that dealing with a crying baby late at night, exhausted and feeling ineffective, is not like many other situations, and it is very difficult to sample ecologically relevant behavior. Most shocking, perhaps, were reports we’ve read in which the nomothetic test or actuarial has led to the statement that the individual is “unlikely to abuse a child” when multiple undisputed instances of child abuse were already on record! Unfortunately, the child welfare worker does not feel authorized to tell the psychologist how to do a psychological evaluation, and the psychologist does not know how to explain the mother’s marriage or does not have to explain it to get paid. By contrast, the worker is perfectly comfortable asking the child abuse pediatrician if the injuries were inflicted or accidental, and the child abuse pediatrician would never dream of examining a child with bruises and broken bones and writing a report only about her general health and the need for painkillers and casts. The solution would seem to lie with the clinician, and one way to get there is to commit yourself to explaining behavior and the legal implications of the explanation. Apart from assessments in which clinicians are doing the judge’s work as fact finders and those in which they are applying a clear legal framework to a set of data, these kinds of assessments are perhaps more clinical than forensic. In these cases, especially those related to family 54

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law, it is the psychology of the subjects that matters. A focus on explaining behavior relieves the clinician of much of the burden of deciding which behavior happened because the referral conversation can leave that question up to the referral source. Such a focus also ensures that the referral source will get some answers that actually matter to the case, whether the explained behavior is a disruption in court, a homicide, claims of suffering, or failure to clean the home. Then, the only remaining problem is the tendency of clinicians to explain behavior merely by using a different vocabulary to describe it, but that assessment weakness is beyond the scope of this book.

Conclusion Make your reports useful by developing a referral question within the scope of your expertise that has a specific bearing on the legal issue at hand.

Take-Home Messages 1. Explain behavior; develop and answer a referral question that requires an explanation of behavior and the implications of the explanation for the psycholegal question. 2. Do not assess character to prove a specific act. 3. Show your work. 4. Explain idiographically, not (just) nomothetically. 5. Answer the referral question. 6. Treat the subject as you would like to be treated.

Questions to Ask Yourself 77 Have you clarified with the referral source which behaviors you are going to explain? 77 Have you determined what utility your various opinions might have in the legal system? 77 Have you understood that a diagnosis is not likely to be of much use?

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Principle: The report writer must have a clear and articulated rationale for the relevance of psychological data to legal questions; he or she should write about this subject, not about most subjects.

P

sychologists are required to understand the science (American Psychological Association [APA], 2010a, Standard 2.04) and the law (APA, 2011, Standard 2.04) underlying their opinions on forensic matters. To some extent, you can learn the science from teachers and colleagues and the law from lawyers, but you should read at least summaries of both for yourself. Fortunately, there are many books available for most of the typical forensic assessments, such as Benjamin and Gollan (2003) for child custody evaluations and Foote and Goodman-Delahunty (2004) for sexual harassment evaluations. But even the best books cannot cover the most recent developments in the relevant science and practice, nor

http://dx.doi.org/10.1037/14182-005 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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can they cover the specific and latest controlling cases in your jurisdiction. That means you have to keep up-to-date. Reading journals and news bulletins relevant to your areas of practice occupies some of your professional time. But how does this help you when it comes time to do an evaluation? In this chapter, we connect your background knowledge and research to the specific questions you will address in your report and to the argumentative scaffolding you will need to fill in as you conduct the evaluation.

Applying Research to Your Case Applying the science to the specific case raises again an important issue in assessment and in report writing, namely, the problem of going from the general to the particular. The assessment piece has to do with drawing inferences about individuals on the basis of normative data. Studies might show, for example, that siblings do better in foster care when placed together, but it is hard to know whether the siblings in the family you are assessing are among the, say, 80% who do better together or among the relatively few who do better apart. Unless the divide is 100%–0%, you always have to wonder. One solution is to let the research provide you with a default or a starting point, a base rate to anchor your opinion. The law can also provide a default: If, for example, you cannot show that parents are unfit by clear and convincing evidence, then their right to raise their own children is the default position. As noted throughout this book, the law generally balks at treating individuals according to categories they have been placed in. Federal Rules of Evidence, Rule 404 (Federal Rules of Evidence, 2011) for example, forbids most efforts to prove that someone did something by proving what kind of person he or she is. We extend this principle to all sorts of conclusions based on categorical inferences. For example, clinicians may infer that a subject is paranoid because he or she scored above 70 (or some other arbitrary cutoff) on the Minnesota Multiphasic Personality Inventory—2 (MMPI–2) Scale 6. Although a high score on Scale 6 may be strong evidence of paranoia, it is not conclusive evidence. In a court of law, you cannot rest an opinion of violence risk on a diagnosis of paranoia; you have to articulate things the person did that imply a risk. And courts 58

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probably should not allow you to rest a diagnosis on a test score (unless, like a pregnancy test or an HIV test, the sensitivity and specificity are so high that the test score can be considered definitive). For these reasons, we recommend caution before citing research to support your point of view in a forensic report, other authorities notwithstanding. Citing research can create an impression in the reader that the writer’s opinion has a scientific basis that it simply cannot have. It can create an impression that relevant studies are dispositive. Furthermore, the practice applies general principles derived from other people’s data to the current case. Although we have little doubt that actuarial processes are superior to clinical processes for getting it right on average (Meehl, 1954), that is only true for actuarials developed on a group that adequately represents the individual under consideration. This topic is taken up in Chapter 9 of this volume, in which we discuss cultural groups. As noted in Chapter 3, actuarials and statements about individuals based on group membership are appropriately used only when they are extremely likely to be accurate or when the user has no obligation to false positives and false negatives. In selecting students for admission to a graduate program, for example, the school’s interest is in maximizing its ability to get it right across the whole group, and unless there is a discriminatory impact against a protected class of people, there is no obligation to those who were wrongly excluded. When an individual, by contrast, has a right to liberty and that right is impaired because of group membership—high scores on a test of recidivism, say—the justice system has an obligation to the person to prove that the particular individual is likely to recidivate. One way of thinking about the problem of applying generic research to particular cases is to consider how you would like to be treated if you were suspected of child abuse or unethical practice. If you practice long enough—especially working with children or in high-conflict legal cases like child custody—you need to prepare yourself for an accusation of unethical conduct because many forensic reports create at least one disgruntled person. If you work with children, some other adult might generate a statement by a child of maltreatment on your part. If this happens, your licensing board or some other body or a child welfare worker will 59

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investigate you. You probably would like the investigator to be objective and to have a default of no wrongdoing. But what would it feel like to take an MMPI–2 and a Rorschach and to be told that your test scores indicate that you are guilty? Or that you are the type of person who would mislead the court because two other disgruntled parents filed previous complaints? What would it feel like to be told that the vast majority of grievance defendants are guilty, so you are too? What it would it be like to be told that your freedom to practice should probably be restricted because three things put you over the top into the high-risk category, namely, you are not schizophrenic; your father was an alcoholic; and your parents divorced before you were 16? (These are items from actuarials used to lock people up.) In reports, that means you should not write what we call people who. “People who score this high tend to be child molesters [or recidivists or bad parents or what have you].” “Siblings placed together tend to do better than siblings placed apart” commits the same technical error. The principle is that you should not write your report or the sentences in it about other people. You may adduce evidence and reasoning to support your point of view, but you should write about the person you have evaluated, not about people in general. There is a big difference between writing “People who score this high on Scale 6 tend to be paranoid” and “In my opinion, she is paranoid. Evidence of paranoia includes her score in the 98th percentile on an MMPI–2 scale designed to measure and typically interpreted as paranoia.” The former is the type of thing clinicians write when communicating blind interpretations of tests to other clinicians. The latter is what clinicians write when they have formed an opinion about the subject and want to show the evidence they based the opinion on.

Formulating Arguments as the Assessment Progresses The closing argument of a trial is to the trial itself as the forensic report is to the forensic assessment. The trial and the assessment generate evidence; the closing argument and the report aggregate the evidence in a 60

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story, the key plot points of which account for and are supported by the evidence. Many trial attorneys are taught to “work backward” (Mauet, 1996, p. 469). This means that if you start constructing your argument before the trial begins, you’ll know how to present your evidence, which contradictory evidence to let slide and which to attack or rebut, and what to emphasize and what not to. Lawyers can do this more easily than clinicians because lawyers already know which side they’re on; but even trial lawyers have to figure out what story they are telling to the trier of fact, and so do clinicians. We do not recommend working backward from a predetermined side (which would risk confirmation bias), but we do we recommend that you formulate possible arguments, even competing arguments, as the assessment progresses or before it even starts, which helps keep you from assimilating all your data into your initial best guess. Thus, it is crucial not to fall in love with any argument you make even after you write your report and testify but especially while you are still making up your mind. By formulating possible arguments, you will see their holes and how to fill them. You will set up tiny experiments: “If it is true that he is so prone to anger, he ought to have a much spottier work history than he reported; I think I will ask him for some collateral contacts from work.” Thus, laying the groundwork for your opinion is improved by trying out your opinion and discovering its weaknesses. This works best with a point-by-point report (or a point-by-point ending to a procedure-by-procedure report) because this report format requires the construction of an argument.

Psychological Arguments for Different Forensic Issues Different kinds of referral questions lend themselves to different argumentative structures. These can provide the groundwork for your opinion and a method for conducting an assessment. The following examples are not definitive approaches to the reports involved. The idea is to think through the structure of the argument prior to conducting the evaluation. We include here two extended examples to show the process ­discussed 61

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previously. Following that, we include a sampling of other topics forensic psychologists typically encounter. These are sketched out in less detail because of space constraints; nevertheless, they do show how useful a brief conceptual overview can be in helping a forensic clinician structure the assessment and the report. There are many published sources for every kind of forensic assessment (e.g., Melton, Petrila, Poythress, & Slobogin, 1997, for nearly all of them; Benson & Romano, 2012, for civil ­competencies). Parental Fitness Parents or legal guardians take care of their children in the United States, but when the care is inadequate, the state steps in. Usually, parents stop making the mistakes they made or the family gets help from outside sources, and children either remain with their parents or are returned to them. When parents are found in court to be unfit, the children can be freed for adoption by someone else. Often, caseworkers ask clinicians to assess parents for fitness. A useful step toward laying the groundwork for an opinion on parental fitness is to consider that fitness is not a trait of parents but of parent– child relationships. A parent can be fit to raise one child but not another. The second child’s special medical needs, for example, may be too complicated for a cognitively limited parent. Or a parent may react violently to a child who reminds the parent of someone else, for another example. Commonly, children who have been disappointed by bad parenting need a parent who is particularly patient and willing to examine his or her faults, just as most married couples do not need special skills for managing adultery, but marriages that include an adulterer do. The issue is not whether the parent’s strengths and weaknesses fit the job of parenting but whether they fit the child’s needs. The implication is that a report on parental fitness ought to describe the child’s generic and specific needs. All children have certain needs, including affection, stability, nutrition, nonviolence, and hygiene. All children also have age-specific needs, such as privacy for adolescents and dia62

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pering for toddlers. Finally, children have specific needs, such as an abused child’s need for a parent to demonstrate that violence will not occur or, if it has, that it will not occur again. Perhaps the ultimate child-specific need is the need of securely attached infants and toddlers to remain with the adults they are attached to. In these situations, we have written that no one else in the world is fit to parent the child. The report on fitness, then, should delineate the needs of the child and then look at the parent’s ability to meet those needs. This leads to a discussion of why the parent cannot or has not met those needs (what the parent has done wrong), what must change for the parent to meet them, suggestions for change, and whether change is likely. It is a matter of judgment, and should be represented as such, whether the parent’s incompetencies are too central to the parenting enterprise to be outsourced. Thus, a parent who cannot keep a house minimally clean but is otherwise capable can outsource the cleaning by hiring a housekeeper or relying on friends or church members to do it for him or her. A parent who cannot provide a nonsexual relationship with a 6-year-old cannot outsource the child’s need for nonsexualized relating with caregivers. Between these extremes are various degrees of competence, and a useful report will make it clear to readers which needs the parent fails to meet so readers can decide for themselves whether those are too central to replace with other sources. With the structure of such a report in mind, the clinician will not just document the parent’s angry losses of temper but will further assess their effects on the child, if any. For example, a paranoid schizophrenic mother who generally ran a strict but functional household would occasionally huddle in the closet with her 7-year-old daughter to keep from being abducted by alien spacecraft. The important question with respect to fitness was, so what? Address Bias Clinicians involved in the child welfare system tend to be parentblamers, child-blamers, or system-blamers, depending on their own experiences and their own psychologies (Karson, 2001). Try not to be a blamer 63

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at all, but at least acknowledge to yourself where your biases lie. Consult with other systemically minded professionals to keep from adopting the mentality of whatever group you typically work with. Use Relevant Research to Identify an Argumentative Structure Having a conceptual background in child development, the clinician knows that to answer the question “So what?” he or she must have a general idea of the child’s needs and look at the parent’s ability to meet those needs. The clinician can then put the parent’s problematic conduct into a legally and clinically relevant context that will structure the evaluation and the report. So in this case, which of the child’s needs was the mother failing to meet? Formulate Possible Arguments Two points that were investigated were the child’s need to see the world as a welcoming place and the child’s need to feel like her home was safe. Other possibilities that could be investigated might have included whether the mother’s irrational protective efforts extended into other areas of life. Also, the mother’s lack of empathy for her daughter might have interfered with the development of a stable sense of self, which in turn would mean that the girl would have needed a more empathic primary caregiver than the mother. But it was also possible that empathy was not always so poor or that empathy is only one aspect of adequate caregiving. A comfortable home, nutritious food, and opportunities for autonomy and play might also have produced a stable sense of self, diminishing the girl’s current need for fine attunement. Create Miniexperiments to Fill in the Gaps of Various Arguments If the child were an infant, the clinician would have had to forecast the likelihood of the child’s needs in these areas not being met, but with a 7-year-old child, the clinician could evaluate the actual child. For example, during a clinical interview, the child said that sometimes her mother gets scared of nothing, but it only lasts for a couple of hours. When the

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child was found through multiple data sources—projective assessment for reality testing and expectations of malignancy, school collaterals for friendships and engagement, a home visit to see whether the girl was fearful in her home—to have neither of these problems, the clinician could write that the conduct did not make the parent unfit. Instead, the clinician suggested alternatives, such as keeping the closet stocked with snacks and games and installing a light, so they had more things to do while hiding. Asylum Evaluations Ancient custom, transcribed into international law to which America subscribes and reflected in federal law, allows persecuted individuals to claim refugee status and come to or remain in the United States outside of the normal immigration process. The person must achieve refugee status by demonstrating a history of persecution or a well-founded fear of persecution in the home country for reasons based on race, religion, nationality, political opinions, or membership in some social group (Kagan, 2002; Meffert, Musalo, McNiel, & Binder, 2010). There are other legal requirements, such as the person not having persecuted others, that do not concern us here. The forensic clinician’s role is typically to document the applicant’s subjective fear and to infer past persecution from current functioning. The clinician is also in the position to debunk conventional wisdom about credibility assessments by judges and arbitrators because many of the signs that are interpreted as poor credibility, such as inconsistency and lack of details, may be attributed to trauma or cultural communication styles (Kagan, 2002; Meffert et al., 2010). Typically, credibility determinations are reserved for the fact finder (Melton et al., 1997), so the issue is framed as whether the applicant is experiencing exposure to trauma. We evaluated a refugee in Boston who found a good job in Sudan after fleeing his native Darfur. He came to Boston on a tourist visa and then sought refugee status, claiming that in Sudan he was constantly in danger because of his ethnicity.

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Address Bias Many asylum evaluations are conducted pro bono, which raises questions about bias. The clinician usually wants to help a refugee find asylum, and this can lead to a hope and then an expectation that the person seeking asylum is in fact a refugee. Clinicians should remind themselves that even though America admits more refugees than other wealthy countries (Organisation for Economic Co-operation and Development, 2009), there are still a limited number of slots, and these have to be safeguarded for actual refugees. Having agreed to work pro bono, the clinician must not then give short shrift to the case. The clinician should make an effort to learn something about conditions in the country of origin and should also recognize that this information can create bias in favor of asylum or against it, depending on how terrible or benign reported conditions are. Use Relevant Research Credibility is the “most important part of any asylum case” (Zwick, 2012, p. 43). Our reading of the research on deception detection concludes that it cannot be done. Vrij (2004) summarized the many ways that groups of truth-tellers differ from groups of liars but pointed out that when it comes down to the classification of an individual, accuracy is much more difficult. O’Sullivan and Ekman (2004) identified 14 detection “wizards,” but they did not take the base-rate problem into account. Their wizards were exceptional beyond chance only if the base rate of distinguishing truth from lies in their experimental setup is 50% for the general population. But if the general accuracy rate was 67%, then one would expect to have 14 outliers by chance alone in their sample. Similarly, even if their wizards were truly remarkable beyond chance, they were still wrong 16% of the time. In a situation in which the base rate of liars was only one in six, that would knock even the wizards back to being right only half the time when they claim someone is lying. No one knows the base rate of lying among asylum applicants. You cannot use the national average of adjudicated refugees among applicants, 66

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which has steadily gone up from 11% in 1989 to 50% in 2012 (Transactional Records Access Clearinghouse [TRAC], 2012). You cannot use the national average to estimate the base rate because the national average shows too much variability from judge to judge to be used as an overall estimate. Judges in the same court with presumably similar caseloads vary wildly in their denial rates, from around 90% for some judges to around 10% for others (TRAC, 2007). TRAC (2012) suggested that variables affecting the national rate of denials include representation by counsel, feedback for judges, and discouragement of applicants. Denial rates also vary according to the country of origin, ranging from denial rates over 90% for applicants from Jamaica, Argentina, Dominican Republic, El ­Salvador, and Nicaragua to denial rates under 33% for applicants from Burma and the Soviet Union when there still was a Soviet Union (TRAC, 2007). Thus, it would seem that an important role for a forensic clinician in asylum cases is to inform the court of the fallibility of credibility assessments, especially cross-culturally, across a language barrier, and if the person has been traumatized (Kagan, 2002; Meffert et al., 2010). This function can be represented in a report either in long form, by writing what amounts to a research paper on the topic, or in short form, pretty much as presented in the preceding sentence. Formulate Possible Arguments Typically, the aspects of the case that have to do with conditions in the home country are dealt with by other witnesses and experts. The psycholegal questions, therefore, concern credibility of expressed subjective fear, reports of persecution, and danger in the home country. Is the applicant’s current functioning indicative of or at least consistent with a traumatic or scary past? As noted in Chapter 3, all diagnoses of posttraumatic stress disorder require an opinion that a trauma occurred. There are many different reasons why an applicant might exaggerate or underreport symptoms or traumas (Meffert et al., 2010; Rogers, 2008), including a desire to enhance actual facts to get the correct remedy, outright lying to get asylum, confusion, or embarrassment. 67

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Create Miniexperiments Forensic clinicians are more likely to get involved in asylum applications if the applicant is already in the United States. Although that makes interviewing more convenient, it greatly restricts the availability of documentary and collateral evidence. Still, the clinician can interview current associates for information on psychological traits associated with different motivations (e.g., reticence about torture if the hypothesis is under­ reporting due to cultural embarrassment) and for information on current symptoms (e.g., claims of sleepwalking and night terrors). A man from Darfur claimed that most Sudanese people can spot a Darfurian by his facial features. This was checked by the immigration attorney and supported the man’s statement that he could not pass for Sudanese. Objective assessment of symptom validity runs into prohibitive difficulties with language, norms, and culture. The test would have to be normed on asylum applicants from a particular country or region, and there would have to be alternative norms for nonpersecuted locals. To repeat, the primary role of the forensic clinician in asylum evaluations might be to debunk credibility assessments, especially when applied to aliens and putative persecution victims. Testamentary Capacity As noted in Chapter 2 of this volume, testamentary capacity in most jurisdictions means that the testator does not have a delusion that materially affects the will, has sufficient memory capacity to keep five facts in mind while executing the will, and knows those five facts: that he or she is making a will, what he or she has, who he or she wants to have it when he or she dies, that the will represents his or her wishes, and who would get it if he or she did not have a will. This legal structure calls for a pointby-point report covering these seven topics, and it calls for an assessment that evaluates each of these points (rather than, say, general cognitive functioning). The potential presence of an insane delusion would require citation of the bequest that is suspected of having been materially affected, plus a report on the testator’s reasoning behind the gift. 68

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Personal Injury Generally, psychological evaluations of personal injuries are either neuropsychological (e.g., loss of functioning after a traumatic brain injury) or emotional (e.g., distress and symptoms following an intentional or negligent tort). As in other sections of this chapter, the important lesson is that a conceptual understanding of the legal and psychological issues should structure the report and the assessment. An example of this for personal injury would emphasize assessment of functioning prior to the event in question (through collateral interviews and documentary evidence), assessment of current functioning, evaluation of causality, and evaluation of the effects of motivation on the assessment. The evaluation of causality means an evaluation of whether the tort or accident caused the change in functioning or the plaintiff’s distress or symptoms. The assessment of motivation means that the evaluator must address the question of whether the subject is exaggerating or inventing symptoms or dysfunctionality. Sentencing When clinicians write presentencing reports, they usually track some of the reasons for locking up criminals in the first place. Holmes (1881) said that the primary reason for criminal justice is to deter crimes by community members by displaying bad outcomes for criminals, but this reason for incarceration is usually left to the legislature. Those covered in reports include moral punishment, reduction of vendetta, and protection of the community. Moral punishment translates into aggravating and mitigating factors about the crime or the criminal, such as exercising relative restraint for the type of crime, remorse, or generally good character in the criminal. The justice system’s role in reducing vendetta is addressed with a victim impact statement or some other method of including the victim’s voice in the sentencing. Protection of the community translates into a risk of reoffending, but forensic clinicians now know how difficult it is to predict recidivism, so instead this section of the report ought to be devoted to factors that affect adjustment in the community and prudent recommendations to improve them. Sentencing can then take into account how 69

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realistic or unrealistic those improvements would be to implement. These would include prospects of gainful employment, social supports for not offending, and sobriety, among others. Mental Status at the Time of the Offense The legal standards that define criminal responsibility vary from state to state. The legal argument is generally that the defendant is not responsible for a crime if a mental illness interfered with self-control or knowing right from wrong (depending on the jurisdiction). Thus, the clinician must identify a qualifying mental illness and assess its effect on self-control or knowing right from wrong at the time of the offense. Social Security Disability Evaluations of disability for Social Security assess subjects’ functioning to demonstrate whether or not their impairments are so severe that claimants are unable to engage in their previous work or to obtain gainful employment. When the claim is psychological, the clinician must identify a mental disorder and assess its effect on potential kinds of work. A comparison between the subject’s functional capacity and the demands of various jobs must be reported. The clinician must also develop some way of forecasting the durability of the subject’s limitations.

Conclusion The clinician should approach the assessment with a conceptual foundation that clarifies the psycholegal question, that generates competing hypotheses, and that forms the basis of the argument presented in the report. With the opinion formed and the blueprint decided, the next step is to consider how to manage various kinds of evidence in the report.

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Take-Home Messages 1. Develop and consult a brief conceptualization for the psycho­ legal question to guide your assessment and report. 2. Conduct miniexperiments during the assessment to test competing hypotheses. 3. Compare your subject and situation to that of the norming or validation or research group. 4. Do not defer to tests, actuarials, or research unless they are extremely accurate. 5. Anchor your opinion to an estimation of the base rate. 6. Write about the subject, not about most people.

Questions to Ask Yourself 77 Do you understand the psycholegal issue well enough to explain it in plain language? 77 Have you identified competing explanations for different ­behaviors? 77 Have you considered what evidence might convince you or a reader that one explanation is preferable to the others?

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5

Citing Different Kinds of Evidence

Principle: Nomothetic tests provide data—not conclusions and not hypotheses—and the forensic clinician’s opinion should account for data, especially the most salient and unexpected data. Data should be cited in a manner that enhances clear communication with the reader.

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linical assessments generate evidence from various sources that can be used to support or refute ideas that are relevant to the referral question. Inclusion of evidence in reports is necessary if the reader is to follow the writer’s logic and be persuaded by critical thinking rather than by the writer’s status or by emotion. In this chapter, we address ways of citing pieces of evidence that do not distort or hide them. The types of evidence we consider here include test data, which can be either nomothetic or idiographic, and narrative material. Nomothetic derives from the Greek for lawgiving; in science, it is an approach to ­discovering http://dx.doi.org/10.1037/14182-006 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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lawfulness by testing hypotheses and then considering ­phenomena as instances of laws at work. Idiographic, from the Greek for oneself or one’s own, is an approach to discovering lawfulness in science by inspecting individual cases. In assessment, the nomothetic approach compares an individual with a group and understands the person in relation to an average. The idiographic approach to assessment involves understanding measurements and observations in light of the person’s history and environment (Karson, 2006a). Generally, as mentioned previously, the law requires an idiographic approach for reasons of justice and accuracy. For example, in a Miranda waiver, it does not matter how smart the defendant is compared with other people; all that matters is whether he understood the particular rights he was waiving and the consequences of the waiver. Some authorities say that nomothetic tests, such as the Minnesota Multiphasic Personality Inventory—2 (MMPI–2), Sixteen Personality Factor Questionnaire (16PF), and the Wechsler Adult Intelligence Scale— IV (WAIS–IV), and their computerized reports, provide hypotheses. Presumably, this idea is intended to reduce the reliance of some clinicians on test scores and on computerized reports. Hypotheses sound less certain than conclusions. In our view, nomothetic test scores are data with the same evidentiary status (though not with the same validity or materiality) as number of siblings or what an individual said when he or she was arrested. Computerized reports provide interpretations of what the data mean, with the same status as coming from a large family (for simple, easily accepted interpretations) or that an individual was psychotic at the time of the arrest (for complex, likely-to-be-disputed interpretations). Hypotheses are about the referral question, not about the data.

Use Evidence to Support Propositions The report writer’s job is to generate true, relevant statements about the assessment subject and the referral question and to demonstrate the truth of those statements by citing evidence that supports them. Eventually, all of the most salient and most unexpected data must be cited in support of propositions that explain them. Theory tells clinicians which data 74

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are the most salient. These reflections imply that test scores, observations, and historical data belong in reports in the role of evidence supporting propositions, not in the role of the results section in a traditional research paper. In the latter, regardless of hypotheses, data are paramount, and the discussion section considers the effect of the data on prior-stated hypotheses. A forensic report should be analogous to a meta-analysis or a chapter in a book, not a traditional research paper. The clinician may benefit from articulating alternative hypotheses prior to collecting data to help protect against confirmation bias (as described in Chapter 4, this volume), but the attitude toward the report ought to be “All things considered, what is the best way to account for these data that answers the referral question?” and not “Do the data support or refute the specific hypothesis I am gathering data to test?” Of course, when the referral question is an up-or-down decision involving a single hypothesis—“Will this convict recidivate?”—these questions are the same. But when the referral question is broadened to include prudent steps to reduce the likelihood of recidivism, then the data must be marshaled into supporting or disconfirming roles, and not into sources of speculation. The distinction we are making is the difference between two uses of a score on, say, Scale 2 of the MMPI–2. Consider how this sentence would play in a report: “People who score this high on Scale 2 are typically quite depressed.” This leaves the critical-thinking reader to wonder if the current subject is one of those people. Instead, the clinician needs to digest all that is known about Scale 2, all that is known about its norming sample, and all that is known about the current subject and come up with an opinion. That opinion might then be expressed in a few words, backed up with supporting evidence, which includes the score on Scale 2: Mr. X is depressed. He reported lethargy, loss of interest in his friends, and a lack of appetite. He looked sluggish and sad during the assessment. He scored in the 97th percentile on an MMPI–2 clinical scale typically interpreted as depression.

Our approach causes some initial confusion in trainees. When learning about the MMPI–2 or the 16PF, they are taught to make the generic 75

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Ipse Dixits Avoid letting your reports rely on ipse dixits, that is, assertions made on authority without evidence: “Mr. X is severely depressed.” If asked on the witness stand how the clinician knows that, a misguided clinician might refer the questioner to the clinician’s curriculum vitae rather than to supportive evidence. Some reports disguise ipse dixits by attributing statements not to the writer but to the tests. “According to the MMPI, Mr. X is depressed.” This merely reports the source of the evidence, not the evidence itself. A good argument—one that aims to persuade the reader with logic—reports both. That means you should report scores and say what, in your professional opinion, the scores mean for your specific case.

kinds of statements that we do not want in forensic reports. We have to remind them that first they were learning about the test, and now they are learning to apply the results of the test to an opinion on the referral question. Generic statements—statements about most people or about what the score might mean—would be appropriate to a blind interpretation of a test score or scores. For example, if a psychiatrist asked a psychologist to verbalize ideas about an MMPI–2 profile, the psychologist would use language such as “people who” and “this score is consistent with.” Indeed, the writer of the computerized interpretation is in just this position vis-à-vis the clinician who purchases the service. But the end user has to turn it around and write about the person and the referral question, not about the test scores.

Acknowledge the Insufficiency of Test Data Self-report tests are often praised for their face validity, meaning that, for example, a test of depression asks a lot of questions about depressive symptoms. Face validity makes testing easy for judges and juries to understand, but it also makes testing easy for subjects to understand, which in turn means that a test with excellent face validity is easy to fake. Relying on face valid declarations, whether in response to a test or on interview, is 76

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a mistake in forensic work (Kunkle, 2012) and probably in clinical work as well. Verbal behavior, like all behavior, must be understood in functional relation to its occasioning environment (Skinner, 1953). It seems fair to ask why we use nomothetic tests at all if we think they are so fallible. The answer is that we think every assessment strategy is all too fallible, but the fallibility of nomothetic tests, actuarials, and nomothetic research seems to elude contemporary report writers, just as the fallibility of clinical judgment used to elude mental health professionals (Holtzman & Sells, 1954). Interview data are suspect because interviewers, however well-intentioned, are not good at taking their own stimulus value into consideration when accounting for the subject’s verbal representations. Also, interviews are about the issue, not a sampling of the issue. Attempts to sample the issue, whether to observe a parent while parenting or to observe a defendant while trying to cooperate with an attorney, have good ecological and face validity, but it’s always hard to say how representative the sample of behavior is. Ecological validity means the assessment situation is like the situation of interest; this is extremely important and extremely difficult to arrange because the clinician’s presence affects the situation in unknown ways. Nomothetic tests and actuarials and research outcomes provide good statistics—including base rates, which is why we use them—but there is always a question of whether the current subject and situation are enough like the group on whom the test was normed, on whom the actuarial was developed and crossed, or on whom the research was conducted. So-called projective testing allows for a second opinion on Administering Tests Any citation of a score on a nomothetic test implies that the writer vouches for a standard administration. With disturbing frequency, cross-examination reveals that the examinee took the test in public, or without proper supervision, or with a cell phone at hand, or with advocates with whom items were discussed, or even at home (Hyman, 2012). Hyman (2012) noted the maxim garbage in, garbage out—a report cannot be better than its input.

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the occasioning stimulus but has poor face validity and ecological validity. Collateral and documentary data are beset with all the problems associated with eyewitness testimony plus all the problems associated with confirmation bias. We think it makes sense to use them all, remaining as alert as possible to the varying disadvantages.

Cite Evidence From Different Sources for Each Proposition Possibly because clinicians learn interviewing separately from testing, we have observed that they tend to learn each test separately; likewise, we have seen that early career clinicians look to tests rather than to themselves for answers and so often have difficulty adducing evidence for an assertion across sources. We often read reports in which each idea about the subject is associated with data from only one source. The idea behind using multiple data sources, though, is not to find out different kinds of things (the WAIS–IV will tell you how smart he is; the MMPI–2, how disturbed; the 16PF, what he is like at work) but to check the tendency for any one source to be biased or simply incorrect. That consideration requires writers to combine evidence from different sources. Even in a procedure-byprocedure report, there has to be a summary or integrative section that makes statements about the subject that are supported by evidence from different sources.

Interpret Scores From Nomothetic Tests One problem for the forensic report writer is that readers do not know how to interpret numeric scores. Some reports provide an IQ, a T score, a sten score, or a grade equivalent but not in a way the reader can be expected to understand. We think numeric scores should be generally reported with a percentile rank, possibly with the inclusion of an explanation of percentile ranks the first time it occurs. “Mr. X scored in the 57th percentile on a measure of orderliness, meaning that he scored higher than 57% of adults on this scale.” Some readers even then will not know 78

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what the number means, and it may be desirable to add a descriptor of the score. “Mr. X scored slightly above average, in the 57th percentile, on a measure of. . . .” Percentiles are a useful way to present scores, but often even a percentile is misleading and should not be reported. For example, if someone develops a well-normed scale that measures a legal competence, it simply does not matter how the subject’s performance compares with other people’s. What matters is whether the subject possesses the competence, whether that is a rational understanding of the charges or an understanding of who would take the estate if there was no will. Thus, scoring in the 99.9th percentile on a measure of psychotic thinking could be useful evidence that the subject has a psychosis (the mental disease or defect prong of the typical statute), but the score would be irrelevant to the appreciation of wrongfulness prong. A mild psychosis can produce legal insanity, and a profound psychosis might not. Many writers report a range of scores, but we have come to see this practice as confusing for the typical reader. “Ms. J received a Full Scale IQ score of 107, with a 95% confidence interval of 100–113.” Or, “There is a 95% chance that her true score falls between 100 and 113.” These explanations are much more difficult to understand than handling the score as imprecise, and the latter can be managed easily by making sure that the report’s language describes the score as 107 and not her intelligence as 107. The assertion may be that her intelligence is slightly above average or about average, and the evidence is her score on the WAIS–IV. The supposedly clarifying verbiage raises questions for the typical reader about what a confidence interval is, why the writer chose 95%, and what a true score is. If you feel you have to report a range to prevent the reader’s over­ reliance on a specific number, do it like this: “His Full Scale IQ was 107, in the 68th percentile. Because of inherent variability in the test, he could easily have scored a few points higher or lower.” The datum is 107; the rest is interpretation. Of course, in an Atkins case (Atkins v. Virginia, 2002) in which a person’s IQ might determine if he or she can be executed or in a gifted child screening evaluation in which IQ could determine eligibility, an extended discussion of confidence intervals might be in order. 79

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Avoid Categorizing Continuous Variables We recommend against categorizing continuous variables, the MMPI–2 manual (Hathaway & McKinley, 1989) and the WAIS–IV manual (Wechsler, 2008) notwithstanding. By categorization, we mean the tendency to treat an IQ of 110 as if it were similar to an IQ of 111 (the WAIS–IV manual describes both as high average) but different from an IQ of 109 (which the WAIS–IV manual describes as average) or a T score of 65 as if it were similar to a T score of 64 but different from a T score of 66. During the interpretative process, this happens when T scores below 66 are dismissed as subclinical or when guidebooks, including the MMPI–2 manual, lump T scores together and offer interpretative statements for one cluster or another. In writing, categorization of continuous variables occurs with statements such as “He scored in the high average range” or “She scored in the subclinical range.” The technical problem with categories is that they create a situation in which a single item on the test can bump the subject from one category to the next. The underlying problem is that the categories thus established are arbitrary and do not exist in nature. There is not a group of people with average intelligence and a distinct group with high average intelligence. Drawing a line at IQ = 110 is entirely arbitrary. People with IQs of 110 are as much like people who score 109 as they are like people who score 111. On the MMPI–2, the dark line on the profile sheet at T = 65 is also arbitrary. The line implies that variables as different from each other as the various clinical and content scales all have the same ideal cut point for distinguishing pathology from subclinical problems (Karson, 2005a). You should report continuous variables as scores and percentiles or just percentiles. It is fine to describe the score with an adjective related to its status relative to other people’s, but it is misleading to put the score into a category. Thus, “Ms. X is of average intelligence” is an acceptable proposition that could be supported by citing an IQ score, and “Ms. X is paranoid” is an acceptable proposition that could be supported by, among other things, citing an MMPI–2 score. And you could reasonably present that supportive evidence with a descriptor: “Ms. X scored about average on the WAIS–IV with a Full Scale IQ of 104, in the 61st percentile.” But it is misleading to write, “Ms. X scored in the average range on the WAIS–IV.” 80

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It is misleading because describing the category rather than the score loses information by lumping all scores in the range together and by creating a false distinction between the top of one range and the bottom of the next. All diagnoses are conceptualized as taxons by the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision; American Psychiatric Association, 2000), which means they are categories rather than linear variables. But it would still be a mistake to cite a continuous variable, such as a score on a personality test, as if it were a categorical variable. A very high score, just below a recommended cutoff for indicating the diagnosis, provides some evidence of membership in the category (Zavodny, 2012). After all, the cutoff was selected for the purposes of an actuarial assessment; if the clinician is considering all the evidence—for example, because no adequate actuarial exists for the current situation—the score is relevant. Conversely, you should not report invented scores from structured judgments or checklists (Zavodny, 2012). If an instrument’s purpose is to remind you of 20 things to consider before rendering an opinion, it is inappropriate to report how many of them were relevant (unless the score has been normed and crossed on similar populations, which would convert the checklist into a nomothetic test).

Distinguish Scores From Traits Writers can confuse scores with traits. This is immediately apparent in the choice of adjectives to describe them: “He has high ego strength” or “She has a strong IQ.” IQ is a score; the trait is intelligence. Strong and weak are characteristics of traits; high and low are characteristics of scores. Above average and below average could describe either. Care about distinguishing traits from scores begins with the adjectives paired with the scores. The risk of confusion is that the writer can fail to distinguish between an assertion about the person’s trait and the evidence derived from the person’s score. If this failure goes unnoticed, then it makes it very difficult for the writer, not to mention the reader, to exercise critical thinking about how strong the evidence actually is for the assertion about the trait and whether there might be an alternative explanation for the score. 81

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The conflation of traits and scores also leads writers to attribute causality to scores. “The discrepancy between her VCI [Verbal Comprehension Index] and PSI [Processing Speed Index] leads to frustration about not being able to keep up, and it undermines her ability to demonstrate her full understanding of what is being said to her.” The writer means the discrepancy between her verbal ability and her processing speed, not the difference between her index scores. The writer is suggesting that whatever caused the difference between her scores causes her to look like she does not understand the rights she waived when questioned by the police. Clarifying the difference facilitates the defense’s ability to consider if there might be some other explanation for the VCI–PSI discrepancy, such as rehearsal effects after multiple WAIS–IV administrations.

Cite Narrative Material as the Person’s Experience As noted in Chapter 1 of this volume, writers often stumble on the problem of treating narrative material as hard data. A subject describes a difficult childhood, and the writer would like to ascribe something about her current behavior to the difficulties she encountered then. “She is emotionally labile because her parents did not provide a stable environment.” This sentence is taking her report of childhood instability as a fact and using it to explain her current emotional lability. As forensic clinicians, we are supposed to know that eyewitness testimony is highly variable in accuracy, especially when the witness is a child and the events happened a long time ago. But we do not always consider that the self-report of an assessment subject or the observations of collaterals are a form of eye­ witness testimony, and we take them at face value. When the self-report takes the form of an accusation, tragic consequences can ensue (Campbell, 1998). But even if another person’s liberty is not on the line, inaccuracies are sure to follow from the treatment of narratives as journalism rather than as literature (Karson, 2006b). You can write, instead, something like, “She views her environment as unstable and unpredictable and therefore reacts emotionally as if life is one big surprise after another. She asso82

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ciates this sense of instability with her childhood, which she construes as insecure and disrupted.” Indeed, a strong argument can be made— whether through cognitive behavior therapy’s concept of schemas or self psychology’s concept of organizing principles or experimental evidence (Kahneman, 2011)—that it is her construction of her childhood, and not the actual history, that accounts for her current behavior. In other words, a view of memory that treats it as journalism leads the clinician to take narration as truth and to ascribe causality to it. A view of memory as literature suggests that the expectations, organizing principles, schemas, patterns, and person variables that influence the person’s behavior are also influencing the behavior of remembering and the behavior of reporting the memory. One of many difficulties associated with the treatment of memories as journalism is that the report writer’s opinion then stands or falls on the veracity of the report. On cross-examination, the clinician’s opinion can be undermined by raising questions about the facts on which the opinion was based. When the opinion is based on what the person said about his childhood or other history, rather than on what was true about the childhood or other history, it is harder to undermine. Quotations from the subject can be convincing in a report. Thus, a clinician might use interview impressions to help formulate an opinion that a parent has severe compulsions. The parent may have had numerous reasons for saying, for example, “I have to have every little bit of housework done or I cannot sleep at night.” For example, she might have been trying to sound like a good housekeeper, or she might have been complaining about her ex or her oldest child. Once the opinion of severe obsessive– compulsive disorder is established using all the data, the quotation is usefully cited. It links the observable behavior on tests and in the office to ecologically valid inferences.

Citing Page Numbers If the evidentiary record is lengthy, you can help your reader by citing the document and page number where each bit of data is located.

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Using Quotation Marks Reserve quotation marks for quotations. This comports with accepted style in scientific writing (APA, 2010b), but it is even more important in a forensic report to get quotations exactly right and to avoid any chance that a phrase that is not a direct quote will be mistaken for one. Therefore, in report writing, never use quotation marks to disown a word you are using, to identify slang, or to offset a technical term.

Use Caution When Citing Projective Tests The use of so-called projective testing is widely recommended in forensic assessments (e.g., Gacano & Evans, 2008) and equally widely disparaged (e.g., Lilienfeld, Wood, & Garb, 2000). One of the advantages of the Rorschach or the Thematic Apperception Test (TAT) is that they allow the subject a good deal of response variability under conditions that allow the psychologist to examine the discriminative stimulus at leisure and in consultation with other clinicians. If an assessment subject does something unusual during the evaluation, it can be difficult for the clinician to nail down the occasioning stimulus. For example, if the subject yells at the examiner or acts superior, it’s hard to say whether the examiner was particularly annoying or somehow activated a status interaction. When the subject does something unusual during a Rorschach or TAT, the particular card is usually the relevant stimulus. Other clinicians can then inspect the relevant occasioning stimulus at their leisure. From our description, you can see that nothing is projected, but that is still the term most commonly used for procedures with standardized stimuli and response variability. Also, projective testing makes an ally of clinicians’ old nemesis, confirmation bias (Karson & Kline, 2004). Clinicians must contend with confirmation bias with every step they take. They are likely to find what they expect to find, and readers are likely to read what they expect to read. Assessment subjects are likely to make of life what they expect of life. If only there were a way to assess a person’s confirmation biases that would allow clinicians to take them into account and to anticipate their effects. 84

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Because confirmation biases operate most forcefully in ambiguous situations, a good way to assess these is to confront the subject with ambiguous stimuli. That’s what projective testing does. A projective test can generate nomothetic data if it is scored or idiographic data if the responses are considered to be behaviors and the cards are considered to be stimuli. When using projective tests nomothetically, clinicians must consider, as with all nomothetic tests, how well-normed they were, whether the norming group adequately represents the current subject and situation, whether the kinds of variables being measured are actually subject to norming, and whether there is criterion validity for the inferences derived from scores. When using projective tests idiographically, clinicians are considering the response’s functional relation to the stimulus (usually the TAT or Rorschach card) that occasioned it. And that means, when using projective tests—or interview data or observations of visits—idiographically, the evaluator has to consider and the report writer has to describe the occasioning stimulus. Thus, we see on occasion, as with the MMPI–2, reports that ascribe opinions to the Rorschach rather than to the writer (“According to the Rorschach . . . ”). In addition, we read evaluations that report evidence but without enough context for most readers to understand the evidence. This would be analogous to saying that the subject scored in the 83rd percentile on Scale 0, without also telling the reader what Scale 0 measures. For example, a writer wanted to make the point that the subject was depressed and potentially suicidal. In support of this assertion, the writer cited a TAT story about a young man who is depressed and thinking of killing himself, claiming that the subject’s depression has grossly affected his view of the world around him. But it makes a big difference whether the response was to Card 1 or Card 3BM. The latter looks like a depressed person slumped on a sofa with a gun on the floor nearby. Described as such, the reader can see that the subject’s story, if it were to Card 3BM, would not be strong evidence of suicidality; it is evidence about what is going on in the picture, not of what is going on in the subject. Card 1 depicts a boy looking blankly at a violin. Here, to read suicidal depression into the card says something about the person’s confirmation bias. Normative data on 85

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what people see in the cards could help frame the description, but normative data on narrative tests run into problems of coding responses, agreement among raters, and sample representativeness. The important thing is the relationship between the stimulus and response, and a description of the stimulus is needed to shed light on that relationship. Projective testing is a contentious topic in forensic psychology. Many clinicians are aware of its ugly history, when wild inferences were drawn by irresponsible clinicians. Many clinicians are aware that it provides a kind of data unlike others, and these clinicians are heartened by the fact that Skinner (1953) invented a projective test and provided a rationale for its use. If you use projective testing nomothetically, make sure you have good, relevant norms. If you use it idiographically, make sure you describe the stimulus and response as data and that your inferences are transparent.

Conclusion Your job as a forensic report writer is to explain the problematic behavior and its implications for the referral question, not to explain the evidence. If all you were trying to do was explain the evidence, you would likely end up with a laundry list of interpretations. “This score could mean that he is psychopathic, that he has a criminal history, or that he is rebellious or angry or irritated by something.” Instead of providing a list of potential interpretations of the score, the clinician ought to decide, all things considered, what is true about the subject. Then, the clinician should write that belief as an assertion and use the score as evidence to support it. Sometimes, the writer cannot decide and presents two competing assertions tentatively along with their supportive evidence, and sometimes both assertions are supported by the same bit of evidence (which, presumably, supports the competing assertions but not other assertions— evidence that supports all assertions is useless). Having formed your opinion, present each claim with its supporting evidence. Cite the evidence in a way that makes it clear what is evidence and what is interpretation. And cite the evidence and present the interpretations in a way that helps the reader understand both. 86

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Take-Home Messages 1. If eyewitness testimony is unreliable, then reports about the remote past are, too, only more so. 2. Identify hearsay and consider its fallibility. 3. Do not try to manage your readers’ innumeracy by providing more numbers. 4. Cite evidence from different sources for each claim. 5. Do not categorize continuous variables.

Questions to Ask Yourself 77 Will nonclinical readers understand the evidence for each of your claims, where each bit came from, and your interpretation of it? 77 Have you distinguished what people said (which is often unprovable or incorrect) from the fact that they said it (which is easily proved)? 77 Have you examined nomothetic evidence for the appropriateness of the comparison group and its differences from the current subject and situation?

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6

How to Present Your Opinion

Principle: Present your opinion in a manner that does not exaggerate or understate your level of certainty.

V

ery few, if any, psychological tests give definitive enough answers to referral questions to allow the clinician to defer to the test results. This is not an indictment of psychology; it is a function of the socially constructed nature of many forensic psychology outcomes, predictors, and assessment procedures. If there were a disease agent, analogous to a virus, that produced incompetence, legal insanity, or violence, psychologists would figure out how to detect its presence. But there is not. One implication of this weakness is that forensic professionals must be clinicians, not technicians. When you think about it, you realize that any medical procedure that can be done reliably and nearly perfectly and that can be done without professional judgment is delegated to subordinates.

http://dx.doi.org/10.1037/14182-007 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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There is no longer any art—meaning discretion—to taking an X-ray, a blood pressure reading, or a temperature. Many tests that would have strained the abilities of top experts a few decades ago are now routinely administered by assistants. Some complicated surgeries require a great deal of prior training not because judgment is needed but rather because of the level of technical skill involved. There are thus some very highly paid technicians and some fairly low-paid clinicians, with the former characterized by not having to use professional judgment in their procedures. In this chapter, we go into depth about how to express your opinion as a clinician, not a technician. This involves evaluating research to establish base rates, using actuarial measures competently, communicating your level of certainty and incorporating disconfirming data, and selecting appropriate illustrative material to drive home your opinion.

Committing to the Role of Clinician In psychology, assistants administer many tests—at least in some practices; we prefer to spend as much time as possible with our assessment subjects. Master’s level clinicians can competently conduct most learning disorder evaluations for the very reason that IQ tests and achievement tests are reliably administered and scored. Experts must be brought in when the results are equivocal. In most forensic applications, all psychological testing is equivocal. In our view, an inadequate actuarial is worse than clinical judgment. With clinical judgment, there is a substantial chance that the clinician will recognize and represent in his or her report the limitations of his or her knowledge. The actuarial, in contrast, reports a score that can easily disguise its lack of validity. We would certainly use an actuarial that had been validated on a group that adequately represents the current subject and categorizes people extremely well. But very few psychological actuarials categorize people extremely well, and none of them have been validated on all kinds of people (because there are so many more kinds of people psychologically than there are biologically). Therefore, our reply to junior colleagues who want to know which tests to use in a custody evaluation is not very soothing. We tell them to 90

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Ask the Right Questions When faced with a referral question you don’t know how to answer, learn to ask the right questions of senior colleagues and of tests. Anxiety ensues from having an important role in people’s lives while not having the tools to deal with referral questions easily and clearly. Anxiety, of course, is aversive; Skinner said it is the feeling you get when you do not know what to do, and its presence makes you wish you knew what to do. The worst method is to assume that you already know what to do. The only good way to deal with it is to humbly seek more knowledge. But what kind of knowledge? Having an older expert or a test tell you what to do relieves anxiety, but it can trap you into choosing less-than-useful tests. Instead, ask senior colleagues how to think about the particular kind of forensic problem rather than what battery of tests you should administer or what rules you should follow. Meehl’s (1954) claim that actuarials are superior to clinical judgment (for some purposes) should not be taken to mean that the best available test is the best that can be done.

learn everything they can about custody law, marriage, divorce, parenting, childhood, conflict, and human nature and then to choose tests that best help them to understand the parents and children involved. In other words, complicated forensic questions do not come with shortcuts. Only clinicians, not technicians, can answer them. This view comports with our sense of the role of experts in many forensic cases. If you were a judge, wouldn’t you find it informative and beneficial to hear experts argue opposing perspectives, citing evidence for their points of view? A useful report plays that role, arguing for its point of view rather than staking a claim on a truth that is too slippery, that is, too socially constructed, to be presented as such. Thus, another implication of the probably permanent state of testing in forensic psychology is that the report writer must present an opinion. In legal terminology, an opinion can mean a judicial decision, which includes the factual and legal basis for the decision. It is an opinion even if it is issued 91

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by the U.S. Supreme Court. We mean an opinion in the good old sense of an idea somewhere between a fact and a speculation. Put differently, a fact, operationally and functionally, is an idea that no one of importance disputes, and a speculation is an idea that is heavily disputed, so an opinion is open to dispute. A strange legal custom that clinicians must adjust to is being asked whether one’s opinion is a reasonable psychological certainty. This is an effort to keep speculation out of the courtroom. What makes the custom strange is the common event of seeing expert clinicians with diametrically opposed views each claiming certainty. We usually duck this question by explaining that reasonable psychological certainty is a legal term, and we are not legal experts, adding that we think there is good evidence and logic behind our opinions. Reasonable psychological certainty means more than a mere possibility, but beyond that “nobody knows what it means” (Lewin, 1998, p. 380). So we think you are better off describing your level of certainty and letting the judge decide. A small but important point arises when forensic clinicians report diagnostic impressions and use the phrase meets criteria. Many clinicians are currently trained not to write, “In my opinion, he is suffering from major depressive disorder” but instead to write, “He meets criteria for major depressive disorder.” This locution defers authority to the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision; DSM–IV– TR; American Psychiatric Association, 2000). Nearly anyone with a little training can read a list of criteria and check them off to make a diagnosis, but only an expert clinician can further decide if in this particular case the criteria are correct. That is why the DSM–IV–TR cautions, “The specific diagnostic criteria included in DSM–IV are meant to serve as guidelines to be informed by clinical judgment and are not meant to be used in a cookbook fashion” (American Psychiatric Association, 2000, p. xxxiii). When report writers use the phrase meets criteria, they are deferring to the book. Like deferring to a test score, this should be done only when the book’s accuracy at categorization is so strong that clinical judgment cannot improve on it. For that to be the case with diagnosis, clinicians would have to know the rate of agreement among experts in identifying people with each diagnosis (the gold standard against which the criteria 92

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in the book will be judged), the accuracy of the criteria with regard to identifying those whom the gold standard labels with the diagnosis (the sensitivity of the criteria), and the accuracy of the criteria with regard to identifying those who have some other, similar diagnosis or no diagnosis at all (the specificity of the criteria). Because none of these crucial data are reported in the DSM–IV–TR, clinicians should not defer to the lists of criteria in the book (and indeed, as noted, the DSM–IV–TR tells clinicians not to defer to them).

Betting the Base Rate If you practice forensic psychology for any extended period, you will at some point hear the advice to bet the base rate. What is meant by this advice is to accept how limited clinicians’ actuarials and clinical judgment are in accurately sorting people. If you estimate that 11% of sex offenders recidivate within 5 years, then there is an 11% chance that the sex offender you are evaluating will recidivate. (The exact figures are not important for the conceptual point, but these numbers come from Campbell & DeClue, 2010b.) Predictive assessments (as opposed to process assessments, status assessments, and explanatory assessments) try to improve on the predictive accuracy of guessing the base rate, but they rarely do. The more extreme the base rate, the harder it is to improve on it. If only 2% of licensed psychologists commit serious ethical infractions, it will be very difficult to identify them when they are applying to graduate school. If only one in 10 million teenage boys is a sexually sadistic killer, it will be astronomically difficult to identify him from his drawings and test scores. Even in status assessments (e.g., competency, diagnosis), base rates are important, and it was in an effort to diagnose people that Meehl (1954) first claimed that actuarials beat clinical judgment. Clinicians typically feel freer to contradict the base rate in diagnosis and explanation than in prediction, but this is largely because it is harder to be found to be incorrect with an explanation than with a prediction. In medicine, this whole concept is subsumed under the adage, when you hear hoof beats, think horses, not zebras. 93

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But how are clinicians to know the correct base rate? Some clinicians balk at the idea of guessing (or in scientific parlance, estimating) the base rate. They will tell you that the research on, say, recidivism, is too weak to make an estimate with a reasonable degree of certainty. They may be right about the research, but they are wrong about not guessing. You cannot not guess a base rate. If you try not to, you are usually de facto guessing 50%, and 50% is often demonstrably too high or too low. One way to think of an assessment, then, is as an effort to establish the proper base rate. We might guess, for example, that only 1% of the population have paranoid personalities. (Again, the estimate is for illustrative purposes, but the number comes from the DSM–IV–TR [American Psychiatric Association, 2000, p. 692].) When the person scores in the 99th percentile on a test of paranoia (e.g., Scale 6 of the Minnesota Multiphasic Personality Inventory—2), we might use that as evidence of paranoia, but we could also say that the person is now in a new category (the category of people who score extremely high on Scale 6), and we might estimate the base rate of paranoia in that group at around 40%, assuming that paranoid personalities spread out around the 99th percentile mark in something like a normal curve. If the person also has a criminal record of minor assaults and refuses to answer even trivial personal questions on interview, we might say the evidence of paranoia is now strong enough to make the diagnosis, but we could also say that the person is now in an even more unusual category (the category of people who score very high on Scale 6, refuse to answer even trivial questions, and have a history of minor assaults) with an even higher base rate. However, we also ought to say at that point that we have no real evidence of the base rate of paranoia in that refined category, which is why we recommend presenting the diagnosis as an opinion and citing the data as evidence in support of the opinion. The importance of understanding the base-rate problem cannot be overstated. Accurate categorizations cannot be made without taking it into account. It is also important because it can set the stage for the clinician’s confirmation bias. If clinicians believe that the base rate for recidivism by sex offenders is 80%, they are more likely to see recidivism risk in a sex offender than if they believe the base rate is 20%. Indeed, it is pretty clear 94

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that we humans are overly influenced by recent experiences—Kahneman and Tversky’s (Kahneman, 2011) availability heuristic. Thus, people guessing the number of jelly beans in a jar are influenced by their own Social Security number if the latter was mentioned right before they guessed. As noted in Chapter 2 of this volume, this phenomenon is called anchoring in decision psychology. It is the basis for positional negotiation when the first offer sets the stage or creates an anchor point for counteroffers. Rather than pretend that they are not affected by anchoring, clinicians ought to conscientiously provide their own anchors, and that anchor should be the base rate. Thus, before doing an evaluation as to whether a convict is a sexually violent predator, or at least before writing the report, the clinician should review the current literature on the best estimates of recidivism base rates (around 18% over 15 years according to Campbell & DeClue, 2010b). The same goes for incompetence, insanity, and unfitness. The base rate chosen will fluctuate according to the clinician’s assessment of the relevant group and the relevant literature. For example, one clinician might argue that the base rate of unfitness is very low, given how few children across the country are taken away from their parents every year; another clinician might conclude that it is fairly high, defining the relevant group as the parents who have been accused of unfitness by the child welfare system. But either estimate will be a better anchor than that created by the clinician’s prior case or the last newspaper article he or she read about parents.

Adjusting Actuarials Adjusting an actuarial in the direction of clinical judgment is frowned on, and some research shows that it does not work (Campbell & DeClue, 2010a). Your actuarial tells you that the risk of recidivism is 40% or the likelihood of schizophrenia is 80%, but you opine a higher certainty because of data that the actuarial did not include—say, your personal fear of the parolee or the odor of the mental patient. Generally, it is better to reject the actuarial than to adjust it, the rejection based on a clinical judgment that the current subject was not adequately represented by the group the actuarial was developed on. 95

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Still, a case can be made for adjusting all actuarials because of regression to the mean. Regression to the mean refers to the phenomenon that after an extraordinarily good meal, the next time you go to the same restaurant, you are likely to get a somewhat more ordinary meal. After an amazing season in sports, the next year is likely to be somewhat worse (the so-called Sports Illustrated curse). After a staggering debut novel, a sophomore slump is likely to follow. It just means that wherever chance is a factor, it is likely to even out over repeated observations. All actuarials, even if they have been cross-validated on a second population, have a chance factor. If someone scores very high or very low on it, the score is likely to be an exaggeration. All predictions and categorizations, whether or not they are based on actuarials, should probably be modified in the direction of the base rate. The lower the validity of the prediction or categorization, the greater the modification should be in the direction of the base rate. For example, on the basis of data in Campbell and DeClue (2010b), an actuarial is developed that predicts recidivism in sex offenders. Various cutoff scores produce various levels of likelihood of detected recidivism— say, a cutoff of 6 or higher factors being present produces a group of offenders, 52% of whom will recidivate, meaning that your particular offender has a 52% chance of recidivating. (The actuarial was developed back when the detected recidivism rate was 25%; now it is lower.) As the actuarial is used all over the country, chance characteristics of offenders and some unreliability in applying the actuarial will inevitably mean, because of the laws of chance, that as cases accumulate, slightly fewer than 52% of predicted recidivists will turn out to be detected recidivists. The number will drift because of regression to the mean in the direction of the base rate of 25% (or, now, 18%). Nowadays, in light of these accumulated data, it is clearly required that a clinician report the current likelihood of detected recidivism with a score of 6 or higher (about 42%). But our point is that this might have been a good idea even when a cutoff score of 6 or higher was associated with a 52% recidivism rate because it was (almost) inevitable that further sampling would drag the increasingly large sample’s rate down toward the initial base rate. 96

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Communicating Your Level of Certainty Report writers should communicate their level of certainty about their assertions, numerically when the numbers are known and verbally when they are not. Much of the dispute about sexually violent predator evaluations—anger about locking people up on the basis of their personalities and histories rather than for their crimes—would be eased if evaluators would simply include their level of certainty in their reports. That would mean, even for the highest risk group, a statement that it is still more likely than not that the person will not recidivate and that the prediction of recidivism is 6 times more likely to be wrong than to be right (Campbell & DeClue, 2010b). Level of certainty is rarely a function of accuracy; it reflects instead cognitive ease and coherence (Kahneman, 2011). How easily the explanation came to you and how much internal sense it makes will account for your level of certainty. We have tried to alert you and ourselves to this problem by leaving plenty of open space on our imaginary assessment table (described in Chapter 1, this volume) to remind us that the ease and coherence of the explanation are enhanced by the fact that a lot of important data is unknown to us. Any declaration of level of certainty should occur only after considering these two factors. When communicating the level of certainty verbally, it would help if clinicians had standard terminology, but we do not. Thus, all lawyers know the differences among sufficient, by a preponderance, clear and convincing, and beyond reasonable doubt. Clinicians can write that an idea is speculative, by which, in a forensic context, they mean an idea that is useful but not well supported by evidence. When authorities tell clinicians not to speculate in forensic reports, we agree, but we think they mean that clinicians should not write, “She might have been sexually abused,” whether it is labeled a speculation or not, unless clinicians have evidence to back it up and it rises to the level of a reasonable opinion. What we can use speculatively for, in contrast, is the presentation of ideas that might or might not be true but that do not prejudice the reader for or against the legal question. Thus, it seems fine to speculate that a possible reason a mother might have kept her daughter like a prisoner (locked in a bare room) is that the mother might 97

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be trying to lock up something about herself. The only implication is that a therapist might want to try out this metaphor on the mother. It does not affect the assessment of the mother’s fitness or what she has to demonstrate to regain custody of her daughter. It just provides a potentially helpful idea. We try to communicate relative certainty with flat, unqualified assertions. Less certainty leads to may, might, and in my opinion. We assume a context in which it is understood that one can never be perfectly certain that, for example, a subject is an alcoholic, so the bald statement “Mr. Smith is an alcoholic” means that we are about as certain as we can be. Otherwise, we qualify the assertion: “Mr. Smith may be an alcoholic.” Report writers often communicate the wrong level of certainty not in their wording of assertions but in other aspects of the report. For example, if a report cites a number of empirical studies and it looks scientific, the reader may feel that there is scientific certainty associated with the opinion expressed in the report. As noted elsewhere, we tend not to cite published nomothetic studies largely because their bearing on the particular case is often unclear but also because we want to be clear that we are writing an evaluation report and not a scientific paper. If you do cite studies, you owe it to the reader to clarify their limited applicability to any particular case.

Addressing Disconfirming Data Report writers have to decide how to handle data that do not fit the story they are telling. Some authorities insist that writers report rejected ideas and disconfirming data, often citing the fact that the report could lead to testimony and testimony requires the “whole truth.” However, if you have ever been on the witness stand and had an attorney successfully object when you strayed from answering the question posed, you know that the oath to tell the whole truth means that you have to answer the questions put to you truthfully. It is not the expert’s job to arrange for the whole truth to come out any more than that is the job of any other source of evidence. That is what the attorneys are for. Notwithstanding the irrelevance of the oath to this problem, there remains a question of the extent to which one ought to address competing hypotheses and disconfirming evidence. 98

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The problem unfolds in an adversarial system in which the expert is not one of the adversarial players. Judges, and to some extent jurors by the time they hear from the expert, expect one-sided stories from the professionals involved, so we do not think it is misleading to present only one’s own argument with its supportive evidence. On the other hand, if alternative explanations or disconfirming data are salient, omitting them can mean that one has communicated certainty that does not or should not attach to one’s opinion. So we try to solve this problem not under the rubric of a duty to the court but under the rubric of accurately communicating the level of certainty. Extremely unexpected data, then, should be addressed and discussed to reflect your uncertainty, and if extremely unexpected disconfirming data do not make you lower your level of certainty, then you need to examine your clinical practice, not just your report writing. Similarly, an alternative hypothesis for which there is a good deal of evidence should be presented and rebutted rather than ignored. This is especially true if the alterative hypothesis is one that readers of the report will predictably be wondering about. Thus, a report that claims that a parent’s forgetfulness was a function of the parent’s poor empathy should also address the parent’s memory and cognitive abilities, no matter how clearly the data support poor empathy and no matter how little evidence there might be of memory problems. One duty to the court that does, in our opinion, prevail is the duty not to deceive. If omission of disconfirming data is intended to deceive or can reasonably be expected to mislead the reader, then those data must be included.

When to Use Agnostic or Conditional Reports Occasionally, the report writer has no opinion on the referral question. We are not referring to the myriad reports we read in which the clinician has no opinion because the clinician has not investigated the referral question but has instead administered a bunch of tests or other procedures and is simply reporting his or her results or a computerized 99

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rendition of the results. We mean the situation in which the clinician cannot get good enough data or gets so much conflicting data that an opinion cannot be formed. In these situations, the report can retain its character of providing propositions supported by evidence, but it does not make sense to write an argument. For once, a description of the subject that is relevant to the referral question is all that can be done. In parenting evaluations, this takes the form of reporting strengths and weaknesses, possibly organized by psychological topics in an issue-by-issue report. In a competency evaluation, it might take the form of describing what the defendant understands and does not understand along with a description of the degree of irrationality associated with his or her understanding. Then, the judge knows what you know and can make up his or her own mind. A practice we like is the conditional report. A man is accused of sexually abusing his teenage stepdaughter and seeks custody of his 6-year-old daughter. The clinician does not know if he abused the older girl, and an investigation of the topic is outside the scope of the referral question. One solution is to write what amounts to two reports; the report begins, “If it is determined that he sexually abused his stepdaughter . . . ,” and the second section begins, “If it is determined that he did not sexually abuse his stepdaughter. . . .”

Selecting Illustrative Material There is some disagreement among experts as to whether to quote illustrative material in a report. Examples in a report open the door to questions about what individual answers mean (Weiner, 1999). This can indeed lead to distracting disputes, whether in case conferences or on the witness stand. On the other hand, illustrative material can make it clear what the report writer is talking about. Thus, for example, the writer forms the opinion, after considering all the available evidence, that a parent is often enraged but masks her rage with her child by adopting a singsong voice and saccharine attitude. The implication of the opinion is that the parent must successfully manage her anger before she can interact genuinely with the child, and until then, the child keeps his distance. On 100

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the Rorschach, the parent reported seeing on Card II, “a nuclear warhead taking off, with a hand puppet slipped over the nose cone.” This image beautifully captures the pattern in the parent’s functioning, even including how ridiculously ineffective the disguise is. It is an image that could usefully be relied on in psychotherapy as a mutually understandable personal language for calling the client on moments when she tries to act cute to cover up her aggression. But in a report, its presence could easily lead to distracting questions about whether the image is representative of her, whether it has ecological validity (just because she saw it on a Rorschach card vis-à-vis the clinician does not mean she acts that way with her child), whether it really does mean an ineffective attempt to cover up rage with childishness, and whether your idea was based solely on the Rorschach response. The decision whether to report it depends a great deal on your assessment of your ability to make it convincing, which also depends on your assessment of your readers. On the other hand, many illustrative examples are not as inherently contentious as a Rorschach response. Thus, if the clinician had observed mother and son, there might be an example from their interaction that could be used to illustrate the concept. For example, the boy sprayed water into his mother’s face after promising not to. The mother looked dangerously angry for a half second, and then said in a mincing voice, “You sprayed Mommy in the face.” The boy responded by turning his back on her and looking for something else to do. This example is more useful in a report than a Rorschach response. The mother’s attorney will still dispute the meaning of the interaction and its typicality, but there is not likely to be a dispute about ecological validity. You can enhance your example’s utility by emphasizing that you are using it illustratively; the assertion about the mother was not based entirely on it. Statements by the subject of the evaluation are also usefully cited as illustrations because they do not raise for most readers as many contentious questions about meaning or generalizability. For example, the mother might say, “I talk baby talk because he’s my baby, and I never get mad at my baby.” One point we want to emphasize is that an idea about a subject might be founded on 10 pieces of data, but the report need not 101

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mention all of them when supporting the idea. The report might not even mention all of the most scientifically or statistically compelling pieces of evidence; the writer might choose to mention a few of these plus the evidence that the reader is likely to find the most compelling. Even devoted Rorschachers might find that their reports are more effective when they cite supportive evidence that comes from live observation, subject statements, and reliable documentation of overt behavior.

Avoiding Explanatory Fictions, Categorizations, and Tautologies Whether a report achieves the goal of explaining behavior in a manner that suggests a course of action depends in large measure on what is considered an explanation as opposed to a convenient fiction, a categorization, or a tautology. And these depend on theory. Skinner called his behaviorism a philosophy of the science of behavior to highlight his belief that a useful account of behavior must relate to external causes (analogous to Darwin’s account of the environmental causes of speciation). He labeled any appeals to inner causes as explanatory fictions. “The girl ran away from the foster home because she was angry.” To a behaviorist, this sentence is analogous to the conflation of correlation and causation; a behaviorist would think it likely that something in the foster home made her angry and also made her run away to escape whatever made her angry. To some clinicians, emotions have a more solid philosophical status— even behaviorists recognize that the feeling can become an occasioning stimulus in its own right. They might see the sentence as sufficient, especially if it led to an explanation of why she finds her own anger so aversive and how else she might react to it. But at least on our own terms, within the context of our own philosophy, we ought to avoid explanations that rest on what our approach considers to be fictions. Categorizing a behavior constitutes an adequate explanation when the category is clear and its members are uniform with respect to the relevant variables. To write, “The child is restless because he has attentiondeficit/hyperactivity disorder [ADHD]” is useful in a context in which 102

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writer and reader understand ADHD to be a problem with cortical sluggishness requiring parental education and stimulant medication. But if the reader thinks the category is a catchall term for dismissing bored children, then the sentence is not useful. The corrective measure would be to define the term once it’s used. It’s hard to see how you can usefully write, “She left the children alone because she has borderline personality disorder.” But unpacking the diagnosis could work: “Her emotional reactions to her children’s capacity for autonomy are so intense that they interfere with her ability to make accurate judgments about how independently they can function.” It may be useful to write, “Mr. X looks at child pornography because he is a pedophile. By pedophile, I mean someone whose primary sexual interest is in prepubescent children.” Subsequently, the writer would be obliged to present evidence that this categorization is correct, but as an explanation for looking at child pornography, it seems sufficient because the category implies sexual stimulation by images of children uniformly among the category’s members. Categorization of behavior is not an adequate explanation if the category is ambiguous or if its members vary on the dimension of interest. Thus, you cannot explain child molesting with the category of pedophilia. The category by definition explains an interest in looking at children, but something else must be added to explain molestation. Put differently, the categorization could explain why the victim was a child but not why the child was victimized. Similarly, not all hyperactive children are delinquents, so the label ADHD cannot explain delinquency even if it explains (or implies an explanation of) restlessness. You can learn to avoid explaining behavior with tautologies if you are alert to and reject tautological explanations. A tautological explanation is one that tells the reader nothing that was not already contained in the behavior that the writer is explaining. “He raped and tortured the victim because he is sexually sadistic.” “He repeatedly steals money for drugs because he is addicted.” “He lost his temper with his daughter because he got angry with her.” Ask yourself whether your explanations add anything new or whether you are simply repeating information provided by the referral source or computerized interpretive programs. 103

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Take another example: “She ran away from the foster home because she is impulsive.” There is actually an explanation embedded in this tautology, but it needs to be articulated more clearly. The sentence may be asserting that she did not run away because she had anywhere compelling that she had to be or because the home was particularly aversive. The sentence may be asserting a personality pattern in which the presence of a desire does not occur in conjunction with executive or parental functions, possibly because the girl does not have a history of benign parental responses to her desires. Perhaps her expectations of exercising judgment are that judgment always says no and rarely asks if there is some constructive way to achieve desires. This would imply that the foster parents and the therapist ought to start asking her if they can help her achieve her desires constructively. But all of that has to be read into the sentence by the reader, and the writer’s job is to present the evidence for this (or some other) formulation and to spell out its implications. So even though the sentence may not be a tautology after all, it amounts to the same thing from the point of view of the reader.

Conclusion A good remedy for confirmation bias is to understand one’s own humanity—one’s susceptibility to availability and anchoring effects, one’s difficulties examining one’s own writing as if it were new to one, and the sources of one’s sense of certainty that have little to do with getting it right. The best remedy of all is vigorous critical thinking, the subject of the next chapter.

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Take-Home Messages 1. Diagnose accurately or not at all; do not use a diagnostic manual like a cookbook. 2. Consider adjusting your opinion in the direction of the base rate. 3. Clarify levels of certainty for each idea you present. 4. Your sense of certainty is more likely a reflection of cognitive ease and coherence than it is of accuracy. 5. Do not treat labels or categories as causes. 6. Anticipate the reader’s reservations and address them. 7. Write a conditional report if a crucial factual issue cannot be established.

Questions to Ask Yourself 77 Have you carefully distinguished facts, inferences, opinions, and speculations? 77 Have you presented your opinion in a way that allows the reader to locate it easily? 77 Have you qualified and interrogated your level of certainty?

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7

Critical Thinking in Forensic Analysis

Principle: Having to explain yourself in the report clarifies your thinking and prepares you for testimony.

S

cience has been described as a “verbal community especially concerned with verbal behavior which contributes to successful action” (Skinner, 1957, p. 418). Science generates statements about reality that are judged according to their pragmatic utility. Critical thinking is a method for analyzing the utility of statements called propositions, which are statements that claim to be true. Because forensic report writers are in the business of making true statements about people and referral questions, they are wise to use critical thinking to test propositions before delivering their reports. Critical thinking constitutes a series of questions asked of propositions (Karson & Goodwin, 2008, 2010). These are reviewed in the sections that follow. Our overarching point is that writing the report is an http://dx.doi.org/10.1037/14182-008 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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opportunity to engage in critical thinking about your own ideas. If you state an idea and it cannot pass the scrutiny, change the idea.

1. What Does the Statement Assert? What Is Asserted by Implication? To evaluate the validity or utility of a proposition, we must articulate exactly what a statement asserts. This is not always simple. Many statements that sound like propositions are not. The explanatory fictions, explanatory categorizations, and tautologies discussed in Chapter 6 are examples. The sentence “He screamed at his children because he was angry” does not assert anything beyond what is asserted by the sentence “He screamed at his children.” The latter is a proposition, and its validity would be established by adducing collateral, self-report, and documentary evidence that he did in fact scream at his children. Why he did so is not addressed, even though at first glance it appears to be. Outside of report writing, people often state what sound like assertions but are actually requests or status claims. When a supervisor tells a trainee that he or she is a bad writer, the supervisor is not offering the proposition as a statement about reality; instead, he or she is disowning what he or she perceives to be substandard writing or pulling rank on the student by reminding him or her who evaluates whom. Similarly, a recitation of credentials in a report sounds like a proposition regarding the clinician’s expertise, but more accurately it is an appeal to persuasion by authority (ethos). The reader need not evaluate it beyond the point at which it is recognized as such. The writer is claiming that his or her training means he or she should be deferred to by the reader, rather than persuading the reader by his or her logic. Conversely, many statements sound like they are not propositions, but they are. Outside of report writing, people say things like “Are you all right?” when they really mean “You were late.” In reports, statements that are overly qualified can sound as if they are not asserting anything. “He may at times have a tendency to use some paranoid defenses” or “There is a possibility that she has moments of blurring the distinction between what is going on and what she expects.” Taken literally, these statements are true of everyone and therefore assert nothing. But if one considers 108

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the reason for writing them, as opposed to leaving them out, they can be considered as stating the propositions “He is paranoid” and “She gets psychotic.” Writers trying to soften their language so as not to startle the reader can inadvertently go too far, but the statement as written can still be considered to assert its underlying message. One critical-thinking pitfall is confusing what a statement proposes in predictive reports. It is good to be aware that you are unable to predict the future, and you may say so explicitly at the beginning of a report. But it is another thing to write something like, “It is my professional opinion that his pattern of responses showed no consistent factors associated with child molestation.” This sentence seems to say only that the subject of the evaluation cannot be considered a child molester on the basis of the evaluation, but read in context, it also seems to say that the subject is innocent. That proposition, if subjected to critical thinking, would put you in an untenable position because you have previously asserted that one cannot distinguish guilt or innocence by doing an evaluation. The troubling sentence is not the result of bad psychology but of careless writing. Instead, write, “There is no basis for concluding guilt or innocence from his pattern of responses.” Then you avoid getting in a position of explaining a proposition you are not proposing. Once it is clear exactly what a statement is proposing as truth, you can subject it to the remaining steps of critical thinking. Report writers ought to make their propositions clear enough that readers can discern what they are claiming and what they are not claiming, and clear enough that the writers themselves know what they are trying to prove, and therefore which evidence to adduce in support.

2. What Constitutes Acceptable Evidence for or Against the Proposition? Before evidence is weighed for its effect on the validity of a proposition, it must be evaluated according to how good the evidence is. This includes statistical notions of reliability—whether a test would yield the same score tomorrow as it did today. It also includes reliability in the common sense of the term—whether the evidence can be relied on. Are we 109

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certain that the test score was produced by the subject and not mixed up with another person’s record? Are collaterals motivated to spin one story over another? Do assessment subjects accurately remember the events that led to litigation (much less their own childhoods)?

Admissibility Parallels in Assessments Courts impose their own thresholds for considering evidence— admissibility—as opposed to tossing it out, and each threshold has its analogy in clinical assessment. Admissible evidence is material, relevant, and competent. Material means the evidence has to do with one of the elements of the court case. Relevant means that the evidence has probative value, that it tends to prove a proposition no matter how small the step toward validity. In most modern codes, materiality and relevance are combined, so that Federal Rules of Evidence, Rule 401 (Federal Rules of Evidence, 2011), for example, defines admissibly relevant evidence as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action [materiality] more probable or less probable [relevance] than it would be without the evidence.” Importantly, evidence can be admissible for one purpose but not for another. For example, a prosecutor can use a prior conviction for forgery to cast doubt on a witness’s credibility but not (usually) as evidence that the witness committed the crime he is on trial for. Competent means that the evidence is not excluded by some other rule. Exclusionary rules are either truth based or policy based, meaning the evidence may be excluded because admitting it would obscure the truth or offend some social policy. Among the former are the hearsay rule (secondhand statements made when not under oath and without cross-examination are unreliable), the best evidence rule (copies are not admissible if the original is available), and the requirement of testimonial competence for all witnesses (they have to be able to observe, recollect, and communicate information, and they have to understand the oath). Policybased exclusionary rules include testimonial privileges (e.g., spouses and therapists cannot testify under certain circumstances), the possession of 110

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insurance by the defendant in certain types of cases, and offers to compromise as evidence of guilt or liability. It is not perfectly clear whether some exclusionary rules are truth based or policy based. For example, relevant, material evidence that produces unfair or prejudicial inferences or emotions in the fact finder is inadmissible, as is evidence of character or trait “for the purpose of proving action in conformity therewith on a particular occasion” (Federal Rules of Evidence, 2011, §404). As noted in Chapter 1, we describe clinical assessment as an aggregation of reliable, relevant evidence and the construction of a narrative that accounts for the most salient evidence and answers the referral question. Analogous to the admission of evidence in a courtroom, clinicians must decide which evidence is good enough to be included in the formation of the opinion and the construction of the narrative. In clinical work, materiality means that the data have to do with a psychological question implied by the legal question. In a competency-to-stand-trial evaluation, the fact that the defendant came from a family with 12 children is interesting but not material. It gets shoved to a far corner of our imaginary assessment table, and we barely consider it when formulating our opinion. In an evaluation of testamentary capacity, it is material because if the testator has no living children or parents, she may need to know the names of all 11 siblings. The legal concept of relevance translates into clinical practice as a requirement that evidence must make an inference more or less likely, no matter how slightly. Strictly speaking, that makes all evidence relevant (since it is likely to raise or lower the likelihood of some material proposition). Legally, there is an exclusionary rule for “waste of time, or needless presentation of cumulative evidence” (Federal Rules of Evidence, 2011, §403), which deals with relevant evidence that will not add much to the analysis. Clinically, that means ignoring repetitive or duplicative evidence, such as multiple collaterals who all report the same incident, or repeated allusions to a single event that is fully understood, such as a trauma. Indeed, one of the real advantages of a computerized test interpretation over a clinician’s is that the computer is unimpressed by the order of the information it considers and by repeated information in various forms; it also never 111

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forgets to look at contradictory scores regardless of how impressive are the scores it considers first. Forensic psychological issues vary in their degree of embeddedness in the context of the subject’s personality. A competent and thorough evaluation of testamentary capacity or competence to stand trial can easily leave the clinician with little knowledge of the individual’s personality and psychosocial history. Understanding the person is just not needed to formulate an opinion, especially when the opinion is that the person is competent. In these sorts of evaluations, a lot of information that one might gather in a clinical case is not relevant. Other types of evaluations require an understanding of the person. These include sentencing evaluations and parenting and custody evaluations, among others. In these cases, anything that helps the clinician understand the person is relevant. This observation is analogous to the concept of limited admissibility in law, the idea that evidence may be admissible for drawing one inference but not another. Projective testing results, for example, are rarely relevant with respect to directly supporting or disconfirming any legal factor; however, they are often relevant to understanding the person and therefore the context in which the legal issues are occurring. Similarly, projective drawings have no direct bearing on child custody decisions. Still, we like to spend some time with people before making important decisions about their lives, and we often run out of things to do with children. We might have them draw pictures of their homes and families, and these sometimes lead to interesting discussions about the homes and families. But usually, they just help us get a sense of the children by interacting with them. Exclusion of evidence for policy reasons rather than for truth-seeking reasons also comes up in forensic practice. If you are conducting a custody evaluation, is it acceptable practice to conduct an Internet search of the parties (probably, especially if you tell them first)? If you happen to see one of the parents in a department store doing something clinically relevant, is it acceptable to include that in your considerations (hard to say, but probably, especially if the original contract for services is written broadly)? If the parent is heading for a part of the store that strikes you as curious, are you allowed to follow her (probably not)? 112

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Reliability Requirements In our view, the degree of reliability required of assessment data should vary according to the type of error being considered. The clinician ought to be 100% certain that the test scores were produced by the subject of the assessment. There is no excuse for a clerical error that mixes up the protocols, which is one reason the clinician should not send inventories and answer sheets home with the subject—to ensure that the subject answered the items. Test data should be considered only if the 1-week test–retest reliabilities are above some acceptable cutoff. The Sixteen Personality Factor Questionnaire and the Minnesota Multiphasic Personality Inventory—2 (MMPI–2) average .8 (after 2 weeks) and .79 (after 1 week), respectively, for retest reliability, so it is tempting to set a cutoff for acceptable retest reliability a little below those averages. But shouldn’t forensic clinicians be fairly sure that the scores they base their opinions on are what the subject would obtain at the time of the report and testimony? A 95% confidence interval seems appropriate for most kinds of inferences about test data (i.e., the clinician should be 95% sure of what the score on the measure is apart from measurement error or chance). One way to manage the relatively weak (compared with history, say) durability of nomothetic test data is to keep in mind the inherent variability of scores. Users are urged to adopt the practice of sketching in this range of one SEmeas above and below the actual raw score earned by a subject on each of the clinical scales to indicate the range of values on the profile within which the subject’s true scores are most likely to fall. (Hathaway & McKinley, 1989, p. 31)

One SEmeas would translate to 68% certainty of having captured the true score, arguably not good enough for forensic decisions. For most MMPI–2 scales, you need to consider a span of 9 T score points in either direction to be 95% sure you are discussing the subject’s trait strength rather than measurement error, and that is only good enough if you are discussing the score within a week after the testing! 113

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Hearsay Hearsay evidence, as in law, ought to be considered in the context of the motives of the declarant (i.e., the person who made the statement that is being offered for its truth). The law, for example, accepts as likely-to-bemotivated-by-truth statements made by people to their doctors, statements by clerks in public records, and excited utterances. These statements are still subject to disproof, but the motivation of the declarant is not so suspect as to exclude the statement out of hand (or, rather, to require the declarant to come to court and say it again). Clinicians know they should be suspect of the motivations of assessment subjects’ statements in most kinds of cases, but they do not always think so critically of the motivations of collaterals and other professionals. That is taken up subsequently; the point here is that some statements should not even enter into the clinician’s considerations because they cannot be tracked down well enough to evaluate. These include allegations of misconduct or of trauma that started out as a speculation at a case conference and then followed the subject down through the years. “I just wonder if she was sexually abused,” heard ubiquitously of any child who exhibits any sexual behavior, becomes over the years a fact rather than a speculation. Track it down or exclude it from your considerations.

3. What Is the Evidence for the Proposition? What Is the Evidence Against It? Just asking these questions reminds writers that they must adduce and articulate their evidence. Every assertion in every report ought to come with this unwritten statement: “And here’s how I know that’s true.” When writers cannot produce a convincing amount of convincing evidence for their ideas, they should change their ideas (or downgrade them to speculations). It is also important to ask of relevant evidence whether it is evidence for or against. All too often, writers assume that equivocal evidence supports their opinion. For example, children cry after visits with their parents. The state’s attorney sees this as evidence of bad parenting, and the defense attorney sees it as evidence of good parenting. The writer’s job is often to say that it is evidence of both and therefore neither. 114

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4. What Other Explanations Might There Be for the Evidence? Besides considering the evidence for ideas other than the one in a given proposition, writers should also consider whether each bit of evidence cited in support of a proposition might not have some other explanation that makes its initial support suspect. This step is commonplace in allegations of abuse by small children in custody battles; clinicians have to ask what other reasons there might be for the allegation besides disclosure of abuse. It is also commonplace to examine data in light of motivational distortions, for example, exaggerations of pain by plaintiffs in injury cases or exaggerations of integrity by job applicants. But writers do not always ask what other reasons there might be for obtaining a high score on a self-report scale besides trait strength or what other reasons there might be for annoyance with the assessment clinician besides a character defect. Indeed, the well-known actor—observer effect, also known as the fundamental attribution error (Jones & Harris, 1967; Jones & Nisbett, 1971), applies as much to clinicians as to laypeople. This term describes the pervasive phenomenon of people describing their own conduct as a function of context and describing other people’s conduct as a function of character. Forensic clinicians, like everyone else, tend to go too quickly from incident to character, concluding, for example, that an irritated evaluation subject is an irritable person, instead of concluding that the clinician has done something irritating, perhaps over and above the fact that the subject had to undergo the evaluation in the first place.

5. To Which Circumstances Does the Proposition Apply? Only those scientific propositions called laws of nature apply to all situations; all others must be qualified by specifying the situations in which they are true. For more modest propositions, those that apply in all situations are called character traits. But in most assessments, the issue is typically not whether the subject has this or that characteristic, but when, 115

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under what circumstances. Thus, the clinical issue is rarely whether someone is capable of losing control of him- or herself, but when, and what he or she does when he or she loses control. Report writers who ask whether their assertions about the person or the situation are always true or sometimes true end up delimiting their assertions, increasing their utility and modulating their exposure to cross-examination.

6. Are the Circumstances Currently of Interest Like the Circumstances to Which the Proposition Applies? Having delimited their assertions, report writers next can address the critical-thinking question of whether the situation of interest is like the situation to which the assertions apply. Thus, for example, an angry man with a history of arrests for bar fights was assessed as alcoholic, narcissistic, and prone to violence, not an encouraging mix in a child custody evalua­ tion. The clinician broached the topic of delimiting the assertions about alcoholism and narcissism but was not able to identify any delimiters for narcissism, which may be the very definition of a personality disorder, an inflexible and pervasive use of a single schema or organizing principle for almost all occasions. The man’s wife acknowledged that he did not drink at home, only at bars, which implied some possibility at least that the assertion about alcohol abuse applied only to situations that might be distinct from the circumstances of an overnight visit. The question of violence was more easily delimited; the man had never been in a violent altercation with a child, a woman, or even a man smaller or significantly older than himself. This distinction was important in limiting the assertion of violence potential to situations that did not directly involve the children. The clinician acknowledged that a sufficiently belligerent fellow customer at a fast food restaurant could provoke a violent reaction from the father in the presence of the children, but the risk of harm to them from witnessing a fight was a far cry from the risk of harm implied by a potential for violence against the children themselves, and overnight visits were recommended. 116

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7. What Motives Might the Proponent of the Proposition Have Besides Validity? The scientific community extols the virtue of considering a proposition apart from its source, but it does not practice what it preaches and for good reason. If a layperson claims an innovative, cutting-edge discovery in a field of science, he or she is ignored. The cost–benefit analysis of investigating the matter declares it a waste of time. In psychotherapy research, the best predictor of outcome is not technique or traits of the client or therapist but the theoretical orientation of the researcher (Westen, Novotny, & Thompson-Brenner, 2004). People’s ideas depend on their motivations, which brings us back to the confirmation bias that good evaluators try to defeat and also try to capitalize on (as a way of discovering the subject’s expectations). Critical thinkers consider the motivations of the proponents of propositions, and that consideration should embrace the critical thinker’s motivations as well. Forensic report writers ought to question whether their ideas are too conveniently aligned with their economic and reputational interests. The economic incentive is often fairly easily to discern, but all too often it is dismissed under a blanket of integrity. In our view, true integrity acknowledges that we are all too human and constantly revisits the question of economic motive. Similarly, forensic clinicians often find themselves in situations in which their reputations—and therefore, ultimately, their finances—cannot take the hit of one kind of error. Violence is wildly overpredicted (Melton, Petrila, Poythress, & Slobogin, 1997) partly because all low-base-rate behaviors are bound to be but also because very few, if any, clinicians have ever gotten into trouble for predicting violence. Trouble for the clinician tends to come only when violence is not predicted and then happens. Similarly, recommendations to keep children in foster care for a while longer, slow steps in integrating offenders into the community or children back into their homes, and locking up sex offenders who have served their sentences have little personal downside for the clinician. Even if the child is abused in the foster home, the foster parents and child welfare workers are blamed, but if the child is returned home and is abused there, the clinician is blamed. Loss of rights by parents or convicts do not, for better or worse, reflect 117

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poorly on clinicians; betting the base rate and having that lead to violence or abuse does reflect poorly on clinicians. At the very least, you ought to scrutinize your ideas about a subject or a situation for the extent to which they are conveniently self-serving.

Conclusion Writers should interrogate every assertion in every report using the critical-thinking questions presented previously. When we teach report writing to graduate students, our most frequent marginal comment (besides “Review comma usage”) is “How do you know that?” A consistent attitude of having to demonstrate the truth of assertions improves reports because it assures that you will present supportive evidence and link it to your assertions. But even more important, this attitude will reveal the weaknesses of assertions when evidence is not strong enough to support them or when you have to delimit them to specific situations so they are aligned with their supportive data.

Take-Home Messages 1. Think critically about all your ideas, and revise those that do not pass muster. 2. Check your motives, especially when recommending something convenient.

Questions to Ask Yourself 77 Have you identified all the propositions in your report? 77 Have you subjected each proposition to the critical-thinking questions?

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Legal and Ethical Pitfalls

Principle: Be humble with respect to rules of evidence, rules of ethics, and the tendency to resolve anxiety by ignoring competing evidence and explanations.

S

ome laws and regulations just do not make sense. For example, the Sex Offender Management Board in Colorado requires the use of a test that in other jurisdictions is not allowed in court because it fails to meet scientific standards. What is a conscientious practitioner to do? One solution is to ignore the rulings in other jurisdictions; another is to ignore the rule in Colorado. Adopting the former will lead to poor clinical practice when the basis of the rulings in other jurisdictions is not used to discredit or delimit the test results. Adopting the latter solution will lead to professional and possibly civil sanctions. The simple solution is not to conduct evaluations of sex offenders in Colorado, but aside from that possibility,

http://dx.doi.org/10.1037/14182-009 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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what is needed is due consideration of the regulatory requirements and the criticisms of the test. So the ethical thing to do is to administer the test and to interpret the results in light of criticisms of the test’s validity. The point is that you cannot ignore even bad ethical and legal rules any more than you can ignore bad statutes in other areas of life. In this chapter, we cover some common pitfalls by emphasizing the fact that forensic clinicians can use what they know about rule-breakers and apply that knowledge to themselves when they are the potential rule-breakers.

Terms to Know A word is in order about the terms ethical and legal. Ethical, at least in professions that have written standards, applies to conduct that comports with the written requirements of one’s profession; if there is not a professional rule against one’s conduct, it is not unethical. Legal applies to conduct that comports with the statutes, common (judge-made) law, and regulations of one’s governments (usually state and federal in the United States); if there is not a law against conduct or a law requiring an omitted behavior, it is not illegal. Sometimes, people use the word ethical as a substitute for professional or moral, but properly it should refer to an ethics code (in the context of practicing psychology and writing forensic reports). Unprofessional refers to behavior that the speaker thinks would be condemned by a substantial majority of the members of the profession in question. Immoral refers to behavior that the speaker thinks would be condemned by God. This lexicon leaves no word for behavior that the speaker condemns without reference to the profession, the ethical rules, laws, or God—such behavior can be condemned by saying you disapprove of it. So when we say that the ethical thing to do in Colorado is to administer the contested test and to interpret it warily, we are referring to the Ethical Principles of Psychologists and Code of Conduct (American Psychological Association [APA], 2010a), which applies to members of the APA and which we are using as an example for ethical analysis. Your professional organizations probably impose some similar code on your work, or 120

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your legislature does—when it is a legislative imposition, it is correct to describe breaches of the code as illegal, but it also makes sense to call them unethical if the statute is based on a profession’s ethical principles. In this case, we were referring to APA Standard 9.02b: “Psychologists use assessment instruments whose validity and reliability have been established for use with members of the population tested. When such validity or reliability has not been established, psychologists describe the strengths and limitations of test results and interpretation.” We think that exclusion of a test’s results in some jurisdictions raises enough questions about a test’s validity (regarding the exact same purpose it was excluded for) to require psychologists to describe that test’s strengths and limitations.

Common Stumbling Blocks to Legal and Ethical Behavior When considering legal and ethical pitfalls, clinicians are in the position of the potential defendant in a criminal case. Forensic clinicians are often anxious because they are involved in important matters with limited tools. One way of managing anxiety is to ignore confusing information. When ignored information constitutes legal and ethical rules, clinicians can find themselves in trouble, having thought like criminals (Walters, 2006, and citations found therein). Like criminals, clinicians tend to examine their conduct in light of their own motives rather than the rules or the effects of their conduct. They tend to view their own motives as just and downplay remote harms that their conduct might inflict on their profession, the justice system, or society at large. They have a tendency to consider the details of their own situations and to let those details override the rules imposed on them by legislative and professional groups that do not know the details. If they can acknowledge their propensity to think like criminals, they can take steps to ensure that they follow the different kinds of rules they operate under. Because of such all-too-human tendencies, clinicians should recognize their vulnerability to certain temptations, such as self-promotion and acting without acknowledging gaps in their competence or authority. 121

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Temptation to Self-Promote The ethical pitfall of overvaluing your motives and undervaluing the rules of the profession comes up quite often in our experience, even or especially among professionals who would never violate a standard or a law for the usual motivations of money, sex, and power. Few people would sell access to a client’s confidential material even if it were quite valuable, as in a high-profile case. But to educate early career professionals or graduate students, to rebut erroneous information purveyed at a cocktail party, or to make a telling clinical point on a Listserv, who has not been tempted? And that temptation rarely includes acknowledgment that the real reason for the breach would have been your interest in the enhanced social status accorded to your proximity to the high-profile case. We are guided (and humbled) by George Bernard Shaw’s definition of virtue: insufficient temptation. If we are plagued by confirmation bias in our assessments of others, how much more strongly does it operate in our assessments of ourselves? “I am a good person, so whatever I do must be all right.” So, unless an injustice will be perpetrated of the sort that might prompt us to civil disobedience, we just obey the rules and hope that the ones we do not like will be revised (possibly with our input). Thinking You Know More Than You Do Besides seeing yourself as a good person who does not need to keep an eye out for transgressions, another common context for acting unethically or illegally is thinking you know more than you do. Most clinicians who receive a subpoena, for example, probably react as they used to before specializing in forensic work: panic followed by phone calls to national and local professional organizations, relatives who are attorneys, and former professors. The anxiety of not knowing what to do leads you to find out what to do. But if you already think you know what to do, you will not feel anxious, and if what you think you know is that an official-looking subpoena that “commands” your presence with your client’s files has the force of a court order, you might find yourself unethically handing over confidential documents without authority to do so. What you ought to do, 122

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of course, is to keep in mind that a subpoena, unlike most court orders, does not relieve you of your confidentiality duties and then call the lawyer who issued it and find out what he or she wants. Further steps depend on whether you can or want to give them what they want. When you are asked to assess a psycholegal question, you are probably good at recognizing when you do not know what to do, and you seek guidance accordingly. If you are asked to assess multiple psycholegal questions, you may miss the fact that guidance on each question separately is not nearly good enough. For example, whether you are even allowed to assess competence to proceed and mental state at the time of the offense varies across jurisdictions, as does whether you have to write two separate reports. If you evaluate both people in a custody dispute, you’d better arrange ways to treat them exactly the same, no matter how clinically sensible your idea might be to give one a Minnesota Multiphasic Personality Inventory—2 and the other a Sixteen Personality Factor Questionnaire. And you’d better figure out beforehand how to report your results in a way that does not breach the confidentiality of one to the attorney of the other. Generally, then, you need to keep in mind that there are a lot of unexpected rules, so periodically read specialized texts and maintain a consultative relationship with an expert (even if you are one yourself) on the pitfalls associated with the area of practice.

Using the Availability Heuristic to Hone Your Ethical Behavior Cognitive psychology teaches that people are more likely to behave ethically and legally if the rules are easy to retrieve (Kahneman, 2011). One way to take advantage of people’s tendency to retrieve information that they have recently been exposed to is to read the rules periodically. Unfortunately, ethical principles and statutes are too long either to keep in mind or to reread with any great frequency. Instead, we recommend reading them all once and then highlighting the parts that you are likely to forget or to want to forget. Then you only have to reread the highlighted parts because the bulk of the code is something you will follow intuitively. 123

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Thus, if you are a nongreedy gossipy know-it-all, you do not have to worry about all the rules related to money because your assessment is that you will not be tempted to overbill, charge for incidentals, or make referrals on commission. On the other hand, you might need a constant reminder not to divulge confidential information (one clinician we know wrote on his bathroom mirror “Keep Your Mouth Shut,” but its stimulus value declined after a few months). And you might need to periodically read the section of the ethics code on practicing within your areas of competence and the statute in your jurisdiction on scope of practice. Psychologists who know enough about medications to offer a second opinion and psychiatrists who know enough about psychological tests to interpret them accurately are practicing within their scope of competence but beyond their authority. They could benefit from repeated reminders that they are not authorized to do certain things even if they are good at them. Similarly, if you like off-the-cuff reports, you can prepare for your future impulsivity by making templates for various reports and sticking to them. This will help you ensure that all the legally required information is in the report. Templates are especially a good idea in jurisdictions that have required contents and required omissions for the type of report you are doing. Required omissions are things you are not allowed to write about, including incriminating information in some jurisdictions in a report on competency to proceed. If you tend to reveal too much information on the phone, you can keep a script near your phone with the relevant citation for the statute or ethical principle and what you want to say. “I’m not sure I’m allowed to answer that question, so I’ll have to get back to you on that.” Our point is that most of the ethical rules, like most statutes, are a litany of bad behavior that people have thought to codify only because someone did the things that they outlaw. Rules against behavior that you are not tempted to do need not concern you, but all people are capable of some bad behaviors. In the long run, it would be great to assimilate the reasons for the rules to the point at which they all seem intuitive, but in the short run, the best you can do is to make sure the rule is available to you in the situation. 124

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Avoiding Common Pitfalls You can get pretty far in clinical work when it comes to ethics just by behaving honorably and paying your insurance premiums. You probably needed to be told that it is unethical to practice on friends and family, to divulge the items of psychological tests, and to mention membership in the APA in your marketing materials. Oh, wait; mentioning APA membership used to be unethical but no longer is (APA, 1967, 1987). The point is that there are rules like these that you cannot intuit, but most of the rules just tell you not to indulge your interest in money, sex, and power at the expense of vulnerable people. There are few ethical problems in clinical work that an honorable approach cannot avoid or fix. An exception to the general rule of just behaving well must be created if you are the type of person to go above and beyond to try to assist someone or make people feel good. Then, you need to keep in mind the sections of the APA Ethics Code having to do with dual roles, conflicts of interest, and boundaries of competence. Any time you find yourself going the extra mile, you need consultation on whether you are going too far. Sharing Information Appropriately In forensic work, in contrast, there are a few things that you have to get correct from the start, that you cannot go back and fix. One of these is figuring out at the outset who will get your report. The APA (2010a) Ethics Code states, 4.02 Discussing the Limits of Confidentiality (a) Psychologists discuss with persons (including, to the extent feasible, persons who are legally incapable of giving informed consent and their legal representatives) and organizations with whom they establish a scientific or professional relationship (1) the relevant limits of confidentiality and (2) the foreseeable uses of the information generated through their psychological activities.

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permission later to send it to the therapist. If the client refuses, the therapist does not get the report. In forensic work, if you forget to tell the subject of an assessment that the report goes to the court and not just to the subject’s attorney, you cannot fix it if you have a separate obligation to send it to the court. Sharing information between clinical and forensic systems is also complicated, but it’s the kind of ethical problem that you know you have when you have it (because someone asks you for information and you know that is always an ethical issue). Knowing there is an issue, you can take the usual steps to resolve it, consulting ethical help lines, colleagues, attorneys, and the judge on the case you are involved in. You might also want to check what has been written about the problem (e.g., Petrila & Fader-Towe, 2010).

Providing Data for Second Opinions One of our biggest peeves in forensic work involves clinicians who submit a report that one of the attorneys or the judge wants a second opinion on. It ought to be a simple matter to get the permission of the subject, send the consent form to the report writer, and then obtain the original test results and interview notes so the second opinion can be rendered. But this process often takes weeks or months, even after appropriate permissions are obtained. A surprising number of psychologists think that the APA Ethics Code still requires them to send test data only to other psychologists, but that changed in 2002. (Almost as large a number think that the Diagnostic and Statistical Manual of Mental Disorders [4th ed., text revision; American Psychiatric Association, 2000] still forbids diagnosing a personality disorder in children, but that changed in 1994.) Local statutes may override the APA Ethics Code on this issue, but even when the recipient of information is another psychologist, the report writer is often dilatory in supplying information. It seems to us that a clinician conducting an assessment in a disputed psycholegal matter is obliged to produce a record of the assessment that can be examined by another clinician (or by an attorney). Illegible notes 126

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and response records cannot be reviewed independently. If your handwriting is hard to read, this is easy to fix when the material is requested by creating an audio file of you reading your notes aloud, and this file can be transmitted with the handwritten notes. When the record is requested with due authorization, it should not come as a surprise to a forensic clinician that the assessment will be reviewed by other experts. Following Mandatory Reporting Statutes Another problem that cannot be fixed has to do with mandatory reporting statutes regarding disclosures of child abuse. In many states, the clinician has a legal obligation to report child abuse, and the lawyer has a legal obligation not to. When the clinician is on the legal team, non­ disclosure requirements fall on the clinician just as they do on the lawyer’s secretary, paralegal, and private investigator. However, the clinician cannot thereby be relieved of the obligation to disclose, which falls on the clinician independently because of his or her own profession (Hall, 2006). The only way out is to inform an attorney for whom you are working, and to inform the attorney’s client as well, that you will disclose child abuse, imminent threats of homicide or suicide, and if relevant in your jurisdiction, elder abuse. If you do not do this at the outset, you cannot fix it later without either breaching your obligations under the attorney’s umbrella or your obligations as a member of your profession.

Conclusion Our ongoing effort to identify with the subjects of our forensic assessments led us to conceptualize our potential for breaking rules in terms of criminal psychology. Criminal thinking is not a characteristic of a group of people but of all people when they break rules. We seek conversation with other experts not only to check the currency of our practice ideas but also to ensure that we are participating in a culture that promotes legal and ethical conduct, partly by constantly bringing up the topic. There are a few extra­ordinary instances in which we endorsed a breach of the Ethics Code 127

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in fact if not in spirit. For example, one of us overstepped the bounds of the role to prevent a little girl from undergoing a clitorectomy. A lawyer we know cheerfully decided to throw away his career if need be by breaking confidentiality and turning in a serial killer. Generally, though, we soothe ourselves with the belief that our profession is smarter than we are, and we just follow its rules.

Take-Home Messages 1. Assess which statutes and ethical principles you are most tempted to disobey. 2. Use your knowledge of the psychology of criminal behavior to help yourself follow the rules.

Questions to Ask Yourself 77 Have you complied with the legal and ethical rules that apply to your report? 77 Have you considered whether there are rules you might not know about and sought consultation or guidance?

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Culturally Competent Report Writing

The focus on cultural competence in this chapter is as an amalgam of other principles, especially those associated with humility, critical thinking, and idiographic context.

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here are many good psychology guides to multiculturalism generally and with respect to assessment (Cornish, Schreier, Nadkarni, Henderson-Metzger, & Rodolfa, 2010; Dana, 2005; Helms, Jernigan, & Mascher, 2005; Karson, 2008a; Stuart, 2004). The Publication Manual of the American Psychological Association (APA, 2010b) contains a useful discussion of eliminating biased language, including the following: “Part of writing without bias is recognizing that differences should be mentioned only when relevant. Marital status, sexual orientation, racial and ethnic identity, or the fact that a person has a disability should not be mentioned gratuitously” (p. 71). In this chapter, our purpose is to consider culturally

http://dx.doi.org/10.1037/14182-010 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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competent report writing as a function of the other principles described in this book.

Evaluate the Adequacy of the Norming Group’s Representation of the Current Subject We discussed in other chapters the key clinical problem with respect to using actuarials and nomothetic test data, namely, the question of whether the individual subject was adequately represented by the groups on which the actuarial was developed and crossed or by the group on which the test was normed. Key to understanding the parameters of this clinical judgment is the fact that the answer is always yes because all humans are much more alike than different, and the answer is always no because every person has some distinguishing feature or combination of features that makes him or her distinct from any group. In other words, there is always an argument for using or rejecting the actuarial or set of norms, and only a clinician can weigh the factors. For any given characteristic of the subject, for example, race, whether that characteristic is adequately represented in the norming group is an empirical question. A fairly common error is to accept an actuarial or test if race, in this example, appeared in the norming group at its rate in the general population. First, there is the conceptual problem of deciding what population is general—non-Latino White males (i.e., males who are socially construed as White; Smedley & Smedley, 2005) occur in the population of Denver at a rate of about 26%, in Colorado at about 37%, in the United States at about 31%, and in the world at about 10%. Choosing among these geographical areas is a clinical judgment. Second, even when there is agreement about the geographical definition of a general population, representation of minority groups in the norming sample is not a sufficient safeguard. About 12% of Americans are Black (i.e., are socially construed as Black). If a norming sample such as the Minnesota Multiphasic Personality Inventory—2 (MMPI–2; Hathaway & McKinley, 1989) contains roughly 12% Black people, that does not establish the norms as usable with Black subjects. 130

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Take an admittedly extreme example for illustrative purposes. Most clinicians, if they administered an MMPI–2 immediately after the subject underwent a high-stress event such as being held hostage in a bank, would interpret the scores with the event in mind rather than relying on the national norms. If they found out that there was, in fact, one recent ex-hostage in the norming group, they would not suddenly decide that the national norms adequately represent the current subject, even though one such person in the norming group more than represented the national average. Instead, a norming group has to contain enough subjects to allow statistical testing of the hypothesis that they do not differ from the rest of the sample before clinicians should ignore their differences from the majority of the norming group. In the case of Black men and White men in the norming group, we calculate from Appendix H of the MMPI–2 manual (Hathaway & McKinley, 1989) that there were significant differences on two of the three main validity scales and on six of the eight core clinical scales. In a comparison of Black women and White women, there were significant differences on all three main validity scales and also on six of the eight core clinical scales. These data raise serious questions about the use of the MMPI–2 with Black subjects. But even if White and Black people looked alike in the norming group, there are ethnically meaningful differences among Black people that you could not dispense with by a quick look in the back of the manual. For example, we think inner city versus suburban, Caribbean identification versus African American, and Hispanic Black versus non-Hispanic Black may be meaningful differences among Black subjects. None of these distinctions are reported in the manual, so there is no way to know if these categories are adequately represented in the norming group, and there is no way to know if these categories produce different scores on MMPI–2 scales. With 2,600 people in the norming group in all, it would take only a few such dimensions to categorize people in such a way that there would be only a few of them in the norming sample, and comparisons with the main group would be meaningless. It is therefore easy to define every subject in a way that makes the norming group questionable as representative of the subject and that, further, makes it impossible to use the norming data to check on whether members of that group differ from the main group. 131

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Should the burden be on the clinician who uses the MMPI–2 norms on all subjects to argue that they apply? Or should the burden be on the clinician who is skeptical about the applicability of the MMPI–2 norms? Certain tests, such as the MMPI–2, the latest Static, the Wechsler Adult Intelligence Scale—IV, and a few others, have become so standard in forensic assessment that one not infrequently hears clinicians say that not using them requires justification. We do not agree. Even when they are legally required, accepting the results without accounting for and specifying their limitations because of inapplicability to the current subject is bad practice. We think it’s clear that the use of a test or actuarial constitutes an affirmative statement that its use is appropriate in this situation with this person, so much so that we do not mind omission of such a statement from a report. A procedure cited in a report should not need a statement that the clinician thought it was appropriate because the clinician already used it. Possibly, omission of such statements has led to an assortment of techniques being taken as required or standard practice. Regardless of the history of the practice, we think the use of any actuarial or normed test puts an onus on the user to consider whether the validation or norming groups adequately represent the current subject and situation, and if they do not, either not to use the test or actuarial after all or to be explicit and convincing about its limitations.

Treat Cultural Competence Like Other Assessment Competencies We discussed the actor–observer effect in Chapter 7 of this volume, describing the tendency of all people, including forensic clinicians, to attribute their own behavior to context and the behavior of others to character. This phenomenon has important implications for culturally competent assessment and report writing. Frequently, culture plays the role of character in the actor–observer effect. We drink because we like the way it makes us feel; he drinks because he’s Irish. We do not talk about feelings at home because it embarrasses us; they do not talk about feelings because they’re Lutheran. We shoplifted as teens because we really wanted 132

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the merchandise and thought we could get away with it; they shoplifted because they were—well, you get the idea. The use of a cultural label, like any categorization, is useful only if the members of the category are fairly uniform with respect to the relevant variables. Cultural categorizations, though, are so sweeping that they imply similarity across all variables. When we categorize people as individuals with obsessive–compulsive disorder or as psychologists, we are implicitly acknowledging that they may be very different from each other in many important ways; we claim only that all those with obsessive–compulsive disorder have certain behaviors in common and that all psychologists have certain credentials in common. When we categorize people as Japa­ nese nationals, we are saying they have citizenship and geography in common. But when we categorize people as ethnically Japanese, it is very difficult to determine what we are saying they all have in common and what they do not. Skinner (1953) pointed out that the advantages of classifying a language as, say, Russian—all sentences so identified have a great deal in common, and knowing the label is extremely useful for understanding the behavior—do not apply to any other aspects of so-called Russian culture. Typically, the application of a label defining a culture highlights certain practices and disguises others, just as group norms encourage certain practices and marginalize others. In that context, a potentially useful role for naming a subject’s culture is to describe which practices are expected of the subject and which are stigmatized. However, for that purpose, you can avoid all the confusing aspects of saying that a subject is a member of a given culture by, instead, simply listing all the relevant practices that you think the subject expects to live up to.

Consider Social Reinforcers of Behavior A useful way to think about culture and ethnicity is to consider social reinforcers for various behaviors as important contextual influences. For example, a boy who harms animals and gets into fights regularly may be seen by some clinicians as overly aggressive and potentially conduct 133

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disordered. But in some areas of this country, fistfights among boys are quite common (Rudatsikira, Muula, & Siziya, 2008), a way of resolving conflicts, especially among friends. In other words, the reinforcer for the fights may not be the effects of battery on other boys, but the social approval for solving problems with fisticuffs. Cruelty to animals is one of those findings that sounds like a fact but is actually an interpretation. The clinician has to wonder about the social support for not empathizing with the animal; insects are generally seen as unlovable, for example, and teasing or harming ants in most parts of this country has a different cultural meaning from teasing or harming puppies. Drowning unwanted kittens on a farm has a different meaning from drowning a child’s kitten to punish the child. The difference can be found in the reactions of other people, and indeed, a potentially useful definition of culture is some other people, so when someone says that in Chinese culture, women with big feet are ugly, one can translate that to a more useful sentence, namely, some Chinese people prefer small feet in women. The latter framing helped a Chinese woman who thought her large feet invalidated her worth by making it clear that it was only some Chinese people who disliked them. Returning to the example of cruelty to animals, if the reinforcer for the behavior so described is the effect on the animal, the boy may need to find prosocial expressions of aggression; but if the reinforcer is the status and connection he gains among those who observe or hear about the behavior, then he may already have found prosocial expressions of aggression. Our overarching point, relating back to the actor–observer effect, is that clinicians sometimes are too quick to infer character from a behavior and sometimes too quick to infer cultural support as its cause, but only an assessment of its context and the unusualness or typicality of the context can lead to accurate accounts. Thus, cultural competence can be seen as a form of critical thinking in which the questions normally aimed at evaluating evidence and articulating other explanations take the form, “Does the race [or sex or sexual orientation or ethnicity or disability, for examples] of the participants matter?” Culturally competent critical thinkers ask what social responses maintain a given behavior, and they distinguish the motivation to act normally—to fit in—from other motivations. 134

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Use Stigma Theory to Evaluate Cultural Influence Every group, no matter how small or large, how durable or fleeting, maintains norms for behavior and stigmatizes departure from those norms (Goffman, 1963). The motivation to act normally pervades human experience, and it must be distinguished from other motivations because behavior that results from the motivation to act normally in a group may be easier to change when the group changes. However, this approach only works with face-to-face groups in which immediate contextual feedback from other people affects behavior. When culture is used as an explanation for behavior outside of the presence of the culture’s bearers, things become unclear. Thus, the Diagnostic and Statistical Manual of Mental Disorders (4th ed., text revision; DSM–IV–TR; American Psychiatric Association, 2000, p. xxxiv) cautions, “A clinician who is unfamiliar with the nuances of an individual’s cultural frame of reference may incorrectly judge as psycho­ pathology those normal variations in behavior, belief, or experience that are particular to an individual’s culture.” But this reasonable-sounding statement leaves one to wonder what is meant by “an individual’s culture” because virtually every pathological behavior has cultural support as long as one is flexible about how many people need to agree on a value or norm to constitute a culture. Whether a behavior has cultural support, then, depends on how big a circle one draws around the individual to define a culture. It is easy to imagine a practice like, say, gay sex, and to find that it is normative in a household but not in its neighborhood, normative in its city but not in its state, normative in its country but not on the planet. On the other end of the spectrum, child abuse is by definition not normative in any state that has the power to declare what is and is not abuse, but many practices that are labeled abuse by a state may be normative in families and even neighborhoods. Bulimia is normative in some dance studios. So it is easy to say that diagnosticians should defer to culture, but it is hard to say which cultures count. The error that the DSM–IV–TR tries to prevent is the same one the Ethical Principles of Psychologists and Code of Conduct (APA, 2010a) tries 135

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to prevent. Thus, Standard 9.02b says, “Psychologists use assessment instruments whose validity and reliability have been established for use with members of the population tested.” And Standard 2.01b says, (b) Where scientific or professional knowledge in the discipline of psychology establishes that an understanding of factors associated with . . . ethnicity [or] culture . . . is essential for effective implementation of their services or research, psychologists have or obtain the training, experience, consultation, or supervision necessary to ensure the competence of their services.

But again, it’s hard to say which populations count or which ethnicity or culture one must obtain education about. Rural Haitian? Haitian? Hispaniolan? Caribbean? It gets ridiculous when one starts talking about Indian culture or Chinese culture. One can argue that rural Haitians are enough alike for the category to have some utility in psychological assessment, but when the category contains over a billion people, it’s hard to imagine any attribute (besides numerous) that would be true of them as a group. So it’s good to want to learn about a person’s culture, but it’s hard to say what that culture is. It seems ironic that a proposed cure for stereo­typing people is to learn about different stereotypes. But the error these rules are designed to prevent is real and preventable. In our view, it stems largely from arrogance or people’s tendency to use themselves as the measure of others (Pope, 1711/1970). In a way, it is the same issue that arises when using a normed instrument and the clinician is required to consider whether the subject is adequately represented by the norming group. When you evaluate behaviors contextually (or, if you prefer, anamnestically or idiographically), you compare what you observe with your backlog of experience, and you are required to question whether that backlog adequately represents the current subject. One good strategy to prevent the tendency to assimilate current observations into past constructs is to use critical thinking, as noted in Chapter 7 of this volume. Another is to broaden your constructs through reading (especially literature, history, and philosophy), travel, and conversation (especially conversation about your constructs so you can get corrective feedback about their inapplicability). 136

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Write About the Person, Not About the Category A third solution, which is directly relevant to report writing, is to avoid referencing categories for explanatory purposes and instead stick to situations. In Chapter 4 of this volume, we noted a big difference between writing, for example, “People who score this high on Scale 2 are often depressed,” versus “I think she is depressed, and one piece of evidence is that she scored high on Scale 2.” The first sentence is about a category of people and suggests she may be in it; the second sentence is about her, and uses her score as evidence for an assertion. The first sentence also raises questions about the uniformity of members of the category, the sensitivity and specificity of MMPI–2 Scale 2, and the gold standard against which it was compared for dividing people with depression from people who do not have depressions—and if the gold standard against which the scale was compared was expert clinical judgment leading to a carefully diagnosed sample (as it usually is), shouldn’t one strive to become as expert as those clinical judges rather than rely on a scale whose goal is to approximate their judgments? Similarly, there is a big difference between writing “Cambodians use coining as a common cure-all, so it is a culturally normative practice for Ms. X,” versus “Like many Cambodians, Ms. X believes that rubbing a coin across her son’s back, coated with heated oil, will cure his condition. Her motivation seems to have been to relieve his symptoms rather than to inflict injury.” The first quote raises questions about whether all Cambodians believe in coining and whether any of them piggyback hostile impulses on the cultural practice. The second quote is about what the forensic report should be about, namely, Ms. X’s motives. We are suggesting that race, culture, and ethnicity can be usefully broken down into their contextual effects, thereby avoiding the commonly seen practice of treating members of a cultural category as if they are all the same. This common practice commits the logical fallacy of assuming that if two people are alike in one way, they are alike in other ways as well (Skinner, 1953). Given what researchers know about group norms and stigma (Goffman, 1963), there is even a tendency for the fallacy to look true because members of a cultural category often monitor each other and 137

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are monitored by outsiders to conform to some sort of common definition of what the category is thought to imply. But ultimately, it is a fallacy because in large measure, despite these monitoring efforts, groups are not able to impose normative behavior on their members or on other people. Groups are generally able only to force people to pretend to act normatively. Thus, even though there appear to be stable beliefs about the personality makeup of various nationalities, actual testing reveals those stereotypes to be false (McCrae & Allik, 2002). We think there are roughly 30 million ways of being Black in America and roughly 220 million ways of being White. Both numbers are far too large to allow much inference about group members’ response tendencies. We are not saying that the labels are meaningless when it comes to describing groups of people. For example, it seems obvious that Black people and White people have both experienced marginalization and stigma, but Black people generally incur greater economic costs if they choose to avoid stigmatizing situations, and they are more likely than White people to be stigmatized or spotlighted by large-scale events, such as nationally televised broadcasts and major college commencements. But Black people vary considerably, especially on the level of personal meaning-making when it comes to their responses even to predictable events like marginalization and microaggressions and microinsensitivities. Our point is that they vary so much that a report on the psychology of a Black person needs to discuss the stimulus value of the individual’s skin and its meaning to the person and to others in the situation, but not much if anything is added by discussions of what in general Black people do. In many jurisdictions, potential foster parents with criminal records must be screened by a mental health professional before the state will allow them to raise children in its custody. Such screenings include some effort to understand the crime and some effort to understand the criminal. Crimes of violence might indicate a characterological problem that bodes poorly for managing impulses around children, but even these may turn out to be so specifically situational that a similar situation is unlikely to arise. Minor crimes like switching license plates or hustling food stamps might be so normative in a community as not to reflect at all on the perpetrator, but 138

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even minor crimes may signal a disregard for rules that would bode poorly for raising children, especially when the state counts on the foster parent to impose rules that the foster parent does not always agree with. Race certainly seems relevant to these evaluations. In some communities, Black male and male with criminal record are nearly redundant terms. Serial socialization of Black men in these communities involves and expects behavior that the state criminalizes, and psychologists conducting criminal-record waivers for foster care can save some time if they downgrade or simply ignore any nonviolent crimes committed by Black applicants. But is that good practice? In our view, there is nothing wrong with using group data to advocate for a change in policy. The state will run into political and possibly legal problems if it creates one waiver process for Blacks and another for everyone else, but it would be possible to use group data to designate highcrime areas and to discount nonviolent crimes by persons who spent their adolescent years in such an area. But when asked to evaluate an individual foster parent, it suddenly becomes less clear how to use race clinically and in a report. Legal issues aside (clinicians are probably not allowed to use separate decision strategies for different races), using race as a substitute for the reasons for an arrest creates new problems. Clinically, it obscures the factors that account for an arrest—the practice argues implicitly that all Black people commit crimes or get arrested for the same reason. Ultimately, using race as a substitute for a functional analysis implies that all members of that race are alike, an assumption that ironically forms the basis of the cognitive aspect of racism. For these reasons, we recommend treating race like any other category—try not to use it to explain. Instead, if the clinician believes that a given Black potential foster parent was arrested because he was Black (i.e., would not have been arrested if he had been White), committed a crime to fit in with friends he is no longer friends with, or felt hopeless about conventional paths to success because of his skin and experimented with rule-breaking, the clinician can just say so. He or she does not have to write that the criminal record is accounted for by the category of race; he or she can explain what race had to do with it. 139

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As we stated previously, this analogizes race to other explanatory categories. You should not write that a defendant is not guilty by reason of insanity because he is psychotic, or that a parent is fit because she is mentally healthy, and you should not write that someone did something because of their race, class, religion, or sex. Instead, you should write about how the evidence that led to the diagnostic or diversity classification affected the context of the behavior in question. A mother is not unfit because she has borderline personality disorder, but she might be unfit if she typically responds to abandonment with rage and typically experiences her child’s developmental gains as abandonments. Similarly, a misdemeanor should not be discounted on the criminal record of a potential foster parent because he is Black. But it might be discounted if it reflected a crime that in his neighborhood at that time was normative behavior or if there is evidence that a White man in his situation would not have been arrested at all.

Consider Reference Groups and Benchmarks People evaluate data differently depending on the comparison group in their minds. Kahneman (2011) provided the example of deciding how much money you would contribute to protect the breeding waters of endangered dolphins and then separately considering the amount of money you would donate to provide skin cancer testing for farmworkers. Results generally show that the plight of the dolphin is evaluated by most people on what might be called a scale of concern for the environment, whereas the plight of farmworkers is evaluated on what might be called a scale of concern for public health issues. Dolphins rank high on concerns about the environment, and farmworkers rank low on a public health scale, so most people evaluating the two causes independently will contribute more to the dolphins. But when presented together, concern for humans outweighs concern for dolphins, and the farmworkers get more. The issue is that an evaluation must be properly framed by choosing an appropriate benchmark. An evaluation always depends on what the thing being evaluated is compared with—what category it is in and how the evaluation is framed. 140

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This concept provides a way to understand mission creep in evaluations of competency to stand trial (Nussbaum, Hancock, Turner, Arrowood, & Melodick, 2008). At first, clinicians evaluated defendants compared with a hypothetical defendant who was just barely competent to stand trial. This hypothetical defendant was derived from opinions in which courts described defendants near the border and said what about them made them competent or incompetent. Nowadays, there seems to be a tendency to compare a defendant with other defendants in general. Because a large proportion of defendants score lower on relevant factors than the average defendant, this has led to an increase in findings of incompetency. One of the main problems in the assessment of convicts for recidivism potential is the failure to denote a proper comparison group. Assessments of criminals to determine if they are sexually violent predators (SVPs), for example, can easily be read as implicitly comparing the convict to the category of all parolees, and the SVP assessment subject looks pretty scary in that company. Use of actuarials has improved the situation, comparing the potential SVP with other men who have been convicted of sex crimes. This leads to only about half of them being described as recidivism risks. But the legal standard is typically that the potential SVP must be more likely than not to recidivate in a foreseeable time frame, and there is no actuarial at this time that can produce a subgroup of potential SVPs who are more likely than not to recidivate. Those who score highest on the best actuarial recidivate at a rate of 42% (Campbell & DeClue, 2010b), which is a lot higher than the base rate of 18% but still lower than the typical 50% legal requirement. Virtually all potential SVPs fall below the proper comparison, but the proper comparison is not the one that is usually made. You may have noticed a connection between the comparison group problem and the base-rate problem. Indeed, it is the initial rarity of incompetence to stand trial and the initial rarity of recidivism that makes relatively framed assessments in these areas so distorted. If the base rate is 50%—say you are choosing an incoming class for a college that accepts half of all applicants—then there would be no difference between the relatively framed comparison to the other applicants and the properly framed comparison to a hypothetical applicant who barely makes the cut. 141

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The implications for assessment are obvious: Consider your reference group or benchmark. The implications for report writing are less obvious. The longer the explanation of this issue (like a long explanation of the base-rate problem), the less convincing it will be in a report. Even writing about it here, as important as the topic is, we can feel some readers’ eyes glazing over. At the least, though, the standard for the legal issue should be spelled out in the report to remind both writer and reader of the appropriate benchmark and reference group. Another problem in SVP evaluations is that they are often in fact about the safety of the community when they are properly about the commitability of the defendant, and spelling out the legal standard—more likely than not in some jurisdictions—could help with that as well. In jurisdictions with no legal standard of likelihood, you should make it clear that your report is descriptive and not predictive. Why are we discussing this issue in a chapter on multiculturalism? Because many problems of multiculturalism in clinical work and in report writing involve reference groups. Should an individual be evaluated against a benchmark of the average person? The average person of that sex, race, and nationality? To apply a label to an individual is to invite evaluation within that category. Environmental causes, public health concerns, and African Americans create parallel problems of evaluation. It is not that it is valid or invalid to evaluate someone or something within a reference group. It is that the choice of a reference group is both extremely influential and largely arbitrary. You should make the reference group you are using explicit, along with your reasons for selecting it, especially if there is any chance that the reader or the law is using a different benchmark.

Avoid Stigmatizing Language One of the many things we like about Goffman’s (1963) approach to stigma, besides his insistence that stigma is situational and universal, is his idea that there are no easy solutions when it comes to stigma management. The only real solution is to change society to the point at which having a disability or a particular skin color does not undermine the individual’s 142

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authority to play various roles within the society. Short of that, every proposed solution has serious drawbacks. For example, hiding a stigma can make you feel like a traitor to yourself, whereas celebrating a stigma can lead to costly ostracism. In the context of there being no great strategies for stigma management, in its Publication Manual, the APA (2010b, p. 76) recommends the use of so-called people-first language, meaning that one should write people with schizophrenia or a woman with epilepsy instead of schizophrenics or an epileptic. This language supposedly avoids treating the group or the individual as if he or she is defined by the condition. However, people-first language also creates a special grammar for stigmas and implicitly communicates that, say, schizophrenia and epilepsy are different from other attributes. You would never write people with licenses to practice psychology for psychologists or people with Irishness for the Irish because being a psychologist and being Irish are not stigmatized (anymore). We also see a language problem when it comes to stigmatized attributes like mental retardation. The stigmatized attribute is bound, by conditioning, to make any term for it aversive. The solution has been to keep introducing new terms that are not (yet) aversive, with intellectual disability next on the list. In the past, idiot, imbecile, and moron were chosen for their neutrality, and look what happened to them. Changing the term for a condition that most people find undesirable might be good social policy, but while one term is designated as official nomenclature, that is the one you should use.

Conclusion Pat Parker began her poem “For the White Person Who Wants to Know How to Be My Friend” with two simple rules: “The first thing you do is to forget that I’m Black. Second, you must never forget that I’m Black.” Parker cleverly summarized the paradox of cultural competence. Don’t try to find some magic way of putting people into categories that doesn’t stereotype them. Don’t try to find some phrasing that will immunize categorizations against racism and other derogations. Instead, interrogate the categories you put people in and make sure you use them wisely, if at all. 143

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Take-Home Messages 1. Consider the norms and values operating on your subject. 2. Consider the social reinforcers operating on your subject’s behavior. 3. Treat the subject as you would like to be treated, and use the same vocabulary for the subject that you would use for yourself. 4. Do not use categories to explain, and consider whether a category accurately reflects the person before describing him or her as a member of a category.

Questions to Ask Yourself 77 When explaining behavior, have you considered what the person experiences as normative? 77 Have you described people in a way that does justice to their various identifications without stereotyping them? 77 Have you considered which aspects of the person are marginalized or stigmatized by the person, the person’s family, the person’s community, and you?

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10

Writing an Effective Report

Principle: Work backward from your opinion to its foundational ideas, and expound on these with topic sentences and paragraph unity.

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orensic reports should not parallel the assessments they are based on. “Form ever follows function” (Sullivan, 1896), but the function of an assessment is very different from the function of a report. An assessment generates evidence relevant to a referral question, evidence that allows a clinician to form an opinion. The report expresses that opinion in a way that is convincing and clear to the reader. Because the report is presented in a specific context with local norms and requirements, the writer must take those into account. But ultimately, a report should rest its opinion on a series of propositions, each of which is presented with the evidence that supports it. Good writers repeatedly ask themselves, “How do I know that?” and they answer in writing. Another important difference is that in

http://dx.doi.org/10.1037/14182-011 Principles of Forensic Report Writing, by Michael Karson and Lavita Nadkarni Copyright © 2013 by the American Psychological Association. All rights reserved.

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assessment, clinicians must do everything possible to manage their confirmation bias. In contrast, the report is not written until the clinician’s mind is made up, so the report must do everything possible to manage the reader’s confirmation bias while sticking to the scientific principle of persuading with logic and evidence rather than with authority and emotion.

Topic Sentences You learned how to link evidence and propositions in middle school, where you were told that every paragraph should have a topic sentence, every paragraph should be about only the topic sentence (paragraph unity), and paragraphs should build on each other. In forensic reports, the topic sentence of each paragraph should be its first sentence; this helps readers find evidence that supports propositions they have questions about. A header or an introductory clause (e.g., Regarding Employment History) can provide this function of topic sentences. Ideally, the topic sentence should be a naked assertion of the idea you are trying to demonstrate; the topic sentence should not include the data that support it. Small departures from this practice will not matter, but sticking to the formula for writing a paragraph will do more than any other practice to help you comply with commentators’ exhortations to distinguish data from inferences. Thus, although there is nothing intrinsically wrong with writing, “According to the WAIS results, Mr. X is mentally retarded,” we prefer to write a topic sentence that asserts mental retardation and to keep the mention of the WAIS in the body of the paragraph, where it can serve as evidence. Put differently, if the topic sentence contains evidence, and not just the assertion itself, it can be read as asserting that the evidence is reliable rather than valid. For example, the topic sentence “She stated that her children were never out of her sight” asserts not that the children were never out of her sight but that she said so. The rest of the paragraph would then have to prove that she said so. This might indeed be the writer’s point but only if there was a dispute about what she said. More likely, the dispute or relevant point is about watching the children, not about 146

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claims to have done so. “According to the WAIS, he is mentally retarded” makes an assertion not about his level of intelligence but about how to interpret the WAIS. This will be overlooked by readers who know what you mean, but why rely on readers to know what you mean? Good writing says what it means. One way to write a topic sentence, especially in procedure-by-procedure and issue-by-issue reports, is to read a paragraph you have written and to ask yourself what you want the reader to glean from it. For example, if local custom requires (or if you prefer) a section on background information, you can write it up and then summarize it in an opening assertion. “From a forensic psychosocial standpoint, Mr. X’s childhood was unremarkable through adolescence.” The topic sentence for the next paragraph might be, “After high school, Mr. X’s psychosocial functioning became erratic.” The goal is for an objective, nonexpert reader to finish each paragraph and think, “Yep, that topic sentence sure rings true.”

Building a Paragraph After an unsupported assertion, the second sentence in each paragraph explains any terms in the topic sentence that might help the reader understand exactly what is being asserted. This second sentence is optional. There’s probably little reason to write “By mentally retarded, I mean” in a report on what to do with a child with a low IQ in a custody evaluation, but it might be very useful to include a sentence that starts that way in a report on whether the state can execute a defendant under the Eighth Amendment because in the death penalty assessment, a dispute about the definition of mental retardation is likely to arise. The remainder of the paragraph cites and explains the evidence that supports the topic sentence. It is the writer’s answer to the question “How do I know that?” Each topic sentence should be supported by the evidence that the reader will find most convincing and by the evidence that the writer finds most convincing. Side issues belong in separate paragraphs. Disconfirming evidence supports some other proposition that ought, properly qualified, to be the topic sentence of some other paragraph. “The 147

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various bits of evidence of antisocial behaviors do not, in my opinion, justify a diagnosis of antisocial personality disorder.” “Like many mentally retarded people, Mr. X is not mentally retarded on every cognitive task.”

Working Backward Your assessment generated data, including some data that came from miniexperiments you staged to clarify issues. Having gathered all these data, you formed an opinion about the referral question that accounted for the most salient and most unexpected data. The first step in working backward is to state that opinion, however bluntly or maladroitly, in writing. Generally, this opinion (duly revised) will become the first sentence of the last paragraph of your discussion. Next, ask yourself how you know your opinion is correct, why logically and evidentially it is your opinion. Your answers to this repeated question will form the assertions you need to establish in prior paragraphs. If such an assertion itself has an embedded assumption, critical thinking should reveal it, and that assumption will have to be argued in a prior paragraph of which it will become the topic sentence. For example, say you are doing a child custody evaluation; you have met all your ethical and clinical obligations and gathered and weighed all your data, and your opinion is that Parent A should have sole physical custody and Parent B should visit the children on Wednesday evenings and Saturday afternoons. Why?—you ask yourself. Suppose your answer is that Parent A is a reasonably healthy person, stable, involved in parenting, a bit submissive and tentative but trainable, and generally just fine, whereas Parent B is a scary, unpredictable drunk who can put on an act for a few hours at a time but ultimately experiences all obligations and impositions as shackles to be shattered by drinking and refusing to yield. Working backward, you have a lot to demonstrate about each parent. About Parent A, you have to demonstrate (a) overall mental health, (b) involvement in parenting, (c) empathy for the children (because this is the relevant point about mental health and involvement), (d) submissiveness, and (e) treatability for the submissiveness. Each of these issues 148

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becomes a topic sentence of a paragraph whose body explains why you think it is correct. Suppose that in writing your paragraph on treatability, you realize that you cannot make much of a case for the idea that Parent A can change that submissiveness. If you also think that it is inevitable that the children will challenge Parent A (so that submissiveness could become a significant parenting weakness), you can change your recommendation to include a statement that it is meant to be temporary and depends on Parent A demonstrating an ability over the next year to stand up to the children. There is also a list of assertions about Parent B that can be derived from the original opinion. Suppose that, among other things, you want to show that Parent B is not motivated to change the alcohol abuse. This idea only makes sense if the reader agrees that Parent B has an alcohol problem. That means you have a write a paragraph asserting this proposition, and say why you think there is a problem with alcohol. Meanwhile, you find yourself writing that one reason Parent B drinks is that a lack of intellectual ability keeps Parent B from being successful at work. This statement signals a need for three prior paragraphs, one asserting poor intelligence, one asserting employment problems, and one asserting a causal connection between the two. The general principle is that you can work backward by critically thinking about each assertion to determine what its foundations are, and these form topic sentences of prior paragraphs. Any assertion established by a paragraph can then be used as evidence in a subsequent paragraph in support of a different proposition. Once you establish that Parent B is an alcoholic, for example, you can use the alcoholism as evidence in support of an assertion of unreliability. Facts proven as propositional topic sentences become evidence in support of subsequent propositions. The reader should be able to glean the gist of your argument by reading the first sentence of each paragraph. Having established all the components and subcomponents of your opinion in prior paragraphs, you can finish your discussion with your opinion fully stated. “In my opinion, Parent A ought to receive full physical custody of both children.” Your evidence in support of this assertion 149

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consists of all the assertions you have established in prior paragraphs and are now able to use as facts. In this way, the discussion culminates with a series of propositions on which the opinion rests. If one of these foundational propositions proves to be impossible to establish convincingly, then you can change your opinion, although this happens rarely if you have subjected all your ideas to critical thinking before making up your mind. In practice, you can write the final paragraph, turn each of its ideas into a topic sentence, and then fill in the body of each paragraph with the evidence that supports it. As noted in Chapter 2, this final paragraph can also make an appearance just after the reason for referral under a header like Executive Summary or Brief Overview (Alban, 2012).

Recommendations Recommendations, too, can be worked backward. Ask yourself how you came up with Wednesday dinners and Saturday afternoons. You’ll develop reasons and their foundations, and these will lead to topic sentences for your discussion. For example, if you think Parent B can only go a few hours before resenting the children, say so in a topic sentence, and then cite your evidence. If your recommendation implies a belief that all children or these particular children need stability, say so, say what you mean by stability, and cite your evidence. If the schedule idea came from the family, and if you believe that schedules that come from the family are more likely to work, say so and then argue the point. Useful therapy recommendations name specific goals to work on and are customized to the subject’s circumstances. Beyond that, the most useful recommendations explain how the therapeutic action will help, and they alert the therapist to potential roadblocks. Recommendations for modes of therapy—individual, group, substance abuse treatment, anger management—do not help as much. You ought to do whatever you can to prevent the therapy from being about the subject’s involvement with the legal system and keep it focused on the problems that led to the subject’s involvement with the legal system. Of course, if you think the subject can benefit from therapy to manage feelings about, say, being accused of a 150

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crime, say so. But distinguish that kind of help from a need to work on, say, underlying impulsivity. The best therapy recommendations alert the therapist to what is likely to go wrong in the therapy on the basis of your understanding of the person’s psychology and what the therapist can do about it (Karson, 2006b). For type of treatment, we will specify individual or family therapy or residential or foster care, but we emphasize what we want to happen there. We do not say individual therapy to work on her impulsiveness, for example, but (having explained her impulsiveness, say, as a way to convert anxiety about vulnerability into excitement) we suggest creating a safe enough place with a another person (the therapist) where she has some reasonable guarantees that she will not be all that vulnerable and can see what it is like to stick with the vulnerability rather than to deflect it with excitement. We are then recommending exposure to vulnerability, but we do not use the word exposure. Technical jargon in the recommendations section, like naming a theoretical orientation (e.g., recommending psycho­ dynamic therapy or cognitive behavior therapy) alienates readers with other vocabularies and other orientations, and it is unnecessary for readers with the same orientation. If you say you want her to find out what seems so dangerous about being vulnerable, every theory can assimilate that goal. Next, we suggest, say, that she is likely to behave in a way that will make the therapist angry, and we try to prepare the therapist by suggesting what to do when she does. It is our belief that most forms of treatment depend on the client messing up the treatment in a manner that is analogous to how they mess up other situations, and it is the therapist’s job to react differently from people in the other situations. Forewarning the therapist of the pattern can help the therapist identify it in real time and not reenact it. Recommendations for treatments that are not actually available are not much use (McIntyre, 2011; Melton, Petrila, Poythress, & Slobogin, 1997). This problem can be managed in various ways, including identifying local services for the reader to refer the subject to, changing recommendations to reflect available services, and providing both ideal and realistic recommendations labeled accordingly. This is not too different 151

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from making recommendations in light of available finances. A well-to-do couple can be advised to hire a maid or a psychoanalyst to take some of the pressure off the family or to work on one spouse’s intimacy problems; a working-class couple needs a different solution. Perhaps needless to say, if there is an empirically supported treatment (EST) for the subject’s problem, it should be recommended. Of course, before doing so, the report writer should engage in critical thinking and clinical judgment about the EST analogous to what we recommend before using a nomothetic test or a decision-making algorithm. That is, you have to ask if the population, the clinical problem, and the situation on which the EST was validated are sufficiently like the individual, the clinical problem, and the situation in front of you. There are always some important ways in which the current case is different from the validation cases, and only clinical judgment based on theory and critical thinking can decide if those differences are significant.

Conclusion Writing a forensic report draws on some of the same skills as conducting a forensic assessment, including critical thinking, understanding the psycholegal question, and testing alternative ideas with reliable data. Writing differs from evaluating in important ways, perhaps the most significant of which is that you should evaluate, to the extent possible, with an open mind, whereas you should write, subject to revision if some ideas cannot pass muster in the process, after making up your mind. In the Appendix, we present two sample reports that illustrate these principles.

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Take-Home Messages 1. Use topic sentences and paragraph unity. 2. Unpack your opinion to identify its building blocks, and attach evidence to each step. 3. Once a proposition is supported by evidence, use it as evidence in support of other propositions. 4. Seek to have your reader finish each paragraph and agree with its topic sentence.

Questions to Ask Yourself 77 Is your opinion about the referral question clearly stated (even if the opinion is that you do not know) and easy to find? 77 Has every significant implied claim been articulated as a topic sentence of a prior paragraph and established by citing supportive evidence? 77 Are your claims or propositions clearly distinguished from your evidence?

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Appendix: Two Sample Reports

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e each like our own report below, although we recognize that neither is perfect. Michael’s point-by-point report follows the formula in Chapter 10. He wrote his opinion first and then dissected it to find the dozen or so things he needed to demonstrate to support it. Each of these things became a topic sentence of a paragraph, each followed in the body of its paragraph by the evidence on which it rests. The result, we hope, is a cogent argument, a blueprint for testimony. Lavita’s report goes procedure by procedure. If only the summary is to be read, readers can easily find in the unread portions whatever sections they might need to resolve questions they have about the summary. The report presents virtually every psychological fact that is relevant to the psycholegal issue. For this reason, for space considerations, we had to omit or summarize sections from the actual report. The report communicates, perhaps, less cogency than Michael’s report but greater thoroughness (that everything was considered) and comprehensiveness (that everything is reported).

Psychological Evaluation Jane Doe (1/1/75) Dates of evaluation: 6, 7, 10 September 2001 Examiner: Michael Karson, PhD

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Reason for Referral Ms. Doe became involved with the Department of Children and Families after the baby’s father Thomas Smith (1/1/72) battered their then 3-month-old son, Jack (1/1/01), on 30 March 2001. Jack suffered numerous head injuries, a fractured skull, and scars to his back and arms. Mr. Smith eventually pleaded guilty to various assault charges and relinquished his parental rights. Immediately after the assault, while the investigation was ongoing, Jack was placed in foster care when Ms. Doe refused a plan to keep Jack away from Mr. Smith. The Department of Children and Families is concerned that little progress has been made in Ms. Doe’s ability to meet Jack’s psychological and developmental needs, especially in light of the legal requirement to achieve permanency within 12 months of placement. I was asked to help design a treatment plan that could reasonably be expected to help with Ms. Doe’s parenting and to comment on her parental fitness. Procedures Document review (long list omitted, including reports of current providers and visit supervisors) Collateral contacts (list omitted) Clinical interview (dates of services omitted for each procedure) Early memories Rorschach Minnesota Multiphasic Personality Inventory—2 (MMPI–2) Wechsler Adult Intelligence Scale—IV (WAIS–IV) Observation of a visit with Ms. Doe Observation of a visit with the foster parents Early memories are interpreted not as causal events but as important patterns in the individual’s personality. The Rorschach is the wellknown inkblot test measuring reality testing and executive functioning. The MMPI–2 is a long true–false personality inventory that provides scores on scales related to numerous clinical conditions. The WAIS–IV is an individually administered test of intelligence, measuring cognitive functioning in several different spheres. 156

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Discussion Jack’s Needs Like all babies, Jack needs to live with people who privilege his emotional security ahead of other considerations, which would help him develop a secure attachment. An early attachment, or a first social repertoire, is the cornerstone for interpersonal relatedness, self-cohesion, and self-esteem. As with all babies, for Jack it will be fostered by active, empathic care­ giving because children form attachments to people who take care of them. Empathic caregiving, in turn, requires an accurate appraisal on the part of the caregiver regarding the child’s needs and abilities. Indeed, a useful way to construe child abuse and neglect is to consider the abuser as misjudging the age of the child, so that a parent gets angry at an infant for crying as if the infant were doing it on purpose or the parent misjudges the child’s ability to care for himself. Jack needs a caregiver who can take rejection in stride and who can stay emotionally involved in situations in which the caregiver is not immediately welcome. This special skill is needed because Jack is suspicious of caregiving, according to the development evaluation conducted by Dr. Pedia. Because initial efforts to take care of Jack may be met with caution, he needs a parent who will stick with it. Jack is developing a secure attachment in the foster home. In my own observation, I saw Jack tracking his foster mother, Ms. Foster, responding happily and even joyfully to her voice and touch, and crawling to Ms. Foster’s proximity when confronted with a stranger. Reciprocally, I observed both foster parents encourage Jack to explore the playroom, and Jack accepted their suggestions. I also saw both of them accurately, in my opinion, respond to cues from Jack, for example, distinguishing a whine of anxiety by encouraging him to open a toy box (with Mr. Foster’s assistance) from a whine of distress by changing his diaper. Both parents acknowledged that they are starting to feel about him in a way that would make it hard to lose him. If Jack is to be raised by his mother, who has already disappointed him, his mother needs to be adept at overcoming that disappointment. It is possible that the only two people in the world currently fit to raise 157

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Jack are the Fosters. Any other plan would disrupt the attachment and the relationship-specific interpersonal skills that he is developing with them. Still, if Ms. Doe were able to empathically support and even celebrate Jack’s developing attachment with the Fosters, she might be able to build on that relationship to create an attachment of their own (with loads of empathic caregiving). Even then, however, Ms. Doe would have a child on her hands who would be in mourning for other people, and she would have to demonstrate resilience around being looked at as second best or as a poor replacement for the Fosters. Ms. Doe’s Psychology Ms. Doe is an unusually intelligent woman. Her Full Scale IQ on the WAIS–IV was 122, placing her in the 93rd percentile (she scored higher than 93% of people her age). Her other scores on subscales were all similarly high without suggesting notable weaknesses. Her success as a clerical worker is probably a function of her intelligence, although I wonder if she would be happier at work with something more challenging. Unfortunately, Ms. Doe uses her intelligence to make excuses for her behavior rather than to change her behavior. A striking example is the fact that she reported having read numerous selections online on the rights of parents in the child welfare system, including relevant appellate opinions, but she has never read a book or even a magazine article about raising children. She has elaborate political explanations regarding the status of working mothers, and she rightly blames Jack’s injuries entirely on Mr. Smith, but she also blames Jack’s removal on the child welfare system and not on her own refusal to suspect Mr. Smith of the abuse. Her defense was so staunch, including a stated intent in the investigative report to continue to ask him to provide Jack’s primary care, that Jack had to be removed for safety reasons while the investigation was ongoing. Currently, she blames the foster parents and Jack for her own inability to engage Jack during visits (see the paragraphs that follow). Ms. Doe often misconstrues Jack as if he were a much older child, including blaming Jack for poor visits. In the visit I observed, Jack tried to make eye contact with me off and on but never looked his mother in the 158

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eye. This observation aligns with similar avoidances reported by the visit supervisor, Ms. Visit. Whenever Ms. Doe noticed Jack looking at me—a total of 11 times in a 2-hour visit—she reproached him. “You are here to play with Mommy.” “Don’t look at him; look at me.” “You’ve decided to be a mean boy today, haven’t you?” Not once did Ms. Doe try to engage Jack by presenting an object of interest, by sitting next to me and engaging him from there, or by talking about me to Jack, all suggestions provided by Ms. Visit and documented in her reports. When I later asked Ms. Doe why she had not tried these things, she said, “Jack is just being contrary. He’ll stop when he feels like it.” Ms. Doe also asked Jack to make it clear whether he was wet or hungry or tired (Jack is preverbal) so she could help him. It is very difficult for Ms. Doe to tailor her parenting efforts to Jack’s needs when Jack’s developmental age is misconstrued. Ms. Doe’s misperception of Jack is related to her misperception of herself. On the Rorschach, there were several instances of misperceiving the inkblots, of providing answers that just do not resemble the stimuli. The worst of these was seeing profiles of two little girls where many people see girls, but where most people see the concavity of eyes between brow and nose, Ms. Doe saw the mouth. On MMPI–2 Scale 8, typically interpreted as alienation from oneself, she scored in the 92nd percentile. Ms. Doe apparently genuinely believes that she is a “doting mother,” even though she assumed no responsibility for feeding or changing Jack while they were living with Mr. Smith. Ms. Doe mated with a man of whom she said, “I thought I was in love with him,” and has chosen work that she finds “boring,” both of which suggest a disconnection from herself. On the L scale of the MMPI–2, she endorsed a large number of absurdly self-congratulatory items, an especially significant result given the items’ transparency to someone as smart as she is. Ms. Doe has a personality disorder. By personality disorder, I mean the DSM-IV definition of long-standing, rigid traits that interfere with her personal life, and I also mean the developmental definition of construing the interpersonal world in limited and idiosyncratic ways. Ms. Doe has never by her own report had close friends in whom she could confide. She was so withdrawn as a child that she received special education despite her 159

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intelligence for emotional reasons from third grade until middle school. She has problems empathizing with her son, as noted previously, and began an open affair with her current boyfriend while pregnant with Jack and throughout her coparenting relationship with Mr. Smith. She told me that Mr. Smith did not mind this arrangement. Her spotty reality testing, sense of alienation, and gaps in empathy indicate a personality disorder in the developmental sense. Ms. Doe organizes her experiences of childhood and of many interpersonal situations as opportunities to escape from abuse. One of her earliest memories of childhood involved a physical fight between her parents that she tried to drown out by watching cartoons with the volume turned up. This image or pattern pervades her experience of the world and was, she said, typical of a childhood in which she had to raise herself. Examples of the pattern’s organizing influence are plentiful. She distracted herself from pregnancy and marriage with her new romance, which in turn helped create the kind of turmoil she expected and then avoided even more energetically by avoiding caretaking of Jack. This romance and her unengaging work continue to distract her from the turmoil with the Department of Children and Families. She sees friendship as an opportunity to be exploited (“friends are people you let take advantage of you”) and she avoids it. Her escape orientation produced her high score, in the 97th percentile, on MMPI–2 Scale 3, which in this context can be interpreted as an effort to manage her inner turmoil by pretending that everything is normal and pleasant, that is, by escaping from its reality. Ms. Doe’s organization of her experience keeps her from benefitting from services. Part of what it means to say she has a personality disorder, besides being a general statement of her not being likely to change, is that she incorporates a variety of experiences into her escape-from-turmoil model. Instead of viewing me, for example, as observing her visit and conducting an evaluation to determine if she can successfully raise Jack, she instead saw me as purposely trying to raise her stress level, and she responded to this perception by repeatedly checking her cell phone for messages or texts while with me. In therapy, I doubt she is able to experience her therapist as being there to help her. Instead, she sees the therapist as confronting her with information about abuse and conflict, and 160

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she responded at first by missing sessions and lately by refusing to talk about child abuse or any but the most instrumental aspects of parenting (according to her therapist). Her therapist sees this positively, as Ms. Doe being able to advocate for her own needs, but I see it as another example of avoiding conflict. Ms. Doe’s avoidance of conflict has kept her from accepting even verbally any responsibility for Jack’s placement in foster care. Thus, she would not be much help to Jack if there were a transition from the security of the foster home. In all likelihood, she would react to Jack’s distress the way she reacts to his distress in visits, which is to say that she puts responsibility for distress on others and checks out of the situation emotionally or physically, and she expects Jack to act like a much older child to manage distress (just as Ms. Doe thinks she had to act like a much older child and take care of herself from a young age). Placement Implications Parental fitness is a function not only of a parent’s skills but also of the parent–child relationship, the match between a parent’s skills and a child’s needs. In my opinion, there is no treatment plan that can reasonably be expected to make enough progress toward reunification in the legal time frame (6 more months) or in Jack’s developmental time frame (which may already have expired). Ms. Doe has never been an active caregiver for Jack, so she would be starting from scratch rather than building on prior skills. Intellectually, Ms. Doe understands that it is her job to take care of Jack, but behaviorally, she exhibits expectations that Jack shares in that responsibility in a way that is not appropriate to Jack’s age. Jack is forming a secure attachment with his foster parents, but rather than try to build on that attachment, Ms. Doe resents it. Ms. Doe, rather than being particularly adept at holding herself accountable for Jack’s disappointments with her, blames the system for Jack’s placement into care. Ms. Doe has a personality disorder, meaning an inflexible way of seeing the world that is unlikely to change. Specifically, she expects abusive or conflictual dis­ appointment and tries to position herself as an escapee. This stance helps her find occasional peace, but it interferes with her ability to make things better. The treatment plan so far has shown very little progress: Jack still 161

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will not look at Ms. Doe in visits, Ms. Doe continues to blame Jack and the foster parents for the poor visits, and Ms. Doe will come to therapy sessions regularly only if the therapist agrees not to talk about child abuse or parenting conflicts. At this rate, she cannot reasonably be expected to make sufficient progress in the legal time frame.

Diagnostic Impression Axis I: deferred. The circumstances of the evaluation were not conducive to a frank discussion of symptoms. Axis II: personality disorder, not otherwise specified, with histrionic and dissociative features. By histrionic, I mean Ms. Doe’s tendency to pretend that everything is normal by forgetting unpleasantness and concentrating on her boyfriend. By dissociative, I mean her ability to space out and become absorbed in her cell phone and clerical work as a way to avoid turmoil.

Recommendations 1. Over the long run, Ms. Doe’s individual therapist might want to comment repeatedly on the circumstances of their interaction and on how the therapist is perceived, rather than feeling as if she has to choose between having sessions missed and not discussing important material. The similarity between not talking about abuse and watching cartoons to drown out a fight could be noted. As long as the avoidance is indulged, little progress can be made on the turmoil. 2. In my opinion, no treatment plan could reasonably be expected to make significant gains in Ms. Doe’s ability to parent Jack in the legal and developmental time frames.

_______________________ _______________ Michael Karson, PhD, JD, Date ABPP (clinical) 162

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Psychological Evaluation Name: Kirby L Date of Birth: (date) Date of Report: (date) Reason for Referral Mr. Kirby L, a 40-year-old single man, was referred for a psychological evaluation by his attorney, Mr. Esquire, to assess his competency to proceed. On the basis of legal records provided by Mr. Esquire, Mr. L has been charged with two felony counts in County, CO: Internet luring of a child with intent to exploit and enticement of a child. Methods Used (long list of procedures, documents, and collateral contacts omitted)

Informed Consent Prior to the individual interview, Mr. L was informed of the nature and purpose of the evaluation, the limits of confidentiality, the absence of a therapeutic relationship, that a report would be submitted to his defense attorney (and subsequently the court and the district attorney), and that I might be called to testify. After I repeated these items a few times each, Mr. L indicated his understanding of this information and agreed to continue with the evaluation. Mr. L signed various consent forms for the release of information.

Relevant Background Information Mr. L’s home life in childhood was fairly unremarkable. He reported that he is the youngest of four children. His father reportedly lives in his childhood home in California. According to Mr. L, his mother died of a heart attack when he was a teenager. Of her death, he said, “If I had not 163

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gone to soccer practice, I could have got there in time.” Mr. L indicated that he was close to both parents and continues to have a close relationship with his father. Mr. L commented that he considered himself to be a “pretty good helper,” but he needed guidance from his mother in completing simple household chores. According to Mr. L, he has been repeatedly told by adults that he needs to wait until others have finished talking before interrupting, noting that he has difficulty “not talking out of turn” and “waiting for others to finish.” He noted no major illnesses but he recalled one surgery during childhood and two trips to the emergency room without any loss of consciousness. When asked if he was ever truant or ran away from home as a child, Mr. L said that he “got lost one time, but did not know I was lost.” He explained that as a child he went exploring in the fields near his home and the police reportedly needed to bring him back home. Mr. L always had academic difficulties. In middle school, he was repeatedly sent to the principal’s office for interrupting his teachers. He noted that he was in “special education” classes throughout his schooling, with no success when he was mainstreamed. Mr. L reported that he graduated with a “special diploma.” According to Mr. L, he was classified as being “perceptually impaired,” which he understood to mean a “hard time comprehending things that I hear and read.” He added that he has worn glasses since he was a child (he was unable to read the clock in the room without his glasses). Mr. L’s employment history has been spotty. He indicated that he worked in his “final senior” year of high school at a fast food restaurant doing maintenance; he said that “cleaning the windows” was difficult but that “mopping and cleaning tables” was easier. He described an incident in which he burned himself while cooking without realizing he had done so until it began hurting. He reported a series of jobs at fast-food places that each ended within a few days for various reasons. According to material provided by Mr. Esquire, Mr. L has been receiving Social Security disability benefits for several years. Mr. L has had prior criminal involvement in which he had trouble assisting his attorney. He said he did not fully understand his previous charges and was surprised the case went to trial. He said that his “lawyer did all the work . . . I did not have to do anything,” and that while 164

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he watched his attorney, he (Mr. L) “did not know what he was doing.” According to Mr. L, his attorney tried to explain matters to him (such as the reason the case went to trial), but that it still remained unclear to him; he said that although he could have told his attorney he did not understand, he felt as if he should not say anything. He added that he has a difficult time asking questions so he did not say any more to his attorney at that time. About the jury, he stated that he “knew what they were there for but did not understand the process.” He reportedly received probation. Mr. L’s social life has been unsatisfying but not altogether absent. Mr. L described having had several “girlfriends” and commented, “If I was married, I would not be in this situation.” He described having a number of friends with whom he speaks regularly, but he added that he rarely gets together with others. Substance use seems not to be a problem. Mr. L denied ever using drugs or alcohol. He indicated that he drinks one or two cans of soda per day. He denied being the victim of any physical or sexual abuse but mentioned that he was “teased” and “picked on” by his school-age peers. In the jail, Mr. L’s mood has been variable. He said he feels “scared” and does not feel safe because other inmates “shout out” and “get really aggravated.” At one point during the interview, he went from reporting feeling scared to a belief that others were intentionally trying to scare him. Mr. L recalled getting frustrated more on the outside, when “something does not go right or I can’t get it to work like it should . . .  I say work you darn thing.” When anxious, he said he “paces around.” When sad, he described “hanging my head and getting teary eyed.” Mr. L described feeling “sad, nervous, and shaky” just a few days prior to our interview. Mr. L has found previous treatment helpful for emotional problems. He spoke about seeing Dr. Therapy once a week while living in California. He offered that his sessions with Dr. Therapy helped because it felt good to talk about stuff and kept his mind off “bad things” and situations. In further describing what he meant by bad things, Mr. L noted he was referring to “voices” that have not occurred for years and “getting into situations like I don’t want to get into.” 165

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Mr. L did not represent a good understanding of why he is in trouble. In regard to the current charge, he said that he had typically spent all day on the computer talking to people in chat rooms and watching television at the same time. He commented that he has numerous people (108) on his friends list, all of whom he believed to be “normal persons on the Internet.” When asked to explain how chat rooms work, Mr. L said that there are chat rooms for various states and that it asks your birth year so it can determine your age; however, he remarked that he once went on what he thought was a NASCAR chat room and it ended up being a friends and romance category room.

Collateral Information Numerous psychological, educational, and legal documents were thoroughly reviewed in preparation of this case. Although it is impossible to convey the totality of each of the documents in this report, a summary of the relevant documents is provided in the sections that follow. (Many of these summaries are omitted here.) Educational Records Mr. L’s educational records were provided by Mr. Esquire. Records indicated that despite an uncomplicated pregnancy and delivery, Mr. L did not meet developmental milestones within the expected time frames, showing mild delays in his motor skills and significant delays in his language development. He was also found to have impairment in his visual perceptual functioning resulting in a specific learning disability. According to the educational records, prior to school age Mr. L was receiving speech therapy, was classified as neurologically impaired, and was given a diagnosis of minimal brain dysfunction. (The diagnosis, pervasive developmental disorder, was not in official use at that time.) He was also seen as distractible, excitable, and perseverative in a classroom setting and received special education services through an individualized educational plan throughout his schooling. His high school diploma was reportedly not similar to that received by mainstream students, with special accommodations made 166

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for his intellectual, language, and auditory processing deficits. There are repeated allusions to his not being able to follow what was being said in the classroom and repeated failed efforts to help him with this. Intellectual Assessments Mr. L appears to meet the requirements for a diagnosis of mild mental retardation. Mr. L’s intellectual functioning has been assessed several times, with the most recent assessment having been conducted on (date). Mr. L was administered the Wechsler Adult Intelligence Scale—IV (WAIS–IV). His Full Scale IQ was found to be 65, in the 1st percentile (meaning that he scored higher than 1% of people his age). Regarding the components of IQ, his Verbal Comprehension score of 78 placed him in the 7th percentile; his Perceptual Reasoning Score of 67, in the 1st percentile; his Working Memory score of 55, in the 0.1 percentile; and his Processing Speed score of 81, in the 10th percentile. Mr. L’s recent scores are consistent with results from testing before he was charged with any crimes and before he sought disability income, and they are consistent with information garnered from his educational records. Scores as low as Mr. L’s run into a floor effect, meaning that it is sometimes difficult for a test to distinguish very low functioning from extremely low functioning. Still, his history of extremely low scores on Working Memory (or, in earlier versions of the test, on its components) probably reflects a profound difficulty with listening, retaining, and using auditory information. Jail Records According to jail records, Mr. L seemed guarded and appeared to lack motivation when evaluated in (date). Dr. Forensic observed that Mr. L appeared to present with learned helplessness, such that if he said “I don’t know,” he would be left alone. Although Dr. Forensic offered his belief that Mr. L may have been embellishing his deficits, he clarified that he did not believe that this was to the extent of his actually having functional capacities. As noted previously, jail records from Mr. L’s date of admission to the present were received and reviewed. No behavioral problems were 167

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documented in recent progress notes, although notes indicated that Mr. L had been observed to be tearful. Previous Psychological Treatment According to Dr. Therapy, he has been involved with Mr. L for several years. He stated that, on the basis of his formal evaluation and observation of Mr. L, Mr. L lacks the ability to apply relevant legal concepts and principles to his own case. He further noted that Mr. L also lacks the capacity to weigh the various plea options. Dr. Therapy indicated that he regularly met with Mr. L, providing him support, guidance, and cognitive restructuring; he said that there were no overt behaviors that needed to be modified because Mr. L was always compliant and showed no sign of defiance at home. Mental Status Mr. L, a 40-year-old White man, was seen on two occasions at the jail. On both occasions, he was appropriately dressed, with good hygiene. Although there were no notable difficulties with movement, his gait seemed somewhat awkward; there was some evidence of involuntary head and upper body twitching and slight tremors in his hands. As noted previously, he wore glasses throughout the interview. Mr. L made little eye contact during the interview, tending to briefly look and then avert his gaze. He seemed cooperative with the interview process and appeared eager to please because he attempted to respond to all questions asked of him. His rate of speech varied, ranging from halting at times to rapid bursts of language. Although he appeared to understand the questions asked of him, there were times when he responded to what he thought he heard rather than what was actually asked of him (e.g., when asked about his “health,” he heard “helper” and responded accordingly). Mr. L did not ask for questions to be repeated or ask for clarification if he did not understand a question, tending to give the impression that he may have understood more than he actually had. His memory appeared relatively intact. As noted previously, Mr. L was seen on two occasions, with his affect notably different during the second visit. He appeared more anxious 168

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during the second meeting, with increased involuntary movements and greater difficulty with his speech. It is possible that his affect and behavior during the second meeting may have been due to the unexpected nature of the appointment; whereas he fully expected me at the first meeting, commenting that his attorney had mentioned I would be coming to see him, the second appointment time was not known to the staff or Mr. L. His reasoning and judgment seemed poor, yet consistent with his intellectual functioning in that he tended to make somewhat erroneous connections between events. As noted previously, he mentioned that he had previously heard voices many years ago but stated that he was no longer bothered by any symptoms of psychosis. On a formal assessment measure of mental status, Mr. L was oriented to time, place, and person. He appeared to have difficulty on tasks involving attention and concentration and did poorly on a task involving recollection and comprehension of a story. His overall score suggested that he was within the norms for someone with less than a standard high school diploma.

DSM–IV–TR Diagnoses Axis I: pervasive developmental disorder not otherwise specified Axis II: mild mental retardation Axis III: deferred Axis IV: problems related to the social environment, occupational problems, problems related to interaction with the legal system Axis V: Global Assessment of Functioning Scale 40

Competency Evaluation According to a1999 memorandum from the Colorado Office of Legislative Legal Services (§16-8-102 [3], C.R.S.), a defendant is considered incompetent to proceed if he is suffering from a mental disease or defect that renders the person incapable of understanding the nature and course of the proceedings against him or of participating or assisting in his defense or cooperating with his defense counsel. 169

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Competency was assessed through specific interview questions and observations of Mr. L interacting with his attorney as well as by the Mac Arthur Competence Assessment Tool—Criminal Adjudication (MacCAT– CA) and is be discussed in terms of strengths and deficits within the three statutory elements. The MacCAT–CA provides a measure of impairment in the three areas covered by the Dusky standard: understanding, reasoning, and appreciation. A standardized protocol is conducted in which questions relating to a vignette are posed, followed by standardized questions relating to the client’s case. Competency Strengths and Deficits In terms of understanding the nature and the course of the proceedings against him, Mr. L was able to recite his two charges but added that he did not “understand them” and had “never heard of them before.” He observed that when the police arrived and had him in handcuffs, he knew he “was getting arrested for something but did not know what.” According to Mr. L, although he was given his Miranda rights, he stated that he informed the officer that he did not understand them, explaining that “questions were mixed with other questions so kind of confused me.” Mr. L noted that he was “under a lot of pressure . . . I was scared and stuff.” When asked when he learned of his charges, he said he was told of them by the person who brought over his property, explaining that he asked the officer about the level of the charges and that he (Mr. L) responded, “Not too bad, pretty low.” On questions related to Mr. L’s understanding of court personnel, he described the role of a district attorney, “to get a conviction”; of a defense attorney, “to get an acquittal”; of a judge, “listens and rules on evidence”; of the jury, “they decide the verdict in the case”; of the defendant, “is me and my role is to sit there and listen like a bump on a log”; and of a witness, “to talk about what they saw.” When asked about potential witnesses, Mr. L stated the “undercover cop,” but when pressed for witnesses he might call, he added, “Maybe Dad, but he was not there at the time.” He stated that he understood the importance of proper courtroom behavior, noting that he has to be serious and “sit there like a log,” but added, “Sometimes I have a smile and don’t know it.” 170

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Of any plea options discussed, Mr. L was able to recite the plea options but stated that he did not think he would be able to make a decision on his own and “would need my dad or would ask my attorney” to help. He expressed fear that he would “not be able to ask the right question but [that it] would come out as gibberish.” Consistent with interview information, Mr. L’s score indicated minimal or no impairment in his factual understanding of the court process and personnel on the MacCAT–CA. However, he was not able to describe the elements of an offense or the lesser included offense in the vignette. In addition, he offered his belief that the sentencing options available in the vignette were dependent solely on the judge, not recognizing that the seriousness of the crime could affect the severity of the punishment. Regarding Mr. L’s participation or assistance in his own defense, Mr. L observed that it would be difficult to assist his attorney as he would not be able to tell him exactly what happened as he finds that difficult to remember; he said Mr. Esquire “could defend me without my help . . . by reading discoveries and stuff.” He could not offer his opinion on whether he thought there was a strong case against him and seemed to lack the capacity to evaluate the evidence against him. When asked about confidentiality, his rights, and his ability to waive these, Mr. L said that he understood this meant “to give up the rights” but could not further explain what he would be giving up and how this would affect him or his legal case. When the actual charges were read to Mr. L, he did not understand the wording of any of the charges. In addition, he was not able to understand or explain in detail what aspect of his behavior resulted in the charges being filed. When asked about possible outcomes, Mr. L said that he had not discussed these with his attorney, but knew that one could get “convicted by going to trial and being found guilty by a jury.” According to Mr. L’s stated understanding, if he was found competent, he would proceed to trial and have to face the charges. When asked how this would occur, Mr. L proposed a “defense strategy” but could not expand on the term, stating that “Dr. Forensic said something about defense strategy and I remembered it.” 171

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Consistent with Mr. L’s interview information, testing on the MacCAT– CA showed that he scored as clinically impaired on the reasoning section, which taps into Mr. L’s ability to recognize the importance of certain aspects of a case and evaluate potential alternatives. Mr. L displayed an inability to weigh potential plea options in the vignette and only when further questioned was able to state that a “not guilty plea would be better because the DA would have to present the case,” and if you plead guilty, “you have a criminal record as opposed to just an arrest record.” In terms of his ability to cooperate with his defense counsel, Mr. L explained that he “feel[s] comfortable with him . . . know he is on my side.” He added that he “agree[s] with everything he says” and does not know what he would do if he did not. According to Mr. L, he would not be able to ask his attorney a question during the court process as he “does not know how to whisper . . . I don’t have a very low voice.” When asked if it was possible to write something to his attorney, he noted that “by the time I wrote it, would have asked another question and it would not do any good . . . I am a slow writer and can’t read my writing . . . someone always fills out my paperwork for me.” When asked what he would do if he was asked to testify by his attorney, when he clearly felt that the “district attorney would scare the living daylights out of me . . . I would be too nervous to say anything,” Mr. L responded that he would ask his attorney if he felt “it was in my best interest” but still felt as if “it would not be in my best interest because it would probably incriminate me because I think they would think I was not telling the truth.” Regarding his understanding of the term speedy trial, Mr. L replied that it meant that the “trial goes really fast.” The last section of the MacCAT–CA assesses a defendant’s capacity to appreciate his own legal situation and circumstances. Again, consistent with interview information, Mr. L scored as clinically impaired, with noted deficits in his appreciation of his treatment in the legal system and of possible outcomes and punishment. Causes and Significance of Deficits On the basis of interview information, past and current record review, and collateral contact, it appears that Mr. L has been compliant with this 172

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assessment and tried hard to arrive at the correct answers and with respect to factual understanding of a trial did so. However, interview information showed that Mr. L has significant deficits in his ability to participate in his own defense and to cooperate with his defense counsel. He has sufficient factual knowledge of the court personnel and functions of each, yet it is not clear that he understands the court process in sufficient depth to actually assist in his own defense. For example, although he could state the function of a witness, he could not provide examples of witnesses who might be called as part of a defense strategy. Also, although he could cite his charges, when those were read to him in their entirety, he did not understand what the words meant nor did he understand what aspect of his alleged behavior was considered criminal. As noted previously, Mr. L has a well-documented history of auditory and language processing difficulties, which have resulted in significant deficiencies in his ability to understand and process verbal and written material. Such deficiencies are noteworthy in that they directly impact his capacity to participate or assist in his own defense or cooperate with his defense counsel. It would be extremely difficult or nearly impossible for Mr. L to be able to track the events in a trial as they unfolded because of his language and auditory processing deficits. Mr. L has a well-documented history of intellectual functioning in the mild mentally retarded range and of placement in special education classes as a youth. As a function of this, his judgment, his ability to reason and problem solve, and his capacity for abstraction are severely impaired. These deficiencies directly impact his ability to be an active decision maker in his legal case (such as being able to adequately weigh plea options or contribute to a defense strategy). Whereas interview information, records, and collateral contacts concur that Mr. L’s memory appears more intact than what would be expected given his limited intellectual capacity, caution should be applied in inferring too much from this. It appears that Mr. L’s affective states (anxiety, sadness) greatly impact his memory and his ability to recall and communicate information. As noted previously, Mr. L displayed greater anxiety during the second interview because that was an unexpected visit, significantly impairing 173

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his ability to recall important information relevant to his legal case. Given that many events in a trial are unanticipated (even though the process may be known), it seems that Mr. L’s ability to effectively assist in his own defense throughout the trial process may be severely impaired.

Summary Kirby L, a 40-year-old man who is facing felony charges in a county in Colorado, can be accurately described as having mild mental retardation. Numerous intelligence tests, including those administered before he ever faced criminal charges or sought disability income, placed him in that category. He has a well-documented history of academic difficulties dating back to preschool years. Mr. L’s adaptive functioning has also been documented to be limited; he has reportedly been receiving social security disability income for several years. Mr. L has extreme auditory processing difficulties in spite of repeated efforts to ameliorate these. His school records refer to difficulty tracking what was going on in class and repeated failures to help. He had trouble following our own conversation on numerous occasions. His scores that reflect working memory are extremely low. Mr. L has significant impairments in his ability to assist in his own defense and effectively cooperate with his defense counsel. He cannot track what goes on in court. Although he has learned a good deal about the roles of the people involved in a trial, he is not able to apply that knowledge to novel information about his own case, and he lacks the fundamental capacity to grasp the nuances inherent in an adversarial court process. Mr. L’s deficits directly impact his decisional competence, so that his ability to make decisions and appreciate the significance of decisions made during the court process is severely limited. In Mr. L’s case, he may be able to successfully recite and have a rudimentary understanding of the roles and functions of court personnel and court procedures and thus appear to be competent to proceed to adjudication. However, significant deficits in his insight, judgment, and impulse control, and impairment in his ability to reason, process verbal informa174

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tion, abstract, problem solve, and make and weigh decisions suggest that he will not be able to meet the standards of competency as required by being able to participate in or assist in his defense or cooperate with his defense counsel. In other words, Mr. L may appear to be factually competent, but he has not developed the level of understanding or capacity to meaningfully participate in his own defense and, thus, in my opinion, is not competent to proceed to adjudication. Please feel free to contact me at (303-phone) should you have any further questions or if I can be of further assistance in this matter. Lavita Nadkarni, PhD Licensed Psychologist

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Index

Accuracy, 66

predictive, 93 storytelling in, 11–12 Assessment questions, 50–51 Asylum cases, credibility in, 66–67 Asylum evaluations, 65–68 Atkins v. Virginia, 79 Attention-deficit/hyperactivity disorder (ADHD), 102–103 Attorneys and storytelling, 14 structuring of arguments by, 40 theatrics of, 21 trial, 12, 21, 61 Audience, tailoring of report for the, 33 Authority, conveying, 22 Availability heuristic, 123–124

Actor–observer effect, 115, 132–133 Actuarial processes, 59 Actuarials adjustment of, 95–96 inadequate, 90 ADHD (attention-deficit/hyperactivity disorder), 102–103 Admissibility, 110–112 Adversarial legal system, 17, 21, 99, 174 Agnostic reports, 99–100 Alban, A., 12, 34 American Board of Professional Psychology, 24 American Psychological Association (APA), 43, 125 Anchoring, 36, 95 Anxiety, 91, 121, 122 Argentina, 67 Argumentative structure, 64 Arguments formulating, 64, 67 in point-by-point reports, 39–41 Aristotle, 20–21, 25 Assertions, 108–109 Assessment(s) admissibility parallels in, 110–112

Base-rate problem, 93–95, 141 Behavior explaining, 53–55 report writing as, 4–5 social reinforcers of, 133–134 Benchmarks, 140–142 Benjamin, G. A., 57 Best evidence rule, 110 Bias addressing, 63–64, 66 confirmation, 13–16, 117

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Clinician, your role as, 47–55 and answering referral questions, 51–52 and assisting the judge, 52–53 developing referral questions, 50–51 and explaining behavior, 53–55 presenting your opinion and, 90–93 and your purview, 48–50 Cognitive ease, 97 Coherence, 97 Colorado, 39, 119, 120, 130 Communication of certainty, 97–98 and report length, 34 and style, 43–44 Community, protection of, 69 Comparison groups, 141 Competence (competency) degrees of, 63 evaluations for, 52 and evidence, 110 Computerized test interpretation, 111–112 Conditional reports, 99–100 Confidence, 25 Confirmation bias, 13–16, 117 Confusing information, 121 Contingency shaping, 9 Continuous variables, categorization of, 80–81 Convicts, recidivism potential of, 141 Credentials, 23–24 Credibility, 68 in asylum cases, 66–67 using style to enhance your, 24–26 Critical thinking, 107–118 and assertion of statement, 108–109 and circumstances, 115–116 and criteria for acceptable evidence, 109–114

Biased language, 129 Black people, 19, 130, 131, 138, 139 Blaming, 63–64 Breeden v. Stone, 39 Burma, 67 The Caine Mutiny (film), 3 Campbell, T. W., 96 Categorization(s), 80, 102–103, 137–140 Certainty communication of, 97–98 reasonable psychological, 92 Character, 53 Character traits, 115–116 Checklists, 81 Child abuse pediatrics, 49–50 Child custody cases, 48–49, 148–150 Child custody reports, 38 Children foster, 117–118 and parental fitness, 62–65 personality disorders in, 126 specific needs of, 62–63 Child welfare workers, 54 Chronological order, 36 Citing evidence, 73–87 and categorization of continuous variables, 80–81 and insufficiency of test data, 76–78 and interpretation of scores from nomothetic tests, 78–79 and scores vs. traits, 81–82 support for propositions, 74–76 and use of narrative material, 82–84 and use of projective testing, 84–86 from various sources, 78 Clinical issues, legal vs., 47–48 Clinical judgment, 90 Clinical reports, forensic vs., 16–19, 39 Clinician, own motives as viewed by, 121

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Diagnostic and Statistical Manual of Mental Disorders (DSM–IV–TR), 50, 81, 92–94, 126, 135–136 Disability, 70 Disconfirming data, addressing, 98–99 Dominican Republic, 67 Driving Under the Influence (DUI), 22

and evidence for/against a proposition, 114–115 and motives of proponents of propositions, 117–118 Crucial sections, non-crucial vs., 30–31 Cruelty to animals, 134 Cultural labels, 133 Culturally competent report writing, 129–143 actor–observer effect and, 132–133 and avoidance of stigmatizing language in, 142–143 person vs. category in, 137–140 reference groups and benchmarks in, 140–142 and representation of current subject by norming group, 130–132 and social reinforcers of behavior, 133–134 and use of stigma theory in, 135–136 Cunningham v. Stender, 39 Curriculum vitae, 23–24

Ecological validity, 77 Economic incentives, 117 Effective report writing, 145–152 and paragraph structure, 147–148 therapy recommendations, 150–152 and topic sentences, 146–147 and working backward, 148–150 Effort, statements about observed, 44 Ekman, P., 66 El Salvador, 67 Emotional report writing, resisting, 20 Empirically supported treatments (ESTs), 152 Empty space, 13 Errors, 17 avoiding, 24 punctuation, 25 ESTs (empirically supported treatments), 152 Ethical (term), 120 Ethical pitfalls, 119–127 common pitfalls, 125–127 self-promote, temptation to, 122 stumbling blocks to, 121–123 terminology, 120–121 using availability heuristic to avoid, 123–124 Ethical Principles of Psychologists and Code of Conduct (APA), 43, 120, 125–128, 135–136 Ethics codes, 120–121, 123–124 Ethos, 21, 25, 108 Evaluation process, including information from, 31 Evaluations, parenting, 100–102

Darfur, 65, 68 Data. See also Information addressing disconfirming, 98–99 excluding prejudicial, 31–32 and hypotheses, 74–75 interview, 77 providing, for second opinions, 126–127 redundant, 13 and storytelling, 12 variety of, 37 Daubert v. Merrell Dow, 33, 48 Declarant, 114 DeClue, G., 96 Degrees of competence, 63 Diagnoses base rate in, 93 reporting, 18 187

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Frye v. United States, 48 Fundamental attribution error, 115

Evidence admissibly relevant, 110 alternative explanations for, 115 choosing, 18–19 citing. See Citing evidence criteria for acceptable, 109–114 paragraph structure and presentation of, 147 for and against the proposition, 114–115 Exclusionary rules, 110–111 Executive summary, 34 Expectations, reader, 14 Expertise, owning your, 22–24 Expert knowledge, technical skill vs., 26 Expert opinion, 22–26 Explanations, tautological, 103–104 Explanatory assessments, 93 Explanatory fictions, avoiding, 102 Eyewitness testimony, 82

Generic statements, 76 God, 120 Goffman, E., 142 Gollan, J. K., 57 Goodman-Delahunty, J., 57 Grammar, 25 Grismore v. Consolidated Products Company, 48 Grisso, T., 6

Hearsay, 114 Hearsay rule, 110 Holmes, Oliver Wendell, 43, 69 Hyman, E., 77 Hypotheses and data, 74–75 unsupported, 17 Ideas, separating facts from, 32–33

Face, losing, 19

Idiographic testing, 74 Illustrative material, selecting, 100–102 Immoral (term), 120 Inferences, 33 Information appropriate sharing of, 125–126 confusing, 121 including, from evaluation process, 31 Insane delusions, 39 Insanity Defense Reform Act of 1984, 48 Intelligence testing, 79 Interview data, 77 Ipse dixits, 76 IQ scores, 79–81 Issue-by-issue format, 38–39

Facts, separating ideas from, 32–33 Fallibility, of nomothetic tests, 77 Federal Rules of Evidence (FRE), 48 Rule 404 of, 58 Rule 702 of, 48 Feedback loops, 9, 10 Feynman, Richard, 5 Financial incentives, 21 Foote, W. E., 57 Forensic evaluations, 5 Forensic report(s) advocating for truth in, 19–21 clinical reports vs., 16–19, 39 and confirmation bias in reader, 13–16 expert opinion in, 22–26 reinforcements for, 5 storytelling in, 11–13 Foster children, 117–118 Foster parents, 138–139 Framing effects, 15–16, 140

Jamaica, 67 Jargon, 151 Judge(s), 67 assisting the, 52–53 and child custody, 48–49

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describing, 42 profile provided by, 75–76 reliability of, 113 Scale 2 of, 75, 137 Scale 4 of, 31 Scale 6 of, 58, 94 and T scores, 80 WAIS–IV vs., 78 Miranda waiver, 15, 74 Moral punishment, 69 Motives of clinicians, 121 of declarants, 114 of proponents of propositions, 117–118

Judgment, 63, 90 Jury, and storytelling, 12

Kahneman, D., 6, 15, 24, 95, 140 Knowledge, presumption of sufficient, 122–123 Language biased, 129 people-first, 143 stigmatizing, 142–143 Law, 57, 58 Laws of nature, 115 Legal (term), 120 Legal guardians, 62 Legal issues, clinical vs., 47–48 Legal pitfalls, 119–127 common pitfalls, 125–127 stumbling blocks to, 121–123 terminology, 120–121 Lehman, Ernest, 12 Length, report, 33–34 Leonard, Elmore, 44 Limited admissibility, 112 Logic, 21 Logos, 25

Narrative material, use of, 82–84 Negative reinforcement, 5 Nicaragua, 67 Nomothetic testing, 53–54, 73–74, 77–79 Norming groups, 130–132

Observed effort, statements about, 44 Offense, mental status at time of, 70 Omissions, required, 124 “On Being Sane in Insane Places” (Rosenhan), 18 Opinion, 57–70 and application of research, 58–60 expert, 22–26 and formulating the argument, 60–61 presenting your. See Presenting your opinion and psychological arguments for specific forensic issues, 61–70 Organization of the report, 29–44 and crucial vs. non-crucial sections, 30–31 and description of procedures used, 42–43

Mandatory reporting statutes, 127 Martindale, D. A., 18 Massachusetts, 30–31 Material (term), 110 Materiality (term), 111 Meehl, P., 91, 93 meets criteria, 92 Mental status, 70 Miniexperiments, 64–65, 68 Minnesota Multiphasic Personality Inventory—2 (MMPI–2) citing, in procedure-by-procedure reports, 35–38 and creation of hypotheses, 74 and culturally competent report writing, 130–132

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and selection of illustrative material, 100–102 and use of agnostic/conditional reports, 99–100 and your role as clinician, 90–93 Pro bono work, 66 Procedure-by-procedure format, 35–38 Procedures used, description of, 42–43 Process assessments, 93 Processing Speed Index (PSI), 82 Projective testing, 84–86, 112 Proposition(s) applicability of, to circumstances, 115–116 citing evidence in support of, 74–76 defined, 107 evidence for/against, 114–115 motives of proponents of, 117–118 Psychosis, 79 Publication Manual of the American Psychological Association, 7, 129, 143 Punctuation errors, 25 Purview, understanding your, 48–50

and exclusion of prejudicial data, 31–32 executive summary, 34 issue-by-issue format, 38–39 point-by-point format, 39–42 procedure-by-procedure format, 35–38 and report length, 33–34 and separation of facts from ideas, 32–33 O’Sullivan, M., 66 Owning your expertise, 22–24

Page numbers, citing, 83 Paragraph structure, 147–148 Paranoia, 94 Parenting evaluations, 100–102 Parker, Pat, 143 Pathos, 20, 25 People-first language, 143 people who, 60 Percentile ranks, 78–79 Personal injury, 69 Personality, 112 Personality disorders, 126 Persuasiveness, 19–21 Point-by-point format, 39–42, 61, 68 Positive reinforcement, 5 Predictive assessments, 93 Predictive reports, statements in, 109 Predictors of outcome, 117 Prejudicial data, excluding, 31–32 Presenting your opinion, 89–104 and addressing disconfirming data, 98–99 and adjustment of actuarials, 95–96 and avoidance of explanatory fictions, categorizations, and tautologies, 102–104 and betting the base rate, 93–95 and communication of certainty, 97–98

Qualifications, 23–24 Questions asking the right, 91 assessment, 50–51 referral. See Referral questions Quotation marks, using, 84 Quotations, 83

Race, classifications by, 130, 131, 139 Reader, confirmation bias in, 13–16 Reader expectations, 14 Reagan, Ronald, 48 reasonable psychological certainty, 92 Recidivism, 59, 94, 96, 141 Recommendations for therapy, 150–152 Redundant data, 13 Reference groups, 140–142

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Skinner, B. F., 86, 133 Social policy, 47 Social reinforcers of behavior, 133–134 Social Security disability, 70 Soviet Union, 67 Space, empty, 13 Speculation, 17, 92, 97–98 Sports Illustrated curse, 96 Statement(s) assertion of, 108–109 generic, 76 Status assessments, 93 Status claims, 108 Stigma theory, 135–136 Stigmatizing language, avoiding, 142–143 Storytelling, 11–13 Structure argumentative, 64 paragraph, 147–148 Style, 24–25 Subpoenas, 122–123 Substance abuse, 15 Sudan, 65 suffers from, 44 SVPs (sexually violent predators), 141 Symptom validity, 68

Referral questions, 61 answering, 51–52 development of, 50–51 Refugee status, 65–68 Regression to the mean, 96 Rehearsing, 9–10 Relevance, 111 Relevant (term), 110 Reliability, 12, 109–110, 113 Reporting, mandatory, 127 Report writing, as behavior, 4–5. See also Effective report writing Required omissions, 124 Research application of, 6 citing, 59 Research papers, 22–23 Rhetoric, 20–21 Rorschach test, 37–38, 84, 85, 101 Rosenhan, D. L., 18

Sample reports, 155–175 Jane Doe, 155–162 Kirby L., 163–175 Scales of concern, 140 Schemas, 83 Science, 57–58 Scores, distinguishing traits from, 81–82 Second opinions, providing data for, 126–127 Self-promote, temptation to, 122 Sentencing, 69–70 Sex Offender Management Board (Colorado), 119 Sex offenders, recidivism in, 96 Sexually violent predators (SVPs), 141 Sharing information, 125–126 Shaw, George Bernard, 122 Simon, R. I., 33 Simpson, O. J., 19 Sixteen Personality Factor Questionnaire (16PF), 74, 78, 113, 123

Tailoring the report (for an audience), 33 TAT (Thematic Apperception Test), 84, 85 Tautologies, avoiding, 103–104 Technical skill, expert knowledge vs., 26 Templates, report, 124 Testamentary capacity, 68 Test data computerized interpretation of, 111–112 insufficiency of, 76–78 Testimonial competence, 110

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T scores, 80 Tversky, A., 95

Testimony avoiding, 5 eyewitness, 82 Tests (testing) descriptions of, 42–43 interpretations of, 60 projective, 84–86 reliability of, 12 Texas State Board of Examiners of Psychologists, 30 Thematic Apperception Test (TAT), 84, 85 Therapy recommendations, 150–152 Thinking, critical. See Critical thinking Thinking, Fast and Slow (Kahnman), 6 Topic sentences, 146–147 Traits character, 115–116 distinguishing scores from, 81–82 Transactional Records Access Clearinghouse (TRAC), 67 Trial attorneys, 12, 21, 61 Truth advocating for, 19–21 telling the, 98

Unprofessional (term), 120 Unsupported hypotheses, 17 Validity ecological, 77 symptom, 68 Verbal Comprehension Index (VCI), 82 Verbs, choice of, 44 Violence in foster parents, 138 overprediction of, 117 Virtue (term), 122 Vrij, A., 66

Wechsler Adult Intelligence Scale— IV (WAIS–IV), 74, 80, 82, 132 White people, 19, 130, 131, 138, 140 Witt, P. H., 6 Working backward, 61, 148–150

Yates v. State, 19

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About the Authors

Michael Karson, PhD, JD, ABPP (Clinical), practiced clinical and forensic psychology for 25 years before entering academia in 2003. He has written almost 2,000 reports of individual psychological evaluations and has reviewed tens of thousands of other clinicians’ reports as a consultant to the child welfare system. He teaches assessment and report writing in the forensic psychology master’s program and in the clinical psychology doctoral program at the University of Denver’s Graduate School of Professional Psychology. He is the author of four other books on assessment, child abuse, and psychotherapy. Lavita Nadkarni, PhD, is a professor and the director of forensic studies at the University of Denver’s Graduate School of Professional Psychology. She has written thousands of forensic reports since graduating with her master’s degree in forensic psychology from John Jay College of Criminal Justice in 1985. In addition to supervising doctoral students on their forensic evaluations, she continues to be actively engaged in forensic practice. She is the editor of Psychotherapy Bulletin and is one of the coeditors of the Handbook of Multicultural Counseling Competencies.

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