The Unchecked Rise of Psychological Testing Evidence in United States Courts.

King, C., & Neal, T. M. (2022, June 7).

https://doi.org/10.31234/osf.io/4hfd6

Abstract

Psychological testing, based on psychometric science, is often used in court to aid judges and juries in making legal decisions that profoundly affect people’s lives, such as eligibility for disability benefits, psychological damages, child custody, and whether and where someone will serve a criminal sentence. We provide a novel estimate of the pattern of psychological tests introduced as legal evidence throughout the entire history of United States case law, finding a sharp increase in this type of expert evidence in recent years. Although the law requires judges to screen evidence for relevance and reliability before allowing an expert to testify about it in court, legal challenges to psychological testing evidence are rare: across 28,824 judicial opinions citing psychological tests, just 479 involved a potential admissibility challenge (1.66%). This finding informs and raises questions for the public as well as legal and mental health professionals.

Discussion

Our results indicate that psychological testing evidence in U.S. courts has been increasing steadily in civil, family, and criminal cases over the past half-century, beginning roughly around the time that psychological testing emerged as a specialty in the field of psychology. Although we used a sizable sample, psychological testing evidence has undoubtedly occurred in many more cases than we could capture—with such evidence either not specified in written opinions, or judicial decisions not incorporated, for various reasons, into the large legal database we searched.

We also found evidence that legal professionals either rarely scrutinize psychological testing evidence, or admissibility decisions about such evidence are not typically deemed significant enough to warrant written explanations. This seems to be true irrespective of shifts in the strictness of admissibility standards over time. Potential challenge rates did, however, vary across individual psychological tests, and at least a third of the examined tests were challenged at least once. The two most commonly challenged types of tests provide a clue as to the type of case most likely to involve testing-related challenges: litigation concerning the civil commitment of certain convicted sex offenders. Nevertheless, the generally unchecked rise in psychological testing evidence, as suggested by this study, raises questions about the rigor of current admissibility standards, the functioning of the enforcers of those rules, and the seemingly broad deference afforded to mental health professionals’ highly varied test selections.

The research is here.

Dysfunction Disorder

Joaquin Sapien
Pro Publica
Originally published on January 17, 2017

Here is an excerpt:

The mental health professionals in both cases had been recruited by Montego Medical Consulting, a for-profit company under contract with New York City's child welfare agency. For more than a decade, Montego was paid hundreds of thousands of dollars a year by the city to produce thousands of evaluations in Family Court cases -- of mothers and fathers, spouses and children. Those evaluations were then shared with judges making decisions of enormous sensitivity and consequence: whether a child could stay at home or if they'd be safer in foster care; whether a parent should be enrolled in a counseling program or put on medication; whether parents should lose custody of their children altogether.

In 2012, a confidential review done at the behest of frustrated lawyers and delivered to the administrative judge of Family Court in New York City concluded that the work of the psychologists lined up by Montego was inadequate in nearly every way. The analysis matched roughly 25 Montego evaluations against 20 criteria from the American Psychological Association and other professional guidelines. None of the Montego reports met all 20 criteria. Some met as few as five. The psychologists used by Montego often didn't actually observe parents interacting with children. They used outdated or inappropriate tools for psychological assessments, including one known as a "projective drawing" exercise.

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Attorneys and psychologists who have worked in Family Court say judges lean heavily on assessments made by psychologists, often referred to as "forensic evaluators." So do judges themselves.

"In many instances, judges rely on forensic evaluators more than perhaps they should," said Jody Adams, who served as a Family Court judge in New York City for nearly 20 years before leaving the bench in 2012. "They should have more confidence in their own insight and judgment. A forensic evaluator's evidence should be a piece of the judge's decision, but not determinative. These are unbelievably difficult decisions; these are not black and white; they are filled with gray areas and they have lifelong consequences for children and their families. So it's human nature to want to look for help where you can get it."

The article is here.

Diagnosis or Delusion?

Patients who say they have Morgellons point to skin lesions as proof of their disease. But doctors believe the lesions are self-inflicted—that the condition is psychological, not dermatological.

By Katherine Foley
The Atlantic
Originally published January 18, 2015

Here is an excerpt:

When patients with these symptoms seek dermatological treatment, they’re usually told that they have delusions of parasitosis, a condition in which people are falsely convinced that they’re infested with parasites—told, in other words, that the crawling, itching sensations under their skin are only in their heads, and the fibers are remnants from clothing. Still, they pick away, trying to get the feeling out. According to Casey, most doctors refuse to even examine the alleged skin fibers and only offer anti-psychotic medication as treatment. It took her three years to find a dermatologist willing to treat her in any other way, and she and her husband had to drive all the way from California to Texas to see him.

The article outlining the conundrum is here.

Why politicians should have backgrounds in clinical psychology

By Alex Lickerman
KevinMD.com
Originally published May 14, 2013

Of all the different criteria people use when deciding for whom to vote in presidential elections, I’ve never heard anyone talk about the importance of a background in clinical psychology—but it’s always struck me as important for a president to have as for a clinical psychologist. Certainly, foreign policy experience, a firm grasp of the principles of economics, a bold and confident leadership style, and the ability to get people to work together are all critically important—but a moment of reflection is all it takes to realize that all of these abilities spring from an understanding of and ability to leverage the principles of human psychology.

Our scientific understanding of these principles has finally advanced far enough—and in many cases has been found to be counterintuitive enough—that, as wise as any one of us may be in our personal lives, compared to trained clinical and research psychologists, we’re all a bunch of amateurs. As a result of our politicians’ distinct lack of psychological expertise, we’ve experienced—and will continue to experience—a number of significant policy failures. Why? Because at its core, public policy achieves societal improvements by changing the behavior of its citizens. How can a policy be expected to achieve its purpose if it’s not then grounded in a correct understanding of human psychology?

The entire article is here.

Thanks for Ed Zuckerman for this blog.

Psychologist surrenders license over custody evaluation

Psychiatric Crimes Database
Published on November 29, 2012

On July 20, 2012, psychologist Charlotte Higgins-Lee surrendered her license to practice to the Oregon Board of Psychologist Examiners According to the Board’s document, in late 2010, Higgins-Lee received a referral to conducted a psychological evaluation of a father and his nine-year-old daughter and to testify in a January 2011 hearing concerning custody and parenting time. Though the custody matter concerned the father, daughter and father’s ex-spouse (the daughter’s mother), Higgins-Lee did not interview the mother (though she interviewed the father, daughter and others). Nonetheless, she concluded that the father should have sole custody and that “more information should be obtained on the mother’s alcohol use/abuse and violence,” among other statements critical of the mother, whom she had never met or interviewed. The Board proposed a reprimand, civil fine of $7,500 and requirement to practice under supervision for a minimum of six months. However, Higgins-Lee later agreed to a new stipulated agreement to surrender her license to the Board.

The board order is here.

To Evaluate or Not To Evaluate

Dr. Joey Bishop has been conducting pre-ordination evaluations for a religious institution for many years. The purpose of these psychological evaluations is to identify individuals who have gross psychopathology, strong personality disorders, or other characteristics that would make them incapable of performing their religious duties adequately. Dr. Bishop developed a strong relationship with this institution and they have been quite satisfied with his work.

One day, Dr. Bishop receives a phone call from his contact at the institution.  The contact is now requesting that Dr. Bishop begin to screen individuals for "homosexual tendencies" because, according to the doctrines of the denomination, such individuals are not eligible to become clergy.

Dr. Bishop feels uneasy about this situation, as “homosexuality” has not been considered a mental illness since the 1970s.  Simultaneously, the religious institution is adamant about this requirement. 

Dr. Bishop calls you for a consult about this situation.

What are the ethical issues involved in this scenario?

If you were the psychologist, what would be your emotion response to this situation?

What are some potential responses that you could offer Dr. Bishop?