Frederick, R. I., Mikesell, J. W., et al. (2024).
Professional Psychology: Research and Practice,
55(3), 179–196.
Abstract
Due process of law involves matters of fundamental fairness to litigants in civil and criminal proceedings. Due process rights include the opportunity to develop, obtain, inspect, present, and challenge evidence in legal proceedings. Psychologists’ opinions often depend upon information that is sensitive and should not be publicly disclosed in a manner that would undercut the utility of psychological tests. There have been strident discussion and policy statements opposing nonpsychologists’ access to sensitive test information by providing them with copies of test materials or by video recording examinations that include psychological tests. Notably absent from these statements has been any discussion of the legal system’s demand for due process and its corresponding requirement for access to facts and data, including opinion testimony of experts. We argue that the Ethical Principles of Psychologists and Code of Conduct and the Specialty Guidelines for Forensic Psychology are congruent with due process requirements for reasonable judicial scrutiny and adequate discovery by all parties, and we believe that a judge’s protective order is an acceptable remedy for the disclosure of sensitive test information in a litigated matter.
Impact Statement
Public Significance Statement—Our article argues that when psychology operates within the legal system, it is important for psychologists to recognize that the manner in which they attempt to resolve the ethical problems of their own profession can impact the constitutional rights of civil litigants and criminal defendants.
Balancing the rights of litigants against psychologist obligations to protect test information
What is it about?
Psychologists are obligated to protect sensitive test information from public distribution. At times they generate and offer opinions about litigants (plaintiffs in civil suits or defendants in criminal prosecutions), and those litigants have a legal right to see the basis of those opinions. The rights of litigants are thereby pitted against the obligations of psychologists. The authors of the primary paper argue that protective orders and other negotiated remedies, the legal arena's standard methods for protecting sensitive information, are sufficient methods to fulfill ethical obligations to protect sensitive test information. Three discussants respond to this article. Two discussants disagree with the main authors, and one discussant concurs.
Why is it important?
Psychologists need to know how to work appropriately within the legal system and to anticipate how to meet demands for evidence that may contain sensitive test information. Psychologists should ensure that they do not encroach upon the constitutional rights of litigants and should not demand perfect and unassailable test security.
