CHALLENGING SO-CALLED "OBJECTIVE" TESTING-THE USE AND ABUSE OF PSYCHOLOGICAL TESTING IN LITIGATION
Nothing scares a fact finder like the designation that someone is a “psychopath.” The name itself once attributed to a client is a title that an adversary will bludgeon your client with repeatedly in cross examination, briefing and/or decisions.
Once designated a “psychopath” expect the term to be repeated and reinforced in supporting adverse conclusions about your client.
One misused testing instrument is the Hare Psychopathy Checklist-Revised, or PCL-R.© The pejorative nature of the label “psychopath” is so compelling that in the minds of a prosecutor, juror, judge, or member of the parole board, it is guaranteed to either consciously or subconsciously skew how a client is perceived. Its purported use as a reliable instrument capable of predicting violence is the subject of debate. Jennifer L. Skeem, Kevin S. Douglas, Scott O. Lilienfeld “Psychological Science in the Courtroom: Consensus and Controversy” – Chapter 8, The Psychopathy Checklist in the Courtroom”, Guildford Press (2009).
The test itself consists of a 20 item scale, while there are criminal history components to the scoring there are subjective items that purportedly measure remorse, conscience, insight, guilt, and grandiose self-image. Edens, J.; Boccaccini, M.; Johnson, “Inter-rater reliability of the PCL-R total and factor scores among psychopathic sex offenders: are personality features more prone to disagreement than behavioral features?” Behavioral Sciences & the Law, Volume 28, Issue 1, pages 106–119, January/February 2010. It is the potential subjectivity in administration, possible “partisan allegiance” and an unreliable or inconsistent factual record that brings into question its reliability for use in the forensic setting. Boccaccini, M; Darrel B.; Murrie, D., “Do some evaluators report consistently higher or lower PCL-R scores than others? Findings from a statewide sample of sexually violent predator evaluations,” Psychology, Public Policy, and Law, Vol 14(4), Nov 2008, 262-283; Murrie, D.; Boccaccini, M.; Johnson, J.; Janke, C., “Does Interrater (Dis)agreement on psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Allegiance in Forensic Evaluations?” Law, Human Behavior, (2007).
While inter-rater reliability is reported in subjects who are similarly trained, the concern is that some of the studies supporting reliability involve studies with graduate students who received extensive and similar training. Ibid. As may logically be expected, homogenous sampling is likely to generate homogeneous results. Life and individuals are not so simple or consistent. Such sampling cannot be extrapolated to reliability in a forensic adversarial situation, where foundation information may not be the same or reliable, or where the background and training of the evaluators may be quite different. Regardless of claims of any instrument being “objective” there is a level of subjectivity and partisan bias that any evaluator brings to a forensic evaluation. The source and validity of underlying information must be scrutinized for accuracy, completeness and absence of bias. While the PCL-R may be one component of an overall clinical or forensic evaluation, it should not be the sole or primary tool for deriving forensic conclusions. If used in a forensic context it should be combined with a thorough clinical evaluation based on an accurate, unbiased and complete social history as well as other personality and risk assessment instruments.
It should also be noted that the author of the test instrument, Robert Hare, has expressed reservations about the
inappropriate use of the PCL-R for drawing forensic conclusions. Robert Hare has stated that “I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society. It shouldn't work that way.”
Any use of the PCL-R to label a client a “psychopath” should be contested, the term itself should be challenged, for once branded with this Scarlet Letter – the argument is that the subject is never capable of rehabilitation, is forever dangerous, and any seemingly appropriate conduct and adjustment conceals and is evidence of a more pathological and malignant dark side.
The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services. Although we attempt to ensure that the postings are complete, accurate, and up to date, we assume no responsibility for their completeness, accuracy, or timeliness. The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. Readers should not act upon this information without seeking professional legal counsel.
This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk. We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability. Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein. We will remove a link to any site from this blog upon request of the linked entity.
We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.
If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com. One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.