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.
Our criminal defense and parole lawyers at Lyons & Associates, P.C. will vigorously defend you as you go through the criminal justice and parole process. Call us at 908-575-9777 or contact us online today to schedule a free consultation. We have offices located in Somerville and Morristown, New Jersey, and represent clients throughout New Jersey including, but not limited to, clients throughout Somerset County, Morris County, Middlesex County, Union County, Essex County, Bergen County, Hunterdon County, Warren County, Sussex County, Passaic County, and Monmouth County.