Misuse of Psychological Tests in Courts
The Purpose and Source of Data for the Various MMPI Products
The MMPI-2 was a personality assessment tool for mental health diagnosis. It was used for decades in a variety of litigation contexts. To the extent that examiners continue to use this process in the forensic setting one should be aware of its limitations, that it has been revised and replaced, and how it may be misused and misinterpreted.
The MMPI-2 was updated by the MMPI-2-RF in 2008. The most recent iteration, the MMPI-3, claims to have revised and updated assessment scales and has identified “standard comparison groups” ostensibly meant to focus on the data source more specifically for similar populations.
The MMPI-3 – the Latest Iteration of the MMPI Product Line
The MMPI-3 is advertised as “[u]pdated for the first time since the mid-1980s and designed to match US Census Bureau demographic projections for 2020, the MMPI-3 normative sample includes 1,620 individuals (810 men and 810 women) ages 18 and older from diverse communities throughout the United States.” The MMPI-3 is marketed as “The MMPI®-3 is a contemporary personality assessment for mental health, medical, forensic, and public safety settings. This newest version builds on the history and strengths of the MMPI instruments to provide an empirically validated, psychometrically up-to-date standard for psychological assessment.” The new iteration is based upon 335 item self-report test.
The efficacy and accuracy of the revised “comparison groups” in the MMPI-3 has yet to be fully examined and tested. Whether the MMPI-3 is suitable for particular litigation settings and demographic “Comparison Groups” is yet to be seen. It must be remembered that all purported “objective psychological tests” should be closely examined for the appropriateness of use in a particular litigation context. The demographic sources should also be scrutinized for the samples obtained for each “comparison group,” to determine if the sample sources are appropriate and statistically reliable.
Although Twice Revised, the MMPI-2 Continues to Be Used and Should be Challenged
This article focuses on challenging the use of the MMPI-2, which continues to be relied upon by many in the mental health field. The MMPI-2 and continues to be used and misused in the context of litigation in a variety of contexts, including suitability for parole eligibility, custody disputes, and employment settings. If the MMPI-2 is used in the litigation setting, it may be challenged as outdated and the differences between the MMPI-2 and the MMPI-3 may be used to challenge the MMPI-2’s admissibility or for challenging the results on cross-examination.
The use of the MMPI-2 was not designed for specific forensic evaluations (i.e., evaluations for legal issues). The MMPI-2 was what is called “broad-band test.” That means was a tool for general diagnosis. It was based upon test results taken from populations of individuals with already determined psychiatric diagnoses and personality traits to enable psychologists to test a subject and assist in rendering a diagnosis. Without a proper and fair clinical evaluation, the use of MMPI-2 by itself is an unreliable tool for forensic evaluations that present serious legal consequences. Whether the MMPI-2-RF and the MMPI-3 suffers from the same potential for misuse as the MMPI-2 is yet to be determined.
The MMPI-2 was not specifically designed for the purpose of evaluating individuals in the context of custodial parental risk assessments, suitability for parole, nor to assess whether someone will succeed in a community supervised release program, nor for a determination whether the individual will commit a crime if released. MMPI-2, Manual for Administration and Scoring, S.R. Hathaway and J.C. McKinley (1991), page 1.
Persons being evaluated in the court or correctional systems will not answer questions as would a member of the general population. Inmates taking the MMPI-2 test are likely to be acutely aware to the fact that they are being evaluated for potential release from prison. Parents who may be required to submit to an MMPI-2 test as part of a risk assessment are likely to be acutely aware of the fact that their ability to have custody or visitation of their children may be dependent upon how they answer questions and the test results. The result is that in a forensic setting, answers may be skewed to present oneself in the best possible light and seeking to minimize or deny any flaws.
Although the MMPI-2 has “validity” tests to attempt to determine the “reliability” and accuracy of test results, the Manual for Administration specifically warns about the “Idealized Personality” – that is, subjects who may “systematically describe someone whom they envision as having a perfect personality or an ideal adjustment. The resulting records provide poor basis for making inferences about these subjects.” Id., at 22-23. Although the MMPI-2 attempts to build in validity measures, it cannot be concluded that those measures properly adjust for the context of a subject’s individual legal situation. In a forensic setting, where one is expecting to be considered and evaluated on issues that will have serious legal consequences (especially in the context of sentencing, suitability for parole, or child custody), it is natural that a subject may try to portray oneself as favorably as possible and not admit to weaknesses or pathology.
Computer Generated Narratives and “Psychobabble” Should be Challenged
An additional issue is presented by the fact that those administering the MMPI-2 could actually purchase the proprietary software product that not only scores the test but also generates a computer based narrative report. An example of the kind of “psychobable” that can be generated may be found in a case that I personally handled, the Cestari case, where the psychologist “opined”:
Mr. Cestari’s performance on the Subtle-Obvious items, items which either are quite clearly on their face indicative of pathology as opposed to having little apparent, but a strong actual relationship to pathology, suggests that he purposely and consciously avoided answering these items in a pathological direction. Thus, while the average normal will answer 31 of 146 of these items in the pathological direction, Mr. Cestari answered only 7 of them in the pathological direction. This suggests conscious avoidance of admitting pathology.
Clinically, given Mr. Cestari’s obvious attempt to deny problems on the MMPI his profile is a significant one. Although just below the level for clinical significance, the pattern of elevations of scales is consistent with a person who is quite hostile and angry but maintains a façade of normalcy that is quite prone to deterioration under stress leaving the individual prone to inexplicable aggression. These individuals tend to be quite out of touch with their feelings until they become too strong to deny or until their controls are weakened by alcohol. Although they appear quite socially appropriate outwardly, they are inwardly quite rebellious, sensitive to rejection, and prone to outbursts of hostility when criticized. They are quite self-centered, narcissistic and grandiose. They often deny psychological problems of any sort and express a very naïve, pollyannaish, black and white attitude toward the world.
New Jersey State Parole Board v. Cestari, 224 N.J.Super. 534, 543-544 (App. Div. 1988), certif. denied 111 N.J. 649 (1988).
The Cestari decision is an example where a subject being evaluated knew it would have a significant legal impact on his legal status. His natural and normal reaction was to try to present him in the most positive light and to minimize any responses that might sound pathological. The result was that in this forensic test situation, a parole evaluation, the MMPI-2 generated the “noise” that is set forth above. The reliability of a psychological examination is seriously compromised when the test itself is administered in a context for which it was not designed.
Additionally, the MMPI-2 does not account for the actual environment and life situation of a prisoner. Someone who is incarcerated exists in a vastly different world than a person in the general population. The test itself will elicit responses that reflect the reality of prison life and skew the scores. For example, there is a scale for measuring paranoia and there are questions specifically designed to elicit responses of indicative of paranoia. In the context of a prisoner, responses that “someone has it in for me,” “my conduct is largely controlled by others,” and other similar questions to test for paranoia may be factually accurate responses in an inmate’s actual life situation. Such responses given by a subject in a general population would be indicative of paranoia.
The Misuse of MMPI Raw Data – Responses to Specific Questions
Another risk for a client in taking the MMPI products involves the misuse by attorneys in the actual responses given to the questions, the “raw data.” If an attorney has access to the raw data, the answers to questions may be used to attack the credibility of the person or to argue the existence of pathology. If a person admits to flaws, admits to some questions that are suggestions of pathology, that raw data may be taken out of the context and used in briefing and/or used in cross examination.
The Original Clinical Purpose and Source of Data for the MMPI-2
Ethical test usage requires “assurance that the results will be respected, protected, and used for the benefit and enhancement of [the test subjects] welfare.” The purpose of the MMPI-2 is not fulfilled in the forensic context. The context of a forensic exam involves a legal assessment and, in part, a moral judgment of someone’s suitability for parenting, parole, sentencing, or some other significant legal consequence. In the forensic context the MMPI-2 is not being used for the benefit and enhancement of the subject’s welfare and the subject knows it and may consciously or subconsciously try to adjust for that fact. The most appropriate context for the use of the MMPI-2 is for assessing diagnostic issues for the purposes of treatment. When used in a forensic setting its use becomes judgmental and the legal and factual context may skew how a subject will respond to questions. It is yet to be seen whether the MMPI-2-RF and the MMPI-3 is appropriate in litigation. It will yet to be seen if and whether the “comparison groups” establish an accurate and appropriate baseline for the generating reliable results in the forensic setting.
Any Psychological Test has Limitations and Should Not be Dispositive
Sole reliance on any of the MMPI products are not an appropriate in any forensic examination where the subject is acutely aware of potential serious legal consequences or where an individual’s actual life circumstances may result in truthful responses that may provide false positives for pathology. In the context of risk assessments, parole determinations, and other forensic settings since the MMPI-2 is a “broad band,” a general diagnostic tool, it may over-diagnose or be misleading. While the MMPI-2 is well established and well-regarded test, its use in certain forensic settings and elevations of certain scales must be critically evaluated to account for the forensic and factual context of the subject.
Psychological Tests have a Role, but May be Misleading and Inappropriate for Certain Populations
In the context of parole evaluations, the reliability of the MMPI-2 is questionable. The MMPI-2 should not and cannot be accurately determine the ultimate questions of whether an individual will commit a crime if paroled or whether an individual will comply with conditions of parole. The MMPI-2 was never intended to predict violence, never intended to determine suitability for parole, and never intended to predict if a person might commit a crime.
Computer Generated Narrative Reports Should be Challenged
If the MMPI products are used in a forensic setting, the computer-generated narrative reports should not be the sole basis of an opinion. Any fair, professional, and ethical evaluation should take into consideration and make honest and careful adjustments for the subject’s factual context and account for the fact that knowledge of the forensic purpose of the test may skew the results and reduce the reliability of the instrument.
In many instances, if administered and interpreted properly, the MMPI products may be legitimately used as one component of a forensic evaluation. However, if certain scales, for example, paranoia, depression, psychopathic deviate, etc., are relied upon to prove some form of pathology, or the administrator concludes that the subject has an “idealized personality,” the test results should be scrutinized and challenged. Such results may not be the result of pathology, but rather the context of the administration, the life situation of the subject, and the interpretation by the computer and/or evaluator.
The Use of Answers to Specific Questions (Raw Data) May be Misused and Should be Challenged
In those instances where conclusions are drawn about “pathology,” obtaining and independently evaluating the “raw data,” may be critical in challenging the efficacy of the administration of the test and in evaluating the credibility of the evaluator’s conclusions. Attorneys should not blindly accept the results of an MMPI products in the forensic legal context. With any negative MMPI result, counsel should consider retaining an expert to review and re-score the raw data. Negative or pathological results should be carefully evaluated within the context of the subject’s life and legal situation. No counsel should permit a negative or “pathological” MMPI report to go unquestioned and unchallenged.
Each Version of the MMPI Should be Evaluated and Challenged on its Own Merits
It should also be noted that the MMPI-2 was revised in the form of the MMPI-2-RF (Restructured Form,” published in 2008), which is a shorter testing instrument with only 338 items as opposed to 567 items. It is important to know which testing instrument was used, the context in which it was administered, and a careful review of the testing manual for each instrument that was used.
Where to Begin a Challenge to the MMPI Products
Any challenge to the MMPI-3 and MMPI-2-RF will have to begin with a close examination of the MMPI-3 and MMPI-2-RF Technical Manuals. Reviews of “peer review” articles should also be scrutinized with an eye towards conflicts of interests presented by the reviewer, whether the reviewer has any relationship with the publisher or whether the reviewer receives any royalties on the sales of any testing instrument. Any analysis of the efficacy or the MMPI-3 or the MMPI-2-RF in a forensic litigation setting and a specific “comparison group” will have to be the subject of a separate evaluation and is beyond the scope of this article.
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.