Psychology and the Law: What We Know and What We Know That Isn’t So
By Dr. Gordon Cochrane, R. Psych.
Smashwords Edition
Copyright 2011 Gordon Cochrane
Introduction
Because attorneys and psychologists have human beings as clients, the practice of law, like that of psychology, is usually conducted in shades of grey rather than black or white. As you will see in the following chapters, psychology involves the application of hard science principles to soft science phenomenon. This unavoidable situation creates fertile ground for enduring myths and misinformation. Much of this mythology goes unchallenged because most people, including attorneys, witnesses, judges and jury members do not have the necessary information to recognize and effectively challenge the, what-we- know-that-isn’t-so aspects of law-related psychology. This book gives you a basic and practical understanding of these myths and misunderstandings thereby giving you an edge in your presentations, challenges and cross-examinations.
The psychology information provided in this book has been selected and organized in an effort to provide attorneys with a current, concise and law-related handbook on the psychological research, constructs, theories, therapies and assessment procedures that most commonly arise during your practice of law. I hope that you will find the following material helpful in a number of ways. The intent is to give you an informed sense of the sometimes soft foundations upon which experts in psychology and psychiatry give their expert opinions. When you know how the science of psychology differs from other forms of science, you are in a better position to represent your clients in cases where a psychological assessment, prognosis or professional opinion could have significant impact on the life and well-being of your clients.
Whereas psychology is a science, it is unlike other sciences in that the subjects studied and assessed are not objective entities. They are human beings and we human beings are subjective in many ways. We creatively construct our sense of self and we give meaning to the world around us. We imagine; we assume; we generalize; we attribute meaning to ambiguities; we remember creatively; we formulate our values and our beliefs through the screen of our culture; we selectively attend to that which confirms our biases and attitudes; we mind-read with excessive confidence; we project our perceived realities onto other people and situations; we are sometimes honest and sometimes deceptive; we are rational and sometimes irrational; we are consciously motivated and sometimes unconsciously motivated and yet, we believe that our perceived realities are in fact reality.
Within the justice system we, as lawyers, judges, juries, psychologists and psychiatrists are charged with finding truth and reality from within this labyrinth of human complexity. This search for truth can be made a little less daunting when we can distinguish the valid and valuable aspects of psychology from the popular misconceptions, myths and inaccuracies that are often attributed to this profession(1).
Again, the purpose of this book is to give you current and research-validated information about a number of law-related psychology subjects and to tie these subjects to the practice of law in a manner that will allow you to use this information in your own practice. Because psychology is about human beings and because human beings are subjective beings, the effective application of the Daubert test for the admissibility of scientific evidence(2) in the field of psychology requires considerable knowledge-based rigour.
Outline
The book begins with coverage of Psychological Assessments. We begin here because psychological assessments, reports and the testimony arising from these assessments often play a role in legal realms such as Family Law, Criminal Law, Personal Injury Law and Employment Law. In this opening segment you will learn what constitutes test validity and why test validity is more important than test reliability. You will also learn how to quickly determine whether an assessment instrument has true validity. You may be surprised to learn that among the many psychological assessment instruments available, only a few have proven validity yet important decisions are frequently made from invalid assessment information. Your awareness of the nature and importance of test validity will shield you from challenges to the psychological assessments that you commission and will arm you in any challenge that you make concerning the validity of assessments commissioned by opposing counsel.
As part of the segment on psychological assessments, you will be introduced to the key concepts of three frequently used psychological assessment instruments. These instruments, the MMPI-2, the MMPI-2-RC and the PAI will be summarised for you and their validity will be discussed. You may be surprised to learn that only two of these instruments have acceptable validity.
The second segment of the book is devoted to the research model that gives rise to the psychological disorders described in the DSM-1V(3) and the pending DSM-V(4). These are the disorders and symptom clusters that are assessed by the psychological assessment instruments described in segment one. This research model is also generates the various efficacy-based treatment models that are used to treat the DSM disorders. Because some form of psychological treatment, such as anger management, may be included in the court ordered conditions imposed on clients of yours, you may be surprised when you learn how the effectiveness of a psychological treatment is determined. You will also be interested in the changes to some of the law-related segments of the DSM-V. Of particular interest to attorneys are the changes to Posttraumatic Stress Disorder and the Personality Disorders since these changes will influence case law precedents derived from the soon to be retired DSM-1V.
In this segment you are given a summary of the Personality Disorders as they will appear in the DSM-V. As you will see, dramatic changes have been made to the number of PD and to the diagnostic criteria for these disorders. These changes create many new questions about the research supporting these redefined disorders and about the validity and reliability of future PD assessments. The knowledge about psychological assessments and research design that you gained in the first two segments of the book will help you recognize some of the legal issues that will surely arise in cases where it is alleged that the actions of your client or of the opposing counsel’s client may be attributed to a PD.
In segment four you are given a summary of the new DSM-V criteria for Posttraumatic Stress Disorder. Recent research demonstrates that PTSD can arise from a wider range of real and perceived threats to one’s life or limbs than was recognized in the DSM-1V(5)(6). You will see from this new information that the determination of damages for your client will be influenced by a wider range of questions than were possible under the DSM-1V criteria. These questions will include: Who determines what constitutes a real threat and what constitutes a perceived threat? Does it matter? On what basis will these determinations be made and who will make them? Will it be you, your client, a psychologist, a physician or, will it be your client’s insurance company?
PTSD is one of the Anxiety Disorders. All types of anxiety arise from each individual’s mental images of an anticipated negative outcome and because we are creative beings, anxiety tends to leak across the designated boundaries that differentiate the different anxiety types. Attorneys practicing personal injury law, employment law, criminal law, health law and family law will see that damages need not be solely determined by a PTSD symptom list.
Segment five of the book is devoted to the implications of the most recent research on the reliability of unsubstantiated memory. Attention will be given to the numerous factors that can contaminate memory in general and the memory of witnesses in particular. You will also learn the results from the most recent research on various forms of “memory enhancement.” Whereas this segment of the book will be of interest to all lawyers, it has real and practical value for new and less experienced lawyers.
The sixth segment of the book concerns the realm of truth assessment. The legal system is a quest for truth through the compilation of evidence that either confirms or disconfirms an alleged truth of some kind. However, this compilation includes both factual evidence and opinion evidence. Many pitfalls reside in the realm of opinion evidence, which includes expert evidence that wanders, through inference, into the realm of opinion evidence. The pitfalls covered in this segment include: the overconfidence of the truth assessor, bias, meaning attribution, selective attending, mistaking intense emotion for an indicator of truth and placing unsubstantiated trust in truth-assessment devices, techniques and pharmaceutical products. Participants usually find the current research on truth assessment informative, sometimes surprising and in some cases, quite amusing.
The seventh segment of the book is a brief description, with illustrations, of fringe psychology. Fringe psychology is sometimes known as pop psychology, novel psychology, new age psychology or even, cutting edge psychology. The proponents of fringe psychology promise improbable positive outcomes using vaguely defined concepts and treatments. Fringe psychology, under any name, is pseudo-psychology and the pseudo-psychologies all lack the research support that would free them from the term pseudo. You will learn the correct questions to ask when it seems that your client could be detrimentally affected by some unchallenged aspect of fringe psychology. The title of this book Psychology and the law: What we know and what we know that isn’t so truly applies in this segment. The Frye test(2)for the admissibility of evidence is “general acceptance” by professionals in the field and is clearly insufficient for assessing the validity of the fringe psychologies.
Successful attorneys, like successful people in professional sports, appreciate the importance of preparedness and like successful athletes attorneys can improve their verbal and written performances by utilizing situation-specific rehearsal imagery. The closing segment of the book is an imagery activity that is designed for performance-enhancement.
Chapter 1: Validity and Psychological Assessments
Question One:
You can be confident about the validity of a psychological assessment if:
A. The assessment is conducted by a medical doctor.
B. The assessment is conducted by a psychiatrist or psychologist.
C. Verifiable evidence of validity is made available.
D. The assessment includes measures that have stood the test of time.
In this chapter, you will learn why item C is the only correct response to Question One.
Psychological assessments and their cousins, work-place performance measures, are of particular interest to those in employment law, family law, personal injury law and criminal law. Even though a wide range of psychological assessment instruments are currently available, don’t assume that these instruments are all reliable and valid. You may be surprised to learn that the majority of the available assessment instruments do not pass the Daubert test and the Frye test is simply not acceptable for determining the scientific validity of a psychological assessment instrument.
When determining the acceptability of evidence derived from a psychological assessment, we must first determine if the assessment instruments used to gather this evidence are acceptable. Acceptability, in this context, is determined by the reliability and validity of the assessment instruments.
Test Reliability
An assessment instrument is reliable if it measures what it measures with consistency. A yardstick is reliable if it is truly 36 inches long, always remains the same length and therefore measures length with consistency. A yardstick is obviously a reliable instrument and as it happens, it is also valid instrument because its calibrations have proven to be valid measures of length. It is not a valid instrument for assessing other things such as temperature, mental health or job performance.
In the spring of 2009 a spokesperson for a company that provides work-place assessment tools for employers claimed, in articles published in the Canadian newspapers, the Globe and Mail and the Toronto Star, that their new assessment instruments are “lie proof.” The company spokesperson focused on the supposed lie proof feature but the journalists failed to question the probability that any assessment instrument is reliably lie proof and like many employers, they failed to ask whether the assessment tools actually measure what the creators of the instruments claim they measure. It may be difficult to imagine that anyone would believe that any assessment instrument is lie proof, but most people, including many employers, don’t know how reliability and validity are determined and therefore, they leave the issue of authenticity to the “experts.” It no doubt seems obvious to you that the people selling the assessment instruments may not be the best source of information about the reliability and validity of these measures.
In the summer of 2009 the Globe and Mail also carried an article about the Rorschach inkblot test. A physician had placed the “inkblots” used in the Rorschach on line and a number of health professionals responded with concern about the potential loss of the integrity of the instrument. If the Rorschach actually had proven reliability and validity, their concerns about test integrity would have been justified. Since the Rorschach has neither, their concerns were clearly misplaced. These concerned health professionals were functioning from their general acceptance of the Rorschach as an acceptable psychological assessment instrument. This article illustrates the importance of using the more stringent Daubert test rather than the Frye test when determining the admissibility of evidence gleaned from psychological assessment instruments.
Whereas the Rorschach is still used by many psychologists and psychiatrists, it is based on theory and the interpretations of the administrator rather than upon a comparison of each client’s responses to a standardized base. Reviewers point out that, “projective tests generally and the Rorschach test specifically, cannot provide measures of validity because the final interpretation resides with the examiner(7)”. Anastasia(8)further states in, Psychological Testing, that the interpretation of the Rorschach may reveal more about the theoretical orientation, favourite hypotheses and idiosyncrasies of the examiner than it does about the person taking the test. A 2010 meta-analysis by Wood(9)found that, in addition to failing to meet the general criteria for reliability and validity, the Rorschach is not a reliable or valid measure to discriminate psychopaths from non-psychopaths in forensic populations.
It is important to protect the integrity of valid assessment instruments but how do we know if an instrument is valid? If you picture a continuum of assessment instruments with the valid and reliable MMPI-2 at one end and the invalid and unreliable technique of palm reading at the other end, you can see the need for a criteria to determine whether a given instrument falls on the valid or invalid side of the continuum.
It is easier to determine test reliability than it is to determine test validity. Simply stated, a test is reliable if it consistently measures what it is purported to measure. However, if the test has not met the criteria for validity, it doesn’t matter if it is reliable and, if it is valid but does not reliably measure what it measures, little faith should be placed in the psychological profiles derived from the assessment instrument. Test reliability matters as does test validity.
If psychological assessments didn’t have an impact on the lives of the people immediately involved, it wouldn’t matter whether the tests used are reliable and valid(10).
Test Validity
The validity of a psychological assessment instrument is determined by the authenticity of the characteristics or symptoms being assessed; by the extent to which the assessment instrument actually measures these characteristics or symptoms and whether the responses of the test taker can be compared to a sufficiently large sample of people who actually have these characteristics or symptoms.
The Luscher Color Test, for example, supposedly identifies personality characteristics based on the color preferences of the person taking the test. There is no credible evidence that shows a positive or negative correlation between color preference and personality characteristics and there is no firm agreement among health professionals on what constitutes personality. Therefore this test has no validity whatsoever. You might conclude from this example that invalid tests such as the Luscher Color Test are sufficiently rare to be of little concern to practicing attorneys. If you have reached this conclusion, you will find that you are clearly wrong.
In employment law(11),(12) for example, a test manual may state that people with characteristics x, y and z make good leaders. Before this test can be considered valid for identifying good leaders the evidence supporting the test must show that x, y and z are real and valid concepts. Then there needs to be data from a sufficiently large sample of actual good leaders to confirm that characteristics x, y and z do in fact correlate highly with good leadership.
When the validity of x, y and z has been demonstrated and when there is an acceptably high positive correlation between these characteristics and good leadership, the statement that test takers who score highly on x, y and z will probably be good leaders is valid.
Of course, in the real world, some test takers will score moderately high on x, y and z or high on two and less high on the other. In addition, we have to ask whether there are variables other than x, y, and z that predict good leadership. People usually aren’t black or white and our assessment tools assess people. Therefore, the persons conducting the assessments need to be qualified, experienced and knowledgeable about test validity and about sustaining validity when some degree of interpretation is required.
It is not unusual in criminal law for a psychological assessment to play an important role in the judicial process but sometimes other types of assessments are also employed. In a recent serial murder case(13)the author gave testimony on the validity of an academic achievement test that was used to support the contention by the defence that the accused did not have sufficient intelligence to carry out the alleged crimes over a period of years.
The Standardized Base
In baseball a batting average of 300 has practical meaning only in terms of the averages of the other players in the same league. If the mean batting average in a league is 450, probably a slow pitch league, then 300 is not as impressive as it seems when compared to the standardized base of 450. If however, the mean batting average in a professional league is 255, a player with a consistent average of 300 or higher is doing well and has definite leverage in the negotiations for his next contract.
A standardized base for a psychological test is a large and current sample of people who definitely have the disorder or disorders being assessed. The characteristics of each disorder such as depression or anxiety, has been determined from a body of researched and professionally agreed upon evidence. Like the baseball players described above, the test taker’s responses to the items on the test are compared to the responses of the large sample of people who constitute the standardized base. The test taker either scores similarly to people with one or more of the assessed disorders and is therefore diagnosed accordingly or, does not score like those with a disorder. Standardized measures in other realms also have a base derived from the outcomes of a large sample of people in the respective fields in question. These include: career interests, aptitude measures or specific forms of cognitive functioning such as learning disabilities.
The DSM-1V-TR provides the professionally agreed upon characteristics and symptom criteria for the list of 16 currently agreed upon categories of psychological disorders. These are the disorders assessed by the existing valid psychological assessment instruments. The changes that will appear in the soon-to-be-completed DSM-V(14)will be discussed at appropriate points throughout the book.