1. See Eric Y. Drogin et al., Handbook of Forensic Assessment: Psychological and Psychiatric Perspectives (2011) (discussing role of mental health evidence in range of criminal and civil cases); Gary B. Melton et al., Psychological Evaluations for the Courts: A Handbook for Mental Health Professionals and Lawyers (4th ed. 2018) (discussing range of criminal and civil cases in which mental health evidence may be informative); Christopher Slobogin, Thomas L. Hafemeister & Douglas Mossman, Law and the Mental Health System: Civil and Criminal Aspects (7th ed. 2020) (discussing use of mental health evidence in criminal and civil contexts). This reference guide will focus on adult defendants and litigants and will not discuss matters pertaining to the evaluation of juveniles. For a review of relevant case law in this area, see Melton et al., supra. See also Kirk Heilbrun et al., Evaluating Juvenile Transfer and Disposition: Law, Science, and Practice (2017).

2. 18 U.S.C. § 17 (defining standard and burden of proof for insanity defense); Clark v. Arizona, 548 U.S. 735 (2006) (ruling on the use of testimony for diminished capacity).

3. See Thomas Grisso, Evaluating Competencies: Forensic Assessments and Instruments (2d ed. 2003); Colorado v. Connelly, 479 U.S. 157 (1986) (holding that a mental health condition alone will not make a confession involuntary under the Fourth Amendment, but may be used as a factor in assessing voluntariness of defendant’s confession); Miranda v. Arizona, 384 U.S. 436 (1966) (holding confessions inadmissible unless suspect is made aware of rights and waives them); United States v. Elrod, 441 F.2d 353 (5th Cir. 1971) (holding that a person of below-average intelligence may be deemed incapable of giving consent). See also Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 92–93 (2004); Wayne R. LaFave, Jerold H. Israel & Nancy J. King, Criminal Procedure 363–65 (4th ed. 2004); Brian S. Love, Beyond Police Conduct: Analyzing Voluntary Consent to Warrantless Searches by the Mentally Ill and Disabled, 48 St. Louis U.L.J. 1469 (2004).

4. See generally Stephen J. Morse, Mental Disorder and Criminal Law, 101 J. Crim. L. & Criminology 885 (2011) (discussing use of mental health evidence in criminal-law contexts).

5. Indiana v. Edwards, 554 U.S. 164 (2008) (finding that the standards for competency to stand trial and to represent oneself need not be the same); Farretta v. California, 422 U.S. 806 (1975) (upholding defendant’s right to refuse counsel and represent himself); Pate v. Robinson, 383 U.S. 375 (1966) (holding that the Due Process Clause of the Fourteenth Amendment does not allow a mentally incompetent criminal defendant to stand trial); Dusky v. United States, 362 U.S. 402 (1960) (establishing standard for competence to stand trial).

6. Roger W. Haines Jr., Frank O. Bowman & Jennifer C. Woll, Federal Sentencing Guidelines Handbook: Text and Analysis §§ 5B1.3(d)(5), 5D1.3(d)(5), 5H1.3 (2007–2008).

Capital cases may raise unique questions regarding a condemned prisoner’s competence to waive appeals or to be executed.⁷ Postconfinement, mental health considerations may enter into parole determinations.

Mental health evidence in civil litigation is frequently introduced in personal-injury cases, where emotional harms may be alleged with or without concomitant physical injury.⁸ Issues of contract may turn on the competence of a party at the time that the contract was concluded or whether that person was subject to undue influence,⁹ and similar questions may be at the heart of litigation over wills and gifts.¹⁰ Broader questions of competence to conduct one’s affairs are considered in guardianship cases,¹¹ and more esoteric ones may arise in litigation challenging a person’s competence to enter into a marriage or to vote.¹²

7. See Panetti v. Quarterman, 551 U.S. 930 (2007) (holding that defendants sentenced to death must be competent at the time of execution); Atkins v. Virginia, 536 U.S. 304 (2002) (finding that executing intellectually disabled defendants constitutes cruel and unusual punishment under the Eighth Amendment); Stewart v. Martinez-Villareal, 523 U.S. 637 (1998) (holding that death row prisoners are not barred from filing incompetence-to-be-executed claims by dismissal of previous federal habeas petitions); Ford v. Wainwright, 477 U.S. 399 (1986) (upholding the common-law bar against executing incompetent inmates and holding that an inmate is entitled to a judicial hearing before being executed); Rees v. Peyton, 384 U.S. 312 (1966) (formulating the test for competency to waive further proceedings as requiring that the petitioner “appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises”). See also David DeMatteo et al., Forensic Mental Health Assessments in Death Penalty Cases (2011) (discussing role of mental health evidence in all phases of capital cases).

8. Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173 (11th Cir. 2007) (holding that damages are available under § 504 of the Rehabilitation Act when emotional distress was foreseeable); Cooper v. FAA, No. 07–1383 (N.D. Cal. Aug. 2008), rev’d and remanded, 596 F.3d 538 (9th Cir. 2010) (discussing mental distress as a result of disclosure of personal information); Albright v. United States, 732 F.2d 181 (C.A.D.C. 1984) (holding that alleging mental distress is sufficient to confer standing); Molien v. Kaiser Found. Hosps., 616 P.2d 813 (Cal. 1980) (holding that plaintiff who is direct victim of negligent act need not be present when act occurs to recover for subsequent emotional distress); Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (allowing recovery based on emotional distress not accompanied by physical injury); Roes v. FHP, Inc., 985 P.2d 661 (Haw. 1999) (allowing assessment of damages for negligent infliction of emotional distress when plaintiff was in actual physical peril, even if no injury was suffered); Rodrigues v. State, 472 P.2d 509 (Haw. 1970) (permitting recovery where a reasonable person would suffer serious mental distress as a result of defendant’s behavior).

9. See generally E. Allan Farnsworth, Contracts 228–33 (2004); John Parry & Eric Y. Drogin, Mental Disability Law, Evidence, and Testimony 151–52, 185–86 (2007).

10. See generally William M. McGovern Jr. & Sheldon F. Kurtz, Wills, Trusts and Estates Including Taxation and Future Interests 292–99 (6th ed. 2021); Parry & Drogin, supra note 9, at 149–51, 182–85.

11. Parry & Drogin, supra note 9, at 138–47, 177–81.

12. Id. at 54. See Missouri Prot. & Advoc. Servs. v. Carnahan, 499 F.3d 803 (8th Cir. 2007) (upholding a state law allowing disenfranchisement of persons under guardianship because it permits individualized determinations of capacity to vote); Doe v. Rowe, 156 F. Supp. 2d 35

Suits alleging infringement of the statutory and constitutional rights of persons with mental disorders (e.g., under the Americans with Disabilities Act (ADA) or the Civil Rights of Institutionalized Persons Act) often involve detailed consideration of psychiatric diagnosis and treatment and of institutional conditions.¹³ Allegations of professional malpractice by mental health professionals, including failure to protect foreseeable victims of a patient’s violence,¹⁴ invariably call for mental health expert testimony, as do commitment proceedings for the hospitalization of persons with mental disorders¹⁵ or who are alleged to be dangerous sex offenders.¹⁶

Retrospective, Contemporaneous, and Prospective Assessments

Retrospective assessments are called for when criminal defendants assert insanity or diminished-capacity defenses, claiming that their state of mind at the time of

(D. Me. 2001) (finding a state law denying the vote to anyone under guardianship by reason of mental disability in violation of the Equal Protection Clause of the U.S. Constitution and Title II of the Americans with Disabilities Act (ADA)).

13. Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998) (holding that ADA coverage extended to prisoners); McAlinden v. Cnty. of San Diego, 192 F.3d 1226 (9th Cir. 1999), cert. denied, 120 S. Ct. 2689 (2000) (reversing summary judgment against plaintiff who alleged that anxiety and somatoform disorders impaired major life activities of sexual relations and sleep); Gates v. Cook, 376 F.3d 323 (5th Cir. 2004) (upholding district court’s finding that prison conditions, including inadequate mental health provisions, violated the Eighth Amendment of the U.S. Constitution); Steele v. Thiokol Corp., 241 F.3d 1248 (10th Cir. 2001) (finding that major life activity under the ADA, involving interacting with others, not substantially impaired by obsessive-compulsive disorder); Anderson v. North Dakota State Hosp., 232 F.3d 634 (8th Cir. 2000) (finding that a plaintiff’s fear of snakes did not limit ability to work); Sinkler v. Midwest Prop. Mgmt., 209 F.3d 678 (7th Cir. 2000) (holding driving phobia did not substantially limit major life activity of working and hence was not an impairment under the ADA); Clark v. State of Cal., 123 F.3d 1267 (9th Cir. 1997) (finding state not immune on Eleventh Amendment grounds to suit alleging discrimination under ADA by developmentally disabled inmates); Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J. 1997) (finding that depression and anxiety disorders may constitute a mental disability under the ADA).

14. Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334 (Cal. 1976).

15. Addington v. Texas, 441 U.S. 418 (1979) (holding that standard of proof for involuntary commitment is clear and convincing evidence); O’Connor v. Donaldson, 422 U.S. 563 (1975) (holding unconstitutional the confinement of a nondangerous mentally ill person capable of surviving safely in freedom alone or with assistance); Lake v. Cameron, 364 F.2d. 657 (D.C. Cir. 1966) (discussing least restrictive alternative doctrine as applied to institutionalized individuals).

16. United States v. Comstock, 560 U.S. 126 (2010); Kansas v. Crane, 534 U.S. 407 (2002); Kansas v. Hendricks, 521 U.S. 346 (1997). See David DeMatteo et al., A National Survey of United States Sexually Violent Predator Legislation: Policy, Procedures, and Practice, 14 Int’l J. Forensic Mental Health 245 (2015), https://doi.org/10.1080/14999013.2015.1110847 (discussing sexually violent predator legislation in all U.S. jurisdictions).

the crime should excuse or mitigate the consequences of their behaviors,¹⁷ or when questions are raised about competence at some point in the past to waive legal rights (e.g., waiver of Miranda rights).¹⁸ In civil contexts, challenges to the capacity of a now-deceased testator to write a will or of a party to enter into a contract, among other issues, will call for a similar look back at a person’s functioning at some point in the past.¹⁹ A variety of sources of information are available for such assessments. In some cases (e.g., in criminal proceedings) the defendant is likely to be available for clinical examination, whereas in other cases the defendant will not be able to be assessed directly (e.g., challenges to a will). Although persons being evaluated will usually have an interest in portraying themselves in a particular light, direct assessments can still be valuable in determining the consistency of the reported symptoms with other aspects of a person’s history and current status.²⁰ Whether or not a person can be assessed directly, information, including direct reports and contemporaneous records, from those who were in contact with the person before and during the time in question is usually an essential part of the evaluation. Sometimes the available data from all of these sources are so limited or contradictory that they will not allow an evaluator to reach an opinion on a person’s state of mind at a point in the past. However, when evaluators are thorough, seeking information from multiple sources in relevant areas, they are usually able to provide the decision-maker with useful information.

Current-state evaluations are the most straightforward task for a mental health professional. In criminal-justice settings, concerns about a person’s current competence to exercise or waive rights will call for such evaluations (e.g., competence to stand trial or competence to represent oneself at trial).²¹ Civil

17. See Ira K. Packer, Evaluation of Criminal Responsibility (2009) (discussing role of mental health professionals in evaluating a defendant’s mental state at the time of the offense); see also David DeMatteo et al., The United States Supreme Court’s Enduring Misunderstanding of Insanity, 52 N.M. L. Rev. 34 (2022) (presenting analysis of Supreme Court cases that illustrate the Court’s confusion regarding the insanity defense).

18. Retrospective Assessment of Mental States in Litigation: Predicting the Past (Robert I. Simon & Daniel W. Shuman eds., 2002); Bruce Frumkin & Alfredo Garcia, Psychological Evaluations and Competency to Waive Miranda Rights, 9 The Champion 12 (2003); Alan Goldstein & Naomi E. Sevin Goldstein, Evaluating Capacity to Waive Miranda Rights (2010).

19. See Thomas G. Gutheil, Common Pitfalls in the Evaluation of Testamentary Capacity, 35 J. Am. Acad. Psychiatry & L. 514 (2007); Farnsworth, supra note 9, at 228–33; Kenneth I. Shulman et al., Assessment of Testamentary Capacity and Vulnerability to Undue Influence, 164 Am. J. Psychiatry 722 (2007), https://doi.org/10.1176/ajp.2007.164.5.722.

20. See Richard Rogers & Scott D. Bender, Clinical Assessment of Malingering and Deception (4th ed. 2018) (discussing importance of assessing response style in forensic mental health assessments).

21. See Dusky v. United States, 362 U.S. 402 (1960) (holding that a criminal defendant must understand the charges and be able to participate in his defense); Godinez v. Moran, 509 U.S. 389 (1993) (holding that a defendant competent to stand trial is also sufficiently competent to plead guilty or waive the right to legal counsel).

issues calling for contemporaneous assessments include workers’ compensation and other disability claims and litigation alleging emotional harms due to negligent or intentional torts, workplace discrimination, and other harm-inducing situations.²² Careful consideration needs to be given to the possibility that persons being assessed in these circumstances could deliberately exaggerate or minimize the severity of their experienced symptoms to secure a more favorable outcome in their case.²³

The evaluation of a person’s future mental state and consequent behaviors, by contrast, is particularly difficult, especially when the outcome being predicted is relatively infrequent.²⁴ In criminal proceedings, predictive assessments like this may come into play when bail is set,²⁵ at sentencing,²⁶ or as part of probation and parole decisions.²⁷ Predictive assessments often involve estimating the probable effectiveness of treatment—especially in the juvenile justice system, where a key consideration in decisions whether to transfer a juvenile to adult courts is often whether the juvenile is amenable to mental health treatment.²⁸ Predictions of behavior related to mental health disorders are also seen in civil cases, for example, in the civil commitments of persons with mental disorders and in statutes authorizing the commitment of dangerous sex offenders.²⁹ Damage assessments in civil cases that allege emotional harms will usually call for some estimate on the duration of symptoms and response to treatment.³⁰ The

22. See, e.g., Rivera v. City of New York, 392 F. Supp. 2d 644 (S.D.N.Y. 2005); Quigley v. Barnhart, 224 F. Supp. 2d 357 (D. Mass. 2002); Kent v. Apfel, 75 F. Supp. 2d 1170 (D. Kan. 1999); Lahr v. Fulbright & Jaworski, L.L.P., 164 F.R.D. 204 (N.D. Tex. 1996); see also Jane GoodmanDelahunty & William E. Foote, Evaluation for Workplace Discrimination and Harassment (2011).

23. See United States v. Binion, 132 F. App’x 89 (8th Cir. 2005) (upholding an obstruction-of-justice conviction and sentencing determination based on a finding that defendant had feigned mental illness). See discussion in section titled “Response Style” below.

24. Joseph M. Livermore, Carl P. Malmquist & Paul E. Meehl, On the Justifications for Civil Commitment, 117 U. Pa. L. Rev. 75–96 (1968).

25. United States v. Salerno, 481 U.S. 739 (1987); United States v. Farris, No. 2:08cr145, 2008 WL 1944131 (W.D. Pa. May 1, 2008).

26. Tex. Code Crim. Proc. Ann. art. 37.071 (Vernon 1981); Barefoot v. Estelle, 463 U.S. 880 (1983).

27. See 28 C.F.R. § 2.19 (2008) for parole determination factors. For probation determination factors, see 18 U.S.C. § 3563 (2008). See generally Neil P. Cohen, The Law of Probation and Parole §§ 2, 3 (2008).

28. Michael G. Kalogerakis, Handbook of Psychiatric Practice in Juvenile Court 79–85 (1992).

29. See O’Connor v. Donaldson, 422 U.S. 563 (1975) (finding that a state may not confine a citizen who is nondangerous and capable of living by herself or with aid). For an example of a sex-offender civil-commitment statute, see Minn. Stat. § 253B.185 (2008). The constitutionality of civil commitment for dangerous sex offenders was upheld in Kansas v. Hendricks, 521 U.S. 346 (1997) (setting forth the procedures for the commitment of convicted sex offenders deemed dangerous because of a mental abnormality).

30. See Melton et al., supra note 1.

uncertainties of the course of mental disorders and their responsiveness to interventions are relevant—but so are the unknowable contingencies of life (e.g., what occurs with family, job, and friends). At best, predictive assessments can provide general statements of the probability of particular outcomes, with an acknowledgment of the uncertainties involved.³¹

Diagnosis vs. Functional Impairment

A diagnosis of mental disorder per se will almost never settle the legal question in a case in which mental health evidence is presented. However, a diagnosis may play a role in determining whether a claim or proceeding can go forward. With the insanity defense, for example, the impairments of understanding, appreciation, and behavioral control that constitute the various legal standards must be based, in one popular formulation, on a “mental disease or defect.”³² In the absence of a diagnosis of mental disorder (including intellectual disability or consequences of injury to the brain), an affirmative defense of insanity will not prevail.³³ Comparable situations exist in civil commitment proceedings and work-disability determinations.³⁴

Notwithstanding the threshold role played by a mental disorder diagnosis in many cases, the ultimate legal issue usually will turn on the impact of the mental disorder on the person’s functional abilities.³⁵ Those abilities may refer to the person’s cognitive capacities, including capacities to make legally relevant decisions, or decisional capacities (e.g., granting consent for the police to conduct a warrantless search, altering a will), or performative capacities, that is, the capacity to behave in a particular way (e.g., conforming one’s conduct to the requirements of the law, cooperating with an attorney in one’s own defense, resisting undue influence), or both (e.g., skill as a parent, competence to proceed with criminal

31. For a more detailed discussion of predictive assessment regarding future dangerousness, see section titled “Prediction of Violence” below.

32. The American Law Institute’s standard for the insanity defense reads, “A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” Model Penal Code and Commentaries § 4.01(1) (Official Draft and Revised Comments 1985) (adopted by American Law Institute, May 24, 1962). The federal insanity defense was codified in the Insanity Defense Reform Act of 1984, 18 U.S.C. § 17. See also Durham v. United States, 214 F.2d 862 (D.C. Cir. 1954) (“[A]n accused is not criminally responsible if his unlawful act was the product of mental disease or defect.”); note United States v. Brawner, 471 F.2d 969 (1972) (which overturned the Durham Rule or “product test”).

33. Tennard v. Dretke, 542 U.S. 274 (2004); Bigby v. Dretke, 402 F.3d 551 (5th Cir. 2005).

34. Addington v. Texas, 441 U.S. 418 (1979) (setting the burden of proof required for involuntary civil commitment as requiring clear and convincing evidence); see Social Security Administration Listing of Impairments, https://perma.cc/5TNU-5JAD.

35. Grisso, supra note 3.

adjudication). Many of the legal questions related to mental health evidence will involve a determination of the influence of a mental state or disorder on one or both of these sets of capacities. The mere presence of a mental disorder will almost always be insufficient for that purpose. Mental disorder in a criminal defendant, for example, if it does not interfere substantially with competence to stand trial, does not present a basis for postponing adjudication of the case.³⁶ Some degree of mental disorder, including neurocognitive impairment, without affecting relevant abilities, does not provide grounds for voiding a will.³⁷ This can be generalized to all criminal and civil competency determinations, most assessments of emotional harms, and probably to the majority of cases in which mental health testimony is offered: Unless a mental disorder can be shown to have affected a person’s functional decisional or performative capacity, a diagnosis of mental disorder per se will not be determinative of the outcome.³⁸

Despite its importance to the adjudicative process, mental health evidence is often introduced in the context of a serious stigma that attaches to mental disorders³⁹ and considerable popular confusion regarding their nature, consequences, and susceptibility to treatment.⁴⁰ Diagnoses of mental disorders often are perceived to be less reliable and more subjective than diagnoses of other medical conditions.⁴¹ Symptoms of mental disorders may be seen as reflections of moral weakness or lack of will, and the impact of disorders on functional abilities may not be recognized or may occasionally be exaggerated.⁴² The potential impact and limits of current treatments are not widely understood. Even the various types of mental health professionals are frequently confused.⁴³ The first section of this reference guide clarifies these issues; subsequently, we address questions

36. United States. v. Valtierra, 467 F.2d 125 (9th Cir. 1972); United States v. Passman, 455 F. Supp. 794 (D.D.C. 1978).

37. Rossi v. Fletcher, 418 F.2d 1169 (D.C. Cir. 1969); In re Estate of Buchanan, 245 A.D.2d 642 (N.Y. App. Div. 1997).

38. For a brief overview of competency evaluations, see Patricia A. Zapf & Ronald Roesch, Mental Competency Evaluations: Guidelines for Judges and Attorneys, 37 Ct. Rev. 28 (2000). For the underlying standard for competency to stand trial, see Dusky v. United States, 362 U.S. 402 (1960).

39. Bruce G. Link et al., Measuring Mental Illness Stigma, 30 Schizophrenia Bull. 511 (2004), https://doi.org/10.1093/oxfordjournals.schbul.a007098.

40. Bruce G. Link et al., Stigma and Coercion in the Context of Outpatient Treatment for People with Mental Illnesses, 67 Soc. Sci. & Med. 409 (2008), https://doi.org/10.1016/j.socscimed.2008.03.015.

41. Thomas A. Widiger, Values, Politics, and Science in the Construction of the DSMs, in Descriptions and Prescriptions: Values, Mental Disorders, and the DSMs 25 (John Z. Sadler ed., 2002).

42. Michael L. Perlin, “You Have Discussed Lepers and Crooks”: Sanism in Clinical Teaching, 9 Clinical L. Rev. 683 (2003); Michael L. Perlin, “Half-Wracked Prejudice Leaped Forth”: Sanism, Pretextuality, and Why and How Mental Disability Law Developed as It Did, 10 J. Contemp. Legal Issues 3 (1999); Michael L. Perlin, The Hidden Prejudice: Mental Disability on Trial (2000).

43. The degree of popular confusion is underscored by the results of a web-based search for “psychiatrist vs. psychologist,” which turns up a remarkably large number of websites attempting to explain the differences between the two professions.

specifically related to the introduction of evidence by mental health experts and provide a case example.

Mental Health Experts

Evidence related to mental state and mental health disorders may be presented by experts from a number of disciplines, but it is most commonly introduced by psychiatrists or psychologists.

Psychiatrists

Psychiatrists are physicians who specialize in the diagnosis and treatment of mental disorders.⁴⁴ After college, they complete four years of medical school, during which they spend approximately two years in preclinical studies (e.g., physiology, pharmacology, genetics, pathophysiology), followed by two years of clinical rotations in hospital and clinic settings (e.g., medicine, surgery, pediatrics, obstetrics/gynecology, orthopedics, psychiatry).⁴⁵ Graduating medical students who elect to specialize in psychiatry enter residency programs of at least four years.⁴⁶ Accredited residencies must currently offer at least four months in a primary-care setting in internal medicine, family medicine, or pediatrics and at least two months of training in neurology.⁴⁷

After completing four years of residency training, a psychiatrist is considered board eligible, that is, able to take the certification examination of the American Board of Psychiatry and Neurology in adult psychiatry.⁴⁸ After successful completion of this examination process, the psychiatrist is designated board certified. Psychiatrists who desire more intensive training in a subspecialty area of psychiatry—for example, child and adolescent or addiction psychiatry—can complete a one- or two-year fellowship working in that subspecialty. A psychiatrist who has completed

44. Narriman C. Shahrokh & Robert E. Hales, American Psychiatric Glossary 157 (2003).

45. Medical schools in the United States are accredited by the Liaison Committee on Medical Education, which establishes general curricular and other standards that all schools must meet. Standards are available at https://perma.cc/9KT4-LED7. Students can elect to extend their medical-school training by taking additional time to conduct research or to obtain complementary training (e.g., in public health).

46. Residents who choose to combine adult- and child-psychiatry training can do so in a five-year program, or can follow their four years of adult residency with two years of child training. Some residents will also extend their residency training by adding a year or more during which they conduct laboratory or clinical research.

47. Psychiatric residencies are accredited by the Accreditation Council on Graduate Medical Education. Program requirements are available at https://perma.cc/QX6X-ZP6H.

48. Information on qualifications for board certification and the examination process is available from the American Board of Psychiatry and Neurology at https://perma.cc/EN4Y-QFA6.

an accredited fellowship⁴⁹ is eligible for additional board certification in that subspecialty.⁵⁰

Forensic psychiatry is a subspecialty that focuses on the interrelationships between psychiatry and the law.⁵¹ It is the forensic psychiatrist who is particularly likely to offer evidence as part of legal proceedings. Fellowship training in forensic psychiatry involves a one-year program in which fellows are taught forensic evaluation for civil and criminal litigation and become involved in the treatment of persons with mental disorders in the correctional system.⁵²

Psychologists

Psychologists receive graduate training in the study of mental health processes and behavior.⁵³ Only a subset of psychologists—those trained in applied specialty areas—evaluate and treat persons with psychological or behavioral problems, including clinical, counseling, health, neuro-, rehabilitation, and school psychologists. Independent practice in applied specialty areas of psychology requires licensure from the appropriate state licensure board and generally requires a doctoral degree and postgraduate clinical experience. Although use of the term psychologist is restricted in many jurisdictions to licensed psychologists,⁵⁴

49. Accredited subspecialty training is currently available in addiction, child and adolescent, consultation-liaison, forensic, and geriatric psychiatry. Psychiatrists are also eligible for training in brain-injury medicine, hospice and palliative medicine, pain medicine, and sleep medicine. See subspecialty certification standards at https://perma.cc/UB3S-7TCH. Fellowship programs also exist in some subspecialty areas for which accreditation and board certification are not available (e.g., research, psychopharmacology, and public and community psychiatry).

50. Typically, when new subspecialties are recognized and accreditation standards are developed, a certain period of time (e.g., five years) is allowed for psychiatrists who have gained expertise in that area by virtue of experience or alternative training to achieve board certification; many psychiatrists who are today board certified in a subspecialty have not completed a fellowship.

51. See the definition of forensic psychiatry offered by the American Academy of Psychiatry and the Law: “Forensic psychiatry is a medical subspecialty that includes research and clinical practice in the many areas in which psychiatry is applied to legal issues.” https://perma.cc/VPP2-22JF. Psychiatrists who have been certified in adult or child psychiatry by the American Board of Psychiatry and Neurology, and who have completed a forensic psychiatry fellowship, can take the examination for subspecialty certification in forensic psychiatry. A description of the requirements for certification can be found at https://perma.cc/T74N-N5NF. Board certification must be renewed by taking a recertification examination every ten years or participating in an alternative maintenance of certification program, see details at https://perma.cc/K3LR-33XM.

52. See the accreditation standards in forensic psychiatry at https://perma.cc/DW8U-EX6B.

53. The American Psychological Association defines the field of psychology in this way: “Psychology is the study of the mind and behavior. The discipline embraces all aspects of the human experience—from the functions of the brain to the actions of nations, from child development to care for the aged. In every conceivable setting from scientific research centers to mental health care services, ‘the understanding of behavior’ is the enterprise of psychologists.” https://perma.cc/PFV3-MJHQ.

54. See, e.g., Mass. Gen. Laws ch. 112, § 122; N.Y. Educ. Law § 7601.

the term may be applied to those in academia or to those with master’s-level training in psychology in certain contexts.⁵⁵

Those pursuing doctoral-level training as psychologists must complete a graduate program that typically takes four to six years. Those who intend to provide clinical services generally receive training in clinical psychology, counseling psychology, neuropsychology, or school psychology,⁵⁶ involving three to five years of graduate study plus a year of clinical internship.⁵⁷ Psychology graduate programs award either the Ph.D. or Psy.D. (professional psychology) degree.⁵⁸ Ph.D. programs that adhere to the scientist-practitioner training model emphasize both research and clinical training, and students are required to gain clinical experience and complete a research-based dissertation. Psy.D. programs ordinarily focus on clinical training and have less rigorous research requirements.⁵⁹

Postdoctoral fellowships have been developed in forensic psychology, generally involving a one-year program with didactic and clinical training in forensic evaluation.⁶⁰ Board certification is offered by several entities, but the most established is the American Board of Professional Psychology (ABPP),⁶¹ which provides certification in fifteen specialty areas. The American Board of Forensic Psychology (ABFP), one of the ABPP’s specialty boards, provides board certification in forensic psychology. Board certification in forensic psychology through

55. Note that the American Psychological Association urges that the term be restricted to persons with doctoral degrees in psychology: “Psychologists have a doctoral degree in psychology from an organized, sequential program in a regionally accredited university or professional school . . . it is [the] general pattern to refer to master’s-level positions as counselors, specialists, clinicians, and so forth (rather than as ‘psychologists’).” https://perma.cc/S38C-54YG.

56. Other psychology programs offer training in experimental, social, and cognitive psychology, for example, with the intent of producing graduates who will pursue research or teaching careers but will not engage in clinical work. United States v. Fishman, 743 F. Supp. 713, 723 (N.D. Cal. 1990) (excluding the expert testimony of a social psychologist holding a Ph.D. in sociology).

57. Accreditation of programs in clinical, counseling, and school psychology is undertaken by the Commission on Accreditation of the American Psychological Association. Accreditation standards are available at https://perma.cc/Q3YM-5U9Y.

58. See sample Ph.D. program curricula for programs at University of Illinois at Urbana-Champaign, https://perma.cc/MBL5-8TX9; Indiana University, https://perma.cc/82JY-66L3; and University of California at Los Angeles, https://perma.cc/MN2Q-KFPJ. See sample Psy.D. curricula for programs at William James College, https://perma.cc/6CQ7-FNHW; and Wisconsin School of Professional Psychology, https://perma.cc/LZ4F-6G5P.

59. For a discussion of the so-called Vail model on which Psy.D. training is based, see John C. Norcross & Patricia H. Castle, Appreciating the PsyD: The Facts, 7 Eye on Psi Chi 22 (2002), https://doi.org/10.24839/1092-0803.Eye7.1.22.

60. See, e.g., Description of Program at University of Massachusetts Medical School, https://perma.cc/YJD4-44Q4.

61. See American Board of Professional Psychology website, https://perma.cc/D2ES-YCRS. ABPP is the oldest and best-established specialty certification organization for psychologists, with the most rigorous process for becoming board certified.

ABPP/ABFP is a rigorous process that includes a credential review documenting sufficient education, training, and experience; completion of a written examination; submission and review of forensic practice samples; and a three-hour oral examination.⁶²

Other Mental Health Professionals

Professionals with a variety of other types of training also provide mental health services, including services that are generally referred to as psychotherapy or counseling with individuals, couples, or groups. The best established of these professions is social work. Schools of social work offer two-year programs that lead to a master’s degree (MSW), and students can elect a track that is often referred to as psychiatric social work, which involves instruction and experience in psychotherapy.⁶³ Graduate social workers can obtain state licensure after they complete a period of supervised practice and an examination, after which they become a licensed independent clinical social worker (LICSW), with variation in nomenclature across the states.⁶⁴ Social workers may offer psycho-therapeutic or counseling services through social service agencies or in private practice. Recently, a subspecialty of forensic social work has begun to develop, involving social workers with experience in the criminal justice system.⁶⁵

Although psychiatrists and doctoral-level psychologists generally provide expert evidence related to mental health issues, courts will sometimes admit testimony from other mental health professionals.⁶⁶ Given that training and

62. The requirements for board certification in forensic psychology through ABPP/ABFP can be found at https://perma.cc/PY8U-RBQD.

63. See, e.g., curricula for social-work training at Columbia School of Social Work (https://perma.cc/A5UP-NYQB) and Smith College (https://perma.cc/XGY2-N8UB).

64. The Association of Social Work Boards provides an overview of state licensure requirements at https://perma.cc/Z886-M3XV.

65. See the National Association of Forensic Social Work’s description of forensic social work at https://perma.cc/6ZDE-RL3H. Postgraduate certification programs for forensic social workers are also being developed (e.g., University of Nevada at Las Vegas, https://perma.cc/8Y2F-AMZX).

66. Leblanc v. Coastal Mech. Servs., LLC, No. 04-80611-CIV, 2005 WL 5955027 (S.D. Fla. Sept. 7, 2005) (finding that a marriage and family counselor holding a Ph.D. in family therapy and bachelor’s and master’s degrees in psychology, and having a record of relevant publications, may be qualified to offer helpful testimony about a plaintiff’s alleged psychological condition); Jenkins v. United States, 307 F.2d 637 (D.C. Cir. 1962) (“The critical factor in respect to admissibility is the actual experience of the witness and the probable probative value of his opinion. . . . The determination of a psychologist’s competence to render an expert opinion based on his findings as to the presence or absence of mental disease or defect must depend upon the nature and extent of his knowledge. It does not depend upon his claim to the title ‘psychologist.’”); United States v. Azure, 801 F.2d 336, 342 (8th Cir. 1986) (“The social worker was most likely qualified as an expert under Rule 702. . . .”); see also United States v. Raya, 45 M.J. 251 (1996) (finding that trial court’s admission of expert testimony from a social worker on whether the victim suffered from post-traumatic

experience vary considerably, and titles may be used inconsistently, courts usually require an individualized inquiry into the qualifications of the proposed expert.

Differences Between Clinical and Forensic Contexts

The view of a psychologist or psychiatrist as a helping professional in a traditional clinical context can be contrasted with their roles in forensic contexts. Several of the key differences between clinical assessments and forensic assessments are described below.⁶⁷

Purpose

The primary distinction between traditional clinical assessments and forensic assessments is the different purposes of the evaluations. In a clinical context, the purpose of an assessment is to diagnose mental health problems and develop a treatment plan; the purpose of a forensic assessment is to assist a legal decision-maker in making a decision about a criminal offender or civil litigant. Ethical principles governing clinical practice emphasize benefiting the patient and avoiding harm, while the ethics of forensic evaluation center on a truthful

stress disorder (PTSD) was not an abuse of discretion) and United States v. Johnson, 35 M.J. 17 (1992) (holding social worker qualified to render opinion that child suffered trauma). Note, however, that not all courts have been receptive to social-worker testimony offered as expert opinion on the diagnosis of PTSD, e.g., Blackshear v. Werner Enters., Inc., No. 2004–4—WOB, 2005 WL 6011291(E.D. Ky. May 19, 2005); Neely v. Miller Brewing Co., 246 F. Supp. 2d 866 (S.D. Ohio 2003). For more restrictive approaches to testimony by non-Ph.D. psychologists, see also Parker v. Barnhart, 67 F. App’x. 495 (9th Cir. 2003) (finding error in an administrative law judge’s failure to call a licensed psychologist, rather than another expert, as an expert witness for appropriate testimony); Earls v. Sexton, No. 3:09cv950, 2010 U.S. Dist. LEXIS 52980 (M.D. Pa. May 28, 2010) (allowing a nurse practitioner to testify in a negligence action concerning whether a motor vehicle accident caused psychiatric injuries); State v. Bricker, 321 Md. 86 (Md. Ct. App. 1990) (rejecting expert testimony from a nonpracticing psychologist who did not hold a doctorate and did not qualify for a reciprocal license under state law); People v. McDarrah, 175 Ill. App. 3d 284, 291 (1988) (affirming the trial court’s rejection as an expert witness of a doctoral candidate who did not have the experience level required for state registration as a psychologist); but see United States v. Huber, 603 F.2d 387, 399 (2d Cir. 1979) (affirming trial court’s rejection of expert testimony on defendant’s mental state from a professor of economics who was also a certified psychoanalyst).

67. See Kirk Heilbrun, Principles of Forensic Mental Health Assessment 9–14 (2001) (describing differences between clinical and forensic assessments).

presentation of the findings, which may be adverse to the interests of the evaluee.⁶⁸

Client

In a clinical assessment, the client (often termed the patient) is the person being examined and/or treated by the mental health professional, but the client in a forensic context is the person or entity that requested the evaluation (e.g., an attorney, a court, an employer, an insurer).

Relationship

Therapeutic relationships between a psychologist or psychiatrist and a patient are often characterized by empathy, support, and emotional safety. In forensic contexts, however, mental health professionals typically strive to remain detached from examinees, and the focus is on obtaining complete and accurate information that is relevant to the legal question being addressed.

Voluntariness and Autonomy

In most traditional clinical relationships, the patient enters treatment voluntarily. By contrast, in forensic contexts, examinees may be compelled to undergo an evaluation by a court, employer, or insurer or may be strongly encouraged to do so by their attorney.

Confidentiality

A patient in a traditional clinical relationship can expect that the mental health professional will not disclose confidential information obtained during treatment (unless the mental health professional is required by law to disclose certain information), but the examinee in a forensic assessment should not expect the information they provide to remain entirely confidential. The results of a forensic evaluation may be divulged to opposing counsel and in open court; in some cases, the forensic report may become part of the public record.

68. Paul S. Appelbaum, A Theory of Ethics for Forensic Psychiatry, 25 J. Am. Acad. Psychiatry & L. 233 (1997).

69. Thomas G. Gutheil & Paul S. Appelbaum, Clinical Handbook of Psychiatry and the Law 245–47 (5th ed. 2020).

itself. Another involves the importance of impartiality, which is highly valued in forensic assessment but not in clinical treatment. These various considerations are addressed in the specialty ethics guidelines for psychiatry⁷⁰ and psychology,⁷¹ which generally discourage playing both roles in the same case.

Diagnosis of Mental Disorders

Nomenclature and Typology: DSM-5 and DSM-5-TR

The standard nomenclature and diagnostic criteria for mental disorders in use in the United States are embodied in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association and now in its fifth edition with revised text (DSM-5-TR).⁷² To qualify for a DSM diagnosis, a person must meet a set of criteria characteristic of the disorder. The DSM approach has been criticized on the grounds of relevance to the evidence likely to be presented in legal proceedings, as its major goal is to provide a typology useful to clinicians and researchers that reflects the latest psychiatric understanding of mental disorders. But the DSM recognizes—in a cautionary statement in the introduction to the text—that diagnostic criteria appropriate for clinical or research purposes may not map directly onto legally relevant categories.⁷³

70. American Academy of Psychiatry and the Law, Ethics Guidelines for the Practice of Forensic Psychiatry, May 2005 [hereinafter Forensic Psychiatry Guidelines], https://perma.cc/P88W-F7T5.

71. American Psychological Association, Specialty Guidelines for Forensic Psychology (2011) [hereinafter APA Specialty Guidelines], https://perma.cc/MM83-6NPZ.

72. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. text rev. 2022) [hereinafter DSM-5-TR]. An alternative nomenclature and set of criteria used internationally can be found in the International Classification of Diseases, now in its eleventh edition [hereinafter ICD-11], published by the World Health Organization and available at https://perma.cc/JSE3-WSZC. Although the DSM-IV-TR and ICD-11 nomenclature and criteria are generally similar, there are differences that can result in diagnostic variations in particular cases, depending on which criteria are applied. The DSM-5-TR was modified in part in an attempt to make it more closely align with ICD-11.

73. The cautionary statement reads in part,
Although the DSM-5 diagnostic criteria and text are primarily designed to assist clinicians in conducting clinical assessment, case formulation, and treatment planning, DSM-5 is also used as a reference for the courts and attorneys in assessing the legal consequences of mental disorders. As a result, it is important to note that the definition of mental disorder included in DSM-5 was developed to meet the needs of clinicians, public health professionals, and research investigators rather than the technical needs of the courts and legal professionals. . . . When DSM-5 categories, criteria, and textual descriptions are employed for forensic purposes, there is a risk that diagnostic information will be misused or misunderstood. These dangers arise because of the imperfect fit between the

questions of ultimate concern to the law and information contained in a clinical diagnosis. In most situations, the clinical diagnosis of a DSM-5 mental disorder . . . does not imply that an individual with such a condition meets legal criteria for the presence of a mental disorder or ‘mental illness’ as defined in law, or a specified legal standard (e.g., for competence, criminal responsibility, or disability). DSM-5-TR, supra note 72, at 29.

74. The guidelines for the revision process are available at https://perma.cc/R8CP-F993.

75. Paul S. Appelbaum, Ellen Leibenluft & Kenneth S. Kendler, Iterative Revision of the DSM: An Interim Report from the DSM-5 Steering Committee, 72 Psychiatric Services 1348 (2021), https://doi.org/10.1176/appi.ps.202100013.

76. These brief summaries of complex and variable conditions are meant to provide an orientation to the nature and course of major mental disorders. The current edition of the DSM itself or standard psychiatric textbooks should be consulted for more complete descriptions. Note that for a diagnosis of any disorder to be made per the DSM, the symptoms must be deemed to “cause clinically significant distress or disability in social, occupational, or other important activities.” DSM-5-TR, supra note 72, at 14.

77. Psychotic conditions involve some degree of detachment from reality characterized by delusional thinking and hallucinatory perceptions. Id. at 113.

78. Id. at 117–18.

79. Id. at 139–59.

80. Id. at 183–92.

81. Id. at 543.

82. Id. at 733.

83. Id. at 748–52.

84. Id. at 679–80.

85. Rebecca Sims, Matthew Hill & Julie Williams, The Multiplex Model of the Genetics of Alzheimer’s Disease, 23 Nat’l Neuroscience 311 (2020), https://doi.org/10.1038/s41593-020-0559-5.

86. DSM-5-TR, supra note 72, at 37–38.

87. Rebrook v. Astrue, No. 5:07CV39, 2008 WL 822104 (N.D. W. Va. Mar. 26, 2008) (anxiety disorder); United States v. Holsey, 995 F.2d 960 (10th Cir. 1993) (dissociative disorder); Coe v. Bell, 89 F. Supp. 2d 922 (M.D. Tenn. 2000) (dissociative identity disorder); United States v. Miller, 146 F.3d 1281 (11th Cir. 1998) (impulse-control disorder); United States v. McBroom, 991 F. Supp. 445 (D.N.J. 1998) (person receiving treatment for bipolar disorder and impulse-control disorder sentenced for possession of child pornography); United States v. Silleg, 311 F.3d 557 (2d Cir. 2002) (pedophilia determination in a child-pornography case); Fields v. Lyng, 705 F. Supp. 1134 (D. Md. 1988) (kleptomania); United States v. Warr, 530 F.3d 1152 (9th Cir. 2008) (sentencing of an arsonist diagnosed with pyromania upheld); Kansas v. Hendricks, 521 U.S. 346 (1997) (upholding commitment of man unable to control pedophilic impulses); United States v. Gigante, 996 F. Supp. 194 (E.D.N.Y. 1998) (dementia); Johnson v. City of Cincinnati, 39 F. Supp. 2d 1013 (S.D. Ohio 1999) (estate of man who died from police restraint during a seizure sued the city under 28 U.S.C. § 1983); Bertl v. City of Westland, No. 04-CV-75001, 2007 WL 3333011 (E.D. Mich. Nov. 9, 2007) (finding that delirium tremens is an objectively serious medical need); Atkins v. Virginia, 536 U.S. 304 (2002) (banning the execution of the mentally retarded as a violation of the Eighth Amendment); In re Hearn, 418 F.3d 444 (5th Cir. 2005); Hamilton v. Southwestern Bell Tel. Co., 136 F.3d 1047, 1050 (5th Cir. 1998) (recognizing PTSD as a mental impairment for the purposes of the Americans with Disabilites Act).

88. Malingering is defined as “the intentional production of false or grossly exaggerated physical or psychological symptoms, motivated by external incentives such as avoiding military duty, avoiding work, obtaining financial compensation, evading criminal prosecution, or obtaining

reported by the person is compared with known syndromes, and the consistency of the person’s behaviors is observed. Contrary to common belief, mental disorders are not easy to fake, especially when the deception must be sustained over a period of time.⁸⁹

When deception is suspected, efforts to confirm it should begin during the clinical examination, as the person is offered the opportunity to endorse symptoms that are unlikely to occur naturally (e.g., “Do you ever feel as though the cars on the street are talking about you?”) or that do not fit the condition from which the patient is claiming to suffer.⁹⁰ Psychological testing can be helpful in detecting deception; the Minnesota Multiphasic Personality Inventory-3 (MMPI-3), for example, has scales that correlate with persons who are both “faking bad” (i.e., fabricating symptoms) and “faking good” (i.e., hiding symptoms that actually exist).⁹¹ Other instruments specifically for the assessment of malingering also have been developed, with varying degrees of validation.⁹² Information from records of previous psychiatric or psychological evaluations can be helpful in determining the congruence of a person’s current symptoms with past reports and behaviors. In addition, given the difficulty in maintaining a consistent pattern of deception over a sustained period, data provided by collateral sources (e.g., family members, roommates, prisoners in adjoining cells, correctional officers, nurses and other hospital staff) who have observed the person informally can be crucial in distinguishing real from malingered disorders.⁹³

The difficulty of simulating a mental disorder does not imply that it is impossible to do. Indeed, a skilled and determined person can sometimes fool even an experienced evaluator. Thus, the only honest response that a clinician can give in almost every circumstance to a question about the possibility of malingering is that it is always possible, but is more or less likely in this particular case, given the characteristics of the person being evaluated.⁹⁴

drugs,” DSM-5-TR, supra note 72, at 835; see Phillip J. Resnick, Malingering, in Principles and Practice of Forensic Psychiatry 543 (Richard Rosner ed., 2003).

89. See Resnick, supra note 88, at 544.

90. Gutheil & Appelbaum, supra note 69, at 258–59.

91. See Claudia K. Reeves, Tiffany A. Brown & Martin Sellbom, An Examination of the MMPI-3 Validity Scales in Detecting Overreporting of Psychological Problems, 34 Psych. Assessment 517 (2022), https://doi.org/10.1037/pas0001112 (noting MMPI-3 validity scales can effectively differentiate malingering from genuine mental disorder); Megan R. Whitman, Jessica L. Tylicki & Yossef S. Ben-Porath, Utility of the MMPI-3 Validity Scales for Detecting Overreporting and Underreporting and Their Effects on Substantive Scale Validity: A Simulation Study, 33 Psych. Assessment 411 (2021), https://doi.org/10.1037/pas0000988 (discussing MMPI-3’s ability to detect overreporting and underreporting of psychological symptoms).

92. See generally Rogers & Bender, supra note 20 (discussing instruments and approaches for detecting malingering).

93. Gutheil & Appelbaum, supra note 69, at 259.

94. Resnick, supra note 88.

95. See Rogers & Bender, supra note 20 (providing comprehensive overview of malingering and other response styles).

96. See Richard Rogers, An Introduction to Response Styles, in Rogers & Bender, supra note 20 (discussing various response styles besides malingering).

97. See id. at 7.

98. See id. at 10.

99. See id. at 8.

100. See id.

101. See id.

102. James G. Scott, Attention/Concentration: The Distractible Patient, in The Little Black Book of Neuropsychology (Mike R. Schoenberg & James G. Scott eds., 2011).

sensory systems.¹⁰³ Cognition, encompassing both the process and content of thought, is also often affected: Thought processes can be impeded by the slowing of thought in depression, its acceleration in mania, or the scrambling of thought among persons with schizophrenia or other psychotic disorders. Thought content may be altered by the odd reasoning to which persons with delusions appear to be prone.¹⁰⁴ Motivation to act, even in one’s self-interest, is often globally reduced in states of intense depression and in schizophrenia.¹⁰⁵ Judgment and insight may be altered under the pressure of delusions.¹⁰⁶ Control of behavior can be weakened by the impulsivity seen in mania and psychosis, the drives of the impulse disorders, and the use of disinhibiting substances, especially alcohol.¹⁰⁷ Any of these impairments could affect a person’s relevant decisional and performative capacities.

This necessarily incomplete list of the ways that mental disorders can affect functional capacities illustrates the vulnerability of almost every aspect of mental functioning to perturbation. And although it is common to divide mental functions into categories such as these for heuristic purposes, most neuroscientists recognize that the brain operates as a unified entity.¹⁰⁸ Thus, it is rare that impairments are limited to a single area of functioning. Impaired concentration, for example, inherently affects cognitive abilities, which in turn may alter judgment and therefore the person’s choice of behaviors. Although focal deficits may occur, for example the anxiety associated with exposure to a phobic stimulus such as a spider, more severe disorders will have a broader impact on a person’s functional capacities as a whole.¹⁰⁹

Assessment of Functional Legal Capacities

Determining the nature and extent of past, present, or future functional impairment, therefore, is usually the most critical aspect of a forensic mental health evaluation and subsequent presentation of mental health evidence.

103. Andre Aleman & Frank Laroi, Hallucinations: The Science of Idiosyncratic Perception (2008).

104. Joel Yager & Michael J. Gitlin, Clinical Manifestations of Psychiatric Disorders, in 10 Comprehensive Textbook of Psychiatry 973–80 (Benjamin J. Sadock, Virginia A. Sadock & Pedro Ruiz eds., 2017).

105. Id. at 984.

106. Phillipa A. Garety, Insight and Delusions, in Insight and Psychosis 66, 66–77 (Xavier F. Amador & Anthony S. David eds., 1998).

107. Eric Hollander & J. Rosen, Impulsivity, 14 J. Psychopharmacology S39 (2000).

108. William R. Uttal, The New Phrenology: The Limits of Localizing Cognitive Processes in the Brain (2003).

109. The pervasive impact of schizophrenia on all aspects of personality and functioning is the most extreme example. See Ryan Lawrence et al., Schizophrenia Spectrum and Other Psychotic Disorders, in Joseph M. Roberts et al., The Utility of the Trauma Symptom Inventory as a Primary and Secondary Assessment Instrument for Forensic Practice in Legal Settings 257–78 (2022).

110. See section titled “Diagnosis of Mental Disorders” above.

111. Michael Kindred, Guardianship and Limitations upon Capacity, in The Mentally Retarded Citizen and the Law 62 (The President’s Comm. on Mental Retardation 1976); Lab’y of Cmty. Psychiatry, Harvard Med. Sch., Competency to Stand Trial and Mental Illness (1973).

112. Rogers & Bender, supra note 20.

113. Gutheil & Appelbaum, supra note 69.

114. Melton et al., supra note 1, at 53–55.

be rooted in disruptions of brain functions per se, neuropsychological testing can also be helpful in documenting their nature and extent. Increasingly, however, an unstructured clinical evaluation on its own, even when supplemented by collateral information, is not necessarily the most accurate tool for determining functional capacity.¹¹⁵

Structured Assessment Techniques

As with determination of diagnosis, the evaluation of the limitations of function due to mental disorders increasingly involves the use of structured assessment techniques.¹¹⁶ Most commonly, these are standardized interviews or data-gathering protocols (e.g., based on a person’s psychiatric record) designed to ensure that all relevant information is obtained. In addition, where research has established the validity of the instruments by demonstrating a correlation between the results and actual impairments, these techniques may allow a quantitative estimate of the extent of actual functional deficiencies to be made. A compendium of assessment instruments includes structured evaluations that address criminal defendants’ competence to stand trial, waiver of rights to silence and legal counsel, criminal responsibility, one’s parenting capacity, competence to manage one’s affairs (i.e., need for a guardian or conservator), and competence to consent to medical treatment and research.¹¹⁷ Given that this area is a rapidly developing focus of research, instruments to address other legally relevant functional capacities and states—propensity to commit violent or sexual offenses comes quickly to mind¹¹⁸—are continuously being tested and developed.

115. Grisso, supra note 3. Surprisingly few studies exist of the reliability of clinical forensic evaluations. An early U.S. study of actual assessments showed good interrater reliability of evaluations of competence to stand trial, although many of the reports were deficient in other ways. Jennifer L. Skeem et al., Logic and Reliability of Evaluations of Competence to Stand Trial, 22 L. Hum. Behav. 519 (1998), https://doi.org/10.1023/a:1025787429972. An Australian study found only fair to moderate reliability across assessments of competence to stand trial, but moderate to good reliability of criminal-responsibility evaluations. Matthew Large et al., Reliability of Psychiatric Evidence in Serious Criminal Matters: Fitness to Stand Trial and the Defence of Mental Illness, 43 Austl. N.Z. J. Psychiatry 446 (2009), https://doi.org/10.1080/00048670902817745. A systematic review and meta-analysis found relatively poor reliability in both competence-to-stand trial and insanity evaluations. See Lucy A. Guarnera & Daniel C. Murrie, Field Reliability of Competency and Sanity Opinions: A Systematic Review and Meta-Analysis, 29 Psych. Assessment 795 (2017), https://doi.org/10.1037/pas0000388.

116. See Grisso, supra note 3.

117. Id.

118. See, e.g., Kevin S. Douglas et al., HCR-20 V3 Assessing Risk for Violence User Guide, Version 3 (2013); Grant T. Harris et al., Violent Offenders: Appraising and Managing Risk (2015); John Monahan et al., COVR—Classification of Violence Risk, Professional Manual (2005).

119. Maria T. Schultheis et al., The Neurocognitive Driving Test: Applying Technology to the Assessment of Driving Ability Following Brain Injury, 48 Rehabilitation Psych. 275 (2003), https://doi.org/10.1037/0090-5550.48.4.275.

120. Dan Marson et al., Assessing Financial Capacity in Patients with Alzheimer’s Disease: A Conceptual Model and Prototype Instrument, 57 Archives Neurology 877 (2000), https://doi.org/10.1001/archneur.57.6.877.

121. Marc J. Ackerman & Kathleen Schoendorf, Ackerman-Schoendorf Scales for Parent Evaluation of Custody Manual (1992).

122. Thomas Grisso & Paul S. Appelbaum, MacArthur Competence Assessment Tool for Treatment (MacCAT-T) (1998).

123. Grisso, supra note 3, at 45–47.

124. See, e.g., Va. Code Ann. § 37.2-903-C: “Each month the Director shall review the database and identify all such prisoners who are scheduled for release from prison within 10 months from the date of such review who receive a score of five or more on the Static-99 or a like score on a comparable, scientifically validated instrument designated by the Commissioner. . . .”

125. Grisso, supra note 3, at 481.

makes experts more vulnerable to attack on cross-examination.¹²⁶ That many expert witnesses lack knowledge of the existence of these instruments and that a sense that their use denigrates the evaluator’s expertise should be added to this list.

The vulnerability of testimony based on assessment instruments to cross-examination is worth special emphasis. Opinions offered on the basis of “clinical experience,” which appears to be the norm, are difficult to challenge when expert witnesses in fact have appropriate training and a good deal of experience with the condition in question.¹²⁷ On the other hand, assessment instruments can be subjected to scrutiny with regard to the empirical database that supports their use, including their reliability and validity, their acceptance by the relevant professional community, and their probative value in a particular case. There may also be questions regarding the examiner’s training and experience with the instrument and whether it was administered in the manner intended by its developers. All of these are legitimate questions, of course, and an argument can be made that the introduction of data from assessment instruments into evidence should be held to a more rigorous standard, because factfinders may give such data greater credence than unassisted clinical judgment.¹²⁸ But the undoubted consequence is that the arguably more reliable and perhaps more valid data from empirically derived assessment techniques are less likely to be introduced in evidence than evaluators’ subjective judgments of unknown validity.¹²⁹

Predictive Assessments

As noted above,¹³⁰ predictive assessments are the most challenging evaluations performed by mental health professionals.¹³¹ The most common predictive tasks involve the prediction of violence and of future functional impairment and

126. Id. at 481–82.

127. See Jack B. Weinstein, 4 Weinstein’s Federal Evidence § 702:02 n.1 (2d ed. 2008) (on the liberal admissibility of expert testimony under Federal Rule of Evidence 702); § 702.02[4] nn.25–27 (on the trial judge’s broad discretion to admit or exclude expert testimony and determine its helpfulness and relevancy, and on the application of the “abuse of discretion” standard of review to determinations of whether a witness qualifies as an expert); § 702.04[1][c] (on the typical “academic credentials plus experience” combination). Bryan v. City of Chicago, 200 F.3d 1092 (7th Cir. 2000) (an expert may qualify based on academic expertise and practical experience).

128. Christopher Slobogin, Experts, Mental States, and Acts, 38 Seton Hall L. Rev. 1009 (2008).

129. Grisso, supra note 3, at 482.

130. See section titled “Overview of Mental Health Evidence” above.

131. Yogi Berra, New York Yankees’ Hall of Fame catcher and philosopher of everyday life, is purported to have said, “It’s tough to make predictions, especially about the future.” See https://perma.cc/5FLR-WJ6T. For a discussion of the origin of the Berra phrase, see Henry T. Greely and Anthony D. Wagner, Reference Guide on Neuroscience, in 3 Reference Manual on Scientific Evidence (2011).

responses to treatment. A variation on the question of prediction involves appraising the domains of risk, need, and responsivity. These professional activities are discussed in the sections that follow.

Prediction of Violence

The risk that a person may commit a violent act at some point in the future may come into play in the criminal process when courts are making determinations of suitability for diversion, bail, sentencing, probation, and parole, and in the civil process in hearings for civil commitment to psychiatric facilities and sex-offender treatment programs and when considering the imposition of liability on clinicians and facilities for failing to protect victims of patients’ violence.¹³² Not all persons for whom such assessments must be made will have mental disorders, but psychiatrists and psychologists are seen by the courts as having expertise in this area and hence are almost invariably called upon for these evaluations.¹³³

Persons with serious mental disorders, such as schizophrenia or bipolar disorder, are often considered by the general public to be at high risk for violence.¹³⁴ However, data on the relationship between serious mental disorders and violence are variable (schizophrenia is the disorder most frequently studied). Although most studies suggest a moderately elevated risk, the proportion of violence accounted for by individuals with serious mental disorders is small, probably 3% to 5%, based on the best available U.S. estimates.¹³⁵ Data also suggest that the stereotype of individuals with serious mental disorders who assault strangers in

132. See, e.g., Kansas v. Hendricks, 521 U.S. 346 (1997); White v. Johnson, 153 F.3d 197 (5th Cir. 1998). A unanimous U.S. Supreme Court in Chambers v. United States, 129 S. Ct. 687, 691–93 (2009), pointed to the importance of considering empirical data when identifying circumstances associated with increased risk of violence.
Violence can be defined in different ways. One definition frequently used in criminal law involves the commission of an offense against persons. Another definition employed by researchers is some variation on serious acts of violence (battery that resulted in physical injury; sexual assaults; assaultive acts that involved the use of a weapon; or threats made with a weapon in hand) and other aggressive acts (battery not resulting in physical injury or threats without a weapon in hand), a distinction used by the MacArthur Violence Risk Assessment Study Group. See https://perma.cc/45H2-3YK9.

133. See Joanmarie Ilaria Davoli, Psychiatric Evidence on Trial, 56 S.M.U. L. Rev. 2191 (2003).

134. See Bernice Pescosolido et al., The Public’s View of the Competence, Dangerousness, and Need for Legal Coercion Among Persons with Mental Illness, 89 Am. J. Pub. Health 1339 (1999), https://doi.org/10.2105/AJPH.89.9.1339; see also P.W. Corrigan et al., Implications of Educating the Public on Mental Illness, Violence, and Stigma, 55 Psychiatric Servs. 577 (2004), https://doi.org/10.1176/appi/ps.55.5.577.

135. Eric Elbogen & Sally Johnson, The Intricate Link Between Violence and Mental Disorder, 66 Arch. Gen. Psychiatry 152 (2009), https://doi.org/10.1001/archgenpsychiatry.2008.537; Paul S. Appelbaum, Violence and Mental Disorders: Data and Public Policy (editorial), 163 Am. J. Psychiatry 1319 (2006).

public places is inaccurate: Most violence by persons with serious mental disorders is directed at family members and friends and occurs in the living quarters of the perpetrator or the victim.¹³⁶ Much higher rates of violence are associated with substance use,¹³⁷ especially alcohol use, and with psychopathy, a subcategory of antisocial personality disorder.¹³⁸ Indeed, most of the strongest predictors of violence are common to both persons with serious mental disorders and those without, suggesting that the impact of the disorders per se is slight.¹³⁹

Approaches to Prediction of Violence

Clinical evaluation of violence risk ordinarily focuses on those variables that have been shown in empirical research to have the strongest relationship to future violence,¹⁴⁰ whether the information is gleaned directly from the person or derived from collateral informants or from a review of relevant records. These variables include a history of previous violence, age (violence risk peaks in the late teens and early twenties, declines slowly through the twenties and thirties, and drops off precipitously after age forty), male sex, lower socioeconomic status, employment instability, substance misuse, psychopathic personality traits, and childhood victimization.¹⁴¹ The evaluation process is complicated by the fact that literally scores of variables show some significant relationship with future violence—but this relationship is not strong enough or sufficiently independent of other variables to contribute to the aggregation of an accurate prediction of violence.¹⁴² However, beginning with the variables noted above, the evaluator estimates the baseline risk of violence for the person and then adjusts that value by taking into account foreseeable changes in relevant areas during the outcome period. When previous violence has occurred, the risk estimate is adjusted to include those specific variables that have been associated with violence by this person in the past (e.g., being left by a girlfriend), including whether they are present at the time of evaluation or likely to recur in the future.¹⁴³

136. Henry J. Steadman et al., Violence by People Discharged from Acute Psychiatric Inpatient Facilities and by Others in the Same Neighborhoods, 55 Arch. Gen. Psychiatry 393 (1998), https://doi.org/10.1001/archpsy.55.5.393.

137. Elbogen & Johnson, supra note 135.

138. John Monahan et al., Rethinking Risk Assessment: The MacArthur Study of Mental Disorder and Violence (2001).

139. Id. at 37–90; Jennifer L. Skeem et al., Offenders with Mental Illness Have Criminogenic Needs, Too: Toward Recidivism Reduction, 38 L. Hum. Behav. 212 (2014), https://doi.org/10.1037/lhb0000054.

140. Gutheil & Appelbaum, supra note 69, at 59.

141. Id.

142. Monahan et al., supra note 138, at 163–68.

143. Gutheil & Appelbaum, supra note 69.

144. Douglas et al., supra note 118.

145. Harris et al., supra note 118.

146. Monahan et al., supra note 118.

147. Handbook of Violence Risk Assessment (Kevin S. Douglas & Randy K. Otto eds., 2021).

148. Stephen C. Wong & A.E. Gordon, The Validity and Reliability of the Violence Risk Scale: A Treatment-Friendly Violence Risk Assessment Tool, 12 Psych. Pub. Pol. & L. 279 (2006), https://doi.org/10.1037/1076-8971.12.3.279.

149. Harris et al., supra note 118; John Monahan et al., An Actuarial Model of Violence Risk Assessment for Persons with Mental Disorders, 56 Psychiatric Services 810 (2005), https://doi.org/10.1176/appi/ps.56.7.810.

150. N. Zoe Hilton et al., Sixty-Six Years of Research on the Clinical Versus Actuarial Prediction of Violence, 34 Counseling Psych. 400 (2006), https://doi.org/10.1177/0011000005285877.

situation and that evaluees are sometimes uncooperative with a structured process.¹⁵¹ Compromises include using an actuarial measure but allowing clinical judgment in interpreting the results in light of additional considerations, or using a measure that has been designed to structure the evaluation around relevant risk factors but that requires the user to reach a final structured professional judgment (SPJ) on the basis of the totality of the information. There is a robust literature on actuarial and SPJ approaches to risk assessment, with the most recently aggregated evidence suggesting that they are comparable in predictive accuracy regarding future violence.¹⁵²

Limitations of Violence Prediction

There is voluminous research literature on violence prediction. Studies of predictions by psychiatrists and psychologists in the 1960s and 1970s showed poor accuracy in judging whether persons with mental disorders and sex offenders would be likely to be violent at some point after release.¹⁵³ Indeed, the most frequently cited conclusion was Monahan’s statement that when mental health professionals predicted that a person would be violent, they were twice as likely to be wrong as right.¹⁵⁴ The cumulative impact of these findings stimulated a great deal of research to identify variables that predict violence and incorporate them into both clinical predictions and the structured assessment instruments described above.¹⁵⁵

At this point, it is possible to identify several items of consensus from the research literature. Violence is not a unitary phenomenon; that is, it occurs for different reasons, related both to the motivations of the perpetrator and to the environmental context.¹⁵⁶ A bar room brawl has different roots than a mugging; the precipitants of spouse abuse bear little similarity to the motivations underlying a killing that has been premeditated as an act of revenge. Thus, no single variable or set of variables can be relied upon in all cases to appraise violence risk. Long-term prediction of violence is less accurate, both because some kinds of violence are rare¹⁵⁷ and because it is difficult for clinicians to anticipate changes in the person and the environment over time and their effects on the person’s

151. Kirk S. Heilbrun et al., Approaches to Violence Risk Assessment: Overview, Critical Analysis, and Future Directions, in Douglas & Otto, supra note 147.

152. Id.

153. John Monahan, The Clinical Prediction of Violent Behavior (1981).

154. Id. at 60.

155. Heilbrun et al., supra note 151.

156. Paul S. Appelbaum, Preface, in Clinical Assessment of Dangerousness: Empirical Contributions ix–xiv (Georges-Franck Pinard & Linda Pagani eds., 2001).

157. Paul E. Meehl, Clinical Versus Statistical Prediction: A Theoretical Analysis and a Review of the Evidence (1954).

behavior.¹⁵⁸ On the other hand, shorter-term prediction (i.e., days to weeks) has more potential to be accurate. It is worth noting that even when the leading actuarial instruments are used to make dichotomous judgments of future violence—that is, a cutoff is set to simulate the clinical prediction process—their rates of accuracy are similar.¹⁵⁹ Mental health professionals, therefore, have been encouraged to move away from attempting to make dichotomous judgments of dangerousness and toward predictions couched in terms of the risk of future violence,¹⁶⁰ and the field has moved strongly in this direction. Even here, though, high degrees of accuracy have not been attained—and may be unattainable. The state of the art probably allows well-trained clinicians, especially if they are using structured assessment instruments, to assign persons into high-, medium-, and low-risk groups with reasonable accuracy. At present, the hope of designating risk categories with greater precision for most categories of persons with mental disorders is likely illusory.¹⁶¹ When quantitative data are available, however, precision in communication of risk would undoubtedly be enhanced if the data were utilized and if assessors specified their definitions of the categories being employed.¹⁶²

The studies on the accuracy of prediction, whether clinical or actuarial, have typically involved the direct evaluation of the person about whom the prediction was being made. Opinions about the risk of future violence by persons whom the evaluator has not examined are more problematic. Although risk can

158. Jennifer L. Skeem et al., Building Mental Health Professionals’ Decisional Models into Tests of Predictive Validity: The Accuracy of Contextualized Predictions of Violence, 24 L. & Hum. Behav. 607 (2000), https://doi.org/10.1023/a:1005513818748.

159. Heilbrun et al., supra note 151.

160. Henry J. Steadman et al., From Dangerousness to Risk Assessment: Implications for Appropriate Research Strategies, in Mental Disorder and Crime (Sheilagh Hodgins ed., 1993).

161. One method for determining the accuracy of risk-assessment measures such as those discussed in this reference guide is receiver operating characteristics (ROC), a statistical means of distinguishing between those who have the outcome (e.g., violence) and those who do not. The area under the curve (AUC) value summarizes ROC-calculated discriminatory capacity, and most good risk-assessment measures have AUC values between .70 and .80. An AUC value of .80 means that the risk-assessment measure in 80% of cases assigns a higher risk to individuals who eventually show violence than to individuals who do not. See Douglas & Otto, supra note 147.

162. See Kelly M. Babchishin & R. Karl Hanson, Improving Our Talk: Moving Beyond the “Low,” “Moderate,” and “High” Typology of Risk Communication, 16 Crime Scene 11 (2009). Suggestions for improving the clarity of risk communications include distinguishing between the likelihood of future violence and the anticipated severity of the offense, specifying the period for which the prediction is being made (e.g., “over the next six months”), indicating the comparison population for the estimate (e.g., “risk is high compared with the general population” or “risk is high compared with the population of persons with similar histories of violence”), and providing both absolute and relative risks when quantitative data are available (e.g., “risk of future violence over the next year is between 8 and 12%, which is between 4 and 6 times greater than would be expected for the general population”).

be calculated from records only using some measures such as the STATIC-99¹⁶³ or the Psychopathy Checklist—Revised,¹⁶⁴ personal contact with an individual as part of a professional risk assessment is important for several reasons. First, it allows the evaluator to obtain informed consent or provide notification of purpose. Second, it permits the evaluator to “individualize” the appraisal by considering the individual’s appearance, responses to detailed questions, severity of symptoms, life circumstances, and other considerations, which is important in legal settings but recognized within the field as challenging (having been termed the group-to-individual problem).¹⁶⁵ Third, it facilitates the process by which the evaluator considers various possibilities and accepts or rejects them depending upon the observed clinical data. For these reasons, personal contact can reduce reliance on inaccurate information and make the overall conclusion more accurate and credible.

Opinions about the future dangerousness of individuals who have not been personally evaluated have been introduced, for example, in death penalty cases in which the prosecution sought to prove that further violence was likely, but the defense denied the prosecution expert direct access to the defendant.¹⁶⁶ If such evidence is to be introduced, at a minimum, one would expect the assessor to note the limitations on the assessor’s knowledge of the evaluee and on the certainty with which conclusions can be reached.

Predictions of Future Functional Impairment

Cases involving claims of emotional harms, along with disability and workers’ compensation claims, often require estimates of the plaintiff’s future functional impairment so that damages can be determined accordingly.¹⁶⁷ Techniques for the assessment of function were described above.¹⁶⁸ However, these cases call for something more: predictions of the degree of change in functional impairment

163. See https://perma.cc/7E6U-2V7S.

164. Robert D. Hare, The Psychopathy Checklist—Revised (2d ed. 2003).

165. David L. Faigman, John Monahan & Christopher Slobogin, Group to Individual (G2i) Inference in Scientific Expert Testimony, 81 U. Chi. L. Rev. 417 (2014).

166. See Barefoot v. Estelle, 463 U.S. 880 (1983); Ron Rosenbaum, Travels with Doctor Death, Vanity Fair, May 1990, at 141.

167. 20 C.F.R. § 404.1520a (2008). See generally Thomas P. Harding, Psychiatric Disability and Clinical Decision Making: The Impact of Judgment Error and Bias, 24 Clinical Psych. Rev. 707 (2004), https://doi.org/10.1016/j.cpr.2004.06.003; Cille Kennedy, SSA’s Disability Determination of Mental Impairments: A Review Toward an Agenda for Research, in The Dynamics of Disability: Measuring and Monitoring Disability for Social Security Programs 241 (Gooloo S. Wunderlich et al. eds., 2002); Dan B. Dobbs, The Law of Torts 1048–53, 1087–1110 (2000); Andrew W. Kane & Joel A. Dvoskin, Evaluation for Personal Injury Claims (2011); Lisa Drago Piechowski, Evaluation of Workplace Disability (2011).

168. See discussion in section titled “Functional Impairment Due to Mental Disorders” above.

due to mental disorders that are likely to occur over time. In contrast to the structured assessment tools that assist in the prediction and management of future violence, no instruments have been developed and validated to predict future functional status.¹⁶⁹ Such predictions are complicated by the need for simultaneous estimates of several parameters that affect long-term functional outcomes: variables intrinsic to the person (e.g., symptomatic fluctuation, changes in motivation to work), variables that relate to the environment (e.g., divorce, availability of new categories of jobs), and responses to treatment.¹⁷⁰ Research exists that is aimed at identifying variables associated with some types of future functional impairment, but it is largely focused on progressive disorders (e.g., Alzheimer’s disease), and even in those circumstances the accuracy of the predictions of forensic evaluators has not been determined.¹⁷¹ Acknowledgment of the uncertainties inherent in these predictions is therefore essential for experts undertaking this task.

Risk-Need-Responsivity (RNR) Assessments

Two related questions have also been addressed in the risk-assessment literature: whether there are risk-relevant needs (risk factors that are potentially changeable and, if changed, would affect the overall appraisal of risk), and how an individual might respond to interventions targeting these needs (responsivity). Risk-need-responsivity (RNR) was originally proposed as an approach to assessing the risk and rehabilitation needs of individuals who had already been convicted and sentenced to incarceration.¹⁷² Since its inception, however, it has influenced other approaches to risk assessment in legal contexts, in part because it can address questions that are not necessarily answered by predictions but may be of interest to the judge. Appraisal that focuses on RNR can be distinguished from assessment focusing only on prediction: Although both strive to identify the likelihood that the outcome of interest will occur, RNR considers the additional questions of whether that likelihood can be changed through planned intervention—and whether such intervention is likely to have the desired

169. Such instruments can be very helpful to forensic clinicians, as they summarize the available scientific evidence, provide procedures that apply that evidence, guide the conclusions of the evaluator by structuring the gathering of evidence and translating that raw information (using scoring and/or professional judgment), and provide a manual summarizing the relevant information in a single source.

170. See discussion in section titled “Prediction of Responses to Treatment” below.

171. See, e.g., Roy Martin et al., Declining Financial Capacity in Patients with Mild Alzheimer Disease: A One-Year Longitudinal Study, 16 Am. J. Geriatric Psychiatry 209 (2008), https://doi.org/10.1097/JGP.0b013e318157cb00.

172. See Donald A. Andrews et al., Classification for Effective Rehabilitation: Rediscovering Psychology, 17 Crim. Just. Behav. 19 (1990), https://doi.org/10.1177/0093854890017001004.

risk-reducing effect. Depending on the questions associated with the legal decision, one of these two approaches might be a better fit. An RNR appraisal also focuses on criminal offending generally rather than violence specifically.

Appraising Risk

Risk factors can be variables that do not change through planned intervention (called static risk factors, e.g., sex or age) or variables that have the potential to change through such intervention (called dynamic risk factors, e.g., substance use disorder). Predictive approaches can use either static or dynamic risk factors, although the former change little in their level of appraised risk over time. RNR, by contrast, uses mostly dynamic risk factors—also termed needs. Appraisals using both static and dynamic risk factors yield an overall risk category that may change over time and with the delivery of planned rehabilitative interventions. It was once accepted that static risk factors provided a stronger basis for accurate prediction, but current evidence suggests that this superiority is smaller than was once believed and may not exist.¹⁷³ In other words, the risk of future violence or other criminal offending is subject to change for many individuals, and the risk assessment that is provided should reflect that.

Appraising Need

Areas of need differ across different justice-involved populations. For individuals who have been termed general offenders, who are not selected for particular characteristics (e.g., clinical characteristics such as symptoms of severe mental illness; offending characteristics such as being charged with a specific type of offense), risk-relevant needs have been identified in the following areas: criminal thinking, antisocial personality, antisocial peers, substance misuse, family, education/employment, and leisure time.¹⁷⁴ When combined with the static historical variable of antisocial conduct, these risk factors have been called the central eight.¹⁷⁵ Among individuals with severe mental illness, research has identified two of these needs (severe substance use/dependence and criminal thinking) as particularly important, as well as some other dimensions that are not among

173. See Mara J. Eisenbert et al., Static and Dynamic Predictors of General and Violent Criminal Offense Recidivism in the Forensic Outpatient Population: A Meta-Analysis, 46 Crim. Just. Behav. 732 (2019), https://doi.org/10.1177/0093854819826109.

174. See James Bonta & Donald A. Andrews, The Psychology of Criminal Conduct (6th ed. 2017).

175. See, e.g., David DeMatteo et al., Problem-Solving Courts and the Criminal Justice System 34 (2019).

the original central eight (self-management, social skills, and life skills). The identification of risk-relevant needs varies somewhat according to population (e.g., general offenders, severely mentally ill individuals, specialized offenders such as those charged with sex offenses) and outcome of interest (e.g., violence, serious violence, sex offending, any offending).

Appraising Responsivity

When considering the need for risk-reducing interventions in different areas, a question arises: How are individuals likely to respond to such interventions? This is the key question in appraising responsivity, the third domain of risk-need-responsivity. Two types of responsivity have been identified: general and specific.¹⁷⁶ General responsivity refers to the importance of using interventions that have been demonstrated through research to be effective. This means that interventions with demonstrated effectiveness in reducing antisocial behavior (e.g., medication, therapeutic communities, cognitive behavioral therapy) should be preferred, while those without such evidence (e.g., psychoanalysis) should be viewed with skepticism if proposed for this purpose. Specific responsivity underscores the importance of matching the demands of the intervention with the capacities and learning style of the individual. For example, an individual with identified intellectual limitations in verbal skills and verbal memory should not receive an intervention that depends on the individual’s ability to describe and recall complex ideas; rather, the focus should be on developing and strengthening adaptive behavior.

RNR may be particularly relevant at sentencing. Toward that end, a set of national guidelines for postconviction risk and need assessment has been developed with the assistance of numerous experts in the field.¹⁷⁷

Treatment of Mental Disorders

The nature of available treatments for mental disorders, the probability that the treatments will be effective, the side effects they may induce, and the existence of alternatives are likely to be material to a variety of legal cases. In criminal proceedings, for example, the continued confinement of a defendant in a psychiatric hospital on the basis of incompetence to stand trial will be based in part on the probability that treatment will restore capacity;¹⁷⁸ involuntary treatment of

176. See Bonta & Andrews, supra note 174.

177. Sarah L. Desmarais et al., Advancing Fairness and Transparency: National Guidelines for Post-Conviction Risk and Needs Assessment (2022).

178. See Jackson v. Indiana, 406 U.S. 715 (1972).

the defendant will turn on a number of factors, including the likelihood of treatment success, treatment side effects, and the potential for side effects to impair the defendant’s defense.¹⁷⁹ Decisions about probation and parole of mentally disordered offenders may also depend on the likelihood that symptoms will remain in check, and courts may order ongoing treatment as a condition of release.¹⁸⁰ Among the civil cases for which treatment-related questions will be at issue are liability claims for malpractice and failure to protect third parties from patient violence, claims involving emotional harms (e.g., in calculating the cost of future care), and issues related to the deprivation of rights of prisoners in correctional facilities to have adequate mental health treatment.¹⁸¹ Treatment of mental disorders today offers multiple options for most disorders, often with different levels of likely effectiveness and varying side-effect profiles. Planning treatment has become an increasingly complex task.

Treatment with Medication

The past seventy years have seen the ongoing introduction of new medications for the treatment of mental disorders. Currently, medications are a mainstay in the treatment of schizophrenia and bipolar disorder; it is a rare patient who can be treated successfully for these disorders without medication as part of the treatment plan.¹⁸² Medications are also used commonly to treat and prevent the recurrence of depression, anxiety disorders, attention-deficit/hyperactivity disorder (ADHD), and a large number of other conditions.¹⁸³ The field of psychopharmacology, as the treatment of mental disorders with medications is known, has become a complex and challenging part of psychiatric practice.¹⁸⁴

Psychological Treatments

Although medications are a mainstay for treatment of serious mental disorders, a variety of psychological treatments may be important as either primary or adjunctive treatments.

179. See Sell v. United States, 539 U.S. 166 (2003).

180. See, e.g., United States v. Holman, 532 F.3d 284 (4th Cir. 2008).

181. For an overview of the considerable body of case law on this issue, see Michael L. Perlin, 2 Mental Disability Law § 11–4.3 (2005).

182. This applies to a range of criminal and civil questions involving rehabilitation of such individuals (e.g., competence to stand trial, hospitalization, sentencing, civil injury).

183. See generally Alan F. Schatzberg & Charles DeBattista, Schatzberg’s Manual of Clinical Psychopharmacology (9th ed. 2019); Benjamin J. Sadock, Norma Sussman & Virginia A. Sadock, Kaplan & Sadock’s Pocket Handbook of Psychiatric Drug Treatment (7th ed. 2019).

184. See generally Herbert Mwebe, Psychopharmacology: A Mental Health Professional’s Guide to Commonly Used Medications (2018).

185. See Joseph Wolpe, The Practice of Behavior Therapy (1969).

186. See id.

187. Aaron T. Beck & Cory F. Newman, Cognitive Therapy, in Sadock et al., supra note 104, at 2595; Judith S. Beck, Cognitive Therapy: Basics and Beyond (1995).

188. Andrew C. Butler et al., The Empirical Status of Cognitive-Behavioral Therapy: A Review of Meta-Analyses, 26 Clinical Psych. Rev. 17 (2006), https://doi.org/10.1016/j.cpr.2005.07.003.

189. See, e.g., D. Richard Laws, Relapse Prevention with Sex Offenders (1989).

190. M. Zachary Rosenthal & Thomas R. Lynch, Dialectical Behavior Therapy, in Sadock et al., supra note 104, at 2619.

191. See Benjamin G. Shapero et al., Mindfulness-Based Interventions in Psychiatry, 16 Focus 32 (2018), https://doi.org/10.1176/appi.focus.20170039.

192. See Simon B. Goldberg et al., The Empirical Status of Mindfulness-Based Interventions: A Systematic Review of 44 Meta-Analyses of Randomized Controlled Trials, 17 Persp. Psych. Sci. 108 (2022), https://doi.org/10.1177/1745691620968771.

193. Alex Kopelowicz, Robert Paul Liberman & Roberto Zarate, Recent Advances in Social Skills Training for Schizophrenia, 32 Schizophrenia Bull. S12 (2006), https://doi.org/10.1093/schbul/sbl023.

194. See generally Jennifer Creek, Occupational Therapy and Mental Health: Principles, Skills and Practice (2002).

195. See, e.g., Alex M. Siegel & Amiram Elwork, Treating Incompetence to Stand Trial, 14 L. & Hum. Behav. 57 (1990), https://doi.org/10.1007/BF01055789; Kirk Heilbrun et al., Jackson-Based Restorability to Competence to Stand Trial: Critical Analysis and Recommendations, 27 Psych. Pub. Pol. & L. 370 (2021), https://doi.org/10.1037/law0000307; Barry W. Wall et al., Restoration of Competency to Stand Trial: A Training Program for Persons with Mental Retardation, 31 J. Am. Acad. Psychiatry & L. 189 (2003).

196. Raymond DiGiuseppe & Raymond C. Tafrate, Anger Treatment for Adults: A Meta-Analytic Review, 10 Clinical Psych.: Sci. & Prac. 70 (2006), https://doi.org/10.1093/clipsy.10.1.79.

197. Julia C. Babcock et al., Does Batterers’ Treatment Work? A Meta-Analytic Review of Domestic Violence Treatment, 23 Clinical Psych. Rev. 1023 (2004), https://doi.org/10.1016/j.cpr.2002.07.001. Note that in contrast to anger management and parenting training, the data on the efficacy of treatment for batterers indicate that effects are limited at best.

198. Kathryn M. Bigelow & John R. Lutzker, Training Parents Reported for or at Risk for Child Abuse and Neglect to Identify and Treat Their Children’s Illnesses, 15 J. Fam. Violence 311 (2000), https://doi.org/10.1023/A:1007550028684.

199. For example, only 45% to 60% of patients receiving antidepressant medication for uncomplicated major depression show clinically significant responses to the first medication they receive, and of those who fail to respond, a similar percentage will respond positively to a second medication. Rates of response in unselected populations of patients with depression are lower. Madhukar H. Trivedi et al., Evaluation of Outcomes with Citalopram for Depression Using Measurement-Based Care in STAR*D: Implications for Clinical Practice, 163 Am. J. Psychiatry 28 (2006), https://doi.org/10.1176/appi.ajp.163.1.28.

200. Rates of nonadherence to medications among patients with psychiatric disorders are in the range of 50% or more. Although these figures are perhaps somewhat higher than those seen in other chronic conditions, long-term treatment with medication in general is marked by high rates of noncompliance with prescribed medications. Lars Osterberg & Terrence Blaschke, Adherence to Medication, 353 New Eng. J. Med. 487 (2005), https://doi.org/10.1056/NEJMra050100.

201. So-called poop-out during treatment of depression is a commonly encountered example. See, e.g., Sarah E. Byrne & Anthony J. Rothschild, Loss of Antidepressant Efficacy During Maintenance Therapy: Possible Mechanisms and Treatments, 59 J. Clinical Psychiatry 279 (1998), https://doi.org/10.4088/jcp.v59n0602.

202. For predictors of response to treatment for depression, see, for example, Stuart M. Sotsky et al., Patient Predictors of Response to Psychotherapy and Pharmacotherapy: Findings in the NIMH Treatment of Depression Collaborative Research Program, 148 Am. J. Psychiatry 997 (1991), https://doi.org/10.1176/foc.4.2.278; for predictors of response to treatment for schizophrenia, see Delbert G. Robinson et al., Predictors of Treatment Response from a First Episode of Schizophrenia or Schizoaffective Disorder, 156 Am. J. Psychiatry 544 (1999), https://doi.org/10.1176/ajp.156.4.544.

based on evidence indicating base rates of response for the person’s disorder, along with any specific prognostic factors present in the person’s case (e.g., a schizophrenic disorder that develops slowly over many years and that is associated with gradual functional decline generally has a poorer prognosis than one with rapid onset and good premorbid functioning). To some extent, however, there is always uncertainty associated with these predictions.

Treatment to Reduce Risk of Reoffending

A number of treatments have been developed specifically to reduce the risk of reoffending among justice-involved individuals. As a starting point, it is important to note that mental illness has a modest and indirect impact on criminal offending, and although mental illness can lead to increased contact with law enforcement (due, for example, to odd or disruptive behavior), mental illness is not a strong risk factor for violent behavior.²⁰³ Of note, mental illness is not one of the key risk factors for offending in the RNR model discussed earlier in this reference guide. Although mental illness is weakly associated with criminal offending, it can affect other risk factors; for example, offenders who are mentally ill may be disproportionately exposed to other risk factors that can increase reoffense risk, such as unstable housing, unemployment, substance misuse, criminal peers, and victimization.²⁰⁴ Several interventions have been designed to reduce the risk of reoffending.

Treatment with Medications

A variety of medications have some impact on reducing impulsive and/or aggressive behavior.²⁰⁵ The use of antipsychotic medications among people with schizophrenia who are not justice-involved has been shown to have a minimal

203. See D. A. Andrews, James Bonta & J. Stephen Wormith, The Recent Past and Near Future of Risk and/or Need Assessment, 52 Crime & Delinquency 7 (2006), https://doi.org/10.1177/0011128705281756; Jacques Baillargeon et al., Psychiatric Disorders and Repeat Incarcerations: The Revolving Prison Door, 166 Am. J. Psychiatry 103 (2009), https://doi.org/10.1176/appi.ajp.2008.08030416; Kristin G. Cloyes et al., Time to Prison Return for Offenders with Serious Mental Illness: A Survival Analysis, 37 Crim. Just. Behav. 175 (2010), https://doi.org/10.1177/0093854809354370.

204. See Jennifer L. Skeem, Sarah Manchak & Jillian K. Peterson, Correctional Policy for Offenders with Mental Illness: Creating a New Paradigm for Recidivism Reduction, 35 L. & Hum. Behav. 110 (2011), https://doi.org/10.1007/s10979-010-9223-7.

205. See Peter W. Schofield et al., Pharmacotherapy to Reduce Violent Offending? Offenders Might Be Interested, 53 Austl. & N.Z. J. Psychiatry 697 (2019), https://doi.org/10.1177/0004867419835937.

effect in reducing violence, largely because schizophrenia is not a major risk factor for violent behavior,²⁰⁶ although it may be useful when a person’s psychotic symptoms are linked directly to their violence. Some other medications, including selective serotonin reuptake inhibitors (SSRIs), have shown some promise in reducing (albeit modestly) aggressive and antisocial behavior.²⁰⁷ The use of any medication to reduce the risk of reoffending among those without mental illness raises ethical concerns that must be balanced against the desired objective.

Psychological Treatments

There are several interventions that target empirically supported risk factors for offending and violence. For example, interventions that address the risk factors identified in the RNR model can be effective in reducing the incidence of antisocial behavior. Specifically, interventions that teach problem-solving skills, anger management, prosocial thinking, and coping skills can reduce antisocial behavior, as can educational/vocational training and interventions designed to reduce antisocial associations, improve conflict-resolution skills, reduce substance use, and increase involvement in prosocial pursuits.²⁰⁸

In recent years, manualized treatments designed to reduce recidivism have been developed. Changing Lives and Changing Outcomes (CLCO) is a manualized treatment designed for justice-involved individuals with serious mental illness, including those with a dual diagnosis of mental illness and substance use.²⁰⁹ CLCO is a CBT-based approach that helps justice-involved individuals to understand and cope with their disorders, identify and challenge antisocial thought patterns, learn basic social skills, abstain from substance use, and proactively manage their disorders.²¹⁰ The dual focus on risk factors (or criminogenic needs) and relevant clinical needs provides a strong foundation for reducing risk. CLCO is associated with higher treatment engagement, clinically meaningful reductions in mental-disorder symptoms and criminal thinking, increased

206. See Jeffrey W. Swanson et al., Comparison of Antipsychotic Medication Effects on Reducing Violence in People with Schizophrenia, 193 Brit. J. Psychiatry 37 (2008), https://doi.org/10.1192/bjp.bp.107.042630.

207. See Tony Butler et al., Reducing Impulsivity in Repeat Violent Offenders: An Open Label Trial of a Selective Serotonin Reuptake Inhibitor, 44 Austl. & N.Z. J. Psychiatry 1137 (2010), https://doi.org/10.3109/00048674.2010.525216.

208. See Bonta & Andrews, supra note 174.

209. See Robert D. Morgan, Daryl G. Kroner & Jeremy F. Mills, A Treatment Manual for Justice-Involved Persons with Mental Illness: Changing Lives and Changing Outcomes (2017).

210. See id.

knowledge of treatment-related information, and increased medication adherence.²¹¹

Limitations of Mental Health Evidence

There are certain limitations to mental health evidence that there may not be with other types of scientific evidence. Both retrospective assessments of past mental states and prospective estimates of future behavior depend on estimates of variables that are inherently difficult to make with a high degree of certainty. Even contemporaneous assessments of functional abilities depend in part on the evaluee’s self-report of such difficult-to-measure attributes as distress, motivation, and judgment. Where empirically validated assessment tools are used, there are the usual concerns about measurement error. Two other key issues relate to ultimate-issue testimony and the standard to which expert testimony is typically held—that is, reasonable degree of certainty.

Ultimate-Issue Testimony

Whether mental health experts should testify—or be permitted to testify—to the ultimate legal issue in a case has been a subject of long-standing controversy.²¹² The question arises, for example, in criminal cases where experts often have commented directly on whether a defendant is competent to stand trial or whether the legal standard for insanity has been met.²¹³ Similar issues can arise in civil settings, in which experts may be asked to testify directly about a person’s capacity to manage affairs or to serve as a custodial parent, or regarding whether a person was competent to sign a contract at an earlier point in time.²¹⁴

Attorneys and judges are often proponents of ultimate-issue testimony. They may be concerned that an expert who provides a clinical formulation without tying it directly to the ultimate legal issue will confuse jurors, who may

211. See, e.g., Monika Gaspar et al., Therapeutic Outcomes of Changing Lives and Changing Outcomes for Male and Female Justice Involved Persons with Mental Illness, 46 Crim. J. & Behav. 1678 (2019), https://doi.org/10.1177/0093854819879743; Stephanie A. Van Horn et al., Changing Lives and Changing Outcomes: “What Works” in an Intervention for Justice-Involved Persons with Mental Illness, 16 Psych. Servs. 693 (2019), https://doi.org/10.1037/ser0000248.

212. See Fed. R. Evid. 704; Anne Lawson Braswell, Resurrection of the Ultimate Issue Rule: Federal Rule of Evidence 704(b) and the Insanity Defense, 72 Cornell L. Rev. 620 (1987); Christopher Slobogin, The “Ultimate Issue” Issue, 7 Behav. Sci. & L. 259 (1989).

213. But see discussion below regarding the current prohibition on this practice in federal courts.

214. See Restatement (Second) of Contracts § 15.

be unable to discern the connection on their own.²¹⁵ Many experts share similar concerns or worry that mental health issues will simply be ignored if their relevance to the legal question at hand is not made clear; they further note that courts have applied such rules erratically.²¹⁶ They counter concerns about such testimony having an undue impact on jurors’ deliberations by noting that jurors appear to be little influenced by whether ultimate-issue testimony is offered by an expert.²¹⁷

In addition to the argument that ultimate-issue testimony invades the province of the decision maker,²¹⁸ opponents often point to the legal and moral nature of the question of whether someone is, for example, criminally responsible.²¹⁹ Although mental health expertise may be helpful in determining the person’s mental state at the relevant time, determining whether the resulting impairment was sufficient to negate responsibility requires the application of the relevant legal standard and a moral judgment of the fairness or unfairness of punishing a person for the behavior. Psychiatrists and psychologists have no particular expertise on legal or moral issues; hence, opponents of ultimate-issue testimony urge that mental health experts should not be permitted to speak to those issues. Such preclusion may also reduce the much bemoaned “battle of the experts,” because a good deal of disagreement may derive from views of how data from the evaluation should be applied to the ultimate legal question rather than from differences regarding the person’s mental state. Although testimony on the ultimate legal issue is now barred in federal courts in insanity-defense cases (18 U.S.C. § 17; Federal Rule of Evidence 704(b)), ultimate-issue testimony is permitted in many states, and, even in federal jurisdictions, it may be offered in other cases.²²⁰

215. Ralph Slovenko, Commentary: Deceptions to the Rule on Ultimate Issue Testimony, 34 J. Am. Acad. Psychiatry & L. 22 (2006). Cases involving issues related to medical causation can be particularly confusing for fact finders if experts are not permitted to address the ultimate legal issue. See Slobogin et al., supra note 1, at 624.

216. Alec Buchanan, Psychiatric Evidence on the Ultimate Issue, 34 J. Am. Acad. Psychiatry & L. 14 (2006).

217. Solomon M. Fulero & Norman J. Finkel, Barring Ultimate Issue Testimony: An “Insane” Rule? 15 L. & Hum. Behav. 495 (1991), https://doi.org/10.1007/BF01650291.

218. Insanity Defense Workgroup, American Psychiatric Association Position on the Insanity Defense, 140 Am. J. Psychiatry 681, 686 (1983), https://doi.org/10.1176/ajp.140.6.681; American Bar Association, ABA Criminal Justice Standards: Mental Health, Standard 7–6.6 (1984). See also Grisso, supra note 3, at 208; Fulero & Finkel, supra note 217, at 496.

219. Mark S. Brodin, Behavioral Science Evidence in the Age of Daubert: Reflections of a Skeptic, 73 U. Cin. L. Rev. 867 (2005); Michele Cotton, A Foolish Consistency: Keeping Determinism Out of the Criminal Law, 15 B.U. Pub. Int. L. J. 1, 21–23 (2005); Ric Simmons, Conquering the Province of the Jury: Expert Testimony & the Professionalization of Fact-Finding, 74 U. Cin. L. Rev. 1013 (2006).

220. Fed. R. Evid. 704. Pennsylvania’s law offers a typical formulation: “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” Pa. R. Evid. 704.

221. Frye v. United States, 293 F. 1013 (1923).

222. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993).

223. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999).

224. The phrase “reasonable degree of certainty” was first applied to scientific evidence in 1935 when a witness was asked if he could determine, with reasonable scientific certainty, the cause of the capsizing of a boat. See Herbst v. Levy, 279 Ill. App. 353 (Ill. App. Ct. 1935). In that case, such phrasing was not a legal mandate but the stylistic approach of the lawyer. The phrase was linked to admissibility in 1969 in Twin City Plaza, Inc. v. Central Surety & Insurance Corp., 409 F.2d 1195 (8th Cir. 1969), in which the U.S. Court of Appeals for the Eighth Circuit held that a witness’s testimony should only be admitted if, inter alia, it was based on reasonable scientific certainty.

225. In Bertram v. Wunning, 385 S.W.2d 803 (Mo. Ct. App. 1967), a medical expert’s testimony that he was 90% certain in his opinion was held to be insufficient because he refused to state that his opinion was offered to a reasonable degree of medical certainty.

226. In Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d 996 (Pa. Sup. Ct. 2008), an expert’s opinion, despite being offered to a reasonable degree of medical certainty, was held to be insufficient because the expert acknowledged being only 51% sure of his opinion.

227. See Hawaii v. DeLeon, 319 P.3d 282 (Haw. 2014); Nebraska v. Johnson, 290 Neb. 862 (2015).

228. See Gutheil & Appelbaum, supra note 69.

individualized conclusion. In short, such phrasing, without proper definition and guidance, is a relic of custom and practice that can invite confusion.²²⁹

Evaluating Evidence from Mental Health Experts

Up to this point, we have considered the kind of evidence that is likely to be offered by mental health experts and some of the challenges that such testimony presents. The remainder of the reference guide addresses the factors that should enter into the consideration of the value and impact of such testimony.

What Are the Qualifications of the Expert?

The appropriate qualifications of a mental health professional whose testimony is proffered will depend on the nature of the evidence to be presented. However, there are a number of relevant parameters that can be identified.

Training

Most mental health expert testimony is given by psychiatrists or doctoral-level clinical psychologists. Given the differences in the education and training of each profession, their testimony is not necessarily interchangeable. As a rule, psychiatrists are prepared by their training to speak to the diagnosis of mental disorders, including medical issues that may play a role in a particular case, and to treatment approaches, including psychopharmacological treatment.²³⁰ They

229. In 2016, the National Commission on Forensic Science made several recommendations to the U.S. attorney general regarding use of the phrase: (1) the attorney general should direct all attorneys appearing on behalf of the Department of Justice (DOJ) (a) to forego use of such phrases when presenting forensic testimony unless required by judicial authority as a condition of admissibility for a witness’s opinion, and (b) to assert a legal position that such terminology is not required and is misleading; (2) the attorney general should direct all forensic experts employed by the DOJ not to use such language in reports or couch their testimony in such terms unless directed to do so by judicial authority; and (3) the attorney general should develop appropriate language that may be used by experts when reporting or testifying about results or findings based on observations of evidence and data derived from evidence. The full text can be found at https://perma.cc/7GPX-C4RX.

230. See discussion of psychiatrists’ training in section titled “Psychiatrists” above.

should be capable of testifying, within the limits of existing knowledge and the information available to them, regarding the impact of a disorder on a person’s behavior and functional abilities. Psychologists’ training, in contrast, may provide deeper knowledge of the theoretical and experimental bases for understanding the function of the mind and the influences on behavior, both normal and abnormal.²³¹ As a general matter, doctoral-level clinical psychologists will be prepared by their training to provide evidence regarding diagnosis and psycho-therapeutic treatment of mental disorders, the results of psychological and neuropsychological testing, and the roots of normal and abnormal behavior. More specifically, both psychiatrists and psychologists can subspecialize in forensic psychiatry and forensic psychology, respectively. These specializations include training in mental health evaluations conducted in the course of litigation, for the purpose of informing the court and/or helping the retaining attorney to present their case. Psychiatrists may formalize this specialization through a forensic psychiatry fellowship.²³² Psychologists can receive specialty training as part of their predoctoral or internship work and can also do a postdoctoral forensic fellowship.²³³

Although the core elements of training in psychiatry and psychology may be similar across training programs, the variability is substantial.²³⁴ Moreover, variation in subspecialty (in psychiatry) or specialty (in psychology) training—for example, in geriatric psychiatry or neuropsychology—contributes to further differentiation among experts. Thus, it may be necessary to inquire into the specific training of an expert. This is particularly true when an expert is testifying about topics that would ordinarily fall outside disciplinary boundaries—for example, a psychiatrist discussing the results of psychological testing or a psychologist offering evidence regarding the effect of medication on a person’s behavior. The same is true for experts who are testifying beyond the range of their specialty or subspecialty training. In addition, in recent years expert testimony on mental health issues at times has been admitted from nonpsychiatric physicians and mental health professionals of other disciplines.²³⁵ These include

231. See discussion of psychologists’ training in section titled “Psychologists” above.

232. American Academy of Psychiatry and the Law, Directory of Forensic Psychiatry Fellowships, https://perma.cc/M9BG-ZEK3.

233. See, e.g., David DeMatteo et al., Becoming a Forensic Psychologist (2019).

234. See, e.g., Helena Hansen, Joel Braslow & Robert M. Rohrbaugh, From Cultural to Structural Competency—Training Psychiatry Residents to Act on Social Determinants of Health and Institutional Racism, 75 JAMA Psychiatry 117 (2018), https://doi.org/10.1001/jamapsychiatry.2017.3894; David A. Ross, Michael J. Travis & Melissa R. Arbuckle, The Future of Psychiatry as Clinical Neuroscience: Why Not Now?, 72 JAMA Psychiatry 413 (2015), https://doi.org/10.1011/jamapsychiatry.2014.3199; The Oxford Handbook of Education and Training in Professional Psychology (Nadine J. Kaslow & W. Brad Johnson eds., 2014).

235. Campbell v. Metro. Prop. & Cas. Ins. Co., 239 F.3d 179 (2d Cir. 2001) (professor of pediatrics with substantial relevant publications found qualified to testify on neurological injuries resulting from lead paint exposure); Carroll v. Otis Elevator Co., 896 F.2d 210 (7th Cir. 1990)

social work and nursing and could include other disciplines as well (e.g., master’s-level psychologists, marriage and family therapists, physician assistants). One reasonable suggestion for qualifying experts involves applying a standard like that set forth in Rule 702²³⁶ (probable assistance to the trier of fact), in which the judge could consider both general training and more specific influences, such as specialized forensic training and/or experience, in deciding whether to qualify a given professional as an expert.²³⁷ These additional influences are considered in the following sections.

Experience

Experience is relevant to the qualifications of mental health experts in at least two ways. First, as the Federal Rules of Evidence recognize, experience may substitute for training as a basis for concluding that a witness has special expertise.²³⁸ Some experts in forensic psychiatry and forensic psychology, for example, lack formal training in conducting evaluations of the sort provided in forensic fellowships, because such training programs were not widely available at the time when senior forensic psychiatrists and psychologists were trained. In addition, formal training is difficult to obtain in some substantive areas of clinical psychiatry and psychology. Some professionals who acquire special knowledge about particular mental disorders will do so by pursuing their interest through reading, following the literature, continuing professional education, and through clinical contact with patients with the disorders, as opposed to formal training at the residency, fellowship, and/or predoctoral levels. Thus, experience must sometimes be relied upon as a stand-in for more formal training in some areas.

(experimental psychologist found qualified to give expert testimony on likelihood that product design would cause children to press escalator’s emergency stop button); United States v. Withorn, 204 F.3d 790 (8th Cir. 2000) (trial court properly admitted testimony from midwife on alleged sexual assault on basis of bachelor’s degree, some postgraduate work, and clinical experience). But see United States v. Moses, 137 F.3d 894 (8th Cir. 1998) (social worker lacked expertise to opine that victim of alleged child abuse would suffer trauma from facing the accused abuser in the courtroom).

236. “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Fed. R. Evid. 702 (2000).

237. See Melton et al., supra note 1.

238. This may apply particularly to psychiatrists and psychologists who have not received formal forensic training but who have experience with individuals similar to the criminal defendant or civil litigant before the court.

239. Although this discussion is framed in terms of a particular disorder, the condition at issue may not be a disorder in the formal sense. It may instead involve a symptom (e.g., auditory hallucinations), a mental state not linked to a specific disorder (e.g., dissociation), or a behavioral propensity (e.g., violent behavior). The argument in this section is generally applicable to all these categories of phenomena.

240. Cognitive biases in this context involve the systematic influence on human decision-makers under conditions of uncertainty, which describe the context in which forensic mental health assessments are conducted. Examples of such biases include confirmation bias (the tendency to selectively emphasize evidence consistent with an established position and de-emphasize evidence that refutes it), retention bias (favoring the side retaining the expert), and blind spot bias (the belief that cognitive biases do not apply to oneself in the same way they do to others). See, e.g., Itiel E. Dror, Saul M. Kassin & Jeff Kukucka, New Application of Psychology to Law: Improving Forensic Evidence and Expert Witness Contributions, 2 J. Applied Rsch. Memory & Cognition 78 (2013), https://doi.org/10.1016/j.jarmac.2013.02.003; Tess M. Neal & Stanley L. Brodsky, Forensic Psychologists’ Perceptions of Bias and Potential Correction Strategies in Forensic Mental Health Evaluations, 22 Psych. Pub. Pol. & L. 58 (2016), http://dx.doi.org/10.1037/law0000077); Tess M. Neal et al., A General Model of Cognitive Bias in Human Judgment and Systematic Review Specific to Forensic Mental Health, 46 L. Hum. Behav. 99 (2022), https://doi.org/10.1037/lhb0000482. See generally, Tess M. Neal et al., Psychological Assessments in Legal Contexts: Are Courts Keeping “Junk Science” Out of the Courtroom? 20 Psych. Sci. Pub. Int. 135 (2020), https://doi.org/10.1177/1529100619888860.

only reinforce bad practice. Studies of the relationship between experience and the performance of mental health professionals in areas such as diagnosis²⁴¹ and bias management²⁴² have not demonstrated a relationship between superior performance and experience in either area. It may be that, despite having less clinical experience, recently trained clinicians are more familiar with the contemporary diagnostic framework and the research on cognitive bias and are less tempted to use their clinical experience as a substitute for generally accepted criteria (e.g., “I know schizophrenia when I see it, regardless of what the criteria say.”).

Licensure and Board Certification

Licensure

Possession of a valid professional license is usually a threshold requirement for an expert to be considered qualified in legal proceedings. Licensure of physicians (including psychiatrists) is governed by a licensure board in each state.²⁴³ Although criteria may differ, generally a physician who has graduated from an accredited American medical school, passed a sequence of tests designed to ensure adequate levels of knowledge and clinical judgment,²⁴⁴ and completed one or two years of residency training is eligible for full licensure.²⁴⁵ Prior to that, a temporary license allowing practice under supervision is usually issued. Graduates of medical schools that are not in the United States are usually subject to different standards, often being required to spend longer periods in residency training and undergoing individual review of qualifications. Once a physician attains licensure in a state, the process to acquire a license in another state varies. Some states grant additional licenses fairly easily; others, such as California, require that physicians take and pass a test of general medical knowledge if a certain period of time has passed (e.g., ten years in California) since the original sequence of testing was completed.²⁴⁶

241. Here, reliability is being used in its technical sense of agreement across more than one rater. For an example of the failure to find a consistent effect of previous experience, see, e.g., Sean H. Yutzy et al., DSM-IV Field Trial: Testing a New Proposal for Somatization Disorder, 152 Am. J. Psychiatry 97 (1995).

242. See Patricia A. Zapf et al., Cognitive Bias in Forensic Mental Health Assessment: Evaluator Beliefs About Its Nature and Scope, 24 Psych. Pub. Pol. & L. 1 (2018), http://dx.doi.org/10.1037/law0000153.

243. A summary of the requirements for medical licensure in each jurisdiction is available from the Federation of State Medical Boards at https://perma.cc/8UG4-CQU8.

244. See a description of the tests and the examination process at https://perma.cc/J362-C26L.

245. Federation of State Medical Boards, supra note 243.

246. Calif. Bus. & Pro. Code § 2184 (2021).

247. Details of requirements in each state can be found at the website of the Association of State and Provincial Psychology Boards at http://www.asppb.net.

248. For examples of the scope of judicial discretion on this issue, see, e.g., Hall v. Quarterman, 534 F.3d 365 (5th Cir. 2008) (finding that a state requirement that only a licensed expert may testify in a civil commitment hearing as to mental retardation did not extend to expert testimony on the same topic); Oberlander v. Oberlander, 460 N.W.2d 400 (1990) (reversing as abuse of discretion the trial court’s exclusion of expert testimony from a psychologist who was licensed in the neighboring state); Williams v. Brown, 244 F. Supp. 2d 965 (N.D. Ill. 2003) (finding that psychiatrists who were not board-certified child psychiatrists may nonetheless testify about the condition of juvenile plaintiffs).

249. A description of the process and eligibility requirements for the examination process can be found at https://perma.cc/D2ES-YCRS.

clinical, counseling, and group psychology. As in subspecialty certification in psychiatry, candidates are expected to demonstrate advanced competence in the specialty area, defined specifically for each specialty. Board certification is far less common among psychologists than psychiatrists, in part because board certification is an expected part of the credentialing process in psychiatry, but it is not in psychology.²⁵⁰ It is therefore less likely that certification will be applied as a minimum standard for expert testimony in psychology than in psychiatry or other areas of medicine.

Specialty credentialing can be obtained in forensic psychiatry (from the American Board of Psychiatry and Neurology²⁵¹) and forensic psychology (from the American Board of Professional Psychology²⁵²). This particular specialization is often the most relevant to legal proceedings, as candidates must demonstrate the requisite post-training experience, competence in clinical areas, and knowledge of relevant law that guides forensic evaluations.²⁵³ Other board certification specialty areas in psychology (e.g., clinical psychology, clinical neuropsychology, police and public safety) and psychiatry (e.g., adult psychiatry, addiction psychiatry, child and adolescent psychiatry) may also be applicable, depending on the nature of the legal questions.

Prior Relationship with the Subject of the Evaluation

Some attorneys, judges, and jurors may presume that a mental health professional who has had a treatment relationship with the person whose mental state is in question is better qualified to testify about aspects of that mental state than an evaluator who is meeting the person for the first time. The logic seems strong: A professional who has known the person for some period of time should be better able to offer conclusions about the person’s diagnosis and treatment requirements and the impact of the person’s mental state on function and behavior. So it may seem surprising that the ethics guidelines of both the American Academy of Psychiatry and the Law (the leading organization of forensic psychiatrists) and the American Psychological Association point to problems

250. Approximately 85% of psychiatrists become board certified in the eight years following completion of residency training. Dorthea Juul, James H. Scully Jr. & Stephen C. Scheiber, Achieving Board Certification in Psychiatry: A Cohort Study, 160 Am. J. Psychiatry 563 (2003), https://doi.org/10.1176/appi.ajp.160.3.563. In contrast, it was estimated that in 2000 only 3.5% of psychologists had achieved board certification. Frank M. Dattilio, Board Certification in Psychology: Is It Really Necessary? 33 Pro. Psych. Rsch. & Prac. 54 (2002), https://doi.org/10.1037/0735-7028.33.1.54.

251. See https://perma.cc/VH4H-6GUW.

252. See https://perma.cc/D2ES-YCRS.

253. See, e.g., Melton et al., supra note 1; Gutheil & Appelbaum, supra note 69.

inherent in such situations (the Ethical Principles of Psychology and Code of Conduct,²⁵⁴ broadly applicable to all psychology, and the Specialty Guidelines for Forensic Psychology,²⁵⁵ which applies to the practice of psychology in legal contexts).²⁵⁶ Although none of these guidelines state that giving testimony about current or former patients is clearly unethical, they each offer words of caution and discourage clinicians from playing both clinical and expert roles.²⁵⁷

The professional literature on this issue, and the ethics guidelines themselves, cite several reasons why having a treating professional perform the evaluation for legal purposes may not be prudent.²⁵⁸ First, offering testimony, even if it is supportive of the patient’s legal claim, may interfere with the therapeutic relationship.

254. American Psychological Association, Ethical Principles of Psychologists and Code of Conduct (2017). See https://perma.cc/YYP9-3NR6.

255. APA Specialty Guidelines, supra note 71.

256. Id.

257. The forensic psychiatry guidelines explicitly discourage this practice:
Psychiatrists who take on a forensic role for patients they are treating may adversely affect the therapeutic relationship with them. Forensic evaluations usually require interviewing corroborative sources, exposing information to public scrutiny, or subjecting evaluees and the treatment itself to potentially damaging cross-examination. The forensic evaluation and the credibility of the practitioner may also be undermined by conflicts inherent in the differing clinical and forensic roles. Treating psychiatrists should therefore generally avoid acting as an expert witness for their patients or performing evaluations of their patients for legal purposes. Forensic Psychiatry Guidelines, supra note 70, at IV. In contrast, the Specialty Guidelines for Forensic Psychology could be seen as somewhat more permissive:
A multiple relationship occurs when a forensic practitioner is in a professional role with a person and, at the same time or at a subsequent time, is in a different role with the same person; is involved in a personal, fiscal, or other relationship with an adverse party; at the same time is in a relationship with a person closely associated with or related to the person with whom the forensic practitioner has the professional relationship; or offers or agrees to enter into another relationship in the future with the person or a person closely associated with or related to the person (EPPCC Standard 3.05). Forensic practitioners strive to recognize the potential conflicts of interest and threats to objectivity inherent in multiple relationships. Forensic practitioners are encouraged to recognize that some personal and professional relationships may interfere with their ability to practice in a competent and impartial manner and they seek to minimize any detrimental effects by avoiding involvement in such matters whenever feasible or limiting their assistance in a manner that is consistent with professional obligations. APA Specialty Guidelines, supra note 71, at 4.02.

258. Larry H. Strasburger, Thomas G. Gutheil & Archie Brodsky, On Wearing Two Hats: Role Conflict in Serving as Both Psychotherapist and Expert Witness, 154 Am. J. Psychiatry 448 (1997), hptts://doi.org/10.1176/ajp.154.4.448; Ronald Schouten, Pitfalls of Clinical Practice: The Treating Clinician as Expert Witness, 1 Harv. Rev. Psychiatry 64 (1993), https://doi.org/10.3109/10673229309017058; Stuart Greenberg & Daniel Shuman, Irreconcilable Conflict Between Therapeutic and Forensic Roles, 28 Pro. Psych.: Rsch. & Prac. 50 (1997), https://doi.org/10.1037/0735-7028.28.1.50; Gutheil & Appelbaum, supra note 69, at 243–47.

259. Although all states have psychotherapist-patient and/or physician-patient testimonial privilege statutes that limit testimony by treating psychiatrists and psychologists (and often other mental health professionals) without the patient’s consent, the exceptions in many of these statutes—including the so-called patient-litigant exception that is invoked when patients place their mental state at issue in a case—are sufficiently numerous that this situation cannot be ruled out. Jaffee v. Redmond, 518 U.S. 1 n.13 (1996); Christopher B. Mueller et al., § 5.35 Psychotherapist-Patient Privilege, GWU Legal Studies Research Paper No. 2018–68 (2018).

260. On some occasions, testimony will provide contextual information for the decision-maker—for example, how a person in a given situation or with a given disorder would usually respond, without being applied directly to a specific person. John Monahan & Laurens Walker, Social Science in Law: Cases and Materials (10th ed. 2022).

261. Farnsworth, supra note 9, § 3:11. For a case study of the use of postmortem analysis in the USS Iowa explosion investigation, see Charles Patrick Ewing & Joseph T. McCann, Minds on Trial: Great Cases in Law and Psychology 129–39 (2006); Moon v. United States, 512 F. Supp. 140 (D. Nev. 1981) (finding that hospital psychiatrists were negligent in diagnosing with schizophrenia a patient who later committed suicide); Urbach v. United States, 869 F.2d 829 (5th Cir. 1989) (finding no medical malpractice where a mental patient on furlough from a VA hospital was arrested and beaten to death in a Mexican prison). See also Norman Poythress et al., APA’s Expert Panel in the Congressional Review of the USS Iowa Incident, 48 Am. Psych. 8 (1993), https://doi.org/10.1037/0003-066X.48.1.8.

262. Estelle v. Smith, 451 U.S. 454 (1981).

263. Barefoot v. Estelle, 463 U.S. 880 (1983); Satterwhite v. Texas, 486 U.S. 249 (1988).

264. Kirk Heilbrun et al., Third-Party Information in Forensic Assessment, in 11 Handbook of Psychology: Forensic Psychology 69 (Alan M. Goldstein ed., 2003). Testimony offered in capital sentencing contexts without examining the defendant has been particularly controversial. See, e.g., Bennett v. State, 766 S.W.2d 227, 232 (Tex. Crim. App. 1989) (Teague, J., dissenting) (“[W]hen Dr. Grigson testifies at the punishment stage of a capital murder trial he appears to the average lay juror . . . to be the second coming of the Almighty. . . . Dr. Grigson is extremely good at

more limited and have a lesser degree of certainty than when a direct evaluation has taken place. The ethics statements of the major forensic psychiatry and forensic psychology organizations offer words of caution about such testimony,²⁶⁵ and there are several reasons why caution is warranted.

One can think of expert knowledge in mental health as comprising two components: knowing how to conduct an evaluation to obtain relevant information and knowing how to weigh that information to reach a conclusion.²⁶⁶ When an expert cannot carry out an examination of the person, the expert must rely on information accumulated by others, sometimes for other purposes. It is very unlikely that all the data that the expert would have wanted to obtain will be available in such circumstances. This is true even with data gathered by another mental health professional (e.g., in medical or mental health records), because that person may not have asked all the questions that the testifying expert would have asked, fully recorded the responses, and considered the possibility of exaggeration or minimization by the individual being evaluated. The intangible aspects of an evaluation, including the person’s relatedness, emotions, and degree of cooperation, may be especially difficult to convey. Because many of the diagnostic categories require that other possibilities have been excluded first,²⁶⁷ the

persuading jurors to vote to answer the [future dangerousness] issue in the affirmative.”); They Call Him Dr. Death, Time, June 1, 1981; Rosenbaum, supra note 166.

265. In the Ethics Guidelines for the Practice of Forensic Psychiatry, the American Academy of Psychiatry and the Law notes:
For certain evaluations (such as record reviews for malpractice cases), a personal examination is not required. In all other forensic evaluations, if, after appropriate effort, it is not feasible to conduct a personal examination, an opinion may nonetheless be rendered on the basis of other information. Under these circumstances, it is the responsibility of psychiatrists to make earnest efforts to ensure that their statements, opinions and any reports or testimony based on those opinions, clearly state that there was no personal examination and note any resulting limitations to their opinions. Forensic Psychiatry Guidelines, supra note 70, at IV.
The comparable guidelines for forensic psychology state,
Forensic practitioners recognize their obligations to only provide written or oral evidence about the psychological characteristics of particular individuals when they have sufficient information or data to form an adequate foundation for those opinions or to substantiate their findings (EPPCC Standard 9.01). Forensic practitioners seek to make reasonable efforts to obtain such information or data, and they document their efforts to obtain it. When it is not possible or feasible to examine individuals about whom they are offering an opinion, forensic practitioners strive to make clear the impact of such limitations on the reliability and validity of their professional products, opinions, or testimony. APA Specialty Guidelines, supra note 71, at 9.03.

266. Paul S. Appelbaum, Hypotheticals, Psychiatric Testimony, and the Death Sentence, 12 Bull. Am. Acad. Psychiatry & L. 169 (1984); see also Am. Psychiatric Ass’n amicus brief in Barefoot, 463 U.S. at 880.

267. For example, DSM-5-TR criteria for major depressive disorder require both that the symptoms on which a diagnosis is based not be due to the direct physiological effects of a drug (licit

absence of pertinent negative information (e.g., the person does not misuse substances) can restrict the ability to make definitive diagnoses and draw other relevant conclusions. Moreover, these problems are compounded when the data available to the expert have been shaped by someone with an interest in the outcome of the case, as when an expert testifies in sole reliance on information in a hypothetical question that is constructed to support the interests of one party in the litigation.

Thus, the major professional organizations in forensic mental health agree that evidence based on sources other than direct evaluation of the person should be framed with due regard for its limitations and that experts should make those limitations clear in their reports or testimony. An expert witness’s failure to do so may be unethical and should probably cast doubt on the credibility of the evidence presented.

Did the Evaluee Cooperate with the Assessment?

Even when a direct evaluation has taken place, the evaluee’s degree of cooperativeness may affect the validity of the data.²⁶⁸ Civil plaintiffs and criminal defendants have obvious reasons to distrust experts who are examining them on behalf of adverse parties and may be less than forthcoming (or provide information that is inaccurate). But even when an evaluation is being conducted by an expert retained by the person’s own attorney, the person’s cooperativeness may be limited by the symptoms of the disorder. For example, a person who is experiencing paranoid delusions may be suspicious and fearful even of an expert with whom that person’s own attorney encourages cooperation (and even of the attorney). It is therefore important for the expert to clarify, when presenting evidence and conclusions based on the evaluation, the extent to which the evaluee cooperated with the examination process. If the examinee was less than cooperative, it is also useful for the evaluator to explain why that might have been, and to describe the impact on the information gathered and the steps taken (often relying on other sources of information) to compensate for this lack of cooperation.

or illicit) that has been ingested or to a general medical condition; that they not be better accounted for by bereavement after the death of a loved one; and that the person has never experienced a manic or hypomanic episode. DSM-5-TR, supra note 72, at 183. Other major diagnostic categories carry similar requirements to rule out the possibility that the person’s presentation is due to other causes before making the diagnosis in question.

268. Melton et al., supra note 1.

269. There is some research on the question of whether evaluees may too easily be induced to speak frankly with someone who is introduced as a mental health professional, but whose role is very different than would obtain in treatment settings and who may reach opinions adverse to the person’s interests. See, e.g., Daniel Shuman, The Use of Empathy in Forensic Evaluations, 3 Ethics & Behav. 289 (1993), https://doi.org/10.1080/10508422.1993.9652109; Strasburger et al., supra note 258; Greenberg & Shuman, supra note 258.

270. Melton et al., supra note 1. Distraction can be a particular problem when formal psychological tests are used; see, e.g., Kirk Heilbrun, The Role of Psychological Testing in Forensic Assessment, 16 L. & Hum. Behav. 257 (1992), https://doi.org/10.1007/BF01044769.

271. Robert I. Simon, “Three’s a Crowd”: The Presence of Third Parties During the Forensic Psychiatric Examination, 24 J. Psychiatry & L. 3 (1996), https://doi.org/10.1177/009318539602400102.

when the examination is being conducted by an expert for an adverse party, attorneys may be tempted to object to questions or signal their clients regarding their answers. To help mitigate this, if an attorney is present, as is sometimes unavoidable, the ground rules should include that the attorney sits out of the line of sight of the evaluee and does not interrupt the examination. An alternative is to have the evaluation audiotaped or videotaped, a technique that some experts routinely use. There is a lack of data on the impact of taping on evaluees’ willingness to be forthcoming, but experienced forensic examiners have expressed the view that evaluees rapidly adjust to the recording equipment, with little impact on the evaluation.²⁷²

A final consideration is the amount of time available for the examination.²⁷³ Time constraints may result from correctional rules (e.g., prisoners are available only during given periods of time; the availability of equipment used to conduct a remote evaluation is limited relative to the demand), medical illnesses or mental disorders (e.g., the evaluee has limited strength or attention), or limitations on resources (e.g., the party employing the expert has funds only for a certain number of hours of work). Appropriate duration of an examination is likely to depend on the questions being asked, the complexity of the person’s history and presentation, and the person’s cooperation with the evaluation. The duration of an examination, standing alone, is not a good indicator either of its quality or of the validity of the conclusions that were drawn. But an expert should be able to assess the time necessary to perform an adequate evaluation and, if sufficient time is not available, should indicate the limitations on the resulting opinions.

Were the Appropriate Records Reviewed?

The importance of the evaluator having access to the person’s records will vary somewhat depending on the legal question being addressed, but it can often be critical to the validity of the evaluation.²⁷⁴ When retrospective assessments are being conducted—for example, an evaluation of a defendant’s state of mind at the time of a crime that occurred months to years before the examination, or an assessment of a person’s capacity to enter into a contract at some distant prior date—reviewing contemporary or nearly contemporary records can provide crucial insights into the person’s symptoms and functioning at that time. But even when contemporaneous function or future behavior is being assessed,

272. AAPL Task Force, Videotaping of Forensic Psychiatric Evaluations, 27 J. Am. Acad. Psychiatry & L. 345 (1999).

273. Melton et al., supra note 1, at 47.

274. Heilbrun et al., supra note 264; see also discussion in section titled “Data Collection and Sources of Information” above.

having access to available records may still be of great importance. Because distinctions between mental disorders can depend in part on the pattern of symptoms over time, accurate diagnosis is often dependent on having a view of the person’s prior psychiatric history.²⁷⁵ In addition, when malingering or defensiveness are active considerations, as they often are, the consistency of the person’s presentation over time can be an important factor in the assessment.²⁷⁶ And given that past behavior is generally the best predictor of future behavior, especially where violence is concerned, knowledge of a person’s previous history can be essential for predictions of reasonable accuracy.²⁷⁷ Thus, regardless of the focus of the evaluation, an effort should be made to obtain all relevant available records.

Which records are relevant will depend somewhat on the legal question being asked.²⁷⁸ Whenever possible, records of past mental health evaluations or treatment should be obtained. Medical records often contain information about psychiatric symptoms, alcohol and drug use, and functional levels, and thus can be useful. Educational, work, and military records can usefully inform both patterns of symptoms and functional impairment. Educational records may be especially helpful where disorders of early onset are suspected, and work and military records are often useful when occupational disability is at issue. In criminal cases, particularly those involving assessments of the defendant’s state of mind at the time of the crime, police records can often be valuable, including interviews with witnesses or the defendant, and the results of physical evaluations—including pictures—of the crime scene. It can be helpful to compare the data obtained by these means with the defendant’s accounts of the episode that led to the arrest. Diaries or other accounts written by the person whose mental state is at issue are sometimes available and, to the extent they were generated prior to the initiation of legal proceedings, can be enlightening regarding the person’s state of mind and motivation, the influence of third parties, and the like. When there has been prior litigation involving the person being evaluated, depositions or transcripts of testimony can be helpful for information about state of mind and factual data. Records of prior incarceration are useful in appraising likely adjustment and possibly response to rehabilitative interventions if the evaluee is again incarcerated.

275. Diagnosis and subcategorization of bipolar disorder, for example, are dependent not only on assessing the person’s current symptoms—whether manic or depressed—but also on ascertaining whether mania or depression was present in the past if it is not apparent at present. See DSM-5-TR, supra note 72, at 139–43.

276. See generally section titled “Response Style” above.

277. See generally section titled “Predictive Assessments” above.

278. See, e.g., Melton et al., supra note 1.

279. Heilbrun et al., supra note 264.

280. See, e.g., Kenneth S. Kendler, Toward a Philosophical Structure for Psychiatry, 162 Am. J. Psychiatry 433 (2005), https://doi.org/10.1176/appi.ajp.162.3.433.

may require an evaluation of a person’s physical state, along with the mental state.²⁸¹ If there is any reason to suspect that an identifiable general medical disorder lies at the root of a person’s condition (e.g., a sudden and unprecedented appearance of symptoms, disproportionate impairment of aspects of cognitive function), medical testing, including electroencephalograms (EEGs) and imaging studies, may be indicated.²⁸² Any medical diagnostic testing should be justified based on its relevance to the evaluation. Persons without medical training are typically not able to order or interpret the results of medical tests, which will require referral to a health professional if indicated.

Was the Evaluee’s Functional Impairment Assessed Directly?

As previously discussed, mental health evidence will often focus on the extent to which a person is capable of performing a particular task or set of tasks, and a person’s impairment on one or more functional abilities.²⁸³ Sometimes an evaluator will be able to infer from an examination of the person’s mental state and information from other sources whether the person is or was capable of performing the task at hand (e.g., standing trial, returning to work, managing property). However, direct assessment of the relevant function is another option for evaluation.²⁸⁴ Where a functional ability is at issue that relates to a discrete task or set of tasks, a competent evaluator should have considered using direct assessment of the person’s performance of those tasks and should be able to explain any decision not to do so. It should be noted, though, that conclusions drawn even from direct assessments of function require some inference. A person claiming occupational impairment as a result of anxiety induced by long-standing harassment on the job, for example, might respond very differently to the demands of a

281. See generally section titled “Diagnosis of Mental Disorders” above.

282. Identification of structural or electrical abnormalities, however, does not necessarily imply that these things impaired the person’s functioning or were responsible for the person’s behavior. For discussion of a well-known case in which this issue was raised, see Stephen Morse, Brain and Blame, 84 Geo. L. J. 527 (1996). For a more general discussion of the introduction of findings of abnormalities demonstrated on brain imaging in court, see Dean Mobbs, Law, Responsibility and the Brain, 5 PLoS Biology 693 (2007), https://doi.org/10.1371/journal.pbio.0050103. As with structural findings, the mere presence of a functional abnormality is insufficient to establish a causal link to the person’s mentation or behavior. There are growing legal and neuroscience literatures on the use of functional imaging data in court. See, e.g., Darby Aono, Gideon Yaffe & Hedy Kober, Neuroscientific Evidence in the Courtroom: A Review, 4 Cognitive Rsch. 1 (2019), https://doi.org/10.1186/s41235-019-0179-y; Jane Campbell Moriarty, Neuroimaging Evidence in U.S. Courts, in Law and Mind: A Survey of Law and the Cognitive Sciences (Bartosz Brozek et al. eds., 2021).

283. See generally section titled “Functional Impairment Due to Mental Disorders” above.

284. See section titled “Assessment of Functional Legal Capacities” above.

work-related task in the actual workplace compared to the safe confines of a mental health professional’s office. Therefore, when employing direct assessment of functional capacity, the evaluator should be prepared to comment on the ecological validity of the test, that is, the degree to which the testing environment resembled the real-world environment in the person’s life.²⁸⁵ Although observations in very different settings may have some value as part of the broader data set available in an evaluation, they do not carry the same weight as conclusions reached in environments similar to those at issue in the case.

Was the Possibility of Malingering or Defensiveness Considered?

In almost every mental health evaluation for legal purposes, the person being evaluated has an incentive to exaggerate or fabricate symptoms, to minimize or deny symptoms, or to distort the impact of actual symptoms on the person’s functional abilities.²⁸⁶ The evaluator should consider the possibility of malingering or denial in every assessment, depending on the nature of the incentive. Techniques for appraising these different response styles were described earlier.²⁸⁷ Although these techniques are not foolproof, and well-prepared evaluees can sometimes mislead mental health professionals on the existence or severity of disorders, successful malingering or minimizing over time are difficult tasks. Uncovering distortions of the degree of actual symptoms or of their impact is usually more challenging than detecting wholesale invention of disorders that are not present or adamant denials of disorders that are. Competent evaluators should be able to explain how they considered the possibility of distorted responding and why they believe that their conclusions are valid, while acknowledging that their degree of certainty can never be absolute.

285. Additional issues related to the use of functional tests are discussed below in the section titled “Was a Structured Diagnostic or Functional Assessment Instrument or Test Used?”

286. There are particular situations in which the incentive runs toward defensiveness rather than malingering. For example, a defendant facing relatively minor charges for whom an evaluation of competence to stand trial was ordered may have every reason to minimize the level of symptoms, preferring to go to trial quickly rather than spend an extended period of time in a psychiatric facility being treated to restore competence. A second example is a defendant whose risk for violence is being evaluated prior to a bail hearing, who also has a powerful incentive to downplay the presence of risk factors associated with violence and to minimize a past history of violence.

287. See section titled “Response Style” above.

288. For the discussion in the following two paragraphs, see generally American Psychological Association, Standards for Educational and Psychological Testing (2014).

demonstrated is an essential aspect of determining admissibility and weight. In Daubert, when the U.S. Supreme Court referred to the reliability of a scientific technique, it was encompassing both reliability and validity as usually understood in the behavioral sciences.²⁸⁹ Which aspects of reliability and validity are relevant to a particular case will depend on the purpose for which the data from the test are being introduced. For example, if the evidence is addressing change in a person’s test results over time, a measure’s test-retest reliability becomes crucial. If more than one evaluator was involved, interrater reliability may be key. Discriminant validity will be relevant when two states or conditions must be distinguished from each other and predictive validity when forecasts of future mental state or behavior are being made. Careful evaluators will use only instruments or tests that have had the relevant types of reliability and validity confirmed in peer-reviewed publications, and they will be prepared to cite such data should questions be raised. Of course, some tests are so widely used over a sustained period that their reliability and validity are generally accepted (e.g., the MMPI-3). However, the reliability and validity of some long-standing tests (e.g., the Rorschach test) remain controversial,²⁹⁰ and data even from established tests can be used to reach conclusions of uncertain validity. Thus, novel uses of instruments or tests may also require demonstration of their psychometric characteristics for that purpose.

Functional assessment instruments are validated using outcomes involving the capacity to perform in a way that is directly relevant to the legal demands.²⁹¹ The reliability and validity of such a measure should be described in a manual that is either commercially available (along with the measure itself) to qualified professional purchasers, or available on a website or other publicly available source that describes the research establishing its reliability and validity.

Does the Person Being Evaluated Resemble the Population for Which the Instrument or Test Was Developed?

Even when present for one population, reliability and validity do not necessarily apply to those in a different population. If an assessment technique is being used

289. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993).

290. Scott O. Lilienfeld, James M. Wood & Howard N. Garb, The Scientific Status of Projective Techniques, 1 Psych. Sci. Pub. Int. 27 (2000), https://doi.org/10.1111/1529-1006.002.

291. For example, a functional assessment instrument for competence to stand trial would measure capacities such as the ability to understand legal charges and how the legal system functions, assist counsel through communication and appropriate behavior during a legal proceeding, and make decisions regarding the options for plea. See, e.g., Grisso, supra note 3.

on someone from a different population than the one for which the instrument or test was developed, and the new group is likely to differ in some material way, reliability or validity may need to be reestablished. An example with regard to reliability might be using an instrument with a child that was developed to measure symptoms of mental disorders in adults.²⁹² Either the nature of the symptoms that adults experience or the ability of adults to describe their symptoms could be substantially different for children. Thus, it might be prudent for an evaluator to ascertain that data exist showing good reliability in this new population before using the assessment approach. An example involving validity is using predictive scales, such as instruments to assess violence risk, with a different group than the one on which the predictive algorithm was derived.²⁹³ Concretely, if a predictive test is based on a group of justice-involved individuals without serious mental illness, applying it to persons with serious mental illness—for whom different variables may affect behavior—is dubious in the absence of data demonstrating its validity in the latter group.

It should be emphasized, however, that reestablishing reliability and validity is necessary only when the original group and the new population are likely to differ in a relevant way. Why an instrument developed in California, for example, would not be as reliable and valid when used in Texas is not at all clear. The nature of the instrument or test also plays a role. Diagnostic tests are likely to differ in their characteristics across populations only if the disorders or the ways in which they manifest are different, which will not usually be the case. Predictive tests, however, may be more sensitive to cultural, socioeconomic, geographic, and other considerations that could introduce other influences on future conditions or behaviors. In addition, tests that involve comparisons with broader populations are said to be normed using those groups,²⁹⁴ and the comparative data (e.g., the evaluee is in the lowest quartile of performance) may be invalid unless the test is renormed for the group of which the person is a member. The use of such tests in a clinical context, such as diagnosis for treatment-planning purposes, may differ from their use in legal settings. Thus, whether additional reliability and validity testing is required for a new use, or whether a test must be renormed before being used in this way, is necessarily a fact-specific determination.

292. The frequently differing presentations of mental disorders in children have led to the development of instruments intended specifically for use in that population. See, e.g., David Shaffer et al., NIMH Diagnostic Interview Schedule for Children, Version IV (NIMH DISC-IV): Description, Differences from Previous Versions, and Reliability of Some Common Diagnoses, 39 J. Am. Acad. Child & Adolescent Psychiatry 28, 28–38 (2000), https://doi.org/10.1097/00004583-200001000-00014.

293. See, e.g., John Monahan et al., The Classification of Violence Risk, 24 Behav. Sci. & L. 721 (2006), https://doi.org/10.1002/bsl.725.

294. For a good discussion of norming in the forensic context, see Grisso, supra note 3, at 56–59.

295. Structured diagnostic interviews have been widely used in epidemiological studies of mental disorders in the United States, as an example. See a description of a recent iteration of such a structured interview (the Structured Clinical Interview for DSM-5) at https://www.appi.org/products/structured-clinical-interview-for-dsm-5-scid-5.

296. Indeed, some psychological and neuropsychological tests should be administered only by psychologists trained in their use.

297. The creator of the popular Psychopathy Check List (PCL-R), for example, offers an extensive training program for clinicians and researchers desiring to learn how to properly administer the instrument. See https://perma.cc/WSP8-JJJE.

298. It is not unusual, for example, for the staff of a jail or prison to indicate to an evaluator that facility policy requires the presence of a correctional officer in the room. This is highly problematic, of course, as certain aspects of forensic evaluations involve very sensitive material. If this cannot be renegotiated with the facility, then the evaluator must make the difficult decision between conducting a modified evaluation under these circumstances or declining entirely.

299. Publishers of commercially available psychological tests (to qualified users) have worked since the onset of Covid-19 conditions in March 2020 to improve the technology that would address influences that adversely affect the conditions of remote administration, and hence make reliability and validity more comparable to in-person administration. See, e.g., https://perma.cc/6DLV-QV8F. Yet there have not been innovations that would allow remote administration of tests requiring the observation of physical movements, hand-eye coordination, and the like—meaning that many neuropsychological tests cannot be administered remotely. See, e.g., Kirk Heilbrun et al., A Principles-Based Analysis of Change in Forensic Mental Health Assessment During a Global Pandemic, 48 J. Am. Acad. Psychiatry & L. 293 (2020), https://doi.org/10.29158/JAAPL.200039-20.

300. E.g., the Brief Psychiatric Rating Scale. See John E. Overall & Donald R. Gorham, The Brief Psychiatric Rating Scale (BPRS): Recent Developments in Ascertainment and Scaling, 24 Psychopharmacology Bull. 97 (1988), https://doi.org/10.2466/pr0.1962.10.3.799.

301. E.g., Grisso & Appelbaum, supra note 122.

302. See Dusky v. United States, 362 U.S. 402 (1960); Melton et al., supra note 1.

303. See, e.g., A. Louis McGarry, Competency for Trial and Due Process Via the State Hospital, 122 Am. J. Psychiatry 623 (1965), https://doi.org/10.1176/ajp.122.6.623. Subsequent studies suggested that this became a less common problem as educational efforts among mental health professionals who do such work had a positive impact. Robert A. Nicholson & Karen E. Kugler, Competent and Incompetent Criminal Defendants: A Quantitative Review of Comparative Research, 109 Psych. Bull. 355 (1991), https://doi.org/10.1037/0033-2909.109.3.355.

304. See Parry & Drogin, supra note 9, at 149–51.

305. See section titled “Ultimate-Issue Testimony” above.

306. See Parry & Drogin, supra note 9, at 429–31.

307. Buchanan, supra note 216.

empirically validated procedures rather than on untested or untestable theories. That appears to be the import of the U.S. Supreme Court’s decision in Kumho Tire.³⁰⁸ As Slobogin plausibly maintains, some legal questions (such as those concerning past mental states) may not easily lend themselves to approaches based on scientific methods, but expert opinions may nonetheless be of assistance to factfinders.³⁰⁹ At a minimum, it would seem fair for an expert to indicate when that is the case, so that the factfinder can make an informed judgment about the appropriate degree of reliance on the expert’s opinion. And when empirically tested approaches are available, it is good practice for an expert to use them, or to explain why they were not used.

Case Example

Facts of the Case

James Stallworth³¹⁰ is a forty-eight-year-old male who was charged with making false statements and with fraudulent use of an identity document, incurring federal charges to which he pled guilty. His attorney requested an evaluation to possibly support the defense’s motion for a downward departure at sentencing. The evaluation requested by the defense was conducted by a Ph.D. psychologist board certified in clinical psychology and forensic psychology (Dr. A). The assistant U.S. attorney requested a second evaluation, which was conducted by a psychiatrist in private practice who was board certified in psychiatry and forensic psychiatry and whose work includes both forensic evaluations and psychiatric treatment (Dr. B).

Mr. Stallworth does not have a juvenile record, but he has a substantial arrest history as an adult, resulting in fifteen convictions for offenses such as trafficking cocaine, resisting arrest, trespassing, possession of marijuana, burglary, theft, making false report, disorderly conduct resisting arrest, DUI, and shoplifting. He is also a registered Step 2 sex offender, having been sentenced to three years in prison for a sexual offense.

He presented for evaluation with Dr. A., who interviewed him on two occasions; Mr. Stallworth was polite and cooperative. His speech was somewhat rambling during the first interview; it was very rambling and tangential during the second. He was largely calm throughout, displaying no difficulty with attention or concentration, and worked consistently on all tasks. Intellectual

308. Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (holding that the Daubert standard for admitting expert testimony also applies to nonscientists).

309. Slobogin, supra note 212.

310. See Kirk Heilbrun et al., Forensic Mental Health Assessment: A Casebook 100–109 (2d ed. 2014). This is a composite of several cases and has been fully deidentified. There is no “James Stallworth.”

functioning was not formally measured but appeared to be in the Average to High Average range, as suggested by his appearance, behavior, and academic skills measured by the Wide Range Achievement Test—4th edition (Word Reading, 13th grade equivalent; Sentence Comprehension, 13th grade equivalent; Math, 13th grade equivalent; Spelling, 11.6th grade equivalent). He did not report experiencing perceptual disturbances at the time of the evaluation, and there was no evidence of bizarre ideas, delusions, or other thought disturbances.

He described attending high school and a total of about three years of college at the University of South Florida and the University of Delaware. He said that he had never been married but was described by a friend as having a lot of acquaintances; his friend added that women in particular “really want to get to know him.” He reported holding several jobs as an adult, including waiter, cook, and construction worker. He apparently held a number of briefer jobs as well, and described himself as “king of the misers—I don’t need a lot to get by.”

Mr. Stallworth reported a significant medical history, including “enlarged heart ventricles” that result in “pains in my heart and I pass out” at times. He was also diagnosed with asthma and prescribed a steroidal inhaler that “seemed to work well,” he said. He reported a history of two concussions, in 1993 (when he was thirty-three) and 1995, the latter incurred during a “fight with a bunch of people over alcohol.”

His psychiatric history included a report of hospitalization during college and diagnosis of manic depression, with a prescription for lithium (a mood-stabilizing psychotropic medication) that he said he “never took” because he “did not like the side effects.” He described one subsequent episode of manic behavior about two years later and two episodes of significant depression (in 1988 and 2000). He said that he did not take medication to treat any of these three episodes. He also described a history of symptoms consistent with ADHD, although he reported that he had never been diagnosed with or treated for this disorder.

The results of a standard psychological test of mental and emotional functioning, the MMPI-2, yielded a valid profile that was consistent with an open response style neither exaggerating nor minimizing unusual experience. Individuals with such profiles are often described as interacting with others easily, although prone to taking advantage of others. Such profiles are also consistent with substance-use problems—consistent with Mr. Stallworth’s description of using marijuana, alcohol, and cocaine excessively and using other drugs (e.g., quaaludes, LSD) when in college.

Testimony in the Federal Sentencing Hearing

Dr. A described the following recommendations for treatment: (1) a medical expert’s evaluation for appropriateness of psychotropic medication to treat

symptoms of bipolar disorder and ADHD; (2) job-related services that could assist Mr. Stallworth in finding and keeping a job, reducing the pressure on him to obtain money by antisocial means; and (3) skills-based training and counseling to address deficits in problem solving and decision-making. His amenability to such interventions was described as mixed. He has the intellectual capacity to benefit from interventions relying on verbal memory and abstract concepts, and he has acknowledged that psychotropic medication has helped reduce the intensity of his manic symptoms. But he also has a history of declining or discontinuing prescribed medication, so he would need to be persuaded that it was advantageous to him under the circumstances.

Dr. B noted Mr. Stallworth’s long history of antisocial conduct as an adult and concluded that his report of experiencing bipolar symptoms was exaggerated and self-serving. He concluded that Mr. Stallworth does not experience a severe mental illness but has a personality disorder (antisocial personality disorder) co-occurring with substance misuse. Dr. B also observed that he was glib, impulsive, and versatile in his antisocial conduct. He was pessimistic about the prospect of rehabilitation, concluding that no conventional psychiatric interventions (including psychotropic medication) were likely to reduce his risk of future offending.

Questions for Consideration: Dr. A

1. Given that Dr. A was based in a local university and devoted much of his work to research and teaching, including conducting forensic evaluations but doing relatively little work treating patients, should he have been considered qualified to offer opinions about Mr. Stallworth’s treatment needs and amenability?³¹¹
2. Were the psychological tests administered appropriate in this context?³¹²
3. Are the following relevant to (a) whether Dr. A should be qualified as an expert, (b) the credibility of his opinions but not his status as an expert, or (c) neither?

311. The most important question involves this expert’s knowledge, training, and experience in conducting similar forensic evaluations. Other sources of relevant information include whether the expert provides treatment to this population (although, as discussed in this reference guide, clinical treatment provision is a separate and distinct role from forensic assessment), whether he has conducted research and scholarship in related areas, whether he has trained peers and trainees, and other considerations that might inform his competence in conducting such an evaluation and reporting the results.

312. The psychological tests administered in this case were selected for relevance and reliability. This is not always the case with experts who administer such testing. Judges who have questions about this should ask the expert to justify an indicated measure in terms of relevance and reliability.

313. Psychologists are generally appropriate experts in such matters. Considering expertise via voir dire might reveal justification for clearly accepting or rejecting the proposed expert on other grounds.

314. This is important. Licensure in a jurisdiction indicates that the appropriate regulatory board has determined that the psychologist has the necessary training and experience to deliver psychological services to clients. Forensic assessment is a kind of psychological service that involves interviewing, testing, and expertise in mental health. Unlicensed psychologists have not demonstrated that they have the needed training and experience to provide this service. Some psychologists who specialize in nonclinical areas neither qualify for licensure nor are appropriate to provide forensic assessments.

315. This is a demonstration that the psychologist has obtained a credential that requires competence in the area of specialization. Some psychological experts have not sought board certification but are nonetheless competent to provide forensic services.

316. This is important to the extent that it furthers expertise with such individuals and promotes a better understanding of how treatment works, and its limits. It is less important that the expert have an active clinical treatment practice; experts engage in many activities that further their competence. Treatment provision is one. Research, training, and consultation are others.

317. Experience providing services with justice-involved clients is important. Such services include areas described in the previous footnote.

318. Experts can agree or decline to work with an attorney, but they generally do not control whether they receive such offers. The proportion of cases in which one has been retained by one side is less important than demonstrating some history of conducting evaluations at the request of both defense and prosecution or defense and plaintiff. Also important is the proportion of cases in which the expert can describe providing an opinion that was not favorable to the retaining party. Such unfavorable opinions typically are not used in litigation, so they do not become part of the discoverable record. But an expert should be able to answer a question about this.

319. Whether the described strengths and limitations are accurate depends upon the evidence presented, of course. But strengths and limitations always exist, and reports and opinions that do not describe both should be viewed with some skepticism with respect to the evaluator’s impartiality.

320. It provides evidence that much of his time is spent with patients. This has advantages and disadvantages. To the extent that an expert spends the great majority of his time with patients, and is not involved in other professional activities (e.g., research, scholarship, training), that expert may be very familiar with patient behavior but less familiar with the supporting science and practice literatures.

321. Psychiatrists rarely administer psychological testing, as training in this area is not typically provided during residency or fellowship. This means they may not be well informed about what testing could provide. But such experts usually take alternative approaches to appraising important domains in forensic assessment.

322. Psychiatrists with appropriate expertise in areas relevant to the forensic questions should be qualified as experts.

323. This is simply an indication that this individual is medically trained, which may have certain advantages considering the nature and facts of the case.

324. Board certification is expected more often as part of medical and specialty training. It is a reflection of such specialization.

325. Having a clinical practice adds to the credibility and experience of an expert. There should be a recognition, however, that the forensic-assessment role is distinct from the clinical-treatment role. For reasons discussed in this reference guide, experts who have treated the litigant should not then be providing a forensic assessment of that litigant.

326. Specialized experience with justice-involved individuals is important.

327. Unless there is an identifiable pattern of only conducting evaluations and testifying at the request of one side, the particular side that retained the expert in this matter should make little difference.

328. Whether this is accurate will depend on the pattern of the evidence provided by both experts. But describing a litigant without reference to strengths, or in one-sided terms, should create skepticism with respect to the expert’s impartiality.