Fundamentals of
Forensic Practice
Mental Health and
Criminal Law
Fundamentals of
Forensic Practice
Mental Health and
Criminal Law
Richard Rogers, Ph.D., ABPP
University of North Texas, Denton, TX
and
Daniel W. Shuman, J.D.
Southern Methodist University, Dallas, TX
class="bi xd ye w3 h4"
Richard Rogers
Department of Psychology
University of North Texas
Denton, TX 76203-1280
USA
[email protected].
Daniel W. Shuman
School of Law
Southern Methodist University
Dallas, TX 75275
USA
[email protected]
Library of Congress Control Number: 2005923617
ISBN 10: 0-387-25226-6 e-ISBN 0-38725227-4
ISBN 13: 978-0387-25226-1
Printed on acid-free paper.

17
Chapter 2: Malingering and Deception in Criminal Evaluations
21
Fundamental Issues with Response Styles
22
Detection Strategies for Feigned Presentations
31
Standardized Assessment of Malingering
39
Summary
55
Chapter 3: The Nature of Experts and Their Testimony
57
The Nature of Experts
57
Expert Testimony
68
v
vi CONTENTS
Expert Qualifications 68
Direct Examination
73
An Overview of Direct Examination
76
Redirect Examination
80
Summary
81
SECTION II Specific Criminal Issues
83

Clinical Operationalization of the Competency Standard
161
Forensic Assessment Methods
168
General Cross-Examination Issues
176
Summary
180
Chapter 7: The Insanity Defense
181
Relevant Legal Standards
182
Clinical Operationalization of the Insanity Standards
193
Specialized Methods for Assessing Insanity
205
General Cross-Examination Issues
207
Summary
214
Chapter 8: Beyond Insanity: Other Issues of Criminal
Responsibility
215
Relevant Legal Standards
216
Clinical Operationalization of Criminal Culpability Standards
229
CONTENTS vii
Clinical Methods Relevant to Assessments of Criminal
Responsibility

325
General Cross-Examination Issues
329
Summary
333
Chapter 11: Sexual Predator Determinations
335
Relevant Legal Standards
336
Clinical Operationalization and Forensic Methods for SVP
Determinations
342
General Cross-Examination Issues
352
Summary
364
Chapter 12: Integration: Themes in Criminal Forensic Practice
367
Science and Skill in Clinical Forensic Practice
367
Forensic Predictions and Classifications
377
Scrutiny and Skepticism as Watchwords for Criminal
Attorneys
382
The Interdependence of Law and Forensic Practice
385
Concluding Remarks
386
Appendix A: The Accuracy of DSM Indices of Malingering

401
Appendix H: Analysis of Risk Assessment Measures: Are They
Relevant to Sexually Violent Predator (SVP) Standards?
∗

403
Appendix I: Standards for Diagnoses in Forensic Practice:
A Comparison of Unstandardized, Standardized, and
Extrapolated Diagnoses
∗
405
References
407
Name Index
435
Subject Index
439
∗
Specifically for use as court exhibits, copies of Appendices A through I are permitted for this
explicit purpose.
I
Foundations of Practice

1
Clinical and Legal Framework
Mental health and legal professionals face formidable challenges in ap-
plying their knowledge and expertise to the criminal justice system. This
book addresses psycholegal issues from both law (e.g., statutes, case law,
and legal theory) and clinical-forensic (e.g., empirically based knowledge
and specialized methods) perspectives. Within the criminal justice system,

1981). Developments starting in the 1960s involve (a) early efforts at
standardizing forensic evaluations, (b) judicial decisions on admissibil-
ity that opened the door to forensic psychology with an equivalent ex-
pert status to forensic psychiatry (Jenkins v. United States, 1962), and (c) a
widespread acknowledgment of law as the general framework for foren-
sic practice. The growing stature of these specialties was marked by the
formation of prominent professional societies, the American Academy
of Psychiatry and Law in 1968 and the American Board of Foren-
sic Psychology in 1969. The maturation of these forensic specialties is
noted by the development of sophisticated training programs at the doc-
toral and postdoctoral levels (Brigham & Grisso, 2003). Modern foren-
sic psychology and psychiatry are distinguished by their sophisticated
understanding of legal issues and the empirical underpinnings of their
practice.
Robey’s (1965) seminal research on competency to stand trial pro-
vides a simple yet elegant demarcation between early and modern prac-
tice. Robey observed that early practitioners routinely applied their cus-
tomary clinical skills without appearing cognizant of the specific forensic
issues. His straightforward analysis has far-reaching implications. It sug-
gested that traditional insularity be replaced by professional accountabil-
ity. In presaging empirical validation, it recommended that idiosyncratic
approaches be replaced by standardized methods. Though largely unher-
alded, Robey (1965) easily could be considered the beginning of modern
forensic practice.
CLINICAL AND LEGAL FRAMEWORK 5
CONCEPTUAL MODELS OF FORENSIC PSYCHOLOGY
AND PSYCHIATRY
Overview of the Models
Conceptual models of forensic practice have evolved from the early
clinical-only perspective to incorporate legal underpinnings and empirical

r
The legal and empirical components are insufficient by themselves
for forensic practice. While providing broad conceptualizations,
tested theory, and nomothetic knowledge, these components do not
capture the singular challenges found in evaluations of individual
defendants. The final component, forensic, is the application of legal
6 CHAPTER 1
interpretation and specialized methods to a particular case. Forensic
expertise requires more than customary clinical practice in its rig-
orous implementation of forensic principles, ethics, and decision-
making.
Relevance to Forensic Practice
Many criminal attorneys may begin to question the relevance of the
foregoing discussion to their practices. Why does it matter that forensic
psychology and psychiatry embrace the legal-empirical-forensic paradigm?
It matters because more than a few forensic experts lack the requisite un-
derstanding of one or more these essential components for forensic compe-
tence. The basis for their “expertise” is sciolism, a smattering of superficial
knowledge. For each component, Box 1-1 illustrates general avenues for
cross-examination. These components will be examined closely in subse-
quent chapters as they relate to specific legal standards.
It is surprising that cross-examining attorneys routinely allow unpre-
pared experts to testify without rigorously questioning their competence.
The illustrative questions in Box 1-1 are not intended to be antagonistic or
demeaning. Rather, the expertise of experts should be calmly explored in
criminal trials. For example, cross-examinations about legal understand-
ing may uncover a substantive misconstrual of the relevant criteria. Nearly
all experts will be able to recall the gist of legal standard. Of greater rele-
vance is their understanding of the standard and their ability to articulate
its meaning in their own words. Although the rules of evidence permit ex-

in your own words
what that means to you. . . . [If hesitates or stumbles]
Doctor, you appear to be unsure of yourself, wouldn’t you agree?
5. You mentioned
(i.e., a component of the standard), please tell us what
that means to you. . . .[If incomplete] Anything else you would like to
add?. . .[If inaccurate] How confident are you in this description?
6. [#5 can be repeated for each major component of the standard]
Empirically Validated Knowledge and Methods
1. Please define forensic (select: psychology/psychiatry). Is this a legitimate
specialty with its own empirically validated knowledge and assessment meth-
ods?
2. Are you qualified to describe yourself as a forensic (select: psychologist/
psychiatrist)?
3. Regarding
(i.e., a specific legal standard), does forensic psychology and
psychiatry have any empirically validated knowledge?. . . [if unclear] Any
specialized knowledge base in scientific research that would qualify you as an
expert?
4. Are you competent to describe this empirically validated knowledge of
(i.e., a specific legal standard)? [If “no,” pursue further the obvious
limits of expertise]
5. Who are the most prominent researchers in establishing this empirically val-
idated knowledge?
6. You mentioned
(i.e., a prominent researcher), tell us about his or her
research methodology?. . . [If the answer addresses the major findings]
Please don’t duck my question, I asked about the research methodology
.
7. [#6 can be repeated for other prominent researchers]

Rightly or wrongly, the onus falls directly on criminal attorneys to
ensure that experts understand the science of their profession. In many
areas, the amount of empirically validated knowledge has more than dou-
bled in the last decade. As a specific example, Salekin, Rogers, and Sewell
(1996) found only 18 studies addressing Hare’s (1991) psychopathy and
recidivism. Less than a decade later, Salekin, Leistico, Rogers, and Schrum
(2003) compiled 53 studies on the same topic. Regrettably, many experts
have fallen substantially behind in the requisite knowledge of their own
specialty.
As the question is framed in Box 1-1, does the expert have a sophis-
ticated understanding of the specialized expertise for his or her discipline
and specialty? In Chapter 3, we examine more closely the relationship
between experts and their expertise. If the forensic expert cannot name
several prominent researchers and describe their major contributions (i.e.,
methods and results), thentwo possibilities must be considered bycriminal
attorneys:
1. Beyond thespecialty. Forensic psychologyand psychiatry donot have
expertise to offer the courts on this particular question.
2. Beyond the expert. This particular witness is not sufficiently expert
on this particular issue given the expertise available in forensic psy-
chology and psychiatry.
CLINICAL AND LEGAL FRAMEWORK 9
Forensic practice is also informed by professional and ethical stan-
dards. Experts should be aware of their specialty standards, such
as Specialty Guidelines for Forensic Psychologists (Committee on Ethical
Guidelines for Forensic Psychologists, 1991) and Ethical Guidelines for
the Practice of Forensic Psychiatry (American Academy of Psychiatry and
Law, 1991, 1995). While these criteria are aspirational rather than enforce-
able, they provide official guidelines for conducting forensic consultations,
court reports, and subsequent testimony. Surprising numbers of foren-

consensus in its knowledge
1
(Constanzo, 2004). Moreover, the law is much
more pragmatic than forensic psychology and psychiatry often seeking
a negotiated solution (e.g., plea bargaining or a settlement) rather than a
strict inquiry into truth.
Haney (1980) outlined the fundamental differences between the as-
sumptions of law and psychology. Narrowing this focus to individual
accountability helps to illustrate these fundamental differences (Melton,
Petrila, Poythress, & Slobogin, 1997). The law proceeds from the assump-
tion that it is appropriate to hold people accountable for their behavior
because they exercise a sufficient degree of control over it (i.e., free will).
Seeking an ordered society in which people are entitled to expect that those
with whom they come in contact will follow the rules, the law is skeptical
of behavioral control excuses for unlawful choices. In contrast, psychology
and psychiatry propose different theories of behavior based largely on de-
terminism. Rather than trying to fit behavioral choices into the law’s moral
dichotomy, psychology and psychiatry are more likely to view behavior as
multidetermined and unique to each person.
SCIENTIFIC STATUS OF FORENSIC PSYCHOLOGY
AND PSYCHIATRY
Faust and Ziskin’s (1988) scathing critique of forensic expertise found
the entire enterprise almost completely lacking in sound science. They
found wanting (1) the scientific underpinning of forensic psychology
and psychiatry, (2) the adequacy of their theories, and (3) the validity of
their assessment methods (see also Ziskin, 1995). While unduly negative,
these intense criticisms identified certain tradition-bound complacencies
in forensic psychology and psychiatry. They also underscored the need for
systematic research in validating measures and methods used in forensic
practice.

a comprehensive review of Axis I and Axis II interviews emphasizing
their reliability and clinical applications. Several structured interviews
allow forensic experts to demonstrate to the courts that their diagnoses
are highly reliable across qualified evaluators (i.e., interrater reliability)
and time intervals (i.e., test–retest reliability). The demonstration of reli-
able diagnoses is unmistakably a major advance for forensic practice. It
substantively addresses a key criticism of forensic psychology and psy-
chiatry, namely diagnostic subjectivity (i.e., the “soft science” argument;
Ziskin, 1995). Simply put, reliable measurement is the sine qua non of
science.
Structured interviews are most often used in clinical research be-
cause of its requirements for scientifically rigorous methods. Given the
far-reaching consequences to criminal defendants and the community, we
recommend that forensic evaluations be held to the same rigorous stan-
dards as clinical research. As a standard for forensic practice, criminal attor-
neys should request, if notdemand, that alldiagnoses have demonstrablereliability.
The alternative is likely to be unacceptable: idiosyncratic diagnoses with
unknown reliability that are prone to clinician biases.
Beyond reliability, structured interviews provide systematic data that
can examine comprehensively Axis I and Axis II diagnoses and symptoms.
12 CHAPTER 1
Box 1-2 Illustrative Questions for Idiosyncratic
a
Diagnoses
1. Doctor, do you believe that forensic evaluations should be held to a high
standard of practice, equaling or exceeding those used in clinical research?
2. Isn’t it true that high quality [select: psychology/psychiatry] journals do
not accept research with unreliable diagnoses
?
3. How is interrater reliability established? Why is it impossible for you to

cratic) interviews may lead to diagnostic errors. However, the inclusion
of structured interviews standardizes the diagnostic process, systematizes
the symptom ratings, and can provide convincing evidence of diagnostic
reliability.
2
Combining across studies of nearly 10,000 patients, they found that most clinician-only
assessments (75.1%) stopped after the first Axis I diagnosis. In stark contrast, diagnoses
based on structured interviews resulted in “comorbidity rates are two to three times higher”
(Zimmerman & Mattia, 1999, p. 183).
CLINICAL AND LEGAL FRAMEWORK 13
Forensic clinicians not trained in structured interviews are likely to
resist strongly any inference that their diagnostic methods are not rig-
orous and empirically validated. Attorneys should be prepared and not
deterred by the spirited responses put forth by forensic clinicians de-
fending their traditional practices. As illustrated in Box 1-2, the crucial
issue is that science not tradition should constitute the basis of clinical-
forensic testimony. We recommend that attorneys be prepared for a sus-
tained cross-examination on this pivotal issue. Otherwise, they implicitly
accept the validity of tradition-bound, inherently subjective assessment
methods.
Advances in Defining and Understanding Legal Standards
Roesch and Golding (1980) were among the first researchers to rec-
ognize the legal concepts were typically “open-textured constructs” that
cannot simply be reduced to a single set of operationalized characteris-
tics. Early attempts to define the key or representative characteristics were
often informal processes. For example, Wildman, Batchelor, Thompson,
Nelson, Moore, et al.’s (1979) early work on the Georgia Court Competency
Test (GCCT) was simply a compilation of cardinal characteristics drawn
from the legal and forensic literature. Even Hare’s (see Hare, 1991) early
work in defining the characteristics for the 20 items of the Psychopathy

or three related dimensions. Results from a large multisite study strongly
supported a three-factor model for the Dusky standard (Rogers, Jackson,
Tillbrook, Sewell, & Martin, 2003). In summary, theory-driven empirical
research on the relevant dimensions of legal constructs undergirds forensic
psychology and psychiatry with a solid scientific foundation.
Advances in the Specialized Assessment of Legal Constructs
Heilbrun, Rogers, and Otto (2002) highlighted the major advances in
the development of forensic assessment instruments (FAI) and forensically
relevant instruments (FRI). In particular, FAIs are standardized measures
for evaluating elements of legal constructs. In contrast, FRIs assess clinical
constructs (e.g., malingering and psychopathy) that are often applicable
to legal constructs. Regarding FAIs, Grisso (2003) provides an incisive yet
scholarly review of most measures and the forensic applications.
The major advances in forensic measures (FAIs and FRIs) are well doc-
umented. Because these measures are reviewed extensively in subsequent
chapters, this section simply highlights the more salient accomplishments.
These accomplishments include the following:
1. Standardizing the scope of the forensic evaluation. FAIs ensure that crit-
ical issues are addressed in each forensic assessment. Most FAIs
provide forensic clinicians with well-tested inquiries that cover the
relevant domains.
2. Standardizing clinical-forensic ratings. Much of the subjectivity in
forensic evaluations canbe minimized by the systematic use of stan-
dardized ratings. Such ratings identify relevant criteria and provide
an orderly means for quantifying responses.
3. Establishing the interrater reliability of forensic ratings and conclusions.
With the standardization of issues, criteria, and ratings, forensic
clinicians can formally test their level of agreement.
Diagnostic disagreements, and presumably disagreements about
forensic conclusions, are largely the result of unstandardized inquiries

will need to seek other forms of validation, such as construct validity. Over-
all, the validation of forensic measures is an exciting development that is
likely to increase the scientific rigor of forensic consultations.
The challenge for forensic psychology and psychiatry is the substan-
tial lag between research and practice. Frequently, practitioners do not
stay abreast with new developments in diagnostic and forensic measures.
Like all professional disciplines, practitioners often gravitate to the “tried-
and-true” methods and may even disparage new developments that may
require further training. Optimally, forensic psychology and psychiatry
should discipline their respective professions in ensuring that current prac-
tices reflect the best science. As a practical matter, criminal attorneys are
accorded this responsibility for both their own and opposing experts.
16 CHAPTER 1
LEGAL STATUS OF FORENSIC PSYCHOLOGY
AND PSYCHIATRY
Two important themes have dominated the legal status of forensic
psychiatry and psychology, the qualifications necessary to be admitted
as an expert witness and the evidentiary reliability of the methods and
procedures that the expert applies. Because of the historical dominance of
the medical model, physicians specializing in psychiatry have long been
recognized as qualified to testify as experts on the mental health issues.
This same recognition has accorded gradually for psychologists over the
last four decades. The watershed case in recognizing the expertise of psy-
chologists is Jenkins v. United States (1962). At its time, this case was ground
breaking:
The determination of a psychologist’s competence to render an expert opin-
ion 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.’ And that determination, after
hearing, must be left in each case to the traditional discretion of the trial court