Psychologists Who Make Unqualified Public Statements
About Litigants Whom They Have Not Examined
Jack S. Annon*
ABSTRACT: Psychologists who provide expert testimony in court without
properly qualifying their opinions may be violating ethical codes and specialty
guidelines. The relevant sections of the Ethical Principles
of Psychologists and Code of Conduct and the Specialty Guidelines for
Forensic Psychologists are discussed in terms of this issue.
The field of forensic psychology continues to expand as more and more
attorneys ask psychologists to perform continually evolving tasks.
Unfortunately, some psychologists, perhaps with good intentions, leap to
the challenge, and, possibly without awareness, find themselves
violating ethical codes and specialty guidelines.
I was asked by an attorney to read a report by a psychologist
relating to the lawyer's client, a defendant in an alleged child sexual
abuse case arising in the middle of a bitterly contested divorce case.
was frankly shocked by the report. The psychologist was given
depositions of the plaintiff and the defendant along with those of
several other people involved in the case, police reports, and a
statement of the charges against the defendant.
Based on these materials and his "training and experience,"
the psychologist gave his "professional opinion" in a 10-page
report that the defendant had sexually abused the child and cited seven
major reasons for his findings which were taken from the sexual abuse
literature in general. I also read the transcripts of the two
depositions the psychologist had given, and he made similar points in
To further complicate the situation, the opposing attorney had cited,
out of context, several quotations from the psychologist's report in order to buttress completely
different point in a memorandum to the court. Because there was a
possibility that the psychologist might not be available to testify, the
opposing attorney had moved to have the report and depositions given to
the jury in lieu of testimony.
I wrote an affidavit to the court stating that, in my judgment, the
report did not meet the mandatory ethical standards applicable to
psychological evaluations, diagnoses, and intervention in a professional
context, and did not meet the mandatory standard applicable to
psychological activities in general and to forensic examination in
particular. It was further my opinion that the report, or testimony to a
similar effect if offered, would be found in violation of a number of psychological ethical standards and guidelines.
I cited the Ethical Principles of Psychologists and Code of Conduct
(APA 1992); and the guidelines set forth in the Specialty Guidelines for
Forensic Psychologists (APA, Division 41, 1991). As a member of two
professional organizations ethics committees, similar cases as the above
are, unfortunately, not uncommon.
It is important for psychologists to remember that the Ethical
Standards are enforceable rules for conduct as a psychologist, and
membership in APA commits all members to adhere to the APA Ethics Code and
the rules and procedures used to implement them. As the introduction to
the code states, even if psychologists are not members of APA, they
"should be aware that the Ethics Code may be applied to them by
state psychology boards, courts, or other public bodies." For a
psychologist to lose his or her license to practice is serious matter
In the hope of resensitizing psychologists to their relevant ethical
provisions, the following particular principles are cited, as was done
in the affidavit:
1.15 Misuse of Psychologists' Influence. Because
scientific and professional judgments and actions may affect the lives of others, they are alert to and
guard against personal, financial, social, organizational, or political
factors that might lead to misuse other influence.
This particularly applied to the case cited earlier, where the
attorney used only selected portions of the psychologist's report to
buttress an argument that the psychologist did not intend. It is
important to instruct attorneys not to quote any work out of context,
unless the psychologist agrees that the quote is accurate by itself
2.01(b) Psychologists' assessments, recommendations, reports, and
psychological diagnostic or evaluative statements are based on
information and techniques (including personal interviews of the
individual when appropriate) sufficient to provide appropriate
substantiation for their findings. (See also Standard 702, Forensic
It is imperative that the psychologist conduct a personal assessment
of an individual before making any diagnostic statements about that
2.05 Interpreting Assessment Results. When interpreting assessment
results, including automated interpretations, psychologists take into
account the various test factors and characteristics of the person being
assessed that might affect psychologists' judgments or reduce the
accuracy of their interpretations. They indicate any significant
reservations they have about the accuracy or limitations of their interpretations.
In the case cited above, the psychologist never once qualified any of
his statements about the defendant. This is extremely important to do if
your data base is limited.
7.02 Forensic Assessments. (b) Except as noted in (c) below,
psychologists provide written or oral forensic reports or testimony of
the psychological characteristics of an individual only after they have
conducted an examination of the individual adequate to support their
statements or conclusions.
7.02 Forensic Assessments. (c) When, despite reasonable effort, such
an examination is not feasible, psychologists clarify the impact of
their limited information on the reliability and validity of their
reports and testimony and they appropriately limit the nature and extent
of their conclusions or recommendations.
7.04 Truthfulness and Candor. (b) Whenever necessary to avoid
misleading, psychologists acknowledge the limits of their data or
While the above appears obvious, it is unfortunate that many
psychologists fail to note the limitations of their data base, and to
properly qualify their opinions. This applies to reports as well as to
psychological testimony given in deposition or in court.
There are also relevant guidelines set forth in the Specialty
Guidelines for Forensic Psychologists (APA, Division 41, 1991). Many
psychologists, however, say that these are only guidelines and do not
carry the weight of the Ethics Code. However, attorneys often use the
General and Specialty Guidelines of the profession as "Standards of
Practice" for the psychologist, and may argue such to the jury or
In addition, it should be pointed out that the preamble to the
General Guidelines for Providers of Psychological Services (APA, 1987)
Providers of psychological services have the same responsibility to
uphold these specific General Guidelines as they would the corresponding
Furthermore, the introduction to the Ethical Principles also states:
If neither law nor the Ethics Code resolves an issue, psychologists
should consider other professional materials ...
And in a footnote it goes on to clarify:
Professional materials that are most helpful in this regard are guidelines
and standards that have been adopted or endorsed by professional psychological organizations.
In regard to the Forensic Guidelines advanced by Division 41 of the
APA, many psychologists also feel that they do not apply to them because
they do not consider themselves to be "Forensic"
psychologists. However, look closely at the definitions that the
I. B. Scope.
1. The Guidelines specify the nature of desirable professional
practice by forensic psychologists, within any subdiscipline of psychology (e.g., clinical, developmental,
social, experimental), when engaged regularly as forensic psychologists.
a. Psychologist'' means any individual whose professional
activities[sic] is defined by the American Psychological Association or
by regulation of title by state registration or licensure, as the
practice of psychology.
b. "Forensic psychology" means all forms of professional
psychological conduct when acting, with definable foreknowledge, as a
psychological expert on explicitly psycholegal issues, in direct
assistance to courts, parties to legal proceedings, correctional and
forensic mental health facilities, and administrative, judicial and
legislative agencies acting in an adjudicative capacity.
In regard to the case first cited, the reader can see that similar
issues that were raised in the Ethics Code, are raised in greater detail
VI. Methods and Procedures, C. In providing forensic psychological
services, forensic psychologists take special care to avoid undue
influence upon their methods, procedures and products, such as might
emanate from the party to a legal proceeding by financial compensation
or other gains. As an expert conducting an evaluation, treatment,
consultation or scholarly/empirical investigations, the forensic
psychologist maintains professional integrity by examining the issue at
hand from all reasonable perspectives, actively seeking information
which will differentially test plausible rival hypotheses.
VI. Methods and Procedures, F.1. While many forms of data used by
forensic psychologist are hearsay, forensic psychologists attempt to
corroborate critical data which form the basis fir their professional conduct.
When using hearsay data that have not been corroborated, but
are nevertheless utilized, forensic psychologists have an affirmative
responsibility to acknowledge the uncorroborated status of that data and
the reasons for relying upon such data.
VI. Methods and Procedures, E3. When a forensic psychologist relies
upon data or information gathered by others, the origins of those data
are clarified in any professional product. In addition, the forensic
psychologist bears a special responsibility to ensure that such data, if relied upon,
were gathered in a manner standard for the profession.
VI. Methods and Procedures, H. Forensic psychologists avoid giving
written or oral evidence about the psychological characteristics of
particular individuals when they have not had an opportunity to conduct
an examination of the individual adequate to the scope of the statements,
opinions or conclusions to be issued. Forensic psychologists make every
reasonable effort to conduct such examinations. When it is not possible
or feasible to do so, they make clear the impact of such limitations on
the reliability and validity of their professional products, evidence or
VII. Public and Professional Communications, A. Forensic psychologists
make reasonable efforts to ensure that the products of their services, as
well as their own public statements and professional testimony are
communicated in ways that will promote understanding and avoid deception
given the particular characteristics, roles, and abilities of' various
recipients of the communications.
VII. Public and Professional Communications, B. Forensic
psychologists realize that their public role as "expert to the court'' or
as "expert representing the profession" confers upon them a special
responsibility for fairness and accuracy in their public statements.
When evaluating or commenting upon the professional work product or
qualifications of another expert or party to a legal proceeding,
forensic psychologists represent their professional disagreements with reference
to a fair and accurate evaluation of the data, theories,
standards and opinion of the other expert or party.
VII. Public and Professional Communications, D. When testifying,
forensic psychologists have an obligation to all parties to a legal
proceeding to present their findings, conclusions, evidence or other professional
products in a fair manner. This principle does not preclude forceful
representation of the data and reasoning upon which a
conclusion or professional product is based. It does, however; preclude
an attempt, whether active or passive, to engage in partisan distortion
or misrepresentation. Forensic psychologists do not, by either
commission or omission, participate in misrepresentation of their
evidence, nor do they participate in partisan attempts to avoid, deny or subvert the presentation of evidence
their own position.
In closing my affidavit, after citing all of the above, I pointed out
that, although the psychologist's report indicated he had not evaluated
either the Plaintiff or the Defendant and had reviewed only a small
selective portion of available information, he in no way limited or
qualified his conclusions. I concluded that if the psychologist were to
testify to the same conclusions that were in his written report, it
would most likely be in violation of ethical standards and guidelines
After reviewing my affidavit, the judge ruled that all statements and
conclusions the psychologist had made about the defendant were to be
eliminated, and only the psychologist's general statements about various types of sex
offenses could be offered. Subsequently the jury acquitted the
I hope that this cautionary note has resensitized readers to the
ethical and professional issues involved in psychologists making public
or written statements in general, and in legal issues in particular.
American Psychological Association (1987).
General Guidelines for
Providers of Psychological Services ().
American Psychological Association (1992).
Ethical Principles of
Psychologists and Code of Conduct ().
American Psychological Association,
Division 41 (1991).
Guidelines for Forensic Psychologists (N/A).
|* Jack S. Annon is a clinical and forensic psychologist at 680 Ainapo
Street, Honolulu, Hawaii, 96825. [Back]