Running head: 1

Tiana Stewart

Marymount University

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Abstract

Forensic evaluators are expected to abide by the ethical standards of the Ethical principles of

psychologists and code of conduct. An ethical dilemma arises when attorneys request to be

present during a sanity evaluation. Following a brief literature review on third party observation,

ethics and attorney presence, the ethical violations are examined. This paper concludes with

recommendations for resolving the ethical conflict.

Keywords: MSO, Sanity Evaluations, Forensic Evaluations, NGRI, Ethical Guidelines

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Forensic Evaluators have a significant role in legal proceedings. They conduct various

evaluations including competency to stand trial, custody evaluations, competency for execution

and the topic of this paper, mental status at the time of the offense (MSO). MSO Evaluations are

also known as sanity evaluations, and are most associated with the "Not Guilty by Reason of

Insanity (NGRI)" plea. This defense "is probably the most controversial issue in all criminal law"

(Melton, Petrila, Poythress & Slobogin, 2007). This is in part due to the nature of these

evaluations, which requires a reconstruction of an individual's thoughts behaviors and

functioning during the crime (Knoll & Resnick, 2008; Melton et al., 2007). This information can

be very subjective. The accuracy can be affected by different variables including malingering and

time. Although popular in media, there is a misconception about the prevalence of the NGRI

plea. Studies report that most citizens believe that this defense happens in one third of all felony

cases, but in reality this defense is raised in less than one percent of all felony cases (Knoll &

Resnick, 2008; Melton et al., 2007). Although much research supports the insanity defense, states

do not have to accept it into their own courts. States have the autonomy to decide, and this was

reaffirmed by the ruling in Clark v. Arizona (2006). No matter how you view MSO evaluations,

this is one type of Forensic Evaluation that possesses a great amount of significance. Forensic

Evaluations can be thought of as the collision between courts and psychology.

The opinion of the court may rely heavily on the results of a Forensic Evaluation. For this

reason, psychologists, including forensic evaluators, are expected to abide by ethical standards,

as outlined by the American Psychological Association. These ethical standards of the Ethical

Principles of Psychologists and Code of Conduct (EPPCC) have a goal of “welfare and

protection of the individuals and groups with whom psychologists work and the education of

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members, students, and the public regarding ethical standards of the discipline” (American

Psychological Association [APA], 2010). These goals can become compromised when the ethical

guidelines are not abided by. Many external factors can influence the ethics in a forensic

evaluation, including the presence of an attorney.

When a forensic evaluator receives a request for a sanity evaluation, they may also

receive a request for attorney presence during the evaluation. There are multiple reasons why an

attorney may make that request including Fifth and Sixth Amendment rights, assuring accuracy

of evaluation and limiting unfair methods and procedures (Shealy, Cramer & Pirelli, 2008;

Kalmbach & Lyons, 2006). However, these types of requests may create ethical dilemmas for

forensic evaluators. It is an ethical violation for forensic evaluators to conduct mental status at

the time of the offense evaluations in the presence of an attorney. This paper aims to identity the

ethical consideration of performing MSO Evaluations in the presence of an attorney as well as

some recommendations for forensic evaluators when faced with these requests.

Literature Review

To date, there is no research or study conducted that specifically address the topic of this

paper. Much research is directed at ethics as it pertains to all or most types of forensic

evaluations, not specifically MSO Evaluations. This paper begins by examining the literature as

it relates to third party observation, attorney presence and mental status at the time of the offense

evaluations. Then, this paper aims to contribute to the literature by reviewing ethical guidelines,

as it relates to MSO Evaluations.

Third Party Observations

"A third party observer is best described as an individual whose sole purpose is to

observe- but not affect..."(Otto & Krauss, 2009). In other words, an observer is there to watch, to

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examine, to record, but shouldn't actually do anything that may produce a change in the

evaluation. However, studies show that the simple presence of an observer may affect

performance in positive, negative or negligible ways (McCaffrey, Lynch & Yantz, 2005; Otto &

Krauss, 2009). This phenomenon is known as social facilitation, "the influence that the presence

of another person has on an individual's performance" (McCaffrey et al., 2005). Researched for

over a century, there is no lack of studies on social facilitation. In fact, much concern for the

impact of third party observations are grounded in the research on social facilitation. In a

forensic evaluation, third party observers may be paralegals, court reporters, other mental health

professionals and attorneys.

Attorney Presence

There are many types of third party observers that may be present during an evaluation.

For this paper, the focus is on attorney presence. It is not uncommon for an attorney to request

that he or she be present during their client’s forensic evaluation. Cramer & Brodsky (2007)

labels attorneys as involved third party observers, due to their rested interest in the outcome of

the forensic evaluation. Forensic Evaluations are heavily regulated by the courts. Courts usually

adopt one of four approaches of attorney presence during forensic evaluations; (1) absolute right,

(2) presumptive right, (3) no presumptive right, (4) trial court decides (Otto & Krauss, (2009).

Forensic Evaluators have to abide by the approach taken in their jurisdiction, so it is important

that they are familiar with it. Although there is no research on whether or not third party

observation affects the validity of a forensic evaluation, there is research that suggests forensic

evaluators feel that attorney presence affects their evaluations. In a survey conducted by Shealy

et al. (2008) of 160 licensed psychologists, 73.8% admitted to conducting a criminal forensic

evaluation with a third party present, and 76.3% believe that third presence will alter the

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standardization of their forensic evaluation. Of the 73.8% that conducted a forensic evaluation,

with a third party present, 46.6% said they allowed the defense attorney to be present, while only

17.8% allowed the prosecuting attorney to be present. Attorneys and evaluators often disagree in

regards to whether or not attorneys should be allowed during an evaluation, and a compromise is

often reached. Research regarding third party observers is plentiful, but specific research on

attorneys as that third party is scarce.

MSO Evaluations

The idea of an individual not held responsible for their actions due to mental illness has

been around for many years. There is evidence dating back to biblical times, ancient Greek and

Hebrew civilizations and in Anglo-American law (American Psychological Association, 2007b,

Knoll & Resnick, 2008; Melton et al., 2007). The standard has changed over the years, and varies

depending on the jurisdiction. However, no matter the jurisdiction, the defense is always

grounded in the belief that it is unjust to punish a defendant for a crime when they suffer from a

severe mental condition that may impair them. The American Psychological Association (APA)

supports the insanity defense, but doesn’t favor one standard over the other (2007b). While

Melton et al. (2007) cites a few studies to argue the reliability of MSO Evaluations, there are

other studies that suggest poor reliability of forensic evaluations (Gowensmith, Murrie &

Boccaccini, 2012). The disagreement on reliability may be a result of the lack of research on

MSO Evaluations. The scarcity of research may be explained by the lack of standardization of

the MSO Evaluations. “Given the complexity of the MSO Evaluation, it should be evident that

the evaluation techniques are not standardized” (Melton et al., 2007). Melton et al. (2007) goes

on to explain the three domains of information gathering during an MSO Evaluation: (1) third

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party information, (2) the defendant’s own report of MSO, and (3) the use of psychological tests,

tools and clinical techniques.

Ethical Considerations

As previously mentioned, forensic evaluators are expected to follow the Ethical

Principles of Psychologists and code of conduct (APA, 2010). Although the ethical standards are

in no way exhaustive or applicable to every situation, they do provide enforceable rules for

conduct (APA, 2010). The law sometimes mandates attorney presence, but when given the

authority to decide, careful consideration of the ethical guidelines should be taken. The code of

conduct does not directly address attorney presence or offer guidance in this matter, but the

guidelines can still be applied to this situation. Two out of the three domains of information

gathering (defendant’s own report and psychological tests) for a MSO Evaluation may be

affected by attorney presence, thus a violation of the ethics code is taking place.

Defendant's own report of MSO

This part of the MSO Evaluation requires meeting with a defendant to interview him or

her regarding their report of mental status at the time of the offense. There is not a standard

interview procedure, but interviews usually consist of four phases: orientation, development and

sociocultural history, assessment of present mental status, and thoughts, feelings, and behavior at

the time of the alleged crime (Melton, 2007). During this interview, incriminating evidence may

be said. Gathering this info in the presence of an attorney may cause ethical violations,

particularly to codes 3.04 Avoiding Harm, 4.01 Maintaining Confidentiality and 9.01 Bases for

Assessments.

Forensic Evaluators, and anyone practicing in the field of Psychology, should take

"reasonable steps to avoid harm... and to minimize harm where it is foreseeable and unavoidable"

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(APA, 2010). The interview of the defendant, during an MSO Evaluation could potentially assist

the defense in a Not Guilty by Reason of Insanity plea. Since attorneys are what Cramer &

Brodsky (2007) call "involved third party observers," it is not unusual for attorneys to provide

cues or body language that interferes with the evaluation. Thus, attorney presence may cause

negative effects on a defendant’s response, and may interrupt the flow of information to the MSO

Evaluator (Otto & Krauss, 2009). There is harm in this. The negative effects produced by

attorney presence put a limit on the best defense a defendant can obtain. Limiting the defense

could be harmful in that its' implications could mean a harsher sentence. Limits on the

information received could mean an inadequate interview has taken place. An informed opinion

cannot come from an inadequate interview. If it does, that is a violation of standard 9.01 Bases

for Assessment, which states that opinions should only be provided once an adequate

examination has been conducted (APA, 2010; Duff & Fisher, 2005). More harm may be done as

a result of the EPPCC standard 4.01 Violation. Standard 4.01 deals with maintaining

confidentiality. Although confidentiality is very limited in forensic evaluations, attorney presence

can still damage the confidentiality. During an MSO Evaluation, forensic evaluators may hear

statements from a defendant, unrelated to the psycholegal question. The statements may be

incriminating. These statements may also encourage opinion formulation from attorneys. When

writing a report for the courts, forensic evaluators practice and present relevant information. This

serves to protect the confidentiality of defendants. Attorney presence interferes with the

defendant's report of his own MSO, therefore forensic evaluators should be cautious when

allowing attorney presence, which could cause a violation of ethics.

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Psychological Testing

This part of the MSO Evaluation requires the use of "specialized procedures that may

assist in gathering information for the MSO Evaluation" (Melton et al., 2007). One popular test

used is the Rogers Criminal Responsibility Assessment Scales (RCRAS). The RCRAS represents

the first attempt at "formalizing criminal inquiry and decision-making on the issue of legal

insanity (Melton et al., 2007). It is widely used when evaluating for MSO. Performing this test in

the presence of an attorney poses several ethical violations for forensic evaluators. These ethical

violations all come from section 9 of the EPPCC, which addresses assessment. “The presence of

a third party observer during psychological test administration can affect normative comparisons

and threaten test security” (Otto & Krauss, 2009).

Ethical Standards 9.02 Use of Assessments and Standard 9.06 Interpreting Assessment

Results highlight the responsibility of forensic evaluators to use reliable and valid tests

appropriately. Furthermore, forensic evaluators must take test factors into account that may limit

their interpretation of the test. More specifically, the RCRAS has established validity with the

ALI insanity standard, the M’Naughten Standard and through a series of empirical studies. The

RCRAS was also subject to stringent test of interrater/rest-retest reliability (Rogers & Sewell,

1999; Vijaynath, Anitha & Raju, 2009). By having an attorney present during the administration

of this RCRAS, reliability and validity become compromised, and therefore making it

inappropriate to compare with the normative standardization sample (Shealy et al., 2008).

Another ethical concern that stems from attorney presence during the testing portion of a

MSO evaluation is standard 9.11 Maintaining Test Security. The EPPCC directly states

“psychologists make reasonable efforts to maintain the integrity and security of test materials and

other assessment techniques…” (APA, 2010). Attorney presence during an RCRAS test

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administration compromised the integrity of the test, thus test security is compromised. Forensic

evaluators should make an effort to abide by the ethical standards.

Recommendations

The EPPCC Standard 3.09 encourages forensic evaluators to “cooperate with other

professionals in order to serve… effectively and appropriately” (APA, 2010). This standard is

ambiguous, because it does not define “other professionals” nor does it define what is

“appropriate (Duff & Fisher, 2005). Other professionals could mean the attorneys who desire to

be present, during an MSO evaluation. This paper has already established how inappropriate it is

for attorneys to be present during such evaluations. Furthermore, the EPPCC Standard 1.02

suggests that conflict resolution should take place when a psychologist’s ethical responsibilities

conflict with “law, regulations or other governing legal authority” (APA, 2010). Other

researchers, including the American Psychological Association, have acknowledged this conflict

and offer recommendations for resolution. Three resolutions are offered for consideration: (1)

compromise, (2) refuse, or (3) advise and report.

Several compromises are offered from researchers such as Duff & Fisher (2005),

Kalmbach & Lyons (2006), and Shealy et al. (2008). One similar characteristic amongst these

compromises is the removal of the observer from sight. This includes video or audio recording or

placing the attorney on the other side of a one-way mirror. Research shows that video and audio

recorders have a negative effect on memory (Constantinou, Ashendorf & McCaffrey, 2005). This

may influence a defendant’s recall of their MSO. Social facilitation can happen if there is a

person in the room or during audio and video recording (APA, 2007a; Duff & Fisher, 2005). The

empirical data on this could be the reason why 76.3% of forensic evaluators never allow audio or

video taping of forensic evaluations (Shealy et al., 2008). The most effective compromise would

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be allowing attorneys to observe from a removed location, in which they cannot interrupt or pass

on cues to the defendant.

Another obvious recommendation is refusal. If forensic evaluators do not see an

acceptable resolution, they can simply refuse to do the evaluation. This option has been

suggested by both the APA (2007a) and Shealy et al., 2008. This option is likely to be frowned

upon by the courts, but should a reasonable compromise not be reached, this option should be

exercised. The APA (2007a) statement on third party observers in psychological testing and

assessment suggest that psychologists cite their statement should they decide upon refusal.

Shealy’s survey reports that many forensic evaluators may be taking this route. 71% of

evaluators said they would not perform an evaluation if they were pressured to include a third

party (2008). Duff & Fisher (2005) suggest that this is not a beneficial recommendation, because

declining could mean that less qualified or less ethical practitioners would then conduct the

evaluations.

The final recommendation for resolving the conflict of attorney presence during MSO

evaluations is to advise and report. A forensic evaluator can still decide to perform their

evaluation in the presence of an attorney. However, should they do that, it is their responsibility

to inform courts of the limitations imposed on their evaluation. This course of action is advised

by APA (2007a), Duff & Fisher (2005) and Shealy et al. (2008). Attorneys and courts may not be

aware of the threats to validity and reliability as a result of attorney presence. It is best to inform

them prior to the evaluation, so they are well aware of the effects of their presence.

Conclusion

The presence of an attorney during a Mental Status at the time of offense evaluation is an

ethical violation for forensic evaluators. All psychologists are expected to abide by the Ethical

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Principles of psychologists and code of conduct. Therefore, forensic evaluators should attempt to

resolve the ethical conflict attorney presence poses. The recommendations posed are not in any

way exhaustive. Psychologists must weight the costs and benefits of allowing attorney presence,

and it’s important to note that not every forensic evaluator has the option of deciding. Attorney

presence can be regulated by the practicing jurisdiction. It is hoped that the information

presented in this paper will serve to caution against attorney presence during MSO Evaluations

to better abide by the ethical standards put forth in the ethical principles of psychologists and

code of conduct.

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