Sarah Shelton, PsyD, MPH, MSCP, Jesse A. Goldner, MA, JD,
and Joshua Henry, JD
The American Board of Forensic Psychology broadly defines forensic psychology as “the application of the science and profession of psychology to questions and issues relating to law and the legal system.” Other definitions exist which are more narrowly focused solely on clinical services provided within a legal context. This has led to some degree of dispute within the field about what constitutes the qualifications and scope of practice of a forensic psychology expert (Bartol & Bartol 2015; Dematteo et al. 2009).
Reliance on the broader definition, which is supported by Division 41 of the APA (American Psychology-Law Society) allows for two primary categories of work with many sub-types (Bartol & Bartol, 2015). The first major category of forensic services is comprised of clinical work. The psychologist provides a type of service such as court-ordered treatment or assessment of one or more individuals and offers testimony at trial or written communications to the Court that present clinical opinions based upon those services. For example, a family court or a juvenile court may request that a psychologist perform a custody evaluation of each of the family members and then render a clinical opinion to the Court using the legal standard of “child’s best interest.” The second major category is comprised of a research focus; here the psychologist presents to the court scientific principles of human behavior as they relate to various legal considerations. For instance, a psychologist may testify about the influences on the accuracy of memory as it pertains to eyewitness testimony.
In accordance with the broader definition given above, the practice of forensic psychology encompasses both license-holder clinician psychologists and non-licensed research psychologists. This is consistent with the definition of forensic psychology as delineated by the American Psychological Association in the Specialty Guidelines for Forensic Psychology (APA 2013), which states “Forensic psychology refers to professional practice by any psychologist working within any sub-discipline of psychology (e.g. clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual and administrative matters.”
A Brief History & Evolution of Psychologists in the Legal System
Psychologist involvement in the legal system preceded the formal establishment and recognition of forensic psychology as a distinct, official, specialty practice area. Formal recognition of forensic psychologists’ expertise and ability to contribute value to legal processes occurred in 2001, when the American Psychological Association (APA) formally declared forensic psychology a specialty (APA, 2001). The APA re-certified forensic psychology as a specialty in 2008 (APA, 2008).
More than two decades prior to APA’s formal recognition of forensic psychology as a practice in its own right, the American Board of Forensic Psychology, under the auspices of the American Board of Professional Psychology (ABPP), in 1978 began offering elective board certification for forensic psychology. One decade prior to APA’s recognition of forensic psychology as a specialty, Division 41 of the APA (American Psychology-Law Society) adopted a set of specialty guidelines for forensic practice proposed by the Committee on Ethical Guidelines for Forensic Psychologists (APA, 1991). These Guidelines were later revised and renamed Specialty Guidelines for Forensic Psychology in 2011 and adopted by the APA Council of Representatives (APA, 2013).
From the lens of the law, the emergence and growth of forensic psychology coincides with a paradigm shift away from legal positivism to sociological jurisprudence. The former conceptualizes that the only legitimate sources of law are those written rules, regulations, and doctrines that have been enacted, adopted or recognized by a governmental entity or political institution such as an administrative, executive, legislative or judicial body. The latter, however, sees the law as “living” and views it through a lens focused on the dynamic relationship between law and social factors including human behavior (e.g. Pound, 1912).
The first book on psychology and law was published in 1908 by Münsterberg, titled On the Witness Stand. Going back even further, psychologists have been providing forensic psychology services (though not labeled distinctly from general psychology practice) since at least the late 1800s. It is commonly believed that the first case involving a psychologist expert witness occurred in Europe in 1896, when Dr. Albert von Schrenck-Notzing testified at a murder trial that the pre-trial publicity and media sensationalism surrounding a triple homicide in Munich influenced false memories among witnesses through the process of suggestion (Hale, 1980). Despite evidence of these early beginnings, the field of forensic psychology as a formally recognized area of practice is relatively new (Bartol & Bartol, 2015).
The Scope of Forensic Psychology
Forensic psychology has been applied to criminal, civil, family, and juvenile court systems across the United States. Forensic psychologists may assess or treat individuals, provide expert-witness testimony on the results of those services or on general subject matter related to the case, or advise attorneys on matters such as jury composition and cross-examination of other mental health experts.
Broadening the parameters of courtroom-based forensic psychology as described above, psychologists are increasingly playing important roles in advising and informing policy and legislative developments, particularly with regard to contemporary social justice issues (Segal, 2016). Related areas of practice that fall under the umbrella of forensic psychology have distinct albeit overlapping scopes, and include correctional psychology, police psychology, criminal psychology and victimology, each a sub-discipline in its own right (Bartol & Bartol, 2015).
Competence in Forensic Psychology
The seminal cases which drive admissibility of expert testimony in the modern courtroom are Frye v. United States (1923) and Daubert v. Merrell Dow Pharmaceuticals (1994). While these federal cases are not binding on state courts, the vast majority of states have adopted their reasoning in one form or another. The “Daubert Standard” is by far the majority rule, with every federal court and almost every state court applying it in some form or another. Only eight states still make explicit use of the older “Frye Test,” those being California, the District of Columbia, Illinois, Maryland, New Jersey, New York, Pennsylvania and Washington, while Missouri, Nevada, North Dakota and Virginia apply aspects of both Frye and Daubert.
Both Frye and Daubert require putative experts to demonstrate such expertise in a relevant field and to use reliable methodology in reaching the conclusions upon which their testimony is based. In addition, Frye requires the expert to demonstrate that there exists a consensus within the scientific community on the underlying science and method used to support an opinion (Frye, 1923). Thus, Frye is often referred to as a “head count” test, whereby judges first assess the number of qualified experts in a field who recognize the validity of the underlying scientific findings or methodologies employed by an expert to determine if they are generally accepted in the relevant field before admitting the testimony.
The principle drawback of the Frye test, which the Daubert court sought to remedy, is that it effectively excludes expert testimony premised upon new or emerging yet methodologically sound scientific evidence (to the extent that such evidence has not yet gained general acceptance in the scientific community). While the courts have developed a relatively consistent body of case law on the application of these principles, variegated and nuanced distinctions arise from state to state, federal circuit to circuit. In any event, most courts work to fulfill the objective of Daubert’s gate-keeping requirement “to make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field,” excluding all testimony that cannot meet this standard (Kumho Tire Co. v. Carmichael, 1999). Consequently, courts are especially skeptical of counselors and psychologists who attempt to offer testimony based on their general education or experience when specific training or certification in a particularized field of psychology is more appropriate. As the late Justice Scalia once wryly observed (in a dissent), "interior decorating is a rock-hard science compared to psychology practiced by amateurs." (Lee v. Weisman, 1992). Put simply, courts often take a negative view of the generalist, under the maxim that a “jack of all trades is master of none,” and exclude their testimony accordingly.
The American Psychological Association makes it clear that the practice of forensic psychology is not a generalist skill but rather is one that requires specialized competence via education, training, and experience (APA, 2013). There are, however, multiple paths to gaining and establishing such specialized competence. Graduate training programs specific to forensic psychology began to emerge in the 1970s and included master’s, doctoral, internship, and post-doctoral options (e.g. Ogloff et al., 1996; Bersoff et al., 1997). Today there are in excess of forty forensic training programs at the graduate and postgraduate level, as well as continuing education options for psychologists who did not initially specialize in the forensic domain (Burl, Shah, Filone, Foster, & DeMatteo, 2012). In 1995 experts in the field of forensic psychology convened the Villanova Conference to discuss models of training and education. While formal recommendations emerged for standardization and uniformity of forensic training, no single model or pathway to establishing expertise has translated as a result. A forensic psychologist could be someone who specializes in a pre-doctoral forensic track; completes pre-doctoral or post-doctoral training in forensics; holds dual psychology and legal degrees (such as a PsyD/JD or a PsyD/PhD in Criminology combination), or has sought out post-licensure forensically-focused continuing education and supervision and possesses documented experience performing forensic work.
Current requirements as outlined by the American Board of Forensic Psychology for eligibility for Board Certification in Forensic Psychology include:
General Requirements for Board Certification by ABPP
- A doctoral degree from a program in professional psychology (e.g., clinical psychology or counseling psychology) from a graduate program that was APA-approved at the time the degree was awarded, or that offered a curriculum that was the equivalent of APA requirements; completion of an appropriate APA-approved internship, or an internship that offered the equivalent of APA requirements; current engagement in professional work in the relevant specialty, and evidence of continuing education during the postdoctoral years; and appropriate licensing for psychological practice in the state in which the candidate practices, or in some other state if practicing in a federal facility.
Requirements Specific to Forensic Certification by ABPP/ABFP
- Additionally, completion of at least 100 hours of formal education, direct supervision or continuing education in forensic psychology; and at least 1000 hours of experience in forensic psychology obtained in either of two ways (i.e., completion of a full-time, at least one year, postdoctoral training program in forensic psychology that meets curriculum requirements consistent with APA’s definition of forensic psychology as a specialty, or during a minimum period of five years, all of which are postdoctoral).
- Satisfactory completion of the credential review process, written examination, oral examination, and vote by the Board to accept the candidate into membership; and
- Three-hour oral examination by three ABFP board-certified forensic psychologists in two primary areas of forensic practice as exemplified by the practice samples.
Although Board Certification in Forensic Psychology has been available for nearly forty years, the ABPP reports that less than 5% of psychologists who qualify for board-certification (in any of the specialty areas, not just forensics) actually go through the process to obtain it (Clay, 2010, DeAngelis, 2014). The majority of ABPP board-certifications are in neuropsychology, because it is the only specialty that mandates acquisition of the certification in order to practice (DeAngelis, 2014).
Reasons to become board certified in a specialty such as forensics center on demonstrating competence to consumers in a tangible and universally recognizable way. Medical professionals have utilized specialty board certifications for a long time, and many believe mental health professionals should follow suit. There are other pragmatic reasons to seek board certification as a psychologist, including financial incentives, which are offered by certain agencies including the Veterans Administration (VA) and Department of Defense. Also, some medical centers require that psychologists be board certified to be on staff or hold privileges at the facility. In general, there is a growing sense that board certification is simply the “right” thing to do to advance the psychology professional and the field itself. Despite the relatively low rate of participation in the process, ABPP reported a thirty percent increase in applications from years 2008-2013 (DeAngelis, 2014).
For areas such as health psychology, this makes good theoretical and practical sense (Clay, 2010; DeAngelis, 2014). For those practicing forensic psychology, the ABFP points out that the ABPP specialty designation has been relied upon or included in judicial decisions, regulations, and some jurisdiction-specific statutes (ABPP). It is, however, ultimately up to judges whether or not to consider a psychologist an “expert” for purposes of a specific case (Federal Rules of Evidence Rule 702; General Electric Co. v. Joiner, 1997; Kumho Tire Co v. Carmichael, 1999). Also, in a world where it is not uncommon for mid-level and master’s level mental health providers, such as Licensed Professional Counselors and Licensed Clinical Social Workers, to offer forensic services and testimony, some doctoral level forensic psychologists may see the additional step of board certification for themselves as unnecessary, albeit desirable, since they already manifest a higher level of qualifications than many forensic practitioners without doctoral degrees.
In addition to the aforementioned issues surrounding the rationale for board certification in forensics, pragmatic barriers to certification may exist for some psychologists. For example, current candidacy rules require that the forensic psychologist demonstrate competency in two separate areas of law, such as criminal and family. It is not unusual, however, for forensic psychologists to possess expertise in a single area of law. This means that a highly skilled, experienced, and competent custody evaluator who has been performing such work for decades will not meet the qualifications of candidacy for board certification by virtue of having a single area of forensic focus. Board certification in forensic psychology, then, may have unique obstacles in addition to the universal disincentives of cost, time commitment, and labor intensity (DeAngelis, 2014). Ultimately, obtaining board certification in forensics is arguably advisable as a good-faith effort to document competence, but the fact remains that it is an elective option for psychologists to consider.
Although the rules governing documentation of expertise in forensic psychology may still be evolving, it is nevertheless clear that the practice of forensic psychology is distinct, requiring specialized education and training, and is not considered a general clinical skill universal to all psychologists (e.g. Bersoff et al., 1987; Bartol & Bartol, 2015).
Medical professionals have utilized specialty board certifications for a long time, and many believe mental health professionals should follow suit.
Liability & Ethical Issues in Forensic Psychology
Failure of non-forensically trained psychologists to recognize or respect scope of practice boundaries is not, at least anecdotally, uncommon. Since forensic psychology arguably poses greater liability risks than general clinical practice (because of high stakes outcomes and the potential for discontent of one or more parties) the decision to perform and provide forensic psychological services without adequate training, experience, and skill elevates the risk of a malpractice suit or substantiated licensure-board complaint (e.g. Greer, 2004; Kirkland et al., 2005).
Even though variations exist among states, and from year to year, regarding the frequency of complaints to state licensing boards regarding forensic psychology practice, it is clear that the trend toward higher liability exists. In fact, the trend is so prominent, particularly relating to child custody evaluations, that some states have adopted legislation offering quasi-immunity or immunity for Court-Appointed Custody Evaluators including but not limited to Florida, Georgia, and West Virginia (e.g. Greer, 2004; Kirkland et al., 2005). This represents a movement in the field of forensic psychology to protect psychologists who provide these types of services based upon a “good faith” clause provided that competence (forensic expertise) has been established. Some states have compiled data that could be considered alarming to those practicing in the forensic niche. For example, the Florida Board of Psychology reported that 80% of their complaints involved the forensic practice of custody evaluations prior to implementation of one such aforementioned immunity clause (Greer, 2004). This is not at all unlike the experience of legal disciplinary authorities where cases involving “Domestic Relations” and “Criminal/Quasi-Criminal” areas of the law are the most frequent classifications of charges docketed by such authorities. (2006 Annual Report of the ARDC Illinois Supreme Court, 2007).
...forensic psychologists...are expected to have an in-depth understanding of legal processes and principles, how they relate to the services they are providing and the conclusions and recommendations rendered as a result of those services.
The overarching Ethical Principles of Psychologists and Code of Conduct (APA, 2002; 2010) addresses forensic psychology practice in Standard 2.01(f) Boundaries of Competence by stating, “When assuming forensic roles, psychologists are or become reasonably familiar with the judicial or administrative rules governing their laws.” While the APA Ethics Code addresses forensic work, the document is insufficiently specific in guiding the practice of forensic psychology due to some nuances of the specialty.
Perhaps the best known tenet in the overarching APA Ethics Code is Principal A Beneficence and Non-maleficence, which commands, “Do no harm.” In the practice of forensic psychology, however, it is inherently possible and even necessary in certain cases to render conclusions and recommendations that may indeed “cause harm” to an individual. For example, a forensic psychologist who conducts a sex offender risk assessment and determines in his or her professional opinion that the individual is at high risk of offending or re-offending causes “harm” to that individual by virtue of the implications of that conclusion. Yet, it is acceptable and necessary to determine such things as part of performing those services.
Another major distinction involves confidentiality, which differs greatly between the confines of clinical work and forensic work. In forensics, psychological reports (and sometimes even raw data, if mandated by court order) are circulated between attorneys and other parties involved in the case, and may even be referenced in the media if a trial is covered.
While forensic psychologists are not expected to have the equivalent knowledge or skill set of an attorney, they are expected to have an in-depth understanding of legal processes and principles, how they relate to the services they are providing and the conclusions and recommendations rendered as a result of those services (e.g. Varela & Conroy, 2012). For example, it is necessary for forensic psychologists to know whether their jurisdiction follows the Daubert Standard or the Frye Test with regard to admissibility of evidence. They must also ensure that their methods (selection of assessment measures, etc.) and work products meet unique standards established in their jurisdiction – knowledge a general clinician would not be expected to possess. The American Board of Forensic Psychology asserts that, “The Forensic Psychology Specialist has been found to have the ability to articulate clearly the theoretical, ethical, and legal foundations for his or her work in forensic psychology.” Clearly, this statement underscores the requirement that a psychologist practicing forensically be savvy in matters beyond those typically associated with general clinical skills.
In addition to the issue of competence, there are other ethical quagmires associated with clinical psychologists performing forensic services within the context of general clinical practice. The prevailing position is that clinical and forensic competencies in psychology are distinctly different and that, even though a psychologist may be competent in both types of practice, it is not appropriate to perform such services simultaneously (e.g. Greenberg & Shuman, 2007). In other words, a psychologist may be competent to perform a specific type of psychological treatment and also be competent to perform a forensic assessment and offer expert testimony. However, it would still be unethical and inappropriate to perform both types of services for the same individual. This is due to the differences in level of objectivity required, conscious or subconscious bias toward or against advocacy for a client as part of the therapeutic relationship, and the aforementioned differences in ethical tenets applied to both types of services. This is addressed in the APA Ethics Code Standard 1.17(a) Multiple Relationships (APA 2002, 2010).
Conclusions & Future Directions
The field of forensic psychology has grown significantly in the past three decades (e.g. Bersoff et al. 2012; Heilbrun & Brooks 2010; Najdowski et al. 2015). As the field continues to expand and advance, there will be a need for greater interdisciplinary collaboration, increased adherence to science-based practice, ongoing empirically based improvement of forensic psychological assessment measures, and expanded cultural competence (Grisso, 1993; Heilbrun & Brooks, 2010). Social justice issues (including but not limited to racial disparities existing in correctional populations, humane treatment of political detainees, targeted violence against transgendered individuals) are of current concern and will likely continue to grow in importance in upcoming years. This presents an important opportunity and responsibility not just for forensic psychologists, but for all psychologists, to contribute their knowledge and skill to address and resolve these challenges. Social justice battles will be fought in individual cases in courtrooms as well as legislatively at the state and national level. Psychology is equipped and uniquely poised to advise legal decision makers (e.g. Otto & Heilbrun, 2002).
Whether or not board certification for forensic psychologists will become the norm or even mandated as is the case with neuropsychology remains to be seen, and the dialogue regarding training and standards of expertise for forensic psychologists is evolving, with consensus not yet achieved. Above all, it is envisioned that psychologists will continue to demonstrate their value in the legal system and in doing so create a positive evolutionary impact on the individuals, systems, and processes involved. If one considers psychological underpinnings as the key to all systems involving human behavior whether medicine, law, or government the impact potential of psychologists explodes exponentially beyond the therapy room. Psychology has a long history of demonstrating that it has much to offer the legal system on many levels and in a multitude of ways (e.g. Ogloff, 2000). If psychology as a profession wants to make a tangible impact on the lives of individuals, successfully intersecting with the law, the most powerful and pervasive force in our society, is an absolutely critical component of that quest.
Dr. Shelton received her PsyD in clinical health psychology from Spalding University in 2005. She was appointed Chief Resident at the Northeastern Ohio Universities College of Medicine for her internship year. She then completed two postdoctoral fellowships; one in medical psychology and the other in behavioral medicine; at the Medical College of Georgia, where she also earned a Master of Public Health degree. Additionally, she also holds a Postdoctoral Master of Science Degree in Clinical Psychopharmacology from Fairleigh Dickinson University and a graduate certificate in Applied Forensic Psychology from The Chicago School of Professional Psychology. She teaches doctoral level psychology courses at the University of the Cumberlands and is also faculty at the Chicago School of Professional Psychology. She has a private practice with locations in both Paducah and Louisville, Kentucky and also provides telepsychology services. Dr. Shelton is President-Elect of the Kentucky Psychological Association. She has been credentialed by the National Register since 2007.
Jesse Goldner is the John D. Valentine Professor of Law at Saint Louis University School of Law. He also holds secondary appointments in the University’s School of Medicine in Pediatrics and Psychiatry, as well as in the University’s Center for Healthcare Ethics. He received his J.D. from Harvard Law School, and holds an M.A. in Developmental Psychology from Columbia’s Teachers College.
Mr. Henry earned his JD from the University of Mississippi School of Law in 2003. He is a Partner at Wells, Marble & Hurst, PLLC, where he specializes in complex commercial litigation with an emphasis on defense. He was peer nominated a “Rising Star of the Mid-South” for Commercial Defense and Intellectual Property Litigation in Super Lawyers Magazine. He serves on the National Committee of the Boy Scouts of America and on an Advisory Committee to the Secretary of the State in Intellectual Property, Software and Technology. He is also a supporter and Professional Partner of the Greenleaf Center for Servant Leadership.
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