the mmpi, mmpi-2, and mmpi-a in court - a practical guide for expert witnesses and attorneys.pdf

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Deposition an d Cross-Examination of Expert Witnesses

tion of this chapter) on the original MMPI. Thiswould seem, in the absence of additional informa-tion, to suggest that there is something w rong w iththe sample or that pathology has increased amongth e supposedly normal population during the de-cades since the original norms were established.

However, those who are knowledgeable aboutthe tests will be able to explain th at the differenceseems largely the result of differences in instruc-tional sets an d unanswered items. When the origi-nal norms were compiled, those who took the testwere allowed to leave blank any items that theywere unsu re about or that they believed were inap-plicable (Hathaway & McKinley, 1940). As a con-sequence, more than 30 items were typically unan-swered on each form. The contemporary

instructions for the MMPI an d MM PI-2, however,encourage test takers to try to answer al l items. As aresult, only about tw o items ar e left unanswered oneach form. Thus, more deviant items are, on aver-age, endorsed on each form, and the normativesample for the MMPI-2 scored about a half of onestandard deviation higher on the clinical scales ofthe original MMPI. As described previously (seechap. 2, this volume), when other groups of nor-mals are scored on MM PI-2 norms, they tend toscore around T = 50 (B utcher, Gra ham , Williams,& Ben-Porath, 1990).

On th e original MM PI, at what level is a clinicalscore generally considered significant?

This question and the one that follows (i.e., clinicalsignificance level for the MMPI-2) will be unneces-sary if the deponent's previous responses haveshown at least basic familiarity with th e MMPI. Thelevel of clinical significance is one of the first and

most fundamental facts that people learn about theMMPI. The level is clearly marked on the profilesheet, so that even if the deponent played no rolein administering or scoring the test, he or she caneasily see the significance level. This question andthe one that follows will be most useful if the depo-nent has shown little or no evidence of any educa-tion, experience, or knowledge regarding theMMPI. They will help reveal whether the deponenthas even the most rudimentary understanding of

the instrument. On the original MMPI, a score on aclinical scale is generally considered s ignificantwhen it reaches or exceeds 70.

On the MMPI-2, at what level is a clinical score

generally considered significant?The significance level for the MMPI-2 scales differsfrom that of the original MMPI (see chap. 2, thisvolume). On the M M PI-2, a score on a clinicalscale is generally considered significant when itreaches or exceeds 65.

Wha t scales on the MMPI or MMPI-2 indicate thedegree to which a specific test protocol is valid?Please describe each scale.

This question is still relatively simple— the dep o-nent may read the scales directly on the profilesheet— but does require an understanding of wha teach scale means (see chap. 7, this volume).

Four major validity scales are common to both

the original MMPI and the MM PI-2. The CannotSay (? ) score— generally indicated by a questionma rk— is simply the number of items for which thetest taker did not provide a clear answer. In someinstances, th e test taker m ay have left th e itemblank. In other instances, the test taker may havefilled in both th e true an d the/disc response blankfor a given item. As noted previously, most testtakers leave no more than tw o items blank.

Any time a test taker fails to provide answers fo rmore than, say, 5 or 10 items, there is the possibil-ity tha t clinical and other scale scores may be dis-torted. Profiles that are based on tests in which atleast 20 items have no clear answer should be in-terpreted w ith excep tional caution; profiles that are

based on tests in which at least 30 items have noclear answer are invalid.

A significant elevation on the Lie scale (L ) sug-gests that the test taker may have distorted answersto present him- or herself in a more favorable light.An individu al who is trying to put up a goodfront may deny or minimize problems.

A significant elevation on the Infrequ ency scale(F ) suggests that the test taker may have distortedanswers to invent or exaggerate problems.

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A significant elevation on the Subtle Defensive-ness scale (K) suggests that the test taker may havedistorted answers in a more subtle way than thatmeasured by the L scale. In effect, th e individualhas responded defensively— in a more sophisti-cated way than those with elevated L scales— topresent a more favorable image. The K scale is notonly a measure of validity bu t also a basis for cor-recting fo r defensiveness. The deponent may de-scribe the way in which the K score led to a statisti-ca l ad jus tment of the clinical scales known as a Kcorrection. It is imp ortan t that both social class andeducation be taken into account when consideringthe K scale.

In addition to these scales that are a part of boththe original and the revised MMPI , three validity

scales are only a part of the MMPI-2 .The Infrequency-Back [F(B)j scale i s similar to

th e F scale. Howev er, the F scale is based on i temsthat appear within the first 370 items of the origi-nal MMPI . Thus, the F scale measures possible ex-aggeration of symptom s only in the early and mid-dle parts of the test. The F(B) scale is composed of40 items that appear in the second half of theMMPI-2 . A significant elevation on the F(B) scalesuggests possible exaggeration of symptoms.

The True Response Inconsistency scale (TRIN)measures inconsistency in responding to items. TheTRIN scale is composed of pairs of i tems for whichresponding true to both items or false to both itemsconstitutes a contrad iction. For example, considertw o i tems in a hypothetical test: (a) I always enjoytrying cases in which the MM PI-2 is the focus, an d(b) I never enjoy trying cases in which th e MMPI—2is the focus. To answer true to both items would becontradictory, a likely indicant of indiscriminantacquiescence (or yea-saying). (In contrast to thosewho are indiscriminately acquiescent in their re-sponses and who score high on TRIN, random re-

sponders tend to score around 50 on TRIN.)The Variable Response Inconsistency scale

(VRIN) is a measure of random responding. It com-prises pairs of i tems for which some pattern oftrue-true, true-false, false-false, or false-true con-stitutes a contradiction.

These validity scales are discussed in more de-

tail in chapter 7.

Are the clinical scales on the MMPI-2 based on

K-corrected or non-K-corrected norms? If your in-

terpretations are based on non-K-corrected clini-cal scores, wh a t is the research support for yourinterpretations?

Most research and clinical applications of theM M PI-2 since the K scale was introduced tothe test in 1948 have been conducted usingK-corrected T scores (see discussion of non-K-corrected scores in c hap. 2 , this volume). Anyinterpretations based on non-K-corrected scoresin forensic settings are questionable.

What reading level is required for the MMPI-2?

A fifth- or sixth-grade reading level is required(Paolo et al, 1991; see also Butcher, 1990a).

ADMINISTRATION AND SCORING

Did you adm inister the MMPI [MMPI-2 or

MMPI-AJ?

In some cases, the deponent may be testifyingabout one or more MMPI protocols that he or shepersonally administered (or that were administered

under his or her supervision). In other cases, oneor more of the protocols m ay have come from othersources (e.g., previous MMPIs—some perhapsyears or decades old—that were part of the testtaker's previous clinical records; MMPIs adminis-tered by an independent clinician appointed by thecourt ; or MM PIs adm inistered by the test taker'scurrent therapist) . It is impor tan t to clarify whowas responsible fo r administrat ion.

Whether the deponent or some third party wasresponsible fo r administering th e test, it is also im -portant to clarify w hether the responsible party ac-tually administered the test ( e.g., gave the instruc-

tions, personally monitored the person during the

entire t ime that he or she took the test, and thencollected the completed form) or whether the re-sponsible party delegated some or all of the ad-ministrative tasks to a supervisee, clerical worke r,employee, or colleague. Because, as previously dis-cussed, th e validity of a standardized test such asth e MMPI is dependent on a standardized method

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of administration, the way in which th e test is ad-ministered and monitored becomes crucial.

If th e person responsible for the administrationdelegated th e task of administration to a thirdparty, it is important to discover adequately de -tailed information about this third party. For exam-ple, consider the following questions.

• Who trained the person who actually adminis-tered the test?

• How much experience does the person have in

administering MMPI-2s?• How is that person supervised?• How has that person's work (particularly in re-

gard to MMPI-2 administration) been eval-uated?

• Does that person have any formal clinicaltraining?

• What information (about the MMPI-2 adminis-tration in the current case) did that person con-vey to the person who was responsible fo r testadministration?

• Was that information in oral or written form?• Does it appear in the formal report?• Did the person who actually administered the

MMPI-2 keep any written records of this partic-ular administration?

• Did the test taker ask the person who adminis-tered th e test an y questions? If so, how did theperson who actually administered th e MMPIrespond?

• Did the test taker make any comments whiletaking th e test? If so, what were they?

• Did the test taker take any breaks while takingth e MMPI-2? If so, for how long?

What instructions were given to the test taker?The questions in this set are relevant regardless of

whether the deponent, someone under the depo-nent's supervision, or some unrelated third partyactually administered th e test. T he purpose of thisse t of questions is to discover th e conditions underwhich th e test w as administered (and, fo r example,whether they adequately met the criteria for a stan-dardized test), the deponent's extent of knowledge(which may be severely limited if the deponent did

not personally administer the test) about those con-ditions, and the deponent's understanding of theimplications of those conditions. Did, f or example,the person who administered the test include in-

structions regarding attempting to answer all items(a n issue that, as previously noted, can affect valid-ity)? If so, how were th e instructions worded?

How was the test taker's reading level assessed?

If there is any question at all about the test taker'sreading level (because of such factors as education,neuropsychological impairment affecting languageprocessing, or reliance on English as a second orthird language), it is useful to discover th e degreeto which the reading level was assessed. The

MMPI-2 does have some internal checks, but ifthere is any reasonable question about th e test tak-er's reading level, the deponent may be asked to ex-

plain the degree to which the internal checks haveshown validity, th e basis fo r deciding whethersome other form of assessing reading level shouldhave been included as part of a careful assessmentprocess, and the full array o f information on whichhis or her professional opinion about the readinglevel is based. (If the person taking th e test does

not have an adequate reading ability in English, theattorney may also want to inquire about any

forms—such as those fo r informed consent fo r test-ing—that the deponent had the person read and

sign.)

Was the test administration directly monitored?

I f no one was with th e test taker during th e entireperiod that th e test was taken, it is impossible todetermine th e degree to which th e test taker m ayhave relied on other sources for filling out the test.The test taker may, for example, have consultedwritten materials. Chapter 5 provides examples ofsettings in which third parties sometimes helpedthe test taker fill out the test by indicating whichresponse blanks should be filled in. To administerth e MMPI or MMPI-2 without adequate monitor-in g violates the published opinion of the APA'sCommittee on Professional Standards which heldthat whenever a psychologist

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does not have direct, firsthand infor-mation as to the condition underwhich the test is taken, he or she isforced (in the above instance, unneces-sarily) to assume that the test responseswere not distorted by the general situa-tion in which the test was taken (e.g.,whe ther the client consulted othersabout test responses). Indeed, the psy-chologist could have no assurance thatthis test was in fact completed by theclient. In the instance where the testmight be introduced as data in a courtproceeding, it would be sum marily dis-missed as hearsay evidence. (Com mit-tee on P rofessional Standard s, 1984,p. 664)

Was any phase of the assessment audiotaped,videotaped, or otherwise recorded?

I f so, the taped record should have been producedin response to the subpoena duces tecum. The attor-ney may consider asking the deponent how aud io-or videotaping might have affected the assessment(see the following question). Fo r example, if a per-son is sensitive to being observed (e.g., becomes

self-conscious or inhibited) or if he or she has pa ra-noid traits, might n ot th e sensitivity or the tra its beexacerbated by the taping of an assessment session?The deponent might also be asked if he or she isaware of any published research or discussion re -garding how rec ording an assessment session mayaffect th e assessment process an d results.

What conditions of test administration did youconsider a s potentially affecting the validity of this

test?As previously noted, a variety of factors can affectth e validity or interpretation of a test, an d psychol-ogists are ethically required to explicitly note theirreservations regarding validity in any test report.The attorney may want to explore this issue in de-

tail. What sort of lighting was available in theroom? W ere there any e xtraneou s noises or inter-ruptions? Was the client taking any m edication orsuffering from any illness while taking th e test?

Does th e client require glasses or contact lenses fo rreading? If so, was the client wearing t he glasses orcontact lenses while taking the test?

Has anyone but you had access to the originalcompleted response form?

This question addresses the integrity of the originaltest data and the security of the test form itself. I fother people besides th e test administrator handledth e form or had access to it, the a t torney may wantto explore in detail the specific circumstances. Hasth e original completed test form been kept in alocked or otherwise s ecu red locale?

Has the original completed response form been al-

tered in any way by anyone? Did anyone except

the test taker make marks on, erase, or change th eoriginal form in any way?

These questions also address th e integrity of theoriginal test data. T he person who administered th etest and is preparing to submit it for machine scor-in g may, f or example, have worried th at th e testtaker's pencil ma rks will not be sufficiently dark toregister on the machine. He or she may decide tomake the original marks d arker to ensure prope rscoring by the machine. If the administrator or any-

one else has attem pted to enhan ce the test in thisway, a careful exploration of the process can beuseful. How can the ad min istrator be certain thatth e correct response slot fo r each item w asenhanced?

There may be other instances in which the testtaker l e f t a large num ber of items blank. The ad-ministrator may have scanned the test formquickly, noticed the missing responses, and askedthe test taker how he or she would answ er theseitems.

Whatever the circumstances, the attorneyshould have a clear picture of exactly how the testwas adm inistered, the degree to which the require-ments of standardization ( in regard to administra-tion) were met, and the possibility that the original,authentic responses m ay have changed in somemanner.

Were any test data discarded, destroyed, recopied,or lost? Are all of the d ocum ents involved in the

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administration an d taking of the test present intheir original form?

As a hypothetical example, a patient may be givenan M M PI-2 imm ediately on admission to a hospi-tal. However, because th e patient appears to be

psychotic, only half of the items are filled in. Thepatient is given some medication and, a few hourslater, another MMPI-2 is administered. This timethe p atient fills in all the items but seems to havefilled them in randomly (i.e., the VRIN scale is sig-nificantly elevated). Finally, the next day, theMMPI-2 is again administered. This time the pa-tient seems sufficiently motivated, alert, and ori-ented to produce a valid profile. The psychologistwho conducts psychological testing on the unitfiles the valid profile in the patient's chart, discard-ing the two previous protocols as incomplete, in-valid, and useless. O nly by asking directly about alldocuments relating to the administration and tak-ing of psychological tests will an attorney likely dis-cover the previous administrations of the test, in -formation that may be key to understandinginformation relevant to the trial.

As another hypothetical example, a patient at amental health clinic may sue the clinic and a num-ber of staff members for malpractice. One of the

staff members may fear that certain chart notes an dtest data may support the patient's case. At somepoint th e staff member may su rreptitiously gothrough the patient's file and weed out all docu-ments that might significantly supp ort th e p atient'scharges. A gain, only by asking specific questions ofall those involved (while they are under oath) is anattorney most likely to discover that the test datathat have been provided to him or her as part of thediscovery process are somehow incomplete,changed, or suppleme nted w ith bogus d ata createdafter the fact.

W ho scored this test?

In some instances, the test may have been handscored. It is worth finding out whether the depo-nent or some third party did the actual calculationsthat converted the raw data (i.e., th e marks that th etest taker made in the true and false slots) into scalescores and an MMPI-2 or MMPI-A profile. In

other instances, the test may have been scored bymachine. Other clinicians may send the raw data toan individual or institution that provides scoringand interpretation services.

Did the scoring differ in any way whatsoever fromth e scoring method set forth in the test m anual?

As emphasized previously, the strength and validityof a standardized test is dependent on the stan-dardization. To the degree that the standardizedmethods fo r scoring are altered (without additionalvalidation an d standard ization), the test is nolonger standardized. The reliability, validity, and

interpretations that are associated with the stan-dardized test do not automatically transfer to meth-ods of scoring that deviate from those specified i nthe manual and the research literature.

What steps have you taken to ensure that th escoring of this test is accurate and free fromerror?

No matter how a test is scored, there may be errors.I f the test w as hand scored, the person doing th escoring may have misread some of the responses(e.g., scored a true as a false on a specific item) ,m ay have made mathematical errors in adding upthe raw scores on each scale, may have m ade errorsin translating the raw scores into scale scores, ormay have made errors in plotting the profile on theform. If the individual who administered th e testused a personal computer to score the test, he orshe may have used an unau thorized scoring pro-gram w ith a bug in the software that reads an dscores th e responses. If the test w as sent to a distantlocation for scoring, what assurance does the depo-nent have that the test was not incorrectly labeled

in some w ay, that it was not somehow mixed upwith one of the other test forms that was receivedby the facility, or that the report that was returneddid not contain scoring or other errors?

By asking detailed questions, the attorney candiscover the degree to which the deponent hastaken appropriate and careful steps to verify thatthe scoring (and other) inform ation is accura te. Forexample, has the depone nt p ersonally checked thescoring and the profile against the raw data? If not,

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why not? The failure to take such fundam entalsteps may (or may not) indicate a lack of care inreaching p rofessional opinions. In any event, suchinformation will help the attorney to discover the

extent to which M MPI-2 or MMPI-A scores thatare introduced into evidence (o r that form a basisof an expert 's opinion) are likely to be accurate andreliable.

Were there any changes made in the test format,

mode of administration, instructions, language, or

content?

This question is intended to be comprehensive in

scope, picking up several themes that have beenaddressed in more limited form in previous ques-tions. Again, the purpose is to discover the degreeto which a standardized test was actually adm inis-tered and scored in a standardized manner. The de-ponent needs to acknowledge, explain, and ade-quately justify any deviations from th e s tandardinstructions, content, administration, and so on.

When a test user makes a substantialchange in test format, mode of admin-istration, instructions, language, o rcontent , th e user should revalidate th e

use of the test for the changed condi-tions or have a rationale supporting th eclaim that a dditional validation is notnecessary or possible. (APA, 1985,p. 41)

INTERPRETATION

B y wha t method were these interpretative state-me nts derived from the MMPI-2 or MMPI-A

scores and profiles?

The deponent may have hand scored the MMPI-2or MMPI-A and looked up the relevant profiles in aset of actuarial tables or code book. The deponentm ay have used a computer-based scoring and inter-pretat ion service that provides a printout of thescores, profile, and in terpretat ion. It is impor tan tfor th e at torney to discover th e method or basis bywhich the scores and profile a re translated into in-terpretative s tatements about th e test taker. A t this

point , we are only addressing th e general issues ofpersonality assessment (e.g., the person who tookthe test appears to be clinically depressed becauseof certain scale elevations ); more specific infer-ences and interpretation are addressed later in thischapter.

The use of a computer to score and in terpret th etest and the appearance of the test report in theform of a computer printout m ay lend an aura ofauthori ty, omniscience, and infallibility that is un-warranted (O'Dell, 1972). Section 9.09(a) of the Ethical Principles of Psychologists and Code ofCon duct (APA, 2002) emph asizes, Psychologistswho offer assessment or scoring services to otherprofessionals acc urately describe the pu rpose ,norm s, validity, reliability, and applications of the

procedu res and any special qualifications applica-ble to their use.

Psychologists who rely on computer services as

a component of forensic evaluations ar e responsiblefor choosing services that have shown demonstra-ble validity, according to section 9.09(b): Psychol-ogists select scoring and interpretation services(including automated services) on the basis ofevidence of the validity of the program and proce-dures as well as on other appro priate considera-tions (APA, 2002). R eaders seeking a more ex-tended discussion of the s tandards and rationale f orlinking interpretive statem ents clearly to raw dataor standardized scores are referred to the EthicalPrinciples of Psychologists an d Code of Conduct(APA, 2002) and Standard s for Educational andPsychological Jesting (APA et al . , 1999).

Do you have any reservations or qualifications re-garding the validity of the in terpretat ions that you

are presenting?

Few dep onents are likely to assert that interp reta-tions that are based on the M M PI-2 or M M PI-Aare infallible. The at torney can obtain a clear andcomprehensive explanation of the sources of possi-ble error and the degree to which, and basis on

which, the deponent believes the in terpretationsm ay be somewhat inaccurate, incomplete, mislead-ing, or downright wrong.

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What other documents or sources of informationwould you consider important or relevant to inter-preting this MMP1-2 or MMPI-A profile?

This question invites the deponent to go on re-cord—under oath—regarding the sources of infor-mation tha t could affect th e interpretation of theMMPI-2 or MMPI-A. It is important to emphasizethat statements about a specific MMPI-2 orM M PI-A test taker that are based on books, com-puter printouts, and so on, whether derived fromactuarial tables (e.g., 92% of the individuals whowere inpatients in psychiatric hospitals and whoexhibited this profile on the MMPI-2 or MMPI-Ashowed the following personality characteristics )or other sources must be considered hypotheses.The degree to which these hypotheses are sup -ported by, are consistent with, are modified by, orare seemingly contradicted by other sources of in-formation is crucial to an informed understand ingof th e nature an d strength of an M MPI-basedinterpretation.

Depending on the situation, other sources of in-formation that might be relevant to evaluating thehypotheses derived from a specific MMPI-2 orMMPI-A profile could include previous or subse-quent administrations of the M MPI-2 or MM PI-A,

findings from other psychological or neuropsycho-logical te sts, assessments from clinical interviews orbehavioral observation, medical records, school re-cords, the p ersonal history of the individual (e.g.,significant life events and developmental influ-ences), interviews with relatives or friends, employ-ment records, previous or current c ourt records orrelated legal documents, and current circumstances(e.g., those that m ight raise the possibility of malin-gering). If there are sources of information thatseem relevant to the attorney but are not m en-tioned by the deponent, th e attorney m ay want toask about each source to discover the deponent'srationale fo r viewing it as relevant or irrelevant t ointerpreting th e profile.

Have you carefully reviewed all of these docu-ments or sources of information (i.e., those namedby the deponent in responding to the previousquestion) that you consider important or relevantto interpreting this MMPI-2 or MMPI-A profile?

Unless the depon ent gives a comp rehensive yes inresponding to this question, the attorney may wishto mention each of the sources of information todiscover whether the deponent carefully reviewedit , the rationales for instances in which documentsfrom other sources of information were not re-viewed, and the possible impact that failure to con-sider specific sources of information m ay have onthe interpretation of the MMPI-2 or MMPI-A.

[For a w rit ten assessment report or other docu-ment submitted by the expert witness] WhichMM PI scales did you consider in ruling ou t malin-gering or othe r forms of responding in a less thancompletely honest manner?

This line of questioning begins exploring the de-gree to which the expert considered and was ableto address questions of malingering an d relatedmisleading responding. It also taps the expert'sknowledge of the MMPI in this area— some expertsmay be un awa re of the various ways in which theMMPI is sensitive to faking bad or faking good.

[If the expert omits some of the relevant scales]Would y ou please explain w hy you did not con-sider th e scales tha t y ou omitted?

Some experts may lack expertise in the MMPI andsimply not know or understand th e scales. Othersmay have n ot considered th e full range of data inevaluating questions of faking good or bad.

What other measures or data did you consider—in addition to the MM PI—in assessing whe the rthis individual m ight hav e been faking good orbad?

This question continues to assess the expert's careand comprehensiveness in addressing possible fak-ing or exaggeration.

Were you aware of any indications suggesting tha tth e individual might have been faking or exagger-ating? If you concluded that th e person was notmalingering, were y ou able to rule out faking orexaggerating with 100% certainty? If not, whatare the sources of your doubts?

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These questions clarify the expert's stance and rea-soning regard ing possible faking or exaggeration.Cites and summaries of each research article fromJanuary 2001 to the present on malingering forover 50 psychological tests an d assessment meth-ods are on the Web at http://kspope.com/assess/malinger.php (Pope, 2005a).

At any point in your written report did you pres-ent the work, conclusions, or words of others w ith-out honestly acknowledging that these came fromother sources?

Those who hand score an M MPI-2 or MM PI-Amay look up published descriptions of the relevantprofiles and copy these descriptions verbatim with-

ou t indicating the source. Those who submitMMPI-2 or MM PI-A forms to a com puterizedscoring and interpretation service may copy theservice's report verbatim, as part of the clinician'sow n report without acknowledging tha t thesewords came from a different source. While prepar-ing forensic reports that are based on the M M PI-2or M M PI-A, other standardized psychological tests,or other sources, the expert may copy passagesword fo r word from published articles o r clinicaltextbooks on psychopathology without providingthe proper reference.

Imwinkelried (1982, pp. 289-290) citedSchwartz's account of the trial in which SirhanSirhan w as charged with killing Robert Kennedy.The prosecu tor noticed that a defense psychiatristha d appare ntly copied passages from a variety ofpublished works into his rep ort with no acknowl-edgment of the source m aterial. The prosecutorasked the expert witness to read the relevantpassages from his report and then presented the

original sources for the passages. The prosecutorthen subjected the witness to a series of cross-

examination questions abou t whether he had beentaught in college to indicate clearly (e.g., throughquotation marks, footnotes, or explicit statements)any instances in his own writing when the wordshe was using were not his own, th e customary waysin which he had acknowledged using the ideas an dwords of others in his previous writings, whetherin writing his papers for various courses he had

indicated when he had copied from the works ofothers, and so on. Imwinkelried emphasized thatsuch unreferenced verbatim copying may approachplagiarism, that the prosec utor in the Sirhan trialhad condemned the defense psychiatrist for thisunacknowledged usage in his closing argum ent,an d that th e defense attorney virtually apologized(p . 290) for this expert witness's testimony.

It is important fo r expert witnesses to make ap -propriate acknowledgment of source material. Forexample, a computerized interpretation of anMMPI-2 or MMPI-A is generally considered a pro-fessional-to-professional consultation. If the experthas used a computerized interpretation service, thatfact should be noted in the forensic report. Simi-larly, if the exp ert quotes verbatim from th e report

(o r from other sources), those v erbatim quotationsshould be placed within quotation marks.

OPTIONS AND ALTERNATIVES

Having discovered and inquired in systematic detailabou t an expe rt witness's opinions and their founda-tion, the attor ne y need s now to discover the scope ofthe expert's examinations an d considerations.

In arriving at your diagnosis (or other conclu-sion), wha t alternatives did you consider?

If , fo r example, th e expe rt witness asserts that a com-prehensive psychological and neuropsychologicalassessment indica tes that the individual is sufferingfrom bipolar affective disorder (i.e., manic-depressive mood syndrome), what other possible di-agnostic categories (or explanations for the individu-al's behavior) did the e xpe rt consider or rule out? Insome cases, the a ttorne y may w ant to list possible al-

ternatives and ask the expert to explain why he orshe did not arrive at each alternative diagnosis.

Few events should arouse the a ttorney's interestas much as an expert who sets forth firm opinionsbut gives no evidence of having considered alterna-tive explanations, le t alone reasons fo r rejecting th ealternatives. Even when experts name a few seem-ingly obvious alternative explanations, attorneysshould see if they themselves or anyone amongtheir consultants can imagine plausible alternative

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Deposition and Cross-Examination of Expert W itnesses

explanations that seem consistent with th e data.The ease with which an alternative explanation canbe overlooked is exemplified by a Newsweek (Gar-son, 1965) discussion of the early suffragette move-ment that had occurred more than 3 decades be-fore th e article w as published. The Newsweek

review of a book about th e suffragette movementended by asking what the early suffragettes such asSusan B . Anthony might have though t abou t a sur-vey, conducted almost a half century after womenhad finally achieved the right to vote, which foundthat only about 1 wife out of every 22 voted differ-ently than her husband. Although th e review im -plied that this was obviously a disappointing find-ing that would have been cause fo r disappointmentamong th e early suffragettes, a letter to the editor

pointed out that the re was an alternative way ofviewing th e data: I feel that they would have beenquite pleased. The feminist movement must havecome a long w ay, if after fewer than 50 years sinceth e enfranchisement of American wom en, only on ehusband out of 22 has the courage to vote againsthis wife (Garson, 1965, p. 2).

Is there any other source of information that youdid not take into account (e.g., because it was not

available or because the expert chose not to ad-minister a particular test) that might be relevant

or that might change your opinion?

If the expert acknowledges that there might be

some source of information that would be relevantto forming an accurate diagnosis (or other conclu-sion), the attorney can then ask (a) how such asource of information might alter the expert's opin-

ion, (b) whether the expert is less certain of his orher opinion in the absence of this information, and(c ) why the information was not obtained. In mostcases, the attorney will find it useful to inquireabout the steps that the expert took (or failed totake) to discover whether there were previous re-cords of assessment, previous records of t reatment,school records, legal records, and so on, and to askin each case o f a step not taken why the expert didnot take the step to obtain relevant information. Insome instances, the attorney may discover that theopposing attorney who retained th e expert hadpossession of (or access to ) such records or infor-mation but did not make them available to the ex-pert; if so, this situation and its implications shouldbe carefully explored.

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C H A P T E R 1 0

SOME FINAL THOUGHTS

This book draws together a great diversity of infor-mation, issues, and questions that can be intimidat-

ing to expert witnesses an d attorneys alike. Thosewho are new to this area—psychologists who havenever se t foot in court and attorneys w ho havenever heard of the Minnesota Multiphasic Personal-ity Inventory (MMPI)—m ust confront complex,unfamiliar information and procedures. Those w hoare experienced in this area— expert witnesses whoare seasoned and attorneys who may know morethan some psychologists about the M M PI— kno whow many ways that a trial's twists and turns,clashing personalities, unanticipated evidence, andsequences of testimon y an d cross-examination cancreate surprises, dilemmas, and confrontations inthe courtroom. As a consequence, the material inthis book ca n seem overwhelming. At least that i show it seemed to us when we were deciding whatto include and how to organize it.

Throughout th e book, we have suggested pos-sible guidelines or approaches that may be help-ful in coping with complex, sometimes contra-dictory information an d feelings of being

overwhelmed. For example, chapter 9 offers asequence of basic questions and commentariesthat both attorneys an d expert witnesses ca nuse in planning fo r cross-examination, and theappendixes include checklists that expert wit-nesses an d attorneys can use in preparing fo rtrial.

In this final chapter, we return to four funda-mental rules that we have found helpful copingwith the sometimes vast array of facts, tasks,

and standards involved in the use of the MMPI,MMPI-2, and MMPI-A in court.

PREPARE

One fundamental principle applies equally to ex-pert witnesses and attorneys: prepare. A s empha-sized throughout the book, thorough preparation is

crucial. Expert witnesses an d attorneys who w alkinto court unprepared invite disaster and do a dis-service to their profession and to everyone involvedin or affected by the legal proceeding. Adeq uatepreparation requires time, effort, an d self-discipline. Before accepting an y case, expert wit-nesses an d attorneys must make sure that they haveadequate time to prepare, a s well as personal re -sources (e.g., motivation , energy, and eagerness)an d p rofessional resources (e.g., access to relevantinformation and consultation) to prepare ade-quately. Reviewing the suggested steps fo r prepara-tion in this book as well as the possible cross-examination questions can help expert witnessesand attorneys to monitor and assess the degree to

which they accomplish the task of preparation.

LET THE OBJECTIVE TEST RESULTS SPEAK

FOR THEMSELVES

A second f un dam en tal principle, particularly rele-vant fo r ex pert witnesses, is this: Let the objectivetest results speak fo r themselves. As discussed inprevious chapters, the MMPI (particularly the re-vised versions) can provide invaluable information

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Pope • B utcher • Seelen

if the results can be communicated clearly to thejury . If expert witnesses m aintain a good work ingknowledge in practical terms of what the scalesmean, th e test's database, and the relevant research,they ca n present the findings with such clarity thatthe jury can see (particularly if appropriate exhib-its are used; see, for example, chap. 6) what the testreveals about the individual and the questions at is-su e before the court.

A major pitfall is the tendency to mislead othersby portraying hunches a nd guesses lacking empiri-ca l support as if they were conclusively demo n-strated. Expert witnesses must state honestly an dclearly what testimon y is based solidly on well-accepted, adequately validated, and sufficientlystandardized assessment instruments. Perhaps an -

other way of stating this principle (with a slightlydifferent focus) is this: Stick with the data. Ofcourse, professionals may be called on to giveopinions with greater and lesser degrees o f cer-tainty. B ut the jury h as a right to know when th eexpert is speculating, using psychological con-structs that have not been empirically validated, o rrelying on a nonstandardized method of administer-in g (e.g., using a shortened form of the MMPI thathas not been adequately validated ), scoring, or in-

terpreting a standardized test. Many of the ques-tions presented in chapter 9 will help clarify theseissues for attorneys who are confronting such testi-mony and for expert witnesses who are p reparingto testify.

In some cases, the only relevant informationfrom an MMPI is that the protocol is invalid.This fact alone may help everyone involved tounderstand the situation better (i.e., that thetest results suggest that the individual was notaccurately responding to the items) and mayprovide a perspective not readily available fromother tests or testimony. In such cases, the ex-pert witness must refrain from any temptationto abandon the principle of sticking with thedata. Although expert opinions may derive froma variety of sources, expert opinion that pur-ports to be based on the MMPI should neverinvolve interpretation of clinical or content scaleswhen the validity scales show that the profileis clearly invalid.

TELL THE TRUTH

A third fundamental principle is especially usefulfor expert witnesses: Tell the truth. Regardless ofwhether one is making initial contact with an attor-ney, talking with an individual who is being as -

sessed, writing a forensic report , or testifying, tell-ing the truth is essential. In this book, we haveexplored some factors that make this task difficult:th e adversarial nature of the courtroom process, th epotential role conflicts and conflicts of interest,tendencies not to admit that one does not know th eanswer to this or that question, and so on. Duringcross-examination, expert witnesses are likely, atleast occasionally, to be baffled an d caught offguard , to find it hard to admit tha t we overlooked

something imp ortant (e.g., reviewing previous re -cords or keeping u p with th e current professionalliterature in relevant areas) and as a result to goblank.

Regardless of the circum stances, the basic rule isalways: Tell the truth. The whole truth. A nd noth-ing but the truth. It is easy to forget this fundamen-ta l principle, but the oath we take right before wetestify is a good reminder.

TRUST THE JURY

The fourth fundamental principle is especially use-ful fo r attorneys: Trust th e ju ry. No case is perfect.An a ttorney's handling of a case, before an d duringthe trial, always has weaknesses as well asstrengths. No attorney's work has ever been com-pletely free of blunders. And trials almost alwayscontain the unexpe cted. In the midst of even themost difficult circumstances, trusting th e jury iscrucial. While preparing and trying a case, the at-

torney must present the evidence as clearly as pos-sible in a way that conveys a direct and immediatesense of the story of what happened and how it is rel-evant to the claims at issue. The process of voir direand jury selection attem pts to produce the best,most open, an d most unbiased jury possible. To re-spect and trust those juro rs to make a fair decisionon the basis of the evidence an d arguments can bethe central and organizing principle for attorneys ineven the most difficult trials.

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Some Final Thoughts

THE EXPERT WITNESS VERSUSTHE ATTORNEY

Addressed to two separate readerships, this bookm ay seem at times to express contradictory views.For example, one section suggests avoid focusingon, emphasizing, or relying on responses to an in-dividual item, but another section advises inquireabout responses to and meanings of individualitems. These apparent contradictions result fromaddressing a volume to two groups of professionalswhose roles are sometimes in conflict because ofth e adversarial nature of the American judicialsystem.

W e believe that the psychometric properties ofindividual items make it unwise to attempt actuar-

ial interpretations on the basis of responses to anindividual item. It is unlikely that th e witness willbe able to produce or refer to adequately validatedactuarial databases fo r such individual item re -sponses that have been published in peer-reviewedscientific or professional journals. Although a ttimes an expert witness might consider using an in-

dividual item response to illustrate a general trendthat has been identified by a more general actuarialmethod an d supported by other sources of data,such use may—depending on context, qualifica-tion, and clarification—seem to imply that the in-

dividual item response itself warrants interpretationand is supported by actuarial tables or interpretiverules. If this implication is subjected to vigorousand informed cross-examination, the witness is

likely to be in for a rough time.Although expert witnesses should avoid high-

lighting responses to individual items, attorneysconducting discovery and cross-examination woulddo well to obtain and explore the expert's knowl-

edge of, understanding of, use of, and professionalopinions about th e meaning of responses to indi-vidual items and the degree to which such re-

sponses are a valid source of inference about theperson who was assessed. The attorney's questionswill help show whether the expert uses this stan-dardized test appropriately.

This adversarial process of careful, detailed dis-covery and vigorous cross-examination can showwhether expert witnesses are genuine experts. Ex -

pert witnesses must be able to explain clearly how

a test works and how it does not work (i.e., unjusti-fied or inappropriate uses), even when respondingto adversarial questioning. Anticipating toughquestions can help experts learn more about the

tests that they are using and prepare to testify. Co-

vert rehearsal (e.g., Singer & Pope, 1978) of re-sponses to the types of questions in chapters 2, 5,and 9, as well a s trying o ut answers in front o ffriends and colleagues (while allowing them tocomment on the responses and ask questions) can

help experts to identify problem areas in theirknowledge of tests. These steps ca n also help themsay what they mean in clear, everyday language—rather than vocalizing, articulating, and jargonizingtheir thought processes in seemingly endless and

aimless clouds of multisylabic associations of termi-nology that—well, you get the idea.This process of discovery an d cross-examination

ca n also help the trier of fact understand uses an dmisuses of standardized psychological tests. Onlywhen jurors (or the judge in nonjury trials) ade-quately understand how a test works can theyknow how much weight to give to test results and

the expert opinions that are based on those test re-

sults. Watching the expert witness respond to vig-orous, informed, and carefully planned cross-examination can also help the jurors to evaluate the

expert's knowledge, credibility, and integrity.

THE EXPERT WITNESS AND THE ATTORNEY

Although the very nature of trials creates a t least aseeming (but not necessarily actual) adversarial rela-tionship between expert witnesses and the attor-neys who depose and cross-examine them, expertsand the attorneys who use them can form a collab-

orative relationship. Each has a responsibility tohelp educate and prepare the other. The expert wit-ness can help educate the attorney regarding the

use of psychological tests. The attorney c an helpeducate the expert in trial procedures and the spe-cifics of a particular case. Each also has a responsi-bility to educate the other regarding t he ethics oftheir respective domains and to help ensure that all

matters related to the endeavor are handledethically.

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Some Find Thoughts

The trial court granted the petition,finding service of the subpoenas with-out prior notice to [the woman] vio-lated her rights of privacy, a nd ordered[the psychologist] to pay [the wom-an's] attorneys' fees of $70,830.

(Sehlmeyer v. D epartment of GeneralServs., 1993, p. 1075, as cited in Pope,1994,p.159-160)

* * *

The appellate court noted that Stempfcontends his subpoenas comply withthe literal letter of the law as expressedin the G overnmen t Code (p. 1076).The appellate court further noted: "Ac-cording to Stempf, the L egislature's

failure to mention Code of Civil Proce-dure section 1985.3 in subdivision (a)of section 11510 of the GovernmentCode demonstrates a specific intent toexclude administrative subpoenas fromthe o peration of section 1985.3. We donot engage in the som ewhat sticky stat-utory analysis required to resolve thispoint—because even if Stempf is cor-rect, there still exists a constitutionaland common law right to privacywhich resolves the underlying issueagainst Stempf (p. 1077). The appel-late court affirmed th e trial court'sjudgm ent an d order, holding that "be-fore confidential third-party recordsmay be disclosed in the course of anadministrative proceeding, the subpoe-naing party must take reasonable stepsto notify the third-party of the pende-ncy and nature of the proceedings and

to afford the third-party a fair opportu-nity to assert her interests by objectingto disclosure, by seeking an appro-priate protective ord er from th e admin-istrative tribunal, or by in stitutingother legal proceedings to limit thescope or nature o f the matters soughtto be discovered (pp. 1080-1081).Because this particular case focusedsolely on the issue of notice, the court

stated, W e do not address [the wom-an's] rights, if any, against the health-care providers who turned overrecords without her consent. (Pope,1994, pp. 160-161; see also E V I D

C O D E 995 [physician required to claim

privilege], p . 1080)

Expert and fact witnesses must avoid playingthe role of attorney a nd reaching unjustified con-clusions about legal requirements emerging fromlegislation and case law. However certain a witnessmay b e about the legal duties to disclose or with-hold records, the wisest course is almost always toconsult with the witness's ow n attorney (not rely-in g solely on advice provided by attorneys of otherparties in the case) before responding to a sub-

poena fo r records.

FEAR AND TREMBLING INTH E COURTROOM

Expert witnesses an d attorneys—despite some re -ports, stereotypes, and well-known jokes to thecontrary—are human. So it is not surprising thatwe may feel anxious or even panic-stricken at theprospect of walking into the adversarial atmosphereof the courtroom. All three of the authors of thisbook have, at least o n occasion, felt nervous beforeand during court appearances. It is important to ac-knowledge that this is a normal and understand-able human reaction to what can be an extremelychallenging experience.

Part of the rationale fo r this book is to help peo-ple prepare fo r court experiences. Adequate prep a-ration can help reduce uncomfortable—sometimesdebilitating—anxiety. Of course, fo r some people, a

little anxiety before any dem anding task such as acourt appearance may be adaptive and useful. Itmay help motivate them to prepare and remainalert. B ut excessive anx iety is more likely to hurtpreparation and presentation and make life misera-ble for the individual. It tends to make some peoplelock up, freeze, and go blank in court; i t makesothers talk in a forced or stilted manner; it makesstill others babble almost uncontrollably. In almostall instances, it makes it hard to concentrate, listen

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carefully, remember accurately, think creatively,and speak clearly.

Paradoxically, reading this book may stir up

anxiety in man y readers. Attorneys may find it hardto believe that they can ever learn en ough abou tpsychological tests and the principles of psycho-

metrics, research, theory, and practice to conductan adequately informed discovery and cross-examination. Expert witnesses may wonder if theycan survive a vigorous cross-examination by som e-one who is knowledgeable about kurtosis, contrasterrors, Lam bda, reliability coefficients, dyscalculia,peer-reviewed journa ls, beta errors, and the socialdiscomfort content scale. Part of the frameworkand content of this book evolved from the work-shops conducted by the authors on forensic assess-

ment and related psychological, legal, and profes-sional issues. During par ts of such w orkshops, thenervousness of some participants became both visi-ble and audible.

It is crucial to recognize that such anxiety, whenconfronting detailed information in an imp ortantarea of professional practice, i s completely norm aland und erstandable. Appearing in court— as an ex-pert witness or an a t torney—is dem anding, chal-lenging work that requires extensive knowledge,expertise, and preparat ion. Confronting th e areas inwhich we may be less than adequately knowledge-able, expe rt, and prepared is likely to evoke someanxiety. Responding appropriately to the anxietyinvolves a reasonably simple task, although on ethat may require considerable time an d effort: be-coming familiar with the material.

Anxiety ab out acknow ledging and exploring ar-eas of complex information with which we are un-familiar (and all expert witnesses and attorn eys, nomatter how kn owledgeable, how experienced, or

how widely known, published, or respected, en-counter such areas) b u t which are relevant to ourwork can also elicit less adaptive responses such asdenial, resentment, anger, paralyzing fear, and ra-tionalization (e.g., pretending that one alreadyknows this information or that it will never be rele-vant or imp ortant in foren sic settings).

Alertness to the possibility of these less adap tiveimpulses can help prevent them from controllingour behavior. If the less adaptive responses con -

tinue to be tempt ing, the following considerationmay be helpful. No matter how uncomfortable it isto read about the complex, detailed informationrelevant to forensic assessments, it tends to bemuch less uncomfortable for the ex pert witness tobecome adequately familiar with the material dur-

ing trial preparat ion than to encoun ter the materialfor the first time during cross-examination. And itis generally less agon izing for an a t torney to workthrough this material adequately during prepara-tion than to enco un ter it for the first time from anexpert witness called by opposing counsel.

BROADER ETHICAL R ESPONSIBILITIES

In closing, perhaps the most useful perspective is

to step back and take a look at the forensic con-text in w hich M MP I-based testimony and cross-

examination occur. Throughout this book we havediscussed ethical responsibilities of both expert wit-nesses and a t torneys as they deal with each other,with the principle pa rticipants in the case (e.g., th eindividual who is being assessed), with their col-leagues, and with th e judge and jury in a particulartrial. W e have also tried to highlight som e of themajor ethical pitfalls an d dilemmas (e.g., conflict-ing roles and responsibilities) that arise from timeto t ime.

To the extent tha t ethical dilemmas or violationsare made mo re likely or are inten sified by the largersystems, individual expert witnesses, attorne ys, andother readers must consider the degree to which

they bear an ethical responsibility to attem pt to ad-dress those issues. Are there laws, rules of evi-dence, or courtroom procedures, for example, thatseem unjust or likely to create error, confusion, o rmisconduct , or that fail to specify clearly the re-

sponsibilities and standards to which expert wit-nesses and attorneys should be and can be held ac-

countable? D o graduate training programs in law,psychology, and other relevant disciplines provideadequate training in forensic practice, ethical is-sues, and profe ssiona l standards? D o professionalassociations adequately fulfill their responsibilitiesto provide clear standards, adequate involvement o fth e m embership in developing those standards,workable procedures for ensuring adequate ac-

20 8



Some Final Thoughts

countability to those standards, and sufficient edu-cation and open discussion of those standa rds? Arethere unnecessary, unjustifiable, or unexaminedconflicts amo ng ethical, legal, professional, and re-lated standards or responsibilities (see, e.g ., Pope ,2003; Pope & Bajt, 1988; Pope & Vasquez, 1998)?

Experience w ith these larger systems in whichwe work makes it hard to claim that they lack seri-ous problems or that the problems have been ade-quately discussed and addressed. The work of ex-pert witnesses an d attorneys and the larger systemsin which they function exerts a p rofound effect onthe lives of so many people, not only those who ap-pear as plaintiffs or defendants in civil, criminal,and administrative cases but also those who repre-sent the more general society. To the extent that

negligent as a society, as responsible members ofthat society, and as professionals who work withinthe legal system. To ignore problems with this sys-tem helps ensure that such problems continue an dlikely worsen.

Non e of us practices in a vacuum. Each of us isaffected by and shares responsibility for thebroader context. Continuing appreciation of thecontext—or rather, contexts—in which we attemptto fulfill ou r responsibilities as expert witnesses an dattorneys is crucial to our professional ability andintegrity. Acknowledging an d responding to prob-lems in the system are no less important.

Society has entrusted expert witnesses and at-torneys with the responsibility to help make thesystem of justice work. If we have any thing to pro-

the mmpi, mmpi-2, and mmpi-a in court - a practical guide for expert witnesses and attorneys.pdf

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