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May 02, 2024 Feature

Observing the Forensic Mental Health Examination: When Is Three a Crowd?

Eric Y. Drogin

This column’s inaugural entry referred to the notion of “welcome” in the context of what is most decidedly an adversarial litigation context. When forensic mental health examinations are being conducted, is anyone but the doctor and the defendant truly “welcome”? Who wants to be there? Who has a right to be there? Why do they want to be there, and what effect could their presence have upon the process itself? Let’s examine how a prosecutor might consult with a reputable mental health professional when the time comes to decide who should or should not be on the guest list.

Prosecutor: You know that examination you did last month in that triple homicide case? Defense counsel wants their client to be seen by a doctor.

Doctor: What am I … chopped liver?

Prosecutor: I didn’t say “by a real doctor.” They want their client to be seen by their own doctor.

Doctor: Surely that’s not the way they put it.

Prosecutor: No. They said, “by an independent evaluator.”

Doctor: Does that make me the “codependent evaluator”? I guess we’ll find out how it went when we get the report.

Prosecutor: I don’t want to wait that long.

Doctor: I don’t think the judge is going to give you funding to hire a fortune teller.

Prosecutor: This time, I want to observe the examination itself.

Doctor: Have you worked something out with defense counsel, or with the judge?

Prosecutor: Defense counsel will hit the roof, but I think our judge is going to see this my way.

Doctor: How so?

Prosecutor: Do you remember when another lawyer insisted that their doctor be allowed to observe your examination about a year ago?

Doctor: Sure, but I don’t know what “insist” had to do with it. You know as well as I do that the statute provides for “the presence of a doctor retained by defense counsel to observe any examination performed pursuant to this chapter.”

Prosecutor: Correct, and I believe this judge is going to say, “if the defense’s expert gets to view these things, then the prosecution’s expert should get to view them too.”

Doctor: Even though the statute doesn’t provide for it.

Prosecutor: This judge is big on “fundamental fairness” and not so big on rigid statutory interpretation.

Doctor: Fine, but isn’t all of this still going to be about expert witnesses? No offense, but the statute doesn’t say juris doctor.

Prosecutor: Technically, but my plan is to point out that the reason for observation is not so the experts can learn from each other’s technique, but rather so the experts can report back to the attorneys who hired them.

Doctor: Why are you so keen to observe this examination yourself?

Prosecutor: I’ll argue two reasons. The first is to enable the most accurate and effective cross-examination, and the second, quite frankly, is to put the other side’s doctor on the spot. I don’t want there to be a lot of leading questions, more to the point, “leading away from” questions that would prevent the defendant’s antisocial personality, tendencies, and behaviors from coming to light.

Doctor: What about “test security”?

Prosecutor: I’m not going to walk off with any of the ink blots, if that’s what you mean.

Doctor: This doesn’t involve making sure nothing gets stolen. It involves making sure that if the defense brings someone in to do psychological testing, then laypersons—which would include you, in this context—aren’t in a position to learn what the questions are and how the answers might be used. Doctors and test publishers don’t want these instruments rendered useless on the basis of attorneys coaching future examinees on what to expect and how to provide responses.

Prosecutor: I’m a prosecutor. How many criminal defendants do they think I’m going to be coaching to look less intelligent and more impaired?

Doctor: There’s also a lot out there about onlookers and how their presence can affect the validity of an examination. For example, the American Psychological Association published a statement on “Third Party Observers in Psychological Testing and Assessment” in 2022. You can easily find it online.

Prosecutor: Do they say no one else but them can watch? That shouldn’t surprise anybody, considering they’re the ones who are going to be questioned about their procedures.

Doctor: Actually, this document acknowledges that “in some cases recording and observation are likely to occur, and that the third party in question may not be a fellow mental health professional.”

Prosecutor: Then are they saying “third-party observers” are not going to cause any problems?

Doctor: Fatalism isn’t the same thing as endorsement. This statement addresses “the examinee’s sensitivity to observation,” cautions that “observation or surveillance may violate the conditions of standardization” of various tests, and adds that “negative effects of observation on test performance may impair the validity of routine test interpretation strategies.”

Prosecutor: Why don’t they just say, “no one should observe”? Not that this is what I’d want them to say, of course. …

Doctor: That’s because psychologists live in the real world. It’s too bad we’re on the phone instead of on Zoom. I’m picturing the expression on your face right now.

Prosecutor: Just as well. Does this statement propose some kind of workaround?

Doctor: It suggests such measures—some would argue “half measures”—as recommending that observations “occur in the least intrusive fashion reasonably available”; that “when recordings are made, the psychologist may want to take steps to limit the availability of such recordings to individuals not immediately involved with the evaluation”; and that “a protective order from the judge may be obtained, obligating all parties to maintain test security and to destroy the recordings at the conclusion of legal proceedings.”

Prosecutor: So I shouldn’t expect any sort of pushback from the doctors on this one.

Doctor: It’s not that simple. None of this is intended to convey that doctors should just roll over. In fact, they’re reminded that they may have the option, for example, to “recommend that the request for observation be withdrawn,” or even to “decline to perform the assessment under observation” at all.

Prosecutor: My argument will be that I’ll sit in the back, as quiet as a mouse, without doing anything that would affect the examination.

Doctor: This from the observer who plans to tell the judge that a primary reason for attending is to “put the other side’s doctor on the spot” in order to ensure that there won’t be “a lot of leading questions”! Counsel is going to have to pick a theory.

Prosecutor: Maybe recording is the best option, and if the court is worried about “test security,” it could send that portion of the recording just to you, and you can tell me if you think they administered those measures properly.

Our readers were also promised a “balanced approach,” so here goes: Defense counsel may wish to argue that no matter how unobtrusively an observer designated by the prosecutor may behave, evaluating doctors may still be hampered in their efforts to conduct a valid examination, even if the sessions are merely recorded.

Please feel encouraged to contact Dr. Drogin with any questions about observing examinations, or with any suggestions for future topics.

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Eric Y. Drogin

Harvard Medical School

Eric Y. Drogin is a board-certified forensic psychologist and attorney on the faculty of the Harvard Medical School, where he serves as the Affiliated Lead of Psycholegal Studies for the Psychiatry, Law, and Society Program at Brigham and Women’s Hospital and participates in the Program in Psychiatry and the Law at the Massachusetts Mental Health Center and the Forensic Psychiatry Service at Beth Israel Deaconess Medical Center.