November 27, 2018 TEACHING LEGAL DOCS

The Forensic Psychology Report

by Howard Kaplan

In this issue of Teaching Legal Docs, we will consider the forensic psychology report. In order to do so, we should first present a working definition of forensic psychology itself. Generally speaking, it is the application of clinical psychology to legal matters. Forensic psychology textbook author Christopher Cronin has also characterized it as “legal psychology” and offered this broad but succinct definition: “The scientific study of the effect of the law on people, and the effect people have on the law.”[i]

Forensic psychologists are commonly required to offer clinical evaluations of individuals who are “involved” with the legal system. This typically entails interviewing the individuals being evaluated and may require them to testify orally in court as expert witnesses. However, essential to these evaluations is also writing a forensic psychology report. “Reports are a major work product of forensic psychologists. Although some cases lead to testimony, almost all cases result in a forensic report.”[ii]

One of the most important uses of these reports is to assess criminal responsibility or competence to stand trial. Experts emphasize that “insanity” is a legal and not a psychological or clinical concept—one that is effectively given definition in state and federal statutes. For instance, Massachusetts General Laws (MGL) Chapter 123 Section 15 stipulates that “Whenever a court of competent jurisdiction doubts whether a defendant in a criminal case is competent to stand trial or is criminally responsible by reason of mental illness or mental defect, it may…order an examination of such defendant…by…qualified psychologists.” Moreover, Massachusetts law, as that of most states, requires that the examining psychologist provide the court with “written signed reports of their findings,” which address whether the individual is competent to stand trial.

Anatomy of a Forensic Report

Since the 1980s, the forensic psychology report, as used to evaluate competence to stand trial and offer other clinical assessments for legal purposes, has become increasingly structured in its organization and content. This has been described as its “anatomy.” Experts have set out guidelines and developed checklists to establish standards, critique commonly found deficiencies, and provide practical assistance to report writers. Indeed, the use of these guidelines and checklists to encourage best practices facilitates the standardization of reports.

Forensic psychology reports typically begin a first section with introductory and contextual information about the assessment—the evaluee (name, age, gender, etc.), evaluator (name, qualifications, location of assessment), purpose of the evaluation and, if a criminal matter, what the defendant is alleged to have done. Reports typically state legal criteria. For instance, a Massachusetts criminal responsibility report would state that a defendant is competent to stand trial in the commonwealth’s courts if “he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and if he has a rational as well as factual understanding of the proceedings against him” (Commonwealth v. Vailes, 1971).

Reports also often specify warnings of the limits of confidentiality. Evaluators must inform evaluees that they will be submitting written reports or even giving oral testimony based on their evaluations. Required reports are submitted whether or not individuals consent to being evaluated, which they are not obligated to do. Reports indicate their sources of information, which include interviews with individuals being assessed, their family members, health and legal professionals, as well as pertinent records.

The second section of forensic reports presents data, providing a narrative formed from “relevant history,” which may go back to the individual’s childhood and cover matters such as family history, education, mental health and general medical history, laboratory tests, and work history.

The third section of the reports features discussion and conclusions. It may include an assessment of the individual’s current mental functioning at the time of the interview, including appearance, affect, behavior, and cognitive functions. If the individual has been charged with a crime, the report will usually present versions of the alleged offense from police and from the defendant. Forensic psychology reports conclude with clinical opinions, based on the available data. If a criminal matter, they would include the evaluator’s clinical opinion as to the evaluee’s competence to stand trial, as well as need for care and treatment.

Forensic Report as Narrative

Other specialists may prepare written reports to memorialize or document their practices but, for forensic experts, the report itself is their “practice-product.” In these reports, they must write primarily not for other experts in their fields, but to “translate” their expertise into language understandable to legal professionals and even public audiences. Moreover, they are responsible for articulating, in written form, expert opinions and assessments that may have significant personal and social consequences on matters of life and liberty.  

Recent commentators seeking to conceptualize these reports, therefore, have even emphasized that they might be viewed as a type of “literary activity” in which “the act of writing the report requires the translating of actual events onto the page” and the role of report writers should be to “transform the information into a narrative, making the events and the actors come to life and evoking emotions in the reports’ audiences or readers.”[iii]

Forensic report writers, hence, can be regarded as storytellers as well as clinicians in their practice. In writing accounts to be persuasive as well as descriptive, they need to consider both what they are putting in and what they are leaving out from the narrative design of the report, such as in sections on “relevant history” of the evaluee.

Psychiatrist Robert Wettstein has summarized the unique legal documentary and literary qualities of the forensic report, which “are thus a blend of science and art. …experts interpret, reinterpret, construct and reconstruct the evaluee’s factual data into their unique formulation in the forensic report intended to persuade a legal audience.”[iv]

 

[i] Quoted in Jane Tyler Ward, “What is forensic psychology?, American Psychological Association, 2013.

[ii] “Forensic Report Checklist,” Open Access Journal of Forensic Psychology, 2:233-240, 2010.

[iii] Ezra H. Griffith, MD; Aleksandra Stankovic, MA; and Madelon Baranoski, PhD. “Conceptualizing the Forensic Psychiatry Report as Performative Narrative,” The Journal of the Academy of Psychiatry and the Law, 38:32-42, 2010.

[iv] 4 Robert M. Wettstein MD. “Commentary: Conceptualizing the Forensic Psychiatry Report,” The Journal of the American Academy of Psychiatry and the Law, 38:46-8, 2010.

Howard Kaplan is an associate director in the American Bar Association Division for Public Education.