PCL-R inventor wringing his hands over forensic misuse

The first part of NPR's series on the psychopathy industry aired today and the transcript is now online (HERE), along with my sidebar essay on the cultural history of psychopathy (HERE). Most fascinating to me is recent efforts by Robert Hare, inventor of the popular Psychopathy Checklist-Revised (PCL-R), to distance himself from growing evidence of its misuse in forensic contexts:

Robert Dixon Jr.,
featured in the NPR story

While Hare remains a strong believer that his test works well for the kind of basic scientific research that it was originally designed for, he and others have begun to wonder if it does as good a job outside the lab.

"I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society," Hare says. "It shouldn't work that way."

In fact, Hare says, he is so disturbed by some of what he has seen as he has traveled through America training psychologists in use of the PCL-R, that he sometimes has trouble focusing on the way his test could be affecting people's lives.

"I think about this periodically, and I probably try to suppress it," Hare says. "I do disassociate myself from it. I mean, if I thought about every potential use or misuse of the instrument, I probably wouldn't sleep at all."

"Alarming world of globe-trotting experts"

Hare goes even further in a series of interviews with journalist Jon Ronson, author of the new book, The Psychopath Test. Over late-night drinks at hotel bars, he tells the author that he is especially chagrined at the PCL-R’s use by poorly trained and biased evaluators in Sexually Violent Predator (SVP) cases in the United States:

“ ‘I tried to train some of the people who administer it. They were sitting around, twiddling their thumbs, rolling their eyes, doodling, cutting their fingernails – these were people who were going to use it.’

“A Coalinga psychiatrist, Michael Freer, told the Los Angeles Times in 2007 that more than a third of Coalinga ‘individuals’ (as the inmates there are called) had been misdiagnosed as violent predators and would in fact pose no threat to the public if released. ‘They did their time, and suddenly they are picked up again and shipped off to a state hospital for essentially an indeterminate period of time,’ Freer said. ‘To get out they have to demonstrate that they are no longer a risk, which can be a very high standard. So, yeah, they do have grounds to be very upset.’

“In the executive bar, Bob Hare continued. He told me of an alarming world of globe-trotting experts, forensic psychologists, criminal profilers, traveling the planet armed with nothing much more than a Certificate of Attendance, just like the one I had. These people might have influence inside parole hearings, death penalty hearings, serial-killer incident rooms, and on and on. I think he saw his checklist as something pure – innocent as only science can be – but the humans who administered it as masses of weird prejudices and crazy dispositions.”

If Hare’s conscience is really bothering him, he could do more than try to distance himself from miscarriages of justice in interviews with journalists after the fact. He could stop training the legions of government SVP evaluators in the United States, and/or issue a policy statement about the misuse of his instrument in court.

Of course, that would mean a significant loss of revenue. Even Ronson, the author of The Psychopath Test, had to pay 400 pounds (media discount) to gain access to Hare at a 3-day PCL-R training course. And that didn’t include the cost of the 30-page manual, another 361 pounds.

My review of The Psychopath Test at Amazon:

The power to label is intoxicating. That’s what Jon Ronson found after taking a 3-day training that gave him license to diagnose people as psychopaths. Armed with a 40-item checklist, the journalist went gallivanting around the globe, sniffing out prospective psychopaths from convicted murderers to corporate job-slashers and Haitian war criminals. Ronson’s chronicle of his two-year quest for the elusive psychopath is at times whimsical, sometimes laugh-out-loud funny, and always riveting.

The review continues HERE. (As always, if you enjoy it, please click “yes.”)

NPR series on psychopathy in court

This Thursday and Friday, NPR is airing a 2-part series about the controversial use of psychopathy in court.

In Part I on All Things Considered, psychology and science reporter Alix Spiegel shows the profound negative consequences of psychopathy on the lives of those so designated. She profiles a California prisoner whose friends and family do not believe he is a psychopath, but who will likely never win parole due to that label.

Part II (on Friday) examines the history of the Psychopathy Checklist (PCL-R) and explores how it became so entrenched in the criminal justice system. Dan Murrie’s research questioning the reliability of the PCL in adversarial contexts is highlighted. Robert Hare also expresses concerns about the way his tool is being used in court, and the corrupting influences of the adversarial system.

The show will be complemented by an online debate, “Does the PCL-R test have value in the criminal justice system?” I am one of the featured experts on the panel, so I hope some of you will visit the website; I will provide a link just as soon as it goes live.

For those of you who would rather tune in once, the show is also airing as a single piece on Friday on the radio program This American Life, and you will be able to download the podcast there as well.

Part I of the 2-part series is HERE; the online debate is HERE.

Steffan's Alerts #5: Miranda warnings, child custody, and more

Click on a title to read the article abstract; click on a highlighted author's name to request the full article.

Global prevalence of child sexual abuse

Marije Stoltenborgh and colleagues, in a new issue of Child Maltreatment, report the prevalence of childhood sexual abuse based on over 9 million subjects extracted from 217 publications from various countries.

Public views of child custody arrangements

Using hypothetical cases, Sanford Braver and colleagues examined judgments of various custody arrangements by jury-eligible citizens in Arizona. Reporting their findings in Psychology, Public Policy, and Law, the authors suggest that a significant gap exists between the judgments of the public and what occurs in the family law system.

Miranda rights: What don't suspects understand?

In the same issue of Psychology, Public Policy, and Law, Richard Rogers and colleagues continue their research on defendants’ comprehension of Miranda warnings. Based on analyses of 416 pretrial defendants’ understanding of current Miranda terminology, the authors offer recommendations to simplify Miranda phrases so that persons with academic and cognitive limitations may more easily understand their rights at the time of interrogation.

Accuracy of methods for diagnosing pedophilia and assessing sexual recidivism

Robin Wilson and colleagues examine the accuracy of four methods for assessing pedophilia and appraising risk of recidivism among a sample of 130 child sexual abusers. They report their findings in a new issue of Sexual Abuse: A Journal of Research and Treatment.

Availability of treatment programs in juvenile justice facilities

In a new issue of Child and Youth Services Review, Rebecca Yazzie analyzes the types of treatment programs available in the United States through a sample of 3,163 juvenile facilities. Compared to public facilities, private facilities appeared better equipped, with more mental health staff and treatment programs. Facilities that offer family counseling reported a lower incidence of suicide.

Steffan's alerts are brought to you by Jarrod Steffan, Ph.D., a forensic and clinical psychologist based in Wichita, Kansas. For more information about Dr. Steffan, please visit his website.

California prisons 'cruel and unusual,' U.S. high court rules

In a historic decision, the Supreme Court of the United States has ruled that prison conditions in California are so bad that they violate the U.S. Constitution's ban on cruel and unusual punishment. Opining that the prison system produces "needless suffering and death" through its failure to deliver minimal medical and mental health care to serioiusly ill prisoners, the court ordered California to cut its massive prison population by more than 30,000 prisoners (still 137.5 percent over capacity) within the next two years. Rather than releasing prisoners outright, the state can ship them to other states or keep them in county jails. As Adam Liptak of the New York Times reports:

The majority opinion included photographs of inmates crowded into open gymnasium-style rooms and what Justice Kennedy described as 'telephone-booth-sized cages without toilets' used to house suicidal inmates. Suicide rates in the state's prisons, Justice Kennedy wrote, have been 80 percent higher than the national average. A lower court in the case said it was 'an uncontested fact' that 'an inmate in one of California’s prisons needlessly dies every six or seven days due to constitutional deficiencies.'

The court's ruling in Brown v. Plata is HERE.

Wallowa Lake diagnostic training

Sculpture on Main Street of Joseph, Oregon
with Eagle Cap Wilderness Area in background
(K Franklin)

On the day that the world didn't end, I found it fitting to be literally at the end of the road, giving a training on controversies in psychiatric diagnosis. The setting was Oregon’s picturesque Wallowa Lake, where for 26 years the Eastern Oregon Psychological Association has sponsored an annual retreat.


The mental health professionals at the retreat were a bright and independent bunch whose practices take them across scenic mountainous terrain to far-flung rural communities, Indian reservations, jails and psychiatric facilities in eastern Oregon, Washington and Idaho.


Since Oregon has avoided the Sexually Violent Predator quagmire, the practitioners – as well as the psychologists from Eastern Oregon University in La Grande in attendance -- were both amused and appalled to learn about the pseudoscientific constructs of hebephilia and paraphilic coercive disorder for which the sex offender industry is lobbying. Other controversial diagnoses and proposed diagnoses covered in the daylong workshop included:

• Posttraumatic Stress Disorder
• Antisocial Personality Disorder and Psychopathy
• Parental Alienation Syndrome
• Attenuated Psychosis Syndrome
• Mild Neurocognitive Disorder
• Disruptive Mood Dysregulation Disorder
• Premenstrual Dysphoric Disorder
• Traumatic Grief Disorder
• Gambling Disorder

Wallowa River as seen from Chief Joseph
Trail (K Franklin)

If you ever get a chance to attend this annual retreat, which is not well advertised but always takes place the weekend before Memorial Day Weekend, I recommend it highly. Not only is the crowd an enjoyable and intellectual one, but the setting is amazing. It's not for no reason that the Nez Perce consider sacred this valley butting up against the mountains of the Eagle Cap Wilderness Area.

The legendary Chief Joseph is buried on a glacial moraine overlooking the lake. The town named in his honor, Joseph, was a dying old ranching and mining community when it was discovered by artists who have reinvigorated the main drag, opening shuttered storefronts and installing amazing sculptures on every corner. Summer vacationers can now rub shoulders with cowboys and Indians in gourmet restaurants featuring local micro-brews and wines.

It's not an easy place to get to (one must catch a puddle jumper to Walla Walla, Washington or Pendleton, Oregon and then drive for several hours), but its breathtaking beauty and unique character make it well worth a visit.

Special thanks to David Starr, Dwight Mowry, Marianne Weaver, Terry Templeman, Charles Lyons, and Stephen and Beth Condon for all of your work and your kindness in arranging and facilitating this event.

The curious story of 'a reasonable degree of professional certainty'

I recently had a strange experience: An opposing attorney made a motion to exclude my report in a legal case, because I had not written that I held my expressed opinions "to a reasonable degree of psychological certainty." The attorney who had retained me was forced to scramble to obtain a written declaration from me, stating that I did indeed hold my opinions to this level of certitude. I typically do not include this magic phrase in reports, finding it rather obtuse and, frankly, pompous-sounding. So, when my colleague Dr. Worthen expressed knowledge about the phrase, I prevailed upon him to write this guest post. 

Guest post by Mark D. Worthen, Psy.D.*

Expert witnesses who testify based on their medical, psychological, or other scientific training and expertise, are often asked to express their opinions "to a reasonable degree of medical (or psychological or scientific) certainty." But what does this phrase mean and why is it used in legal proceedings?

Before exploring what the phrase means, let's first examine why the phrase is used in courts of law. As it turns out, the "reasonable degree of medical certainty" phrase developed almost by accident and has no clear rationale for its almost universal use. After conducting exhaustive research, law professor Jeff L. Lewin traces the origins of the phrase to Chicago, Illinois sometime between 1915 and 1930 [1]. Professor Lewin notes:

While the phrase was generated by the efforts of Illinois attorneys to comply with legal doctrine, litigators in other states adopted this curious phrase through unreflective imitation of models provided in a best-selling manual on trial technique. The phrase was then incorporated into legal doctrine through the judiciary's uncritical acceptance of this attorney usage. The judicial response to the phrase thus exemplifies the generation of legal rules by chance instead of by deliberate judicial choice.

In addition to lacking a clear rationale for its usage, the "reasonable degree of medical certainty" phrase also lacks a consistent definition.

Many professionals who use the phrase in their testimony have their own understandings of the phrase's meaning. For example, some assume that the phrase means that there is a preponderance of the evidence in support of their opinion, or that their opinion is "more likely than not" to be correct. Other professionals require more evidence: They assume that the phrase means that they possess "clear and convincing" evidence for their opinion or even that their opinion is accurate "beyond a reasonable doubt." On the other hand, most testifying experts probably do not have a pre-determined definition for the phrase and utter it simply because they know it is expected.

Although the phrase is not routinely used in the practice of medicine, psychology, or other scientific disciplines (have you ever seen a journal article that concluded, "To a reasonable degree of psychological certainty" we found that X caused Y?), textbooks written to provide guidance to professionals who testify in legal proceedings have offered various definitions. For example, the authors of Effective Medical Testifying: A Handbook for Physicians assert that the phrase means "more likely than not", i.e., 51% probability or more.

Black's Law Dictionary defines the phrase similarly: “A standard requiring a showing that the injury was more likely than not caused by a particular stimulus, based on the general consensus of recognized medical thought.”

However, courts have not always agreed with this definition. For example, the Superior Court of Pennsylvania in Griffen v. University of Pittsburgh ruled that a doctor who indicated that there was a 51% chance that a certain action caused an injury did not provide a sufficient basis for testifying to a reasonable degree of medical certainty. In declaring that 51% certainty was not certainty for the purposes of the law, the Court did not indicate what percentage of certainty is required.

In other cases, it seems that the courts don't care how confident an expert may be about his or her opinion. What matters is that they use the "magic phrase" during their testimony. For example, in a Missouri case:

... a medical doctor testified that he was ninety percent certain as to the causality of a condition. See Bertram v. Wunning, 385 S.W.2d 803, 807 (Mo. Ct. App. 1965), appeal after remand, 417 S.W.2d 120 (Mo. Ct. App. 1967). However, despite giving this high probability, he later retreated when asked to testify as to causation of the condition with “reasonable medical certainty.” In the end, notwithstanding the strong and “practically certain” testimony of the doctor, the Missouri court found the testimony to be insufficient because it lacked the “reasonable certainty” stamp of approval. [2]

Frustration with the inexactness of the phrase has led some to call for a clear-cut, agreed-upon definition.

The American Law Institute (ALI) declared, in its Restatement (Third) of Torts: Liability for Physical and Emotional Harm (§ 28, Comment e, 2010), that the phrase should be specifically defined to mean that an expert's opinion is "more likely than not" accurate. The ALI reasoned that the standard for "reasonable degree of medical certainty" should not exceed the standard of proof considered by juries in tort cases, i.e., a preponderance of the evidence.

Attorneys James M. Beck and Mark Herrmann argue that the ALI standard "dumbs down" expert witness testimony and that the reasons for the proposed changes are faulty in many respects. They argue that the use of "reasonable medical certainty" should be retained and that its meaning should come from the standards for decision-making commonly used in the expert's profession.

Attorney Nathan Schachtman also argues for continued use of the phrase:

Surely, however, the phrase is not semantically empty. “Certainty” has clear epistemic connotations and implications for the witness’s opinion, both in terms of his own state of mind, and in terms of the empirical support the witness has for his opinion in the form of reasonably relied upon data, and sound inferences to a reliable conclusion. Subjectively, the witness who utters the phrase acknowledges that he is not speculating and that he believes that his opinion satisfies professional standards for claims of knowledge. A witness who qualifies his opinion with these “magic words” communicates his willingness to put his professional reputation on the line, and to defend the opinion before his peers. Objectively, the phrase conveys the notion of reliable knowledge. To be sure, human beings may not enjoy “certainty” in their knowledge of empirical propositions, but the “reasonable” qualifier makes the entire phrase meaningful and important.

While the debate over the definition of the phrase and whether or not it should be used at all will no doubt continue, individual experts might rightly ask, "Well, what should I do if asked to give an opinion to a reasonable degree of professional certainty?"

Here are some suggestions:

1. Ask the attorney you're working with if he or she plans to use the phrase in his or her direct examination of you. If so, ensure that each of you understand what you mean by the phrase, so that you'll be ready in the event that opposing counsel or the court asks you to define what you mean by "reasonable professional certainty." It's unlikely that you will be asked to define the phrase but it's better to be prepared with an answer than to stumble and mumble.

2. Make sure that your definition comports with relevant case law in your jurisdiction. For example, in Pennsyvania, you would not want to say, "It means that it's more likely than not" (see above).

3. In terms of how to define the phrase, consider how your profession determines "reasonable certainty." For example, when do you consider an opinion certain enough to proceed with a given treatment (medicine or psychology) or to proceed with a certain construction plan (architecture or engineering)?

4. If you give a numerical representation of your confidence in your opinion, a savvy attorney might challenge you on your ability to determine your own level of confidence with accuracy, citing research on the overconfidence effect. Your best bet is to be familiar with this research and to err on the side of underestimating your confidence.

5. Better yet, avoid numerical representations of confidence and focus on the evidence for your opinion, rather than your confidence in your opinion. Think about it this way: Are jurors or judges more likely to be persuaded by explanation #1 or #2:

• Explanation #1: " 'Reasonable degree of psychological certainty' means that I am 75% sure of my opinion." 

• Explanation #2: " 'Reasonable degree of psychological certainty' means that I found clear and convincing evidence for my opinion."

6. Focusing on the evidence for your opinion is an important distinction because it redirects the trier of fact to the strenth of your argument, namely, the scientific methods and research evidence for your conclusions.

FOOTNOTES
 

1. The Genesis and Evolution of Legal Uncertainity About "Reasonable Medical Certainty," Maryland Law Review, 57, pp. 380-504, 1998.

2. From "An Enigmatic Degree of Medical Certainty" by Nelson Abbott and Landon Magnusson, Utah Bar Journal, July/August 2008 (Vol. 21 No. 4).

*Guest author Mark D. Worthen, Psy.D. is a clinical and forensic psychologist in Asheville, North Carolina. Visit him on the web at DrWorthen.net.