The Oklahoma Bar Journal March 2023

professionals ( i.e. , psychiatrists, social workers, etc.) who do not have the appropriate educational background and training to receive such materials. The only other way to obtain test data is by court order. Many psychological “tests” are composed of self-report checklists with no measure of validity. All measures are not equally valid and reliable. In some cases, these checklists are presented as “tests” but are easily defeated by an exam inee and do not hold up under cross-examination. Several years ago, I encountered an expert who claimed that a defendant charged with a violent sex offense did not have deviant sexual interests based upon his completion of a checklist with questions like, “Even when women claim they don’t want to be sexually touched, they really enjoy it.” Unless the examinee is of extremely low intelligence, they know how to answer this question to present themselves as less devi ant. If the attorney was not armed with details about this “test,” the cross-examination might have gone very differently. Moreover, had the attorney who retained this expert been aware of the nature of this “test,” the attorney might have prepared differently. There are resource materials that can serve as useful aids in determining the quality of a test. 1 Tests are also frequently updated, so you should

ensure a practitioner is using the current version. Once you have access to the underlying test data, you may be surprised by what can be revealed. It is not uncommon, in my expe rience, to find that psychologists made errors in simple addition, changing the scores and sometimes the interpretation. More egregious errors are also sometimes discov ered. Not long ago, I was involved in a murder case where the oppos ing expert clearly stated in their report that a specific psychological test showed no evidence of aggres sion or a personality disorder. That expert, and the retaining attorney, curiously agreed to hand over all the data except for the computer printout from that one test. After it was obtained by court order, the test printout possessed by that expert revealed the expert’s claim was blatantly false, with the document specifically noting high scores related to aggression and a possible personality disorder. In another case from several years ago, it was discovered that a prom inent psychologist had created a second false protocol without anyone’s knowledge.

to the attorneys retaining their services. This is not, in my opinion, usually an intentional slanting of opinions but our natural human inherent trait of providing what is requested. Although well-trained experts employ strategies to avoid bias, it is only upon questioning and closely examining the meth odologies employed to arrive at an opinion if these strategies were implemented. An attorney’s ability to review and demonstrate in open court how a professional misrepresented data can be crucial in cross-examination. This could include a review of clinical notes, assistant’s notes, computer-generated reports and even the raw data from psychological testing. There are specific processes for obtaining test materials ( e.g. , test responses, computer-generated reports, etc.) because they are considered trademark secrets by the companies that issue them. Under most circumstances, experts are barred from releasing such materials directly to attorneys due to both ethical tenants and owner ship agreements with the testing companies. Experts are allowed to forward test materials to other appropriately trained and licensed professionals, which will require you to hire such an expert if you have not already. It should be noted that this typically does not include some of the aforementioned

USE OF ASSISTANTS

Mental health professionals often choose to use lesser-qualified assistants who are not licensed professionals ( e.g. , “psychological

Many psychological “tests” are composed of self report checklists with no measure of validity. All measures are not equally valid and reliable.

34 | MARCH 2023

THE OKLAHOMA BAR JOURNAL