The Oklahoma Bar Journal March 2023

records. Some professionals might proceed with such an examination, but it is ill-advised in assessing dangerousness in the workplace and many other issues addressed by psychological evaluations. DIAGNOSIS CAN BE FLAWED The social sciences are consid ered a “soft science” because they often rely upon subjective decision making. Symptoms are reported by examinees, and if they are not accurate, it can compromise diag nostic accuracy. Moreover, clini cians are not human lie detectors; in fact, research suggests they can be fooled by deceptive clients. 2 If no objective form of testing is uti lized, it becomes even more diffi cult (at times) to arrive at accurate results. This is why the findings in many correctional centers, psychiatric hospitals and other settings can be questionable. The Rosenhan study (1973) demon strated the problems with diagno sis decades ago. The study used confederates, none of whom actu ally had a mental illness, who pre sented themselves at psychiatric hospitals. They reported that they had experienced what sounded like an auditory hallucination but aside from this claim, presented without other symptoms of mental illness. After admission, they denied hallucinations and acted completely normal. Nonetheless, they were hospitalized for weeks, the medical staff did not discern that the study participants were not actually mentally ill, and the participants were assigned seri ous diagnoses ( i.e. , schizophrenia, bipolar disorder, etc.). Of course, if you have much experience with the mental health system, you have probably already encountered the fact that the same person may be assigned an array of subjective diagnoses depend ing upon who examines them.

captured and replicated in sci entific studies. One of the first of these brilliant studies included over 100 forensic psychologists and psychiatrists who reviewed the same set of offender data to offer an opinion on dangerousness but believed they were being hired by either the defense or the pros ecution. 3 Care to take a guess as to the results? It showed that those working for the prosecution tended to score the offender as higher risk, while those working for the defense scored the offender as lower risk. Obviously, this study does not demonstrate that all experts (or any one expert) are biased, but it points to an inherent problem of the adversarial system. HIRED GUNS Although less common, some opinions are clearly for sale, as long ago asserted by the book Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice . In such cases, it often requires hiring your own expert to comb through the data and ascertain where the bias lies. It can also be useful for an attor ney to research the expert’s back ground ( i.e. , prior court rulings,

“Diagnostic momentum” occurs when a poor assessment and diag nosis is continued in subsequent reports and opinions with no criti cal analysis of how it was reached. These diagnoses often begin with a brief intake assessment, utilizing only a clinical interview. Once diagnosed, it can be very difficult to change perceptions, even if the initial diagnosis was inaccurate or the person’s symptoms changed over time. Skepticism should also be applied in considering the diagnoses obtained through Social Security disability income exams. Despite the evidence that research indicates malingering occurs in up to 50% of such evaluations, the U.S. Department of Health and Human Services (HHS oversees state Social Security programs) forbids the use of malingering tests and can severely limit the time and meth ods used to reach a diagnosis for their agency. In summary, not all evaluations are equal. ADVERSARIAL ALLEGIANCE Last but certainly not least, attorneys are, no doubt, aware that experts are sometimes biased toward the side retaining them. This phenomenon has been

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THE OKLAHOMA BAR JOURNAL