MISUSE OF PSYCHOLOGICAL TESTS IN COURT

Jul. 7, 2015 / by Eric Marcy

THE MINNESOTA MULTIPHASIC PERSONALITY INVENTORY (“MMPI-2”)

CHALLENGING THE MMPI-2

The use of the MMPI-2 is not designed for specific forensic evaluations (i.e. evaluations for legal issues). The MMPI-2 is what is called “broad-band test.” That means it is a tool for general diagnosis. It is based upon test results taken from populations of individuals with already determined psychiatric diagnoses and personality traits to enable psychologists to test a subject and assist in rendering a diagnosis. Without a proper and fair clinical evaluation, the use of MMPI-2 by itself is an unreliable tool for forensic evaluations that present serious legal consequences.

The MMPI-2 was not specifically designed for the purpose of evaluating individuals in the context of custodial parental risk assessments, suitability for parole, nor to assess whether someone will succeed in a community supervised release program, nor for a determination whether the individual will commit a crime if released. MMPI-2, Manual for Administration and Scoring, S.R. Hathaway and J.C. McKinley (1991), page 1.

Persons being evaluated in the court or correctional systems will not answer questions as would a member of the general population. Inmates taking the MMPI-2 test are likely to be acutely aware to the fact that they are being evaluated for potential release from prison. Parents who may be required to submit to an MMPI-2 test as part of a risk assessment are likely to be acutely aware of the fact that their ability to have custody or visitation of their children may be dependent upon how they answer questions and the test results. The result is that in a forensic setting answers may be skewed to present oneself in the best possible light and seeking to minimize or deny any flaws.

Although the MMPI-2 has “validity” tests to attempt to determine the reliability and accuracy of test results, the Manual for Administration specifically warns about the “Idealized Personality” – that is, subjects who may “systematically describe someone whom they envision as having a perfect personality or an ideal adjustment. The resulting records provide poor basis for making inferences about these subjects.” Id., at 22-23. Although the MMPI-2 attempts to build in validity measures, it cannot be concluded that those measures properly adjust for the context of a subject’s individual legal situation. In a forensic setting, where one is expecting to be considered and evaluated on issues that will have serious legal consequences (especially in the context of sentencing, suitability for parole, or child custody), it is natural that a subject may try to portray oneself as favorably as possible and not admit to weaknesses or pathology.

An additional issue is presented by the fact that those administering the MMPI-2 can actually purchase a various proprietary software products for scoring the test and generating a computer based narrative report. An example of the kind of “psychobable” that can be generated may be found in a case that I personally handled, the Cestari case, where the psychologist “opined”:

Mr. Cestari's performance on the Subtle-Obvious items, items which either are quite clearly on their face indicative of pathology as opposed to having little apparent, but a strong actual relationship to pathology, suggests that he purposely and consciously avoided answering these items in a pathological direction. Thus, while the average normal will answer 31 of 146 of these items in the pathological direction, Mr. Cestari answered only 7 of them in the pathological direction. This suggests conscious avoidance of admitting pathology.

Clinically, given Mr. Cestari's obvious attempt to deny problems on the MMPI his profile is a significant one. Although just below the level for clinical significance, the pattern of elevations of scales is consistent with a person who is quite hostile and angry, but maintains a facade of normalcy that is quite prone to deterioration under stress leaving the individual prone to inexplicable aggression. These individuals tend to be quite out of touch with their feelings until they become too strong to deny or until their controls are weakened by alcohol. Although they appear quite socially appropriate outwardly, they are inwardly quite rebellious, sensitive to rejection, and prone to outbursts of hostility when criticized. They are quite self-centered, narcissistic and grandiose. They often deny psychological problems of any sort and express a very naive, pollyannaish, black and white attitude toward the world.

New Jersey State Parole Board v. Cestari, 224 N.J.Super. 534, 543-544 (App. Div. 1988), certif. denied 111 N.J. 649 (1988).

The Cestari decision is an example where a subject being evaluated knew it would have a significant legal impact on his legal status. His natural and normal reaction was to try to present him in the most positive light and to minimize any responses that might sound pathological. The result was that in this forensic test situation, a parole evaluation, the MMPI-2 generated the “noise” that is set forth above. The reliability of a psychological examination is seriously compromised when the test itself is administered in a context for which it was not designed.

Additionally, the MMPI-2 does not account for the actual environment and life situation of a prisoner. Someone who is incarcerated exists in a vastly different world than a person in the general population. The test itself will elicit responses that reflect the reality of prison life and skew the scores. For example, there is a scale for measuring paranoia and there are questions specifically designed to elicit responses of indicative of paranoia. In the context of a prisoner, responses that “someone has it in for me,” “my conduct is largely controlled by others,” and other similar questions to test for paranoia may be factually accurate responses in an inmate’s actual life situation. Such responses given by a subject in a general population would be indicative of paranoia.

The MMPI-2 Consists of 567 True-False Questions The MMPI-2 Consists of 567 True-False Questions

Another risk for a client in taking the MMPI-2 involves the misuse by attorneys in the actual responses given to the questions, the “raw data.” If an attorney has access to the raw data, the answers to questions may be used to attack the credibility of the person or to argue the existence of pathology. If a person admits to flaws, admits to some questions that are suggestions of pathology, that raw data may be taken out of the context and used in briefing and/or used in cross examination.

Ethical test usage requires “assurance that the results will be respected, protected, and used for the benefit and enhancement of [the test subjects] welfare.” The purpose of the MMPI-2 is not fulfilled in the forensic context. The context of a forensic exam involves a legal assessment and, in part, a moral judgment of someone’s suitability for parenting, parole, sentencing, or some other significant legal consequence. In the forensic context the MMPI-2 is not being used for the benefit and enhancement of the subject’s welfare and the subject knows it and may consciously or subconsciously try to adjust for that fact. The most appropriate context for the use of the MMPI-2 is for assessing diagnostic issues for the purposes of treatment. When used in a forensic setting its use becomes judgmental and the legal and factual context may skew how a subject will respond to questions.

Sole reliance on the MMPI-2 is not an appropriate in any forensic examination where the subject is acutely aware of potential serious legal consequences or where an individual’s actual life circumstances may result in truthful responses that may provide false positives for pathology. In the context of risk assessments, parole determinations, and other forensic settings since the MMPI-2 is a “broad band,” a general diagnostic tool, it may over-diagnose or be misleading. While the MMPI-2 is well established and well regarded test, its use in certain forensic settings and elevations of certain scales must be critically evaluated to account for the forensic and factual context of the subject.

In the context of parole evaluations the reliability of the MMPI-2 may be compromised. The MMPI-2 should not and cannot be accurately determine the ultimate questions of whether an individual will commit a crime if paroled or whether an individual will comply with conditions of parole. The MMPI-2 was never intended to predict violence, never intended to determine suitability for parole, and never intended to predict if a person might commit a crime.

If the MMPI-2 is used in a forensic setting, the computer generated narrative reports should not be the sole basis of an opinion. Any fair, professional, and ethical evaluation should take into consideration and make honest and careful adjustments for the subject’s factual context and account for the fact that knowledge of the forensic purpose of the test may skew the results and reduce the reliability of the instrument.

In many instances, if administered and interpreted properly, the MMPI-2 may be legitimately used as one component of a forensic evaluation. However, if certain scales, for example, paranoia, depression, psychopathic deviate, etc., are relied upon to prove some form of pathology, or the administrator concludes that the subject has an “idealized personality,” the test results should be scrutinized and challenged. Such results may not be the result of pathology, but rather the context of the administration, the life situation of the subject, and the interpretation by the computer and/or evaluator.

In those instances where conclusions are drawn about “pathology,” obtaining and independently evaluating the “raw data,” may be critical in challenging the efficacy of the administration of the test and in evaluating the credibility of the evaluator’s conclusions. Attorneys should not blindly accept the results of an MMPI-2 in the forensic legal context. With any negative MMPI-2 result, counsel should consider retaining an expert to review and re-score the raw data. Negative or pathological results should be carefully evaluated within the context of the subject’s life and legal situation. No counsel should permit a negative or “pathological” MMPI report to go unquestioned and unchallenged.

Topics: Criminal Defense, Scientific Evidence, Criminal Law, Parole, Health Care, Evidence

Eric Marcy

Written by Eric Marcy

Eric Marcy is a Shareholder at Wilentz, Goldman, & Spitzer, PA, 90 Woodbridge Center Drive, P.O. Box 10, Woodbridge, N.J. 07095. He has been employed with the firm since September of 1985 and has a wide variety of experience in criminal, civil, and administrative litigation. View Mr. Marcy’s bio at www.wilentz.com/eric-john-marcy.

Mr. Marcy has been a member of the New Jersey Association of Criminal Defense Lawyers since 1987. He served as a Trustee of the NJ-ACDL from 2001 to 2010. He also served on the legislative committee and instrumental in creating Association’s website and served as the website administrator for the NJ-ACDL (www.acdlnj.org).

Mr. Marcy served as an instructor for the Institute of Continuing Legal Education Criminal Practice “Skills and Methods” program for newly admitted attorneys from 2000 to 2009.

Mr. Marcy has served as a panelist on credited Continuing Legal Education programs on Ethics, Municipal Liability, and Police Liability for the New Jersey Association for Justice, the National Business Institute, and Lorman Educational Services.

Mr. Marcy has been selected for inclusion in New Jersey Super Lawyers® lists 2006-2009. Super Lawyers is published by Thomson Reuters. A description of their selection process can be found in the respective link above. The aforementioned organization is a private peer review organization, not a court specific public certification vehicle. No aspect of this advertisement has been submitted to or approved by the Supreme Court of New Jersey.

He is also an authorized attorney under the New Jersey State PBA Legal Protection Plan, representing law enforcement officers in administrative, civil and criminal matters.

Inquiries may be directed to him by telephone at 732-855-6004 or by email at emarcy@wilentz.com.

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