WATCH OUT FOR THE “PSYCHOPATHS” THE PSYCHOPATHY CHECKLIST-REVISED (PCL-R)©

Dec. 16, 2016 / by Eric Marcy


CHALLENGING SO-CALLED "OBJECTIVE" TESTING

THE USE AND ABUSE OF PSYCHOLOGICAL TESTING IN LITIGATION

          Nothing scares a fact finder like the designation that someone is a “psychopath.”  The name itself once attributed to a client is a title that an adversary will bludgeon your client with repeatedly in cross examination, briefing and/or decisions. Photo by EJM, Psychopath, 2.jpg

Once designated a “psychopath” expect the term to be repeated and reinforced in supporting adverse conclusions about your client.

          One misused testing instrument is the Hare Psychopathy Checklist-Revised, or PCL-R.©  The pejorative nature of the label “psychopath” is so compelling that in the minds of a prosecutor, juror, judge, or member of the parole board, it is guaranteed to either consciously or subconsciously skew how a client is perceived.  Its purported use as a reliable instrument capable of predicting violence is the subject of debate.  Jennifer L. Skeem, Kevin S. Douglas, Scott O. Lilienfeld “Psychological Science in the Courtroom: Consensus and Controversy” – Chapter 8, The Psychopathy Checklist in the Courtroom”, Guildford Press (2009).

          The test itself consists of a 20 item scale, while there are criminal history components to the scoring there are subjective items that purportedly measure remorse, conscience, insight, guilt, and grandiose self-image.  Edens, J.; Boccaccini, M.; Johnson,  “Inter-rater reliability of the PCL-R total and factor scores among psychopathic sex offenders: are personality features more prone to disagreement than behavioral features?”  Behavioral Sciences & the Law, Volume 28, Issue 1,  pages 106–119, January/February 2010.  It is the potential subjectivity in administration, possible “partisan allegiance” and an unreliable or inconsistent factual record that brings into question its reliability for use in the forensic setting.  Boccaccini, M; Darrel B.; Murrie, D., “Do some evaluators report consistently higher or lower PCL-R scores than others? Findings from a statewide sample of sexually violent predator evaluations,” Psychology, Public Policy, and Law, Vol 14(4), Nov 2008, 262-283;  Murrie, D.; Boccaccini, M.; Johnson, J.; Janke, C., “Does Interrater (Dis)agreement on psychopathy Checklist Scores in Sexually Violent Predator Trials Suggest Partisan Allegiance in Forensic Evaluations?”  Law, Human Behavior, (2007).

          While inter-rater reliability is reported in subjects who are similarly trained, the concern is that some of the studies supporting reliability involve studies with graduate students who received extensive and similar training.  Ibid. As may logically be expected, homogenous sampling is likely to generate homogeneous results.  Life and individuals are not so simple or Photo by EJM, Psychopath.jpgconsistent.  Such sampling cannot be extrapolated to reliability in a forensic adversarial situation, where foundation information may not be the same or reliable, or where the background and training of the evaluators may be quite different. Regardless of claims of any instrument being “objective” there is a level of subjectivity and partisan bias that any evaluator brings to a forensic evaluation.  The source and validity of underlying information must be scrutinized for accuracy, completeness and absence of bias.  While the PCL-R may be one component of an overall clinical or forensic evaluation, it should not be the sole or primary tool for deriving forensic conclusions.  If used in a forensic context it should be combined with a thorough clinical evaluation based on an accurate, unbiased and complete social history as well as other personality and risk assessment instruments.

          It should also be noted that the author of the test instrument, Robert Hare, has expressed reservations about the
inappropriate use of the  PCL-R for drawing forensic conclusions.  Robert Hare has stated that “I'm very concerned about the inappropriate use of this instrument for purposes that have serious implications for individuals and for society. It shouldn't work that way.”  http://www.npr.org/2011/05/26/136619689/can-a-test-really-tell-whos-a-psychopath

          Any use of the PCL-R to label a client a “psychopath” should be contested, the term itself should be challenged, for once branded with this Scarlet Letter – the argument is that the subject is never capable of rehabilitation, is forever dangerous, and any seemingly appropriate conduct and adjustment conceals and is evidence of a more pathological and malignant dark side. 

Topics: Mental Health, Criminal Law, Psychological Test, Parole, experts, Psychology

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 2017, 2009-2006. 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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