Preserving Due Process: Countering Sweet et al. (2024) on Test Disclosure

In the December 2024 issue of On Board with Professional Psychology, Sweet, Boone, and Beattey (Sweet et al., 2024) wrote “…protecting the security of psychological tests is crucial for maintaining the validity and future use of these instruments.” Sweet et al. also asserted, “We are aware that some of our specialist colleagues take the position that all test materials, including questions, answers, manuals, and interpretive guidelines, must be released to attorneys to ensure a ‘level playing field’ (i.e., adequate cross examination).” This is a partisan presentation, as Sweet et al. are surely aware of a difference of opinion about releasing test information in litigated matters as they and two others wrote a response to a paper we published on this very matter in a 2024 issue of Professional Psychology: Research and Practice (Frederick et al., 2024). Not only did Sweet et al. minimize counter-arguments to their position in their On Board piece, but they did not even cite our paper in their long list of references. We specifically approached PPRP to publish that paper and responses with the expressed intent of presenting all points of view in the journal’s regular “Ethics in Motion” section, edited by Jeffrey Younggren. In an attempt to provide On Board readers with a more complete discussion of the issue of test security in forensic settings, we offer here some additional perspectives on these matters.  

The primary flaw with the Sweet et al. argument in On Board is that psychologists and psychological organizations lack authoritative control over legal matters; this authority rests solely with the courts. So, when the authors assert that “specialist colleagues” take a position that all psychological test materials must be released to attorneys to “level the playing field,” we respond by saying we recognize it is an element of American jurisprudence that all parties are ensured a level playing field by the Constitutional protections of due process, and a key component of due process is that experts can be required to disclose the basis of their opinions (see Fed. R. Evid. 703, 2023; Fed. R. Civ. Pr. 26, 2023; Fed. R. Crim. Pr. 16). This means that if attorneys representing the best interests of their clients demand to see the test materials and data on which expert psychological opinion is based, then trial court judges are likely to grant those requests, even when psychologists claim they cannot or will not do so.

A good example of this is documented in the recent case of Randy’s Trucking, in which a defense-retained neuropsychologist refused to follow a trial judge’s directive to make her [anticipated] test data available to plaintiff’s counsel under a protective order that prohibited the defense attorney or their staff from publicly disclosing the test information. The neuropsychologist declined to participate in the examination under these conditions, and the defense attorney appealed the judge’s decision. The appellate court upheld the trial judge’s decision to employ a protective order and noted:

While [the neuropsychologist] explained the dangers associated with [third party observation], she did not explain why a protective order would not ameliorate those dangers. She also did not explain why her ethical obligations would be violated if a court ordered her to disclose that raw data and audio recording to plaintiffs’ attorney subject to a protective order…Weighed against this evidence is plaintiff’s right to take discovery and cross-examine defendants’ expert witnesses, which includes being able to examine the expert on the matter upon which the expert’s opinion is based and the reasons for the opinion. Without the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was (sic) collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist’s opinion. While defendants assert plaintiff’s attorneys could not interpret the test materials, they would not necessarily be required to do so to use the materials for purposes of cross-examination, since disclosure of these materials may help to protect against abuse and disputes over what transpired during the examination…Defendants argue it is sufficient to transmit the raw data and audio to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, the attorney must themselves possess more than a second-hand understanding of the information being scrutinized. (pp. 20-21)

The way that we disagree with Sweet et al. is effectively captured in this language cited by the appellate court:

1.  Properly crafted, a trial court’s protective order protects psychologists’ interests in safeguarding certain test information from public distribution.
2.  The basis of expert opinions developed through psychological test administration is effectively captured by recordings of their examinations, test questions and answers, manuals, and interpretive guidelines. Psychologists who insist on preventing disclosure of the basis of their opinions interfere with litigants’ rights to carry out discovery and cross-examine experts. Furthermore, inspection of the examination itself and the test materials may help protect against misbehavior by examiners and settle disputes over what transpired during the examination.
3. Attorneys, to be effective, must possess more than a second-hand understanding of the information being scrutinized. Sweet et al. argue that putting the information directly into the hands of attorneys creates a “substantial risk of misinformation being presented to the finders of fact.” This view (besides representing a usurpation of the role of psychologists in litigated matters) fails to consider that rules of evidence and trial judge oversight offer opportunities to address potential misrepresentation of information during direct examination and cross-examination.

Two test publishers, Pearson Assessments (Pearson Policies) and Psychological Assessment Resources (PAR Inc. Policies) have posted policies on their websites about the release of test information that request that psychologists obtain the very sort of protection discussed in the Randy’s Trucking case—a court’s protective order limiting and restricting the public disclosure of sensitive test information.  And, in 2016, APA’s Committee on Legal Issues (COLI) explained how psychologists may ethically respond to court-ordered delivery of test materials to non-psychologists, explicitly mentioning “issuance of a protective order against dissemination of a test instrument or protocols” (p.5).

Finally, we note that APA’s Ethics Code (EPPCC) (1.02) specifically cautions that if their ethical responsibilities seem to conflict with “law, regulations, or other governing legal authority,” psychologists “take reasonable steps to resolve the conflict consistent with the General Principles and Ethical Standards of the Ethics Code. Under no circumstances may this standard be used to justify or defend violating human rights.” We believe that constitutionally guaranteed due process protections of discovery and cross-examination are within this ambit of “human rights,” and we do believe psychologists should not interfere with the courts’ protection of these rights.

The American Academy of Forensic Psychology (AAFP) was the first specialty organization to develop guidelines for specialty practice.  The Specialty Guidelines for Forensic Psychology (SGFP), which now represent the official policy of the American Psychological Association, emphasize the need for transparency and integrity when practicing in legal settings, which includes avoiding “partisan presentation of unrepresentative, incomplete, or inaccurate evidence that might mislead finders of fact.” As noted in Guideline 10.06, “Forensic practitioners are encouraged to recognize the importance of documenting all data they consider with enough detail and quality to allow for reasonable judicial scrutiny and adequate discovery by all parties.” We respect the level playing field anticipated by American jurisprudence.

In October 2024, AAFP presented to its membership a policy proposal regarding test security and the proper response to legal demands to review sensitive test information.  The proposal underwent four weeks of open discussion on the official AAFP listserv and then was voted upon. The standard for approval is that a quorum (1/3 of active AAFP members) vote, and 70% of those voting approve the proposed policy. Voting began on November 4, 2024, and was completed on November 10, 2024. The policy, summarized below, was approved by a vote of 182 to 3 (98.4%): 

It is the official position of the American Academy of Forensic Psychology that, when psychologists engaged in forensic practice are required by court rules or orders to allow the observation of psychological testing by non-psychologist third parties, are required to record psychological test administration when such tests are employed during forensic evaluations, or must disclose sensitive test data or materials to non-psychologists, it is ethical to engage in such actions subject to a judge’s protective order or other negotiated remedy that prevents public distribution of sensitive test materials (AAFP Position Statement).

Sweet et al. refer to some “de facto subspecialty of Forensic Neuropsychology.” In 2021, the American Board of Clinical Neuropsychology (ABCN) proposed that the American Board of Professional Psychology (ABPP) Board of Trustees establish a subspecialty in forensic neuropsychology. This proposal was not supported for further consideration or review, highlighting the importance of recognizing established specialties within psychology, particularly forensic psychology. As noted in the SGFP preamble, “[p]sychological practice is not considered forensic solely because the conduct takes place in, or the product is presented in, a tribunal or other judicial, legislative, or administrative forum. Forensic practitioners recognize the importance of obtaining a fundamental and reasonable level of knowledge and understanding of the legal and professional standards, laws, rules, and precedents that govern their participation in legal proceedings and that guide the impact of their services on service recipients…Forensic practitioners aspire to manage their professional conduct in a manner that does not threaten or impair the rights of affected individuals” (Guideline 2.04).

Our view is that it is antithetical to ethical forensic practice to promote actions that potentially abrogate the legal rights of litigants in criminal or civil proceedings. Although protective orders cannot guarantee “perfect and unassailable test security” (Frederick et al.), no evidence proves their ineffectiveness. Further, there is no evidence to date that any psychological tests have been damaged or rendered obsolete or invalid as a result of having sensitive test information released subject to a trial court’s protective order. Psychologists who demand that the legal system make special accommodations for them and their techniques may be perceived as arrogant and ultimately run the risk that the legal system will choose to exclude them, their data, and their testimony.