Protecting Raw Data and Psychological Tests from Wrongful Disclosure: A Primer on the Law and Other Persuasive Strategies

Abstract

Psychologists must advocate for more stringent legal protection of psychological test materials because using standardized tests is the most distinguishing and exclusive feature of psychological evaluation practice. With the rapid growth in forensic consulting, unrestrained discovery of raw data and psychological test materials during litigation erodes the reliability and validity of the test procedures. Dissemination of test materials reduces the interpretive value of the tests and promotes cheating, turning our best methods into junk science in the courtroom. This article proposes to reform the law and to revise the professional ethics of psychologists consistent with the strong public policy of test security as described by the U.S. Supreme Court in Detroit Edison v. NLRB (1979). Currently, federal courts and about 20 states protect psychological tests as a unique methodology, with some states enacting a psychologist nondisclosure privilege/duty to safeguard test materials from wrongful disclosure. The record management practices of psychologists vary considerably and are vulnerable to legal attack unless psychologists are aware of legal arguments to protect test materials from wrongful release. Although this article does not offer legal advice, it describes the most common records management problem confronting neuropsychologists and some practical solutions to the raw data problem. Best practice for protecting psychological tests requires the psychologist to understand the law and to assert the psychologist nondisclosure privilege. Other strategies are presented and evaluated. Organized psychology and the legal community should advocate for a uniform rule to protect the objectivity, fairness, and integrity psychological methods in litigation.

Collaboration: The Paradigm of Practice Approach between the Forensic Psychiatrist and the Forensic Psychologist

“…Other tests include the Halstead–Reitan Neuropsychological Battery, the Boston Naming Test, the Wisconsin Card Sorting Test, the Benton Visual Retention Test, and the Controlled Oral Word Association. This scientific approach to the investigation of brain–behavior relations provides forensic neuropsychology its unique professional standing (Kaufmann, 2009). Both forensic psychiatrists and forensic psychologists work in four major branches of the law: civil law, criminal law, family/domestic law, and regulatory law.…”

“…This rapid growth in forensic consulting leads to the unrestrained discovery of raw data and psychological test materials during a client’s litigation. Over exposure to discovery data has the potential to erode its reliability and validity because of multitudinous examination and diverse interpretations (Kaufmann, 2009). For example, how much examination and interpretation must take place with the Trayvon Martin case before public opinion, bias, and conjecture erode the reliability and validity of actual findings?…”

Ambiguous Measures of Unknown Constructs: The MMPI-2 Fake Bad Scale (aka Symptom Validity Scale, FBS, FBS-r)

“…Kaufmann (2009Kaufmann ( , p. 1150, one of the authors in BenPorath et al (2009a, b) describes the forensic cases cited above, providing another illustration of contradictory statements regarding the underlying facts of these cases. There, for example, Kaufmann (2009Kaufmann ( , p. 1150 indicates that Upchurch resulted in a ruling that successfully excluded expert testimony using the FBS and that in Solomon the ruling denied the plaintiffs' motion to exclude testimony about the FBS. Yet in the following statement from BenPorath et al (2009a, p. 2), they imply that the FBS was NOT excluded in both Upchurch and Solomon:…”

Interdisciplinary evaluation: interface between psychiatry and forensic psychology

“…These data show that the justice system is frequently dealing with questions that cannot be answered without the assistance of a multidisciplinary staff, which we see as an opportunity to expand the boundaries of the mere description of signs and symptoms and help the justice with a comprehensive assessment of the mental state of the individual in legal cases 4 . Thus the collaboration between these two professions has the potential to increase both the credibility and utility of forensic services to the courts 5 .…”