Attorney demands for protected psychological test information: Is access necessary for cross examination or does it lead to misinformation? An interorganizational* position paper.

Objective: Some attorneys claim that to adequately cross examine neuropsychological experts, they require direct access to protected test information, rather than having test data analyzed by retained neuropsychological experts. The objective of this paper is to critically examine whether direct access to protected test materials by attorneys is indeed necessary, appropriate, and useful to the trier-of-fact. Method: Examples are provided of the types of nonscientific misinformation that occur when attorneys, who lack adequate training in testing, attempt to independently interpret neurocognitive/psychological test data. Results: Release of protected test information to attorneys introduces inaccurate information to the trier of fact, and jeopardizes future use of tests because non-psychologists are not ethically bound to protect test content. Conclusion: The public policy underlying the right of attorneys to seek possibly relevant documents should not outweigh the damage to tests and resultant misinformation that arise when protected test information is released directly to attorneys. The solution recommended by neuropsychological/psychological organizations and test publishers is to have protected psychological test information exchanged directly and only between clinical psychologist/neuropsychologist experts.

The misjudgment of criminal responsibility.

Generally, a criminal statute must consist of two essential elements: a description of the forbidden act (actus reus) and a designation of a guilty mental state (mens rea). For a crime to be committed, an individual must commit the forbidden act with the culpable mental state. For any criminal act, both criminal liability and the possible punishment turn largely on retrospective judgments by legal decision-makers about what a defendant was or was not thinking at the time of committing the forbidden act. Given the central and foundational nature of this legal judgment, there is surprisingly little empirical study of how the mens rea construct functions. Shen and colleagues have studied the reliability of mock jurors' ability to distinguish between the various mental state categories defined in the Model Penal Code and have identified some support for jurors' ability to reliably sort "guilty minds" into their "correct" categories (Shen, Hoffman, Jones, Greene, & Marois, ). The present study builds on this work by examining mock jurors' ability to reliably and "accurately" judge a defendant's mens rea at the time of an offense under conditions reflecting how criminal jurors are tasked with judging a defendant's mens rea. It was hypothesized that folk psychology models of human behavior that generally presume a high degree of personal control and responsibility would bias individuals' judgments of others' criminal behavior in the direction of reflecting intentional and purposeful conduct. Overall, results demonstrate that, in a surprisingly high percentage of cases across many conditions, individual decision-makers are indeed likely to attribute the most culpable mental state (purpose) to defendants, even when the facts on the record are judged by legal experts to depict no more than negligent or reckless conduct.

Caution warranted in extrapolating from Boston Naming Test item gradation construct.

The Boston Naming Test (BNT) was designed to present items in order of difficulty based on word frequency. Changes in word frequencies over time, however, would frustrate extrapolation in clinical and research settings based on the theoretical construct because performance on the BNT might reflect changes in ecological frequency of the test items, rather than performance across items of increasing difficulty. This study identifies the ecological frequency of BNT items at the time of publication using the American Heritage Word Frequency Book and determines changes in frequency over time based on the frequency distribution of BNT items across a current corpus, the Corpus of Contemporary American English. Findings reveal an uneven distribution of BNT items across 2 corpora and instances of negligible differentiation in relative word frequency across test items. As BNT items are not presented in order from least to most frequent, clinicians and researchers should exercise caution in relying on the BNT as presenting items in increasing order of difficulty. A method is proposed for distributing confrontation-naming items to be explicitly measured against test items that are normally distributed across the corpus of a given language.