Admissibility of neuropsychological testimony after Daubert and Kumho

Neuropsychological testing has been used in court cases all over the United States, as testimony to provide evidence of whether or not a person has a traumatic brain injury. It has, however, been scrutinized for its admissibility in court, but recognized for objectivity in successfully documenting and proving deficits in people with traumatic brain injuries. The trial court is used as a gatekeeper, and may chose to perform assessments of the tests themselves, for validity of sensitivity, specificity, reliability and validity in determining whether a neuropsychological test may be used as testimony in a court case.     

Presenting neuropsychological evidence in traumatic brain injury litigation

Abstract

The purpose of this paper is to educate the reader about some of the issues involved in presenting neuropsychological evidence in cases where a traumatic brain injury (TBI) is either obvious or suspected. Particular emphasis will be directed toward the admissibility of neuropsychological evidence and clarifying the roles of neuropsychologists as treaters and experts. Some strategies will also be presented to assist neuropsychologists in preparing to give opinion testimony.     

Expert testimony by neuropsychologists: Addendum to Schwartz and Satz

Three recent appellate court decisions in Illinois affirming the admissibility of testimony by psychologists on brain impairment are discussed in light of two recent reviews in TCN of cases in Florida and North Carolina restricting such testimony. A brief presentation on Federal guidelines regarding expert testimony is followed by a discussion of the implications of these contradictory rulings across jurisdictions for clinical practice.     

Male Sexual Assault of Women: Origins,Motivations, and Treatment

Abstract

For more than 20 years I have evaluated recidivist sexual offenders’ risk of reoffending after they complete their prison terms. In written reports and court testimony I provide an expert opinion on whether these men should be released into the community or remain in a secure treatment facility. In this article, I explore the reasons men sexually assault women and discuss the changes they need to make—and capacities they need to develop—to reduce their risk of reoffending. I use a case example to illustrate these points.     

Presence of third parties during neuropsychological evaluations: Who is evaluating whom?

Abstract

State and federal laws and court decisions that address requests for the presence or absence of third party observers during forensic evaluations are reviewed, as are the legal arguments for both their inclusion and exclusion. Potential sources of interference created by observer's presence during the neuropsychological evaluation are outlined with reference to the Ethical Principles of Psychologists and Code of Conduct of the American Psychological Association, the Specialty Guidelines for Forensic Psychologists: Committee on Ethical Guidelines for Forensic Psychologists, and the Standards for Educational and Psychological Testing. The relevant empirical literature dealing with the phenomenon of social facilitation is also presented. Guidelines are offered for use by the neuropsychologist who receives a request for observation by a third party.     

Cognitive functioning and adjudicative competence: defendants referred for neuropsychological evaluation in a psychiatric inpatient setting*

Objective: A paucity of peer-reviewed research exists regarding the relation between cognitive functioning and adjudicative competence, despite increasing awareness of cognitive deficits associated with serious mental illness. This retrospective study sought to add to and expand upon existing research by considering performance validity and court determinations of competence, when available. Method: We compared demographic and cognitive variables of a group of defendants with presumed valid testing admitted to an inpatient psychiatric facility for evaluation of adjudicative competence and referred for neuropsychological evaluation (n = 45) and compared individuals determined by the evaluator and/or the court to be competent (n = 30) and incompetent (n = 15). Results: Defendants who were incompetent were more likely to be diagnosed with a cognitive disorder, with a medium effect size. There was a difference in tests of immediate and delayed memory as measured by the Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), with medium to large effects, and high delayed memory scores were helpful in ruling out incompetence (Negative predictive power = 85.71%). Conclusions: These results provide support for the relationship between cognitive functioning and trial competence, particularly at high and low levels of performance.     

Mode of Children's Testimony and the Effect of Assumptions about Credibility

Due to changes in legislation, children's testimony in many jurisdictions can be presented differently to the way in which most adults’ testimony is presented. The present research was conducted to investigate whether the various ways in which children's testimony is given affects how child victims in cases of child sexual assault are perceived in terms of reliability and how their testimony is evaluated. We examined the effect of giving testimony in court via closed-circuit TV (CCTV), via a pre-recorded testimony, and a combination of the two. The results indicate that the timing of the recording of the testimony, and the presence of the child in court, did affect the use of stereotypes in ratings of the case. Stereotypes about children's memories had an effect when an early recording of the child's testimony was lacking and when the child did not appear in court. Furthermore, the effect of these stereotypes was mediated by perceptions of the honesty and accuracy of the child in the case. This indicates that jurors do appear to use assumptions about children's memories and authenticity when making decisions in these kinds of cases.     

Neurolitigation: a perspective on the elements of expert testimony for extending the Daubert challenge

Scientific expert witness testimony has the potential for affecting most court decisions in civil and criminal proceedings. Since experts were first utilized in English courts beginning in the 14th century, most contemporary courts struggle with seeking a balance between plaintiff and defense counsel allowing each party its day in court while taking into account the work which other courts have done previously in determining the admissibility of expert witness testimony. When these challenges present themselves in the courtroom, often other courts have approached these identical issues, many in proceedings involving the same expert(s). Confronted with these challenges, trial judges want to understand whether a new Daubert hearing must be held, deal with the issue from a clean slate approach or whether they must reinvent the proverbial wheel. Given these dilemmas, this exposition is based within a heuristic approach that will focus on the consideration of comprehensive data inclusion from an evidentiary foundation as it applies to expert witness testimony admissibility in neurolitigation. While the evidential force of FRE 702 specifically applies to admissibility of scientific evidence, it makes sense that along with scientific, objective data, inclusion of non-medical and other data in forming and admitting expert opinions, have mutual bearing upon the validity of opinions arrived at through neuropsychological assessment. It is these multi-data that should be factored into account when applying the Federal Rule of Evidence 702 scientific admissibility standard. Data from other relevant sources is just as vital as data obtained from objective measures, and co-exists with objective data. Without the integration of this information into resulting diagnostic data and opinions, one's methodology is open to scrutiny and can willfully be characterized as engaging in "junk science". Specific, pragmatic issues are discussed in order to avoid the plausible "junk science" question and to ultimately arrive at a factual and evidenced-based admissibility and reliability determination for the courts. Given the current standard, this article proposes an inclusionary method in neurolitigation as it would necessarily apply to Federal Rule of Evidence 702 which would extend to the integration of data outside medical and scientific information bases to establish accurate opinions for the trier of fact. In so doing, neuropsychological test data, non-medical data and expert testimony would be strengthened through inter-data consistency.     

The patient–psychologist relationship and informed consent in neuropsychological evaluations

Objective: To discuss specific issues regarding consent for neuropsychological evaluation and the patient–psychologist relationship within the context of the Ethics Code of the American Psychological Association and relevant literature.

Method: The author makes recommendations based on the Ethics Code and published sources. This article is advisory and does not prescribe ethical practice.

Conclusions: The presence or absence of a patient–psychologist relationship is an essential consideration. The consent process varies, depending on the absence or existence of a patient–psychologist relationship and the type of evaluation. Circumstances when the examiner has the option of establishing a patient–psychologist relationship and guidelines regarding multiple relationships affecting legal testimony by treating providers are considered. Differences in the consent process between clinical and forensic evaluations, and the need for tailoring the consent process for the specific type of clinical or forensic evaluation, are emphasized. Specific provisions that can be included in consent forms in clinical and forensic evaluations, the rationale for their inclusion, and the benefits of consent to both the examiner and the examinee are considered. Circumstances are defined that dictate the need for assent rather than consent. The consent process is discussed in relation to evaluations of fitness for duty and civil capacity. Mandatory reporting of impaired drivers in some jurisdictions, fee agreements, and other issues are considered. Guidance is provided on role limitations in legal testimony by a clinical evaluator that addresses conflicting recommendations now in the literature.     

Expert beliefs and practices regarding neuropsychological validity testing

Objective: The current study investigated expert beliefs and practices as they relate to neuropsychological validity testing. Methods: North American neuropsychologists with expertise in neuropsychological validity testing (n = 24) were surveyed on numerous items related to validity testing. Results were analyzed and compared to findings from a prior expert survey and a recent survey of a general sample of neuropsychological practitioners. Results: Responses varied among experts on some items, indicating that experts have differences of opinion and practice regarding certain validity testing topics. However, expert opinion converged on a number of topics central to validity testing, particularly those highlighting the need for and importance of validity testing in neuropsychological assessment. Notably, expert responses on these topics often agreed with responses obtained from a prior expert sample and a general sample of neuropsychological practitioners. Conclusions: The results allow practitioners to see the range of validity testing beliefs and practices among current experts. Especially in those areas where consensus emerged, the results provide a way for practitioners to determine if their practices are consistent with those of their expert colleagues.     

Framework for assessing individuals with rare genetic disorders associated with profound intellectual and multiple disabilities (PIMD): the example of Phelan McDermid Syndrome

Abstract

Background: Specialized strategies are needed to understand the complex neuropsychological impairments reported in individuals with profound intellectual and multiple disabilities (PIMD) associated with rare genetic disorders. Methods: This narrative review focuses on assessment of individuals with Phelan-McDermid Syndrome (PMS) as a condition commonly associated with PIMD. Published case series and prospective studies were reviewed to evaluate approaches to cognitive, language, motor/sensory, and behavioral domains. This review is framed using general principles for neuropsychological evaluation in PIMD. Results: Neuropsychological assessment domains and tools varied across published reports. Adaptive behavior measures, out-of-range developmental assessments, and social-communication measures were commonly used. Available findings were used to shape a recommended framework with potential to improve measurement of clinical outcomes and advance scientific discovery. Conclusions: The recommended framework outlines an inter-disciplinary and multimodal neuropsychological assessment process relying on modified standardized assessments, functional assessments, and caregiver/informant reports when evaluating individuals with PIMD. Arrested development and skill variability/regression are also discussed as additional, important considerations in neuropsychological evaluation of individuals with PIMD and rare genetic disorders.     

Listening to My Mother's Testimony

Abstract

The article opens with a discussion of the complex inter-relationship between psychoanalysis and testimony. This is followed by a close reading of the author's mother's testimony, viewed for the first time 26 years after it was originally taken by him. The multiple perspectives of this viewing are elucidated: the five-year-old boy through whom the mother tells her story; the adult who has his own memories of the shared survival experiences; the interviewer who listens to the mother and to himself; and the psychoanalyst who reflects on what he hears and what he picks up on repeated hearings of the testimony, noticing market shifts in his own countertransference responses, which enhance his comprehension. Special themes are highlighted, as well as interactions between memories which may illustrate intergenerational transmission of trauma in the making. Three transcribed video excerpts are presented with detailed commentary by the author of this article.     

Online cognition: factors facilitating reliable online neuropsychological test results

Objective: Online neuropsychological test batteries could allow for large-scale cognitive data collection in clinical studies. However, the few online neuropsychological test batteries that are currently available often still require supervision or lack proper psychometric evaluation. In this paper, we have outlined prerequisites for proper development and use of online neuropsychological tests, with the focus on reliable measurement of cognitive function in an unmonitored setting.Method: First, we identified several technical, contextual, and psychological factors that should be taken into account in order to facilitate reliable test results of online tests in the unmonitored setting. Second, we outlined a methodology of quality assurance needed in order to obtain reliable cognitive data in the long run.Results: Based on factors that distinguish the online unmonitored test setting from the traditional face-to-face setting, we provide a set of basic requirements and suggestions for optimal development and use of unmonitored online neuropsychological tests, including suggestions on acquiring reliability, validity, and norm scores.Conclusions: When properly addressing factors that could hamper reliable test results during development and use, online neuropsychological tests could aid large-scale data collection for clinical studies in the future. Investment in both proper development of online neuropsychological test platforms and the performance of accompanying psychometric studies is currently required.     

Neuropsychological assessment in Niemann-Pick disease type C: a systematic review

Background

The neuropsychological profile of Niemann-Pick type C (NP-C) patients is characterized by an early deterioration in executive functions and attention. There are few studies on cognitive impairment and on neuropsychological assessment of NP-C disease. The purpose of this review is to analyze the studies on a psychological assessment for NP-C patients.

Method

This review aims to identify a neuropsychological assessment to evaluate cognitive domains and neuropsychological changes in these patients. There were a total of 73 articles. The search terms were identified as titles and abstracts. All articles were evaluated by title, abstract, and text.

Results

Only four of the 73 articles were included because they met the criteria of our review. Furthermore, in these studies, possible diagnostic protocols are proposed on NP-C subjects.

Discussion and conclusion

The cognitive impairment in NP-C has a negative impact on daily functioning and quality of life. Early diagnosis could identify cognitive deficits and promote cognitive interventions to improve the neuropsychological profile. The management of NP-C disease should be based on a multidisciplinary approach, to treating symptoms, preserving neurological functions, and guaranteeing the best possible quality of life. Early identification of neurological and psychological symptoms of the disease is necessary in order to decrease the progression of neurological disease and improve patient care and treatment outcomes. Furthermore, research should focus more on cognitive aspects, not only in the diagnostic process but also in the rehabilitation process.

     

Independent comparison of CogState computerized testing and a standard cognitive battery with neuroimaging

BackgroundInexpensive, non-invasive tools for assessing Alzheimer-type pathophysiologies are needed. Computerized cognitive assessments are prime candidates.MethodsCognitively normal participants, aged 51–71, with magnetic resonance imaging, fluorodeoxyglucose-positron emission tomography (FDG-PET), amyloid PET, CogState computerized cognitive assessment, and standard neuropsychological tests were included. We first examined the association between the CogState battery and neuroimaging measures. We then compared that association to the one between standard neuropsychological z-scores and neuroimaging.ResultsSlower reaction times for CogState Identification and One Back, and lower memory and attention z-scores, were associated (P < .05) with FDG-PET hypometabolism. Slower time on the Groton Maze Learning Task and worse One Card Learning accuracy were associated (P < .05) with smaller hippocampal volumes. There were no associations with amyloid PET. Associations of CogState and neuropsychological Z-scores with neuroimaging were small and of a similar magnitude.ConclusionsCogState subtests were cross-sectionally comparable to standard neuropsychological tests in their relatively weak associations with neurodegeneration imaging markers.     

Neuropsychological function in adolescent girls with conduct disorder

ObjectivesConduct disorder (CD) in adolescent girls is a significant problem, but few data exist on the neuropsychological function of girls with this disorder. We investigated whether girls with CD have poorer neuropsychological function than girls without any psychiatric disorder, whether these differences remained significant after adjusting for demographics, and whether psychiatric comorbidity, age at onset of CD symptoms, or aggressive CD behaviors were differentially associated with neuropsychological function within the CD group.MethodNinety-three girls, ages 15 to 17 years, from the community (52 CD; 41 without any disorder [normal controls]) received a neuropsychological battery examining motor/laterality, general intelligence, language, visuospatial, visual-motor, executive function, and academic achievement domains.ResultsGirls with CD had lower general intelligence and poorer performance on visuospatial, executive function, and academic achievement domains. After adjusting for demographic factors, scores in the CD group were worse for general intelligence and in the visuospatial and academic achievement domains. Comorbid substance use disorder was negatively correlated with motor/laterality; no other intra-CD group comparisons were statistically significant.ConclusionsGirls with CD had deficits in several domains of neuropsychological function. Possible explanations for the findings and clinical implications are discussed.