Legal issues between psychology and law enforcement

Legal Issues between Psychology and Law Enforcement

Catherine L. Flanagan, Ph.D.

A state of flu characterized by opinion and debate exists in the field of forensic psychology. Law enforcement psychologists are experiencing a growing need to be conversant with legal issues and decisions that impinge upon them, such as the recent judicial trend toward requiring psychological screening for high risk occupations. This article presents and integrates some of the recent developments and problematic areas in the jield. A description of Law enforcement psychology, psychological testing for high risk occupations, and the legal and ethical guidelines and problems associated with each is provided. Employee testing, the Frye decision, and the prediction of dangerousness and the duty to warn (protect) are discussed in conjunction with relevant case material and law.

INTRODUCTION

Along with their increased involvement with the courts and with those in the legal profession, psychologists are experiencing a growing need to understand the law and legal proceedings. This is an exceedingly difficult task for the psychologist who is not trained as a lawyer. The task is even more difficult for law enforcement psychologists due to both the newness of the field and the fact that a theoretical base is still being developed.

While attempts are being made to resolve issues and to establish standards and guidelines, the field of forensic psychology is currently in a state of flux characterized by opinion and debate as described by Blau:

Differences of opinion are bound to arise and will be debated and resolved. Until generally accepted standards are promulgated by organizations familiar with and representative of the work of forensic psychologists, practitioners must make do with current ethical constraints, legal expectations, and professional standards. (Blau, 1984, p. 326)

~~ ~~ ~

Catherine L. Flanagan, Ph.D. is engaged in the private practice of clinical and forensic psychology in New York City and in Seaford, New York. Correspondence and reprint requests should be addressed to: Catherine L. Flanagan Ph.D., 1846 Washington Ave., Seaford, NY 11783.

Behavioral Sciences & the h w , Vol. 4, No. 4, pp. 371-384 (1986) 0 1986 John Wiley & Sons, Inc. CCC0735-3936/86/04037 I - I4$04.00

372 Flanagan: Legal Issues between Psychology and Law Enforcement

Within this context of ongoing debate, the psychologist who is not trained as a lawyer must be able to link psychology and the law. The psychologist must offer a clinical perspective in the courtroom that attorneys and judges are unable to provide.

This article will present and integrate legal cases and issues that impinge upon law enforcement psychologists. Although some of these issues may be applied to psychologists and psychology, in general, the major focus here will be on the interface between law enforcement psychology and the law.

LAW ENFORCEMENT PSYCHOLOGY

In recent years there has been a notable increase in the number of psychologists working in the field of law enforcement psychology, in general, and in psychological screening for law enforcement and other high risk occupations, in particular. Pre-employment screening for these occupations is different from and, many believe, more complicated than the usual psychological screening per- formed by many psychologists. This contention is mainly the result of the dangerous errors that can be made in this specialty, such as hiring an armed police officer unsuited to police work who might pose a danger on the street. As part of this work-, it is imperative that law enforcement psychologists stay abreast of legal cases, occurrences, and precedents.

Concurrent with the growth of a theoretical and practical foundation for law enforcement psychology, psychological evaluation methodology for high risk occupations is being developed and refined. A recent upsurge of interest in pre- employment screening and screening of present employees for suitability for these occupations has been demonstrated by government agencies, law enforcement agencies, and private security firms, among others. Some of the occupations under discussion here include, but are not limited to, law enforcement officers, firefighters, and those employed by the federal government in high risk occupations. Law enforcement officers include police, corrections, transit, housing, and private security officers. In the federal government, the Nuclear Regulatory Commission (NRC) and the National Aeronautics and Space Administration (NASA) are using pre-employment screening for those in high security positions. Many police departments throughout the country use some form of psychological screening of candidates. In New York City, the Fire Department is setting an example for the rest of the country by having begun a comprehensive screening program in mid- 1984.

Although psychological screening of police officer candidates is a relatively new development in the history of psychology, it appears to be the forerunner of screening for other high risk occupations. The theory and methodology that are being developed for police officer candidates is being applied to other high risk screening. However, there are complications with this procedure because the practitioner must be careful to test and interpret the results differently for different occupations. For example, firefighter screening is somewhat different from law enforcement screening because firefighters must be evaluated both for

BEHAVIORAL SCIENCES & THE LAW

Flanagan: Legal Issues between Psychology and Law Enforcement 373

different traits and for different degrees of some of the same traits as those in law enforcement.

Law enforcement psychologists can be employed in many different roles. For example, a distinction is made between the roles of the in-house police department psychologist and the outside psychological consultant. Although these practitioners are involved with the same population, their roles are somewhat different. The police psychologist is a department employee who often is familiar with the police organization and has the advantage of being accepted within the department. The outside consultant, on the other hand, receives referrals from the department and has greater freedom to work with officers as patients.

The role of the psychological consultant is a complex one. He/she may be hired in different roles within the same department. Referrals are made to consultants for psychotherapy, for candidate evaluations or reevaluations, and for second opinions on what may be termed “official cases.” Requests for second opinions include such areas as whether or not an officer should be returned to full duty from restricted duty, fitness to possess and cany firearms, whether or not he/she should be retired from the department for psychological reasons, and so forth. In some agencies, consultants also help with hostage negotiations and police calls.

The issue of confidentiality poses problems for the police psychologist. How- ever, it may be an even greater problem for the consultant because the limits of confidentiality change with the type of referral and because consultants may function in a number of different capacities, sometimes concurrently. For example, the clinician who is hired to re-evaluate police candidates who have been rejected by department psychologists is comparable to the police department psychologist in that he/she represents the department. The same practitioner might be functioning as a psychotherapist on another case where he/she represents the police officer as client.

Both the in-house staff psychologist and the outside consultant must possess unique skills. In addition to skills as a psychotherapist and psychodiagnostician, he/she must understand police work, its physical dangers, and its psychological stresses. He/she must be cognizant of the role of personality factors in police performance as well as the great impact of the job on family life. There is little room for error in clinical judgment.

LEGAL DECISIONS

Introduction

Functioning for a number of years as a specialist in law enforcement psychology has led me to the realization that a knowledge of the law that applies to this specialty is essential. Questions that have arisen in the course of daily functioning as a clinician include whether or not psychological testing abrogates one’s rights under the First and Fourteenth Amendments to the Constitution,

VOL. 4, NO. 4 1986


whether or not the law enforcement agency has a vicarious liability to the community when it issues a firearm to an officer, and how psychological tests and the psychologist as expert can withstand challenges in court.

Clinicians involved in high risk evaluations must be conversant with legal and ethical guidelines regarding these services. If called into court, the clinician can no longer claim that it is hidher “considered clinical opinion,” but must be able to support claims by having as rigorous a screening procedure as possible.

Ziskin, a lawyer and a psychologist, is perhaps the most outspoken professional in his criticism of both the psychologist’s use of psychological tests and hidher representation of them in the courts (Ziskin, 1981a; 1981b). He addresses the issue of the need for reliability and validity of any tests used and discussed in court. Ziskin discusses the ways in which report writing can be attacked in the courtroom. In a chapter entitled “Analyzing the Clinician’s Report,” he demonstrates how he reads the psychological report in order to challenge the clinician’s conclusions. It is best described in his own words:

I almost invariably found the clinician’s report to be a gold mine of material with which to challenge his conclusions. A careful review of the report should be done with sensitivity to omissions as well as conclusions. My practice in analyzing a report is to read it through in its entirety and then go back through it making notes of any material that may be useful in reducing the expert’s credibility. Not uncommonly, material in one part of the report will be discrepant with material in another part. Obviously, any material that is discrepant to known facts should be noted. (Ziskin, 1981b, pp. 12-13)

He continues that even the form and style of the report and the frequent use of terms indicating tentativeness or uncertainty can provide useful information. He states that such qualifiers are signs of weakness and that when the phrase “in my professional opinion” is used “that the individual is relying on an im- pressionistic and authoritarian approach” (p. 12). These points certainly can prove helpful for the clinician who writes reports for the courts. Ziskin, in general, demonstrates how important it is for the clinician to be well prepared for any work to be done in the courts.

Landmark Decisions

Several landmark decisions have been reached by the courts: these include Conte v . Horcher (1977), McKenna v . Fargo (1978), and Bonsignore v . The City of New York (1981).

In Conte v . Horcher (1977), the right of law enforcement agencies to conduct psychological evaluations for officers already on the job was upheld. In this case, an Illinois police lieutenant was ordered by the Chief of Police to undergo a psychiatric examination as a result of an incident that occurred in which the officer reportedly had used force to subdue a man who was in police custody.



The basic issue was whether the police chiefs order was valid and proper. It was concluded that a police chief (or superintendent) has the power to order a physical andor psychiatric examination of policemen in order to remain informed about the officers’ ability to perform their duties. The chiefs authority to issue orders is limited to such orders as are necessary to assure the effective performance of the department. It was cited that in People exrel. Ballinger v. O’Connor (1957) the court extended the police chief‘s powers to include the power to order psychiatric examinations when it noted:

There seems to be no question as to the right and power of the commis- sioner of police to, from time to time, conduct physical and mental examinations in order to determine whether or not patrolmen are able to perform duties required of them. (p. 154)

In McKenna v. Fargo (1978), psychological testing for firefighters was upheld. Firefighter applicants with Jersey City brought a civil rights action challenging the constitutionality of the City’s requirement that applicants undergo psychological testing to determine their ability to withstand the psychological pressures inherent in the job. The District Court held that although some of the questions asked on the tests did relate to political and social beliefs, the testing did not infringe on any First or Fourteenth Amendment rights, because the purpose of the testing was not to determine orthodoxy of those beliefs, but to permit a clinical psychological diagnosis. The interest of the City in screening out applicants who would not be able to handle the psychological pressures of the job was deemed sufficient to justify the intrusion into the privacy of the applicant. The City was required to adopt regulations governing access to the test data and to limit the length of time for which the test data were retained.

In Bonsignore v . The City of New York (1981), the issue of vicarious liability of law enforcement agencies was addressed. Here, it was found that a law enforcement agency can be held responsible for the alleged actions of one of its employees (police officers). As a result of this landmark decision, employers must be able to demonstrate that they have used reasonable precautions to avoid hiring and retaining persons who are psychologically unsuited for law enforcement and security positions.

In this case, the wife of a police officer was shot and severely injured by her husband, who then committed suicide. She brought action against the City al- Ieging that both her injuries and her husband’s death were caused by the City’s negligence in requiring the officer to carry a gun. In the 23 years that he was on the force, Bonsignore was never administered a psychological examination. The jury awarded $300,000 in compensatory damages for negligence and $125,000 in punitive damages, but rejected the wrongful death claims that her husband’s death was the police department’s fault. It was decided that the department could have instituted reliable psychological testing of police officers and that such tests would have revealed that Bonsignore was mentally ill and should not have been

VOL. 4. NO. 4 1986


allowed to cany a gun. As a result of this case, the New York City Police Department implemented a comprehensive testing program for police officer candidates.

Additional Decisions

In McCabe v. Hoberman (1969), a police officer candidate who had been rejected because of a “personality disorder,” obtained opinions of two recognized experts who maintained that he was qualified for police work. The court opined that as long as the agency concerned acted reasonably and responsibly in deter- mining which opinions to accept, it was not for the courts to choose between the diverse professional opinions. In other words, the court would not substitute its judgment for the agency’s.

In a somewhat similar case, Pefuso v. Gourdine (1982), an Article 78 proceeding reviewed the New York City Civil Service Commission’s determination which affirmed the police department’s rejection of a police officer candidate on the grounds that he was psychologically unsuited for the position. The candidate was diagnosed as “mixed personality disorder,” and it was determined that he would be too fragile to withstand the ordinary stresses of police work. The candidate submitted the opinions of two experts who found him qualified for the position. McCabe was cited.

In Pefuso, the court ruled that the decision to disqualify an individual who because of his psychological makeup may not be able, in the opinion of the department’s experts, to withstand the pressures of the job is neither arbitrary nor capricious. The plaintiff‘s contention that the determination constitutes illegal discrimination against the handicapped was found to be without merit. The court held that the refusal to hire a person who has a mental or physical disability would constitute illegal discrimination only if the person’s handicap did not affect the performance of his duties.

In another New York case, an exprobationary police officer named Bartucca filed suit against the city of New Rochelle. Bartucca was fired in 1983 because of a poor score on the Minnesota Multiphasic Personality Inventory (MMPI). The New York State Supreme Court ruled that the City did not have to rehire him. Justice Walsh states:

As long as all who take (the test) are treated fairly and uniformly, there can be no judicial interference concerning the efficiency of the test employed. The fact that the MMPI test is widely used to test the psychological com- petence of probationary police officers affords a reasonable basis for reliance on that test to determine Bartucca’s fitness as such an employee. (Asher, 1985).

This decision is surprising in light of the fact that a full battery of tests was not administered. The statement that there can be no judicial interference concerning the efficiency of the test employed overlooks the recent judicial trend



toward questioning the validity and reliability of testing instruments. Based on this analysis, it seems likely that the decision will be reversed and remanded if appealed.

LEGAL ISSUES

Psychological Testing

In screening candidates for high risk occupations, psychologists cannot validate instruments on the entire population and then evaluate the effectiveness of these instruments and the screening process in predicting success or failure of each candidate. Because these people probably will have to deal with life and death situations on the job, this approach would be too dangerous; the best that can be done is to conduct followup studies after the acceptable candidates are hired. Clinicians cannot infallibly predict future performance, but they must strive to avoid Type I errors-passing a candidate that should not be passed. Type 11 errors-not passing a candidate that should be passed-also should be avoided, but are not as dangerous, obviously, as Type I errors.

The American Psychological ASsociation publication Standards for Educa- tional and Psychological Tests (1985) provides procedures and limitations for the interpretation of psychological tests and is the currently accepted guideline for forensic practice (Blau, 1984, p. 56).

In his description of the standards, Blau states that the psychologist should possess the education, training, and credentials appropriate to the content of the testimony and the instruments used. He/she must be aware of new developments in tests and testing, current research regarding the testing instruments and procedures being used, and current standards for ethical and appropriate use of tests and test results. The psychologist must avoid bias in test selection and periodically review the appropriateness of the tests. More than one variable should be considered and more than one test should be used for each variable being considered for assessment. The examiner should adhere to standardized administration and scoring procedures described in the test manual(s), and test scores should be interpreted as an estimate of performance rather than as an absolute characteristic of the examinee.

Employee Testing

The law enforcement psychologist must be guided by legislation controlling employee testing. Employee testing programs must conform to the Civil Rights Act of 1964. Questions and disputes may be resolved by the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance, or the National Labor Relations Board (NLRB).

The decision in United States v. Georgia Power Company (1973), included the determination that “For purposes of Title VII of the Civil Rights Act of 1964,

VOL. 4, NO. 4 1986


an employment test is not valid or invalid per se but must be evaluated in (the) setting in which it is used” (p. 907). Title VII (Section 703h) specifically provides that it is not unlawful employment practice for an employer to give and to act upon the results of any professionally developed ability or psychological test, provided that such test, its administration, and action based upon the results is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin. However, any test that has an adverse impact on employment opportunities of any race, sex, or ethnic group is illegal under Title VII and Executive Order 11246, unless justified by business necessity. Under the criterion of business necessity, the employer must show that a selection device is absolutely necessary to the business. Absolute necessity does not equate with management convenience; the business purpose of a test must be to ensure safe and efficient operational standards “sufficiently compelling to ovemde any racial impact” (Robinson v . Lorillurd Corp., 197 1).

Pursuant to Title VII, the EEOC has issued Guidelines on Employee Selection Procedures. Essentially:

The use of any test which adversely affects hiring, promotion, transfer or any other employment or membership opportunity of classes protected by Title VII constitutes discrimination unless, (a) the test has been validated and evidences a high degree of utility, (b) persons acting upon the results of the test can demonstrate that alternative suitable hiring, transfer or promotion procedures are unavailable for use. (29 Code of Federalftegulutions, 1984, Section 1607.3)

The federal government advocates employment testing procedures that em- phasize these elements: careful job analysis to define skill requirements related to the performance of the specific job; special efforts in recruiting minorities; screening and interviewing related to job requirements; tests selected on the basis of specific job-related criteria; comparison of test performance against job performance; opportunity for retesting of those who failed the tests but then acquired more training or experience; and validation of tests for norms that include representative minority group members.

New York Correction Law, Section 754, states that employment shall not be denied because an applicant was previously convicted of one or more criminal offenses or because a lack of “good moral character” is found, unless there is a direct relationship between one or more of the previous criminal offenses and the specific employment sought, or unless the granting of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.

According to Section 753, some factors to be considered concerning a previous criminal conviction include the bearing the criminal offense(s) will have on fitness or ability to perform one or more duties or responsibilities necessarily related to the employment sought; the seriousness of the offense(s); the time that has elapsed since the occurrence of the criminal offense(s) and the age of the person at the



time; any proof of rehabilitation and good conduct; the legitimate interest of the public agency or private employer in protecting property; and the safety and welfare of specific individuals or the general public.

The Rehabilitation Act of I973 protects handicapped individuals’ equal protection rights. In Duran v. Tampa (1978), the city of Tampa rejected an otherwise qualified individual for the position of police officer because of childhood epi- lepsy. The court ruled that this was in violation of the individual’s equal protection rights under the Rehabilitation Act of 1973 (29 USCS Sections 701 et seq.). In Simon v. St. Louis County (1981), however, a police officer paraplegic who suffered a gunshot wound in the line of duty was found not “otherwise qualified” for purposes of 29 USCS Section 794. Although he was able to perform many tasks required by the department, the court ruled that his handicap prevented him from performing nearly all physical requirements, he would have to be kept in restricted areas, and extra support would have to be provided for him in the event of an emergency. Requirements for police officers were found to be reasonable, legitimate, and necessary requirements for all positions within the department.

The Frye Test

It is exceedingly important that the law enforcement psychologist be familiar with the Frye standard because it impinges on all phases of work in this specialty. The Frye standard, also known as the “general scientific acceptance” principle, is perhaps the most widely recognized standard in law. It is a conservative and critical proof of admissibility of evidence in court. That is, to be admissible evidence should be generally accepted by the scientific community in which the expert claims membership. According to Frye:

. . . while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. (Frye v. United States, 1923, p. 1014)

Use of the Frye standard presents a number of problems. The point at which a scientific principle or discovery becomes well-recognized and sufficiently established is difficult to define, as is the current generally accepted standard of professional practice.

In an attempt to clarify Frye, Bersoff (1986) maintains that the Frye principle focuses on the following question: “How consistently do particular scientific techniques and the theories upon which they are based explain or predict certain phenomena in empirical terms?’ (p. 157) Suggs (1979) offers that a technique, procedure, or finding must have been available for a fairly long period of time to have a history of general acceptance.

According to Blau (1984), in the future the Frye principle may be applied

VOL. 4, NO. 4 1986


more stringently in the courts (p. 333). Thus, Ziskin’s contention that there is a trend in the courts for quality of supporting data is correct. It may be concluded that even though some confusion exists with Frye, it is the best standard regarding scientific principles and expert testimony in existence. As Bersoff (1986) so astutely points out, without this test, expert testimony would merely reflect personal opinions and beliefs.

PREDICTION OF DANGEROUSNESS AND THE DUTY TO WARN

Two of the most troublesome issues facing forensic psychology today are the prediction of dangerousness and the duty to warn. Much disagreement exists in the field regarding these issues. A number of questions have arisen in the course of the debate. What constitutes dangerousness? Can it be predicted? What is the duty to warn? What impact does it have on practitioners’ day-to-day functioning?

The duty to warn is often misunderstood, a fact that is largely attributed to the misunderstandings and misinterpretations of the Tarasoff decisions. In addition, the law has been both unclear and inconsistent (Kamenar, 1984, p. 272).

In Turasoff v . The Regents of the University of California (1976), the Supreme Court held that when a therapist determines, or pursuant to the standards of hidher profession should determine, that hisher patient presents a serious danger of violence to another, he/she incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of the duty to warn, depending on the nature of the case, may call for the therapist to warn the intended victim or others likely to warn the victim, to notify the police, or to take whatever steps are reasonably necessary under the circumstances. Thus, the Turasoff liability could be based on either of the following:

1. a failure to warn after a determination was made that a third party might be in serious danger, and

2. a failure to warn when that determination was not made but should have been made. (Shapiro, 1984, p. 150)

Shapiro also makes the crucial point that Turasoff has been misinterpreted as a case in which liability was imposed because of a failure to predict dangerousness. Because the determination had already been made that the patient was dangerous, the liability was that subsequent actions were not sufficient to protect the intended victim. The duty was to protect the intended victim rather than to

In addition to definitional concerns for predicting dangerous behavior, there is the concern regarding the length of time for which such predictions are made. It is obvious that this factor is a major determinant of the accuracy of the prediction. In Addington v . Texas (1979), the Supreme Court ruled that “clear and convincing evidence“ of dangerousness must exist to legitimize an extended civil commitment. In the case of a relatively brief confinement, the court may be more lenient with the standard for proof of dangerousness that is applied (Litwack, 1985).

The trend in the courts toward greater restrictions on therapists was continued

(p. 149-150).



in Mclntosh v. Milano (1979). Relying on the Tarasoff decision, a New Jersey Superior Court held that psychotherapists could be held liable for failing to protect the known victim of their patient’s violence. Here, the patient’s dangerousness was a known fact as in Tarusoff. The court opined that some type of duty to warn exists unless therapists have no ability to predict dangerousness whatsoever. The court ruled that confidentiality was not absolute, and that therapists have an obligation to protect the welfare of the community.

In Lipari v. Sears, Roebuck and Co. (1980) and Jabfonski v. United States (1983) the courts ruled that the liability for the duty to warn is extended to unknown victims. In Lipari, a federal district court ruled that liability would be imposed even in cases where a specific victim was not known, as long as the psychotherapist knew, or should have known, that the patient was dangerous. The court drew heavily upon the reasoning of both the Tarasoff and Mclntosh decisions. It focused on the reasonable likelihood of injury rather than on the identity of the victim. The judge imposed a duty to protect a foreseeable but unidentifiable person.

In Jablonski, a federal circuit court upheld the first imposition of physicians’ liability under Tarasofl. Up to this time, the courts were dealing only with an abstract issue (Mills, 1984, p. 239). The liability in this case was based on a failure to obtain prior medical records for the patient and to notify treating physicians regarding the patient’s dangerousness, as indicated by his history.

In Brudy v. Hopper (1983), however, a federal district court did not impose liability on John Hinckley’s psychiatrist because there had been no specific threat made and no specific victim identified. The major point here was that a fore- seeability was absent.

In Barefoot v. Estelfe (1983), the United States Supreme Court was split on the issue of prediction of dangerousness. According to Kamenar’s (1984) detailed discussion, the legal aspects of predicting dangerousness are most succinctly presented in the concurring and dissenting opinions in Barefoot.

Criticisms of the prediction of dangerousness have been made by Megargee and Monahan, both of whom believe that the clinician cannot predict dangerousness. Megargee (1981) maintains that it is impossible to identify the poten- tially violent individual with sufficient accuracy to warrant preventive detention, while Monahan (1975) contends that very little is known about the accuracy with which violent behavior may be predicted. He reports that there is a 54% to 99% rate of error shown in the literature.

According to Blau (1984, p, 307), “Psychological evaluations of dangerousness may constitute the largest single category of evaluation and opinion called for from psychologists by the courts.” Along with this judicial need, a number of serious problems exist in the area of psychological tests and the prediction of dangerousness (Slovenko, 1973; Ziskin, 1981a; 1981b). While psychological evaluations presently are useful to the courts, they could be more useful if these problems were resolved.

A major problem in this area is that reliability and validity studies cannot be undertaken to develop tests that accurately predict violent behavior. This is

VOL. 4, NO. 4 1986


primarily due to the fact that prohibitive ethical constraints are involved in such studies. Thus, the law enforcement psychologist has a great responsibility when conducting pre-employment screening of police officer candidates and firearms return evaluations of incumbent officers.

The issue of privileged communication regarding the duty to warn and the prediction of dangerousness is a problematic one. Landmark cases concerning this issue include In re Lifschutz (1970) and Caesar v. Montanos (1976). In Lifschutz, the court decided that disclosure of privileged information can be required only regarding those mental conditions the patient has raised in litigation. Caesar dealt with a similar issue. The court ruled that the right of privacy does not provide absolute constitutional protection for communications between patients and their psychotherapists. In addition, the denial of privileged communication relevant to an issue concerning the mentallemotional condition of the patient did not constitute denial of equal protection-once the issue has been raised by the patient. That is, once privileged communication has been broken by the patient, the burden is on the patient to prove that other material is unrelated.

Both Shapiro and Litwack offer constructive advice regarding the prediction of dangerousness. Shapiro (1984) concludes that “the psychologist needs to educate the court to abandon the vague and elusive term of ‘dangerous’ (p. 158). He recommends instead that the practitioner restrict himherself to a description of the patient’s personality and the kinds of situations in which that personality structure may deteriorate or result in assaultive behavior. This type of approach is a wise one in that it eliminates many of the problems that exist in the prediction of dangerousness.

Litwack attempts to apply behavioral indicators to the prediction of dangerousness. He suggests that clear and convincing evidence exists whenever any one of the following indications of future violence are evident:

1. a recent history of violence without subsequent treatment or evidence of rehabilitation;

2. a more distant history of violence together with clear and convincing evidence that the complex of attitudes, personality traits, and physical abilities that led to violence in the past still exist and that there is a likelihood that the circumstances that led to such violence will recur in the foreseeable future;

3. evidence of serious intentions to commit violence especially when based on delusional thinking; and 4. other clear and convincing evidence that the individual whose violence is

being predicted is on the brink of violence. (Litwack, 1985, p. 89) Mills (1984) posits that the duty to protect cases turn on the issue of foresee-

ability. “Where liability has been imposed, the injured party was known to the psychotherapist, threats were specific, or the history was overwhelming and there were other breaches of conventional practice . . .” (p. 243) He believes that the test for imposing negligence should be whether the therapist’s assessment and intervention substantially depart from ordinary practice.

Conceivably, the reverse question might also arise. What if a therapist, acting in good faith, erroneously warns a victim or law enforcement agency of a



dangerous patient? The law in this area has not been established. According to Beigler (1984, p. 277), while it does not appear likely that a therapist would be held liable in such a case, the possibility does exist.

It is obvious why this whole issue of the prediction of dangerousness and the duty to warn is of extreme importance to the law enforcement psychologist.

CONCLUSION

The field of law enforcement psychology is in its infancy. Practitioners in this field must be conversant with relevant legal issues and decisions that impinge upon them, both in their capacity as expert witnesses in the courtroom and in their daily functioning as psychologists.

The recent trend in the courts is toward requiring more rigorous quantitative support of expert testimony. In light of this trend, Ziskin’s call for further research to support reliability and validity of tests and procedures used by experts in the courtroom deserves serious consideration.

The issue of vicarious liability as discussed in the Bonsignore decision will undoubtedly increase the number of psychological evaluation programs for employees in high risk occupations. Both public and private agencies will need to address this issue to protect themselves from the institution of proceedings against them.

As Shaw (1973) comments, dangerousness is a dangerous issue. Ziskin’s comment that the lack of research to validate procedures to predict dangerousness should make psychologists refrain from giving opinions on dangerousness is not without merit.

Shapiro’s suggestion that psychologists avoid the term hngerous altogether, and instead focus on an individual’s personality and types of situations in which such a personality would act out, is a good one. This approach eliminates many of the problems associated with the definition of dangerousness, and is also in accord with Litwack’s formulation of applying specific behavioral indicators to the prediction of dangerousness. A combination of these two ideas may be a major part of the ideal solution to the problem of prediction of dangerousness. While the problem of dangerousness cannot be avoided, perhaps it can be dealt with differently in the future.

Unless and until these or similar guidelines are accepted, used, and refined, both in the clinical setting and in the courts, the “danger of dangerousness” will continue.

REFERENCES Addington v. Texas. 47 U.S.L.W. 4473 (1979); 441 U.S. 418. American Psychological Association. (1985). Standards for educationat ondpsychoiogical tests. Washington, DC:

Asher, I. State judge rules against fired New Rochelle cop. Herald Staresman, November 18, 1985. Barefoor v. Esreile, No. 82-6080. US., July 6, 1983; U.S.L.W., June 28. 1983, 51 LW 5190-5206. Beigler, 1. (1984). Tarasofv. confidentiality. Behavioral Sciences & the Law, 2(3), 273-289.

American Psychological Association.

VOL. 4, NO. 4 1986


Benoff, D. (1986). Psychologists and the judicial systems: Broader perspectives. Law and Human Behavior. 10,

Blau, T. (1984). The psychologisr as expen witness. New York: Wiley. Bowignore v. The Cify of New York. 521 F. Supp. 394 (1981). Brady v. Hopper, 570 F. Supp. 1333 (D. Colo. 1983); 7 Mental Disability L. Rep 453. Caesar v. Montanos. 542 F. 2d 1064 (Ninth Circuit 1976). Civil Rights Act of 1964. (Title VII). Conu v. Horcher. 50 Ill. App. 3d 151 (1977). Duran v. Tampa, 451 F. Supp. 954 (1978). Equal Employment Opportunity Commission. (1984). Uniform guidelines on employee seleclion procedures. (29

Frye v. UniredSzares, 293 F. 1013 (D.C. Cir. 1923). In re Lifchutz. 2 Cal. 3d 415; 467 P. 2d 557; 85 Cal. Rptr. 829 (1970). Jablonski v. United Srares of America, 712 F. 2d 391 (Ninth Circuit 1983). Kamenar, P. (1984). Psychiatrists’ duty to warn of a dangerous patient: A survey of the law. Behavioral Sciences

Lipari v. Sears. Roebuck and Co., 497 F. Supp. 185 (D. Neb. 1980). Litwack, T. (1985). Rediction of violence. The Clinical Psychologist. Fall. 87-91. McCabe v. Hoberman, 33 A.D. 2d 547 (1st Dept. 1969). Mclnrosh v. Milano, 403 A. 2d 500 (NJ Superior Court, 1979). McKenna v. Fargo, 451 F. Supp. 1355 (1978); United States District Court, N.J.. May 25, 1978. Megargee. E. (1981). Methodological problems in the prediction of violence. In I. Hays, T. Roberts, and K.

Mills, M. (1984). The so-called duty to wam: The psychotherapeutic duty to protect third parties from patients’

Monahan. J. (1975). The prediction of violence. In J. Monahan (Ed.), Community mental health and the criminal

Monahan, J. (1981). Predicting violent behavior: An assessment of clinical techniques. Beverly Hills, CA: Sage. New York Correction Law, Section 750 et seq., pp. 227-232. New York Esecurive Lnw, Section 29 et seq. Article 15, Human Rights Law. pp. 481-645. Peluso v. Gourdine, NY County Supreme Court, Special Term: Part 1. April 9, 1982. (Article 78 Proceeding) People ex rel. Ballinger v. OConnor, 13 Ill. App. 2d 317 (1957); 142 N.E. 2d 144. Rehabilirarion Act of 1973, 29 USCS Sections 701 et seq., pp. 632-823. Robinson v. Lorilhrd Corp.. 444 F. 2d 791 (1971). Shapiro, D. (1984). Psychological evaluarion and expert tesrimony. New York: Van Nostrand Reinhold. Shaw, S. (1973). The dangerousness of dangerousness. Medicine, Science, and the Law, 13. 269-271. Simon v. St. Louis County, 656 F. 2d 316 (1981). Slovenko, R. (1973). Psychiatry and Law, Boston: Little, Brown. Suggs, D. (1979). The use of psychological research by the judiciary. Law and Human Behavior. 3, 135-148. Tarasoff v. The Regents of the University of California, 529 P. 2d 553 (Cal. 1974) (Tarasoff I); Reargued 551 P.

United States v. Georgia Power Co.. 474 F. 2d 906 (1973). Ziskin, J. (1981a). Coping withpsychiatric andpsychological resrimony (3rd ed.), Vol. I. Marina del Rey: Law

tiskin, J. (1981b). Coping with psychiarric andpsychological resrimony (3rd ed.), Vol. 11. Marina del Rey: Law

151-165.

Code of Federal Regulations. Section 1607 et seq., pp. 150-177).

& the Law, 2 (3). 259-272.

Solway (Eds.), Violence and the violenr individual. New York: Spectrum.

violent acts. Behavioral Sciences & the Law, 2(3), 237-257.

justice system, New Yok. Pergamon.

2d 334 (Cal. 1976) (Tarasoff 11).

and Psychology Press.

and Psychology Press.


Documents

Legal issues between psychology and law enforcement