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8 Psych. Inj. & L. 1 (2015)

handle is hein.journals/psyinjl8 and id is 1 raw text is: Psychol. Inj. and Law (2015) 8:1-10 DOI 10.1007/s12207-015-9213-7 What Can the Rules of Evidence Teach Us About Writing Forensic Reports? Michael Karson Received: 2 September 2014 /Accepted: 11 January 2015 /Published online: 28 January 2015 © Springer Science+Business Media New York 2015 Abstract The rules of evidence codify the legal system's evolved wisdom about fairness and validity. Especially on point are the rules pertaining to relevance (Federal Rules of Evidence (FRE) 401), expert testimony (FRE 702), questioning witnesses (FRE 611), prejudice (FRE 403), hear- say (FRE 802), and character evidence (FRE 404). This paper assays to improve our reports and align them with the legal culture, regardless of whether this is needed to make our re- ports admissible, and to take advantage of what jurisprudence knows about weighing and presenting evidence. The paper reviews the most salient courtroom evidentiary rules, along with their associated courtroom objections, and discusses their implications for report writing. Understanding our legal sys- tem's treatment of evidence can improve our own. Keywords Report writing - Rules of evidence When writing up the results of their assessments, psycholo- gists face numerous dilemmas and puzzles. We are exhorted to be both comprehensive (Fulero & Wrightsman, 2009) and germane (Grisso, 2010) in selecting data to report. We should be convincing (Mayman, 1959), but we should not use rhe- torical methods of enhancing this, such as relying on creden- tials, ipse dixits, and appeals to emotion (Karson & Nadkarni, 2013). Reports should be long enough to convey thorough- ness but short enough to be readable. We have to balance competing views of psychological processes; for example, with respect to memory, the best evidence of whether child abuse occurred decades earlier is the person's recollection, but anything the person recalls of a crime from last week is highly M. Karson (2W) Graduate School of Professional Psychology, University of Denver, GSPP, 2460 S. Vine St., Denver, CO 80208, USA e-mail: nkarson@du.edu suspect. In many jurisdictions, we are required to diagnose the evaluee while keeping in mind that diagnosis is only tangen- tially related to the legal question (APA, 2000). Often, we are reasonably capable of assessing what people usually are like (Grice, 2004), but it is more difficult to ascertain what they were like on a particular occasion, which more usually relates to the legal question at hand. In some ways, a psychological evaluation is like a legal hearing or a trial. A legal question is in dispute; the question is usually broken down into steps (the negligent act at issue and its effects, the elements of a crime, or the factors that define competency); and evidence is collected relevant to the various components. In this analogy, the report is in some ways like the closing argument of the trial (Karson & Nadkarni, 2013), in which the argument ties the evidence to the steps involved and logical argument is made for a specific outcome or conclusion. The recommended outcome may be legal, as in a finding on the ultimate question (with all the complications of doing so, Slobogin, 1989), or factual, as in a finding, for example, that an evaluee received a particular score on a particular actuarial, or that a defendant believed psychotically that he was entering his own house, or that a testator understood the contents of her will when she signed it. In this analogy, psychologists can be equated to attorneys because they are making their case with the best evidence at hand, and readers are like triers of fact, the judge (in a bench trial or hearing) or the jury. Psychologists, of course, should not have a preferred outcome predetermined by their clients' wishes, but by the time they have completed their assessment, they will have developed unbiased conclusions that their re- ports promote. Despite the analogy being made, another dif- ference between psychology and law is that our recommended outcome will often be qualified by a degree ofuncertainty. For example, we can argue that it is hard to discern whether an evaluee has a reasonable expectation ofbenefitting from treat- ment (Karson & Nadkarni, 2013). Attorneys usually argue e Springer

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