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Forensic neuropsychological evaluations are a critical component in many legal proceedings. They can assist the trier of fact and offer valuable insights into an individual’s cognitive and psychological functioning within the context of a legal dispute. These evaluations often hold significant implications, as they inform judgments related to competency, criminal responsibility, or civil matters. In the interest of transparency and fairness, the question arises as to whether observers should be allowed to personally witness these evaluations or they should be in some way recorded. However, striking a balance between transparency and the inherent need for confidentiality creates a complex dilemma.

In a past forensic update posted on my website, I wrote the following:

Despite some limitations, such as use of self-rating scales, the homogenous background of the sample population and the contrived assignment of individuals to one condition or another, these data demonstrate that observer presence has an impact on test performance. A number of the attorneys whom I have worked with and discussed this issue with point out, however, that this type of research may be insufficient to generalize to a real-world forensic setting. For example, it has been pointed out that the nature of the evaluation, whether for plaintiff or defense, likely makes a difference in the mindset, anxiety level, and even possibly effort of the testee. It was suggested that a testee, when evaluated by a defense expert, might in fact feel less rather than more anxious in the presence of their legal counsel. These real-life issues may never be fully addressed in experimental settings.

Based on the data at the time, I wrote

It will be my position, based on the current literature and support of professional organizations, that third parties not observe neuropsychological evaluations, whether forensic or clinical, except in special circumstances (e.g., parent accompanying a young child).

In the ten years since I posted that Forensic Update, controversy has continued to swirl around this issue. In the State of Utah, where I live and practice, the rules of procedure for experts was amended to state:

" The person being examined may record the examination by audio or video means unless the party requesting the examination shows that the recording would unduly interfere with the examination. "

Further, the Advisory Legal Committee also noted:

" The Committee is determined that the benefits of recording generally outweigh the down sides in a typical case. The amended rule, therefore, provides that recording shall be permitted as a matter of course unless the person moving for the examination demonstrates the recording would unduly interfere with the examination. "

Finally, the Committee opined:

" Nothing in the rule requires that the recording be conducted by a professional, and it is not the intent of the committee that this extra cost should be necessary. The committee also recognizes that recording may require the presence of a third party to manage the recording equipment, but this must be done without interference and as unobtrusively as possible. "

The issue in Utah has continued to focus on recordings, not necessarily another person physically present in the assessment room. In a recent case in which I was involved, I supported recording due to concerns about potential differences of opinion as to what the testee actually said or did versus what the forensic expert was reporting. Potential benefits of such recording, include a means of determining that court orders, stipulations, and restrictions relative to such evaluations are in fact followed by a forensic examiner. This affords the plaintiff or defendant some degree of protection and factual data should differences of opinion or conflicts arise. Such was the case in Robert and Lisa Hale versus University of Utah in the Third Judicial Court District in Utah (Case Number 180908153). In this matter, Judge Keith Kelly found, based upon a recording made during a forensic evaluation, that the evaluating neuropsychologist violated the court’s orders in conducting the evaluation. Subsequently, this neuropsychologist’s opinions were not allowed, the neuropsychologist was found in contempt and fined. Further the defending party was barred from retaining another neuropsychologist.

I’ve decided to revisit this issue and broaden my perspective beyond the usual arguments of test security and standardization as well as copyright violation. In this forensic update, I will provide three reasons for both allowing and not allowing observation.

Reasons for allowing observers:

1. Transparency and accountability. A compelling argument for allowing observers is to enhance transparency and maintain public trust in the legal system. By permitting impartial recording or observation, the evaluation process becomes more transparent and accountable. This transparency can reduce concerns about biases or misinterpretations, ensuring that the evaluation is conducted fairly and objectively.
2. Quality assurance and professional development. Allowing observers may facilitate quality-assurance measures and professional development within the field. Observers can provide feedback, fostering improvement in assessment practices. Such feedback can enhance the reliability and validity of forensic evaluations, ultimately benefitting clients, evaluators, and the legal proceeding.
3. Education and training purposes. Permitting recording and/or observation in forensic neuropsychological evaluations can serve as a valuable educational tool for students and trainees. Observers can learn about assessment techniques, diagnostic criteria, and the complexities involved in a forensic assessment within the legal context. Such first-hand exposure very clearly contributes to their training and the advancement of forensic neuropsychology as a field.

Reasons against allowing observers:

1. Confidentiality and privacy. The cornerstone of any therapeutic assessment process is the assurance of confidentiality and privacy. Forensic neuropsychological evaluations typically involve sensitive information, including medical histories, psychiatric symptoms, and personal experiences. Permitting recording or observers compromises the privacy rights of the individual being evaluated, potentially deterring individuals from seeking necessary assessments and fears of exposure or stigmatization.
2. Therapeutic alliance and rapport. Allowing recording or observers may disrupt the therapeutic alliance and rapport between the evaluator and the individual being evaluated, thereby adversely impacting test scores. Recording or presence of an observer can create an atmosphere of discomfort; this may then compromise the validity of the evaluation results. Individuals may not disclose critical information or express themselves candidly due to concerns about judgment or scrutiny.
3. Distortions in the assessment process. The presence of recording or observers may introduce biases and distortions into the assessment. Individuals being evaluated may alter their behavior, responses, or symptom presentation in response to the presence of observers or recording. This can lead to an inaccurate representation of their cognitive, emotional, and psychological functioning. Such distortions can compromise the integrity and reliability of the evaluation, potentially leading to erroneous conclusions and legal decisions.

The decision of whether to allow observers or recording in forensic neuropsychological evaluations is multifaceted and requires consideration of ethical principles, practical implications, and therapeutic concerns. At this point, forensic evaluators in Utah do not have the option of refusing, but can negotiate the methods of the process and/or certainly decline completing an evaluation. While transparency and accountability are essential in the legal system, ensuring confidentiality and privacy must also be upheld. Balancing these competing interests requires thoughtful policies and guidelines that safeguard the rights of individuals being evaluated while addressing the need for transparency.

It is my opinion that the Utah Bar should reconvene the Committee to address this issue. However, they should include experts, not just attorneys. A possible compromise may involve allowing limited, carefully selected recorders and recordings. Guidelines should be established to minimize potential biases and ensure the protection of the individual’s rights and privacy. This, as we are all aware, is a delicate balance, further compromised when issues related to test security are added into the mix.