An issue presently before the Utah Supreme Court Advisory Committee on the Utah Rules of Civil Procedure, chaired by Rod Andreason, concerns whether URCP Rule 35 neuropsychological examinations should be presumed to occur without recording or whether the current Utah framework allowing recording unless it can be shown to interfere with the examination should remain unchanged. The discussion arises from correspondence submitted to the Committee by Andrew Wright and Andrew McDaniel of the law firm Strong & Hanni, followed by a response submitted by John P. Lowrance and Alyssa J. Wood of the law firms Eisenberg Lowrance Lundell Lofgren and Moxie Law. These letters do not merely reflect disagreement between attorneys. Rather, they illustrate a broader debate occurring across forensic psychology, neuropsychology, and the legal system regarding transparency, scientific validity, and fairness in compulsory adversarial examinations under Rule 35.

Wright and McDaniel propose modifying Rule 35 so that the current presumption allowing recording be reversed, and that Rule 35 be modified to include: “However, there is a presumption that recording of a neuropsychological examination would unduly interfere with the examination.” In short, they seek to create a presumption against recording neuropsychological evaluations. Their argument is primarily based on the “Declaration of Dr. Lindsay Embree, Ph.D, which is based on historical concepts within Clinical Neuropsychology and the idea that neuropsychological tests need to be conducted under highly regulated environments with a clear set of criteria. In addition to being conducted in a regulated environment, the instructions provided to test takers and the timing used to administer the tests, and other procedures used in conjunction with both of these should follow an exact set of instructions. Any deviation from these guidelines can lead to differences in the way the test is meant to be conducted. The literature examining the effect of third-party observers has consistently indicated significant differences in performances between when someone is being observed or not being observed (e.g., Howe & McCaffrey, 2010; Gavett, Lynch, & McCaffrey, 2005). In many areas of research, McCaffrey and others have demonstrated through their findings that the performance of individuals on assessments can be impacted by being observed, and that the presence of an observer creates a mixture of possible reasons for deviation from standardization when evaluating performance.

Wright and McDaniel argue that neuropsychological tests must be performed in tightly controlled environments, like those for either research or clinical studies. They believe this means that neuropsychological tests must be conducted in very similar conditions to when they were developed. For example, they believe it is possible that recording will alter the behavior of the examinees, so any use of recording devices in neuropsychology testing should be limited.

Conversely, Lowrance and Wood's response to the Committee illustrates a different view of the issue of recording devices in neuropsychological testing. Lowrance and Wood's letter focuses on the realities of the forensic context in which these tests take place. Their letter indicates that Rule 35 tests are not voluntary clinical encounters. Instead, they are court-ordered forensic evaluations performed in an adversarial legal environment. Typically, the examinee is a plaintiff alleging cognitive or emotional injury after suffering from a traumatic brain injury or psychological trauma. The examinee is being compelled to submit to many hours of neuropsychological testing at the hands of a neuropsychologist hired by the defendant. In these circumstances, is it necessary for the examinee to be afforded some level of transparency?

The response letter carefully describes the complexity of modern neuropsychological examinations. Evaluations typically begin with an extensive clinical interview covering medical history, education, employment, and psychological functioning. This interview is inherently subjective because it relies heavily on the examiner’s interpretation of the individual’s responses and behavior. Following the interview, the neuropsychologist administers a battery of tests that may include personality instruments such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), performance validity tests such as the Test of Memory Malingering (TOMM) or Word Memory Test (WMT), and cognitive tasks such as the Wechsler Intelligence Test and Dellis Kaplan Neuropsychological Battery.

Lowrance and Wood emphasize that many of these tests require extremely precise administration procedures. Instructions must be read verbatim, timing must be exact, and scoring must follow established rules. Even minor deviations, such as altering the timing of stimulus presentation or prompting a response, can influence results. The response letter, therefore, frames recording not as an intrusion into the evaluation but as a mechanism to verify that standardized procedures were actually followed.

The Scientific Distinction Between Third-Party Observation and Recording

One of the most important themes emerging from these correspondences is the distinction between a live third-party observer and an unobtrusive recording device. Much of the historical neuropsychological literature relates to situations in which another person is physically present in the testing room. Research has demonstrated that such social presence can influence cognitive performance under certain conditions.

However, the scientific evidence regarding recording devices themselves is less definitive.
Experimental studies examining the effect of audio or video recording during neuropsychological testing have generally found minimal differences in performance outcomes. Constantinou and colleagues examined whether recording devices function as third-party observers and concluded that the presence of an audio recorder had little measurable impact on most neuropsychological test scores (Constantinou, Ashendorf, & McCaffrey, 2002). Later research suggested that the magnitude of third-party observation effects varies depending on the specific task and context rather than occurring universally across all testing conditions (Eastvold & Belanger, 2012).

The distinction is significant because policy debates sometimes treat recording as equivalent to direct third-party observation when the empirical literature does not support such a broad equivalence. A camera positioned unobtrusively in a room does not interact with the examinee, does not alter instructions, and does not introduce the social dynamics associated with another person physically observing the evaluation.

Errors, Discretion, and the Importance of Documentation

Lowrance and Wood's response raises concern about the possibility of making errors, that would be unknown absent recording, when conducting complex neuropsychological assessments. Research on the administration of psychological tests shows that experienced professionals often make mistakes in the way they administer and score the tests. A meta-analysis that evaluated errors made by examiners on intelligence tests found that a relatively high proportion of those assessments needed to have corrections made (Styck & Walsh, 2016). Errors made while evaluating an individual who has committed an offense could result in significant consequences. Neuropsychological evaluations generally contain information regarding claims of feigning, effort, and diagnosis of cognitive impairment, which might have significant legal ramifications.

Validation of neuropsychological evaluations can be accomplished by examining test scores with respect to the performance validity or effort (PVT) of the test subject. However, PVTs are based upon statistical criteria and certain assumptions about the effort given by the test subject. Researchers noted that interpretation of PVT results should be made using a wide range of clinical information because the use of PVT cutoff scores could result in inaccurate claims of feigning (Bush & Lees-Haley, 2000). Lowrance and Wood also point to examples in which recordings have revealed discrepancies between what occurred during an evaluation and what was later reported. Their argument suggests that recordings can provide an objective record that protects both examinees and examiners by clarifying how tests were administered and how responses were interpreted.

Special Considerations for Children

When children undergo neuropsychological assessments performed in judicial environments, the subject is even more complicated. Many pediatric neuropsychological assessments are performed to examine issues such as learning disorders, TBI, educational disputes and emotional harm. While there are differences between adults and children that relate to the record-keeping discussion, one major point is that many younger clients will not be able to remember long periods of time when they have just taken an assessment or to give an account of how questions were presented to them. They may also be less likely to understand what they've been told to do or to feel anxious about being evaluated. Thus, when there is a conflict between experts in opposing parties, a accurate account of what transpired during the evaluation process is provided with the aid of an objective record of the evaluation.

At the same time, the presence of third-party observers in pediatric evaluations has been shown to influence children’s performance. Studies examining parental presence during testing demonstrate that children may behave differently depending on whether a parent or other adult is present (Yantz & McCaffrey, 2009). This research supports the longstanding clinical recommendation that in-room observers should generally be avoided during pediatric neuropsychological testing.

Recording differs fundamentally from third-party observation because it does not introduce an additional social presence into the room. When conducted discreetly, recording can preserve behavioral details, including emotional responses and nonverbal communication, without altering the interaction between the child and the examiner.

Ethical and Professional Frameworks

Psychologists must follow ethical standards that include protecting tests while also being transparent with records keeping, which is outlined in the American Psychological Association’s Ethics Code. In addition, psychologists who decide to participate in conducting forensic evaluations in adversarial legal proceedings must recognize that courts will require more transparency, and access to test data and records. Psychological and neuropsychological associations that have created specialty guidelines for forensic practitioners advise their members to document their evaluations thoroughly so that the court and the opposing expert can review the basis for the psychologist's opinion. This expectation is consistent with the principle that expert witnesses are required to testify in such a way that their testimony is subject to scrutiny and cross- examination. In order to protect the confidentiality of test materials and the rights under copyright law from being violated, the courts typically put protective orders in place to limit the dissemination of test materials while still allowing for legitimate review by qualified professionals. Through these protective orders, the courts can limit access to sensitive information while allowing qualified experts to legitimately access this information.

A Balanced Perspective for the Committee

The letters submitted to the Utah Supreme Court Advisory Committee illustrate two legitimate perspectives. Wright and McDaniel emphasize the importance of maintaining standardized testing conditions, while Lowrance and Wood emphasize the need for transparency and accountability in compulsory forensic examinations conducted within adversarial litigation. Both perspectives contain valid concerns. Neuropsychological testing must maintain scientific rigor to produce reliable results. At the same time, Rule 35 examinations occur in a legal environment where fairness and transparency are essential. The challenge for the Committee is therefore not choosing between science and transparency but finding a balance that respects both. It is important to note that if a neuropsychologist doesn’t want to undergo the additional requirements associated with forensic examinations subject to Rule 35, there is a simple solution; don’t do forensic examinations subject to Rule 35.

Utah’s existing Rule 35 framework attempts to achieve such a balance by allowing recording unless it can be shown that recording would unduly interfere with the examination. This approach places the burden on the party seeking to prohibit recording to demonstrate actual interference rather than presuming interference in every case.

My Opinion

From my perspective, the debate should not be framed as a conflict between neuropsychology and the law. Rather, it is a discussion about how modern forensic practice should evolve in a way that respects both scientific standards and procedural fairness. I agree with the longstanding position within neuropsychology that live third-party observers in the testing room can influence performance and should generally not be present during neuropsychological examinations, particularly with children, where anxiety and social pressure may alter behavior.

However, I also believe that recording is fundamentally different from live third-party observation. A small stationary recording device that does not interact with the examinee does not introduce the same psychological dynamics as an additional person in the room. Moreover, in the adversarial context of Rule 35 examinations, where individuals may be required to undergo many hours of testing conducted by an expert retained by the opposing party, transparency serves an important function.

Recording can protect vulnerable individuals, including those with traumatic brain injuries, memory impairment, or developmental limitations, who may not be able to accurately recount what occurred during a lengthy evaluation. It also provides examiners with an objective record demonstrating that testing procedures were conducted properly and ethically. It is important to note that if a neuropsychologist doesn’t want to undergo the additional requirements associated with forensic examinations subject to Rule 35, there is a simple solution; don’t do forensic examinations subject to Rule 35.

For these reasons, I believe the current Utah Rule 35 framework appropriately balances competing interests. It does not mandate recording in every case, but allows recording unless a specific showing is made that it would interfere with the examination. This approach preserves the integrity of neuropsychological testing while promoting transparency in a process that can significantly affect the rights and outcomes of both adults and children involved in litigation.

References

• Bush, S. S., & Lees-Haley, P. R. (2005). Threats to the validity of forensic neuropsychological data: Ethical considerations. Journal of Forensic Neuropsychology, 4(3), 45–66. https://doi.org/10.1300/J151v04n03_04
• Constantinou, M., Ashendorf, L., & McCaffrey, R. J. (2002). When the third party observer of a neuropsychological evaluation is an audio recorder. The Clinical Neuropsychologist, 16(3), 407–412. https://doi.org/10.1076/clin.16.3.407.13853
• Eastvold, A. D., Belanger, H. G., & Vanderploeg, R. D. (2012). Does a third-party observer affect neuropsychological test performance? It depends. The Clinical Neuropsychologist, 26(4), 520–537. https://doi.org/10.1080/13854046.2012.663000
• Gavett, B. E., Lynch, J. K., & McCaffrey, R. J. (2005). Third-party observers: The effect size is greater than you might think. Journal of Forensic Neuropsychology, 4(2), 29–40. https://doi.org/10.1300/J151v04n02_05
• Howe, L. L. S., & McCaffrey, R. J. (2010). Third party observation during neuropsychological evaluation: An update on the literature, practical advice for practitioners, and future directions. The Clinical Neuropsychologist, 24(5), 653–670. https://doi.org/10.1080/13854041003775347
• Styck, K. M., & Walsh, S. M. (2016). Evaluating the prevalence and impact of examiner errors on the Wechsler Scales of Intelligence: A meta-analysis. Psychological Assessment, 28(1), 3–17. https://doi.org/10.1037/pas0000157
• Sweet, J. J., Grote, C. L., & van Gorp, W. G. (2002). Ethical issues in forensic neuropsychology. In S.
  R. Bush & M. L. Drexler (Eds.), Ethical Issues in Clinical Neuropsychology (pp. 453–485). Swets & Zeitlinger.
• Yantz, C. L., & McCaffrey, R. J. (2009). Effects of parental presence and child characteristics on children's neuropsychological test performance. The Clinical Neuropsychologist, 23(6), 987–1005. https://doi.org/10.1080/13854040801894722
• Young, G. (2024). Remote neuropsychological assessment: Forensics, research, and ethics.
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