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Undue Influence or Ensuring

Rights?: Attorney Presence
During Forensic Psychology
Evaluations
a a
Robert J. Cramer & Stanley L. Brodsky
a
Department of Psychology , The University of
Alabama
Published online: 08 Jan 2010.

To cite this article: Robert J. Cramer & Stanley L. Brodsky (2007) Undue Influence or
Ensuring Rights?: Attorney Presence During Forensic Psychology Evaluations, Ethics &
Behavior, 17:1, 51-60, DOI: 10.1080/10508420701310059

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 ETHICS & BEHAVIOR, 17(1), 51–60
Copyright © 2007, Lawrence Erlbaum Associates, Inc.

Undue Influence or Ensuring Rights?:

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Attorney Presence During Forensic

Psychology Evaluations
Robert J. Cramer and Stanley L. Brodsky
Department of Psychology
The University of Alabama

Forensic psychologists face a variety of ethical issues in conducting evaluations. One

such issue is attorney presence during a forensic evaluation. In forensic evaluations,
it is necessary to use standardized procedures while also attending to the rights of the
individuals being assessed. This article examines the neuropsychological literature
on extraneous influences in evaluations including effects of attorney presence. Then
the article discusses the limited knowledge about attorney presence during forensic
evaluations, addresses attorney motivations for being present during an evaluation,
and considers attorney presence in the context of ethical mandates. Finally, sugges-
tions are offered for forensic clinicians confronted with attorneys who wish to be
present during assessments.

Keywords: forensic evaluation, attorney presence, ethics, third party presence

OVERVIEW

Forensic evaluators can serve important roles in a variety of legal proceedings, in-
cluding not guilty by reason of insanity pleas, competency to stand trial hearings,
personal injury litigation, and civil commitment proceedings. The integrity of fo-
rensic examinations can be potentially compromised by the influence of extrane-
ous factors, including attorney presence, our immediate concern. This discussion
(a) examines neuropsychological literature on third-party presence as it relates to

Correspondence should be addressed to Robert J. Cramer, Department of Psychology, The Univer-

sity of Alabama, 348 Gordon Palmer Hall, Box 870348, Tuscaloosa, AL 35487-0348. E-mail:
crame001@bama.ua.edu
 52 CRAMER AND BRODSKY

forensic examinations, (b) reviews the skimpy literature on attorney presence dur-
ing a forensic evaluation, (c) presents attorney motivations for observing or partici-
pating in a psychological evaluation, and (d) offers recommendations about attor-
ney requests to observe the assessment. This position article on the issue of
attorney presence during a forensic evaluation found little empirical data on which
to base conclusions. However, the neuropsychological literature provides some
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portholes into the possible effects of attorney presence.

THIRD-PARTY PRESENCE IN NEUROPSYCHOLOGICAL

EVALUATIONS

Most empirical inquiries on the impact of third-party presence during evaluations

appear in the neuropsychological literature. This body of literature offers analo-
gous information about the potential impact that attorney presence may have on
the validity of a forensic evaluation. In a study of the presence of third parties,
Binder and Johnson-Greene (1995) assessed the impact of the presence of a pa-
tient’s mother on neuropsychological performance. The patient performed worse
on the Portland Digit Recognition Test in the presence of her mother. In their dis-
cussion, the authors noted that these findings extend to the psychological–legal do-
main insofar as the presence of a third person may decrease performance on cogni-
tive tasks. Because this study looked at a single case and did not take place in a
law-related setting, the authors properly framed their conclusions as hypotheses to
be investigated further.
Kehrer, Sanchez, Habif, Rosenbaum, and Townes (2000) studied the influence
of a parent, sibling, close friend, spouse, or romantic partner presence or absence
during a neuropsychological evaluation, with 30 university students serving as
participants. The outcome measure was an averaged score of repeated tests for
each condition. The presence of a third party decreased performance on several
tests of attention and concentration (e.g., Digit Span, Stroop), verbal efficiency,
and information processing. In offering caveats about their study, the authors noted
that their results might not be generalizable to forensic evaluations.
These were preliminary reports of the negative impact of live observers; consid-
erations about factors influencing the integrity of neuropsychological evaluations
were followed by studies of the presence of technological instruments. For in-
stance, Constantinou, Ashendorf, and McCaffrey (2002) investigated the effect of
participant awareness of an audio recording device on cognitive and motor perfor-
mance in a sample of 42 undergraduate students. Awareness of the tape recorder
was associated with lower performance on cognitive tasks including learning and
recalling lists of words. It should be noted that the effect sizes for these findings
were low to moderate. In a follow-up study, Constantinou, Ashendorf, and McCaf-
frey (2005) used a video recorder and found significantly reduced performance on
 ATTORNEY PRESENCE 53

a memory test. Lynch (2005) administered five neuropsychological tests to 60 par-

ticipants who had a self-reported background of closed head injuries. Half of the
tests were administered using standard administration and the other half with an
observer present. A significant difference was found only on a subtest of the
Wechsler Memory Scale–Revised, with the observed persons scoring lower.
Taken as a whole, these studies raise the question of whether additional persons
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present during neuropsychological evaluation may hamper effective and accurate

testing. This line of inquiry is related to discussions of ethical considerations and
to official position statements on the topic of third-party presence. For example,
McCaffrey, Fisher, Gold, and Lynch (1996) listed the following possible threats to
valid testing when a third party was in the room:

1. It is invalid to compare such results to normative data because standardized

practice was violated.
2. The testing setting is no longer free from extraneous distractions.
3. It is impossible to ensure the security of test items and answers.

McCaffrey et al. (1996) also surveyed empirical evidence about observers on

cognitive and motor performance due to the “social facilitation effect.” Social fa-
cilitation effect is a broad concept referring to the effects of an observer on any hu-
man behavior. McCaffrey et al. described negative impacts on performance from
both live observers and audiotaping and videotaping.
McSweeney et al. (1998) conducted an analysis of third-party presence in a
neuropsychological evaluation in the framework of the Ethical Principles of Psy-
chologists and Code of Conduct (American Psychological Association, APA,
1992). They listed possible ethical concerns including the need to maintain confi-
dentiality, the need to maintain test security, the requirement to note limitations of
third-party presence, and the need to adhere to the law. McSweeney et al. also
noted one limitation in applying the neuropsychological literature to forensic eval-
uations: the dearth of evidence discriminating between various observers (e.g., op-
posing counsel vs. additional neuropsychologists).
Concerns about third-party presence prompted two position statements from
neuropsychological organizations. The National Academy of Neuropsychology
(NAN) offered its perspective in a 2000 issue of the Archives of Clinical Neuro-
psychology (NAN, 2000). NAN summarized and commented on issues relevant to
forensic neuropsychological evaluations, including the fact that commonly used
test manuals specifically state that third parties should not be present during test
administration. These manuals include, but are not limited to, the Wechsler Adult
Intelligence Scale–III (WAIS–III) and Wechsler Intelligence Scale for Chil-
dren–IV (WMS–III) (NAN, 2000). NAN committee members echoed previous
concerns over the negative impact of observer effects, invalid normative data, and
creation of an antagonistic relationship within the evaluation. They concluded that
 54 CRAMER AND BRODSKY

there are two “nonforensic” situations that warrant third-party observation: formal
education purposes for trainees and when a parent’s presence will quell a child’s
anxieties or a child’s counterproductive behaviors (p. 380).
Along the same lines, the American Academy of Clinical Neuropsychology
(AACN) set forth its position on third-party presence (AACN, 2001). The AACN
distinguished two types of third-party observers: involved and uninvolved. An in-
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volved party is any person with a vested interest in the outcome of the evaluation,
including defense and opposing counsel, additional examiners, or other legal pro-
fessionals. On the other hand, uninvolved parties are persons who are not con-
cerned with the results of the examination but who may still learn something from
it. A typical uninvolved third party is a student or evaluator in-training. AACN
identified valid testing as the paramount issue to consider when ruling on third-
party presence. Like NAN, AACN views third-party presence in general as inap-
propriate. An exception can be young children being separated from their parents.
AACN explicitly stated that their guidelines do not apply to forensic matters in-
volving criminal responsibility.
Three conclusions can be drawn from the research literature and position state-
ments on third-party presence in the neuropsychological examination. First, there
is tentative empirical support for the notion that third parties detract from partici-
pant performance on certain neuropsychological tests. Regardless of whether the
third party is a live person or vicarious presence through technological means, ob-
server effects may diminish the validity of testing. Second, stated professional
opinions advise against permitting third-party presence, as seen in literature re-
views and stances of professional society. Third, the degree to which conclusions
in the neuropsychological literature can be extrapolated to forensic evaluations is
limited; that is, all of the described empirical evidence is in neuropsychology.
Therefore, these findings only generate hypotheses about the impact of attorney
presence in forensic evaluations. The narrative literature discussing attorney pres-
ence in a forensic setting next merits our attention.

ATTORNEY PRESENCE IN FORENSIC EVALUATIONS:

RECENT LITERATURE AND COUNSEL MOTIVATIONS

Forensic evaluators face a legal landscape with many possible sources of bias (van
Gorp & McMullen, 1997). Some causes of possible bias or misdirection by exam-
iners include faulty impression formation in initial contact with lawyers, subjectiv-
ity in record review, bias in assessment of the client, and defensiveness in the
postevaluation process (van Gorp & McMullen, 1997). We focus only on the fo-
rensic evaluation of a client. van Gorp and McMullen specified three particular
facets of the forensic evaluation that can yield partially or fully inaccurate testing,
namely, the assessment methods, the normative data used, and methods of data in-
 ATTORNEY PRESENCE 55

terpretation. van Gorp and McMullen did not include attorney presence as a source
of bias or inaccuracy.
Rachlin and Schwartz (1988) reviewed case law specific to attorney presence
during a forensic evaluation. Before that time in New York State, legal decision
makers generally approved the presence of opposing counsel in forensic evalua-
tions. The rationale was that attorney presence facilitated effective cross-examina-
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tion. A law was subsequently passed allowing both sides to have attorneys present
during forensic assessments (Rachlin & Schwartz, 1988). Similar accommoda-
tions have become common in civil and family courts as well. In all cases, attorney
presence was stringently limited to the role of an observer. They remained out of
sight of the examiner and examinee or observed via alternative means such as
audiotaping or videotaping.
Simon (1996) reviewed case law pertaining to attorney presence in a forensic
examination and reported that a few jurisdictions allowed attorneys to be present
during forensic evaluations. Most legislative actions have ruled against attorney
presence. Despite this general ruling, why do attorneys continue to pursue permis-
sion for attendance during forensic evaluations?
Various attorney motives for participating in forensic evaluations have been
identified. Perhaps the most commonly cited rationale for defense attorneys is to
ensure the fairness of the evaluation (e.g., McCaffrey et al., 1996; Simon, 1996), to
promote particularly accurate recording, and to attend to problematic procedures.
Melton, Petrila, Poythress, and Slobogin (1997) raised the special circumstance of
when a mentally ill offender cannot accurately reconstruct the event. This situa-
tion, coupled with concern over accurate representation of the actual testing, lends
credence to allowing a third party; the attorney can ensure that the rights of im-
paired client are not violated. However, the counterargument is that the attorney is
an involved third party. Because attorneys have a vested interest in the outcome of
the trial, their facial expressions, sighs, other vocalizations, and advice to the
evaluee not to reply may impair the examiner’s ability to conduct a valid evalua-
tion. As the attorney protects the client’s rights, complications for the evaluator
may occur. For instance, an attorney may attempt to limit the content covered in the
evaluation, try to assist the evaluee in providing answers, or try to influence meth-
ods and procedures of the evaluation. Although the attorney may be well inten-
tioned, such actions may be problematic. Overall, sincere concern appears on both
sides of the issue. Attorneys who raise concerns about fairness of evaluations im-
ply that forensic evaluators are potentially unethical professionals who may un-
consciously bias examinations.
Additional benevolent attorney motives have been noted. These intentions in-
clude desire of opposing counsel to prepare for cross-examination (e.g., Rachlin &
Schwartz, 1988; Simon, 1996), of both attorneys to “size-up” or get to know the
examiner (Simon, 1996), and for the retaining attorney to facilitate dialogue be-
tween the examiner and examinee (Melton et al., 1997). Indeed, we have often had
 56 CRAMER AND BRODSKY

retaining attorneys be present for the initial part of an examination, to introduce the
parties and to encourage the evaluee to be forthright and honest. The first two ratio-
nales are legitimate motives from the attorney’s perspective because they relate to
better preparation for trial. The third goal is appropriate in the sense that the attor-
ney’s aim is benevolent.
At the same time, all of these intentions can be accomplished through other
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means than actual physical presence. For instance, elsewhere we have urged that
all child sexual abuse evaluations be videotaped so that the questioning and meth-
ods be fully accessible to all parties (Brodsky, Kruh, & Hovey, 1996). In a broader
overview of audiotaping of all kinds of forensic evaluations, we have offered a
more permissive stance, writing, “I find the case for taping to be a sensible, but not
mandatory procedure. A permanent record is developed of the interview” (Brod-
sky, 1999, p. 157). In this discussion, we also note the special appeal of allowing
the evaluees to make their own tape recordings, in part, so that as evaluators we are
fully and explicitly accountable for everything we say and do.
Of course, other paths than observing assessments exist for attorney prepara-
tion. An attorney can prepare for cross-examination through consultation with an-
other forensic clinician about the report, the methods used, and other assessment
details. Likewise, a concerned attorney may question an examiner during deposi-
tions or through other formal contact outside of the evaluation.
Further attorney motives for being present during examinations should also be
addressed. Some defense attorneys seek to start early in organizing their theory of
the case, and other defense attorneys seek an advantage in preparing meaningful
questions for the expert during direct examination. Protection of their client’s
rights is a motive and obligation of the highest order. Our position is that the funda-
mental rule applies for this list of attorney motives as those previously discussed;
the examiner must ensure that the attorney does not actively or passively interfere
with the examination itself.
Let us turn to the instances in which defense attorneys are motivated to shape the
evaluee’s responses. Whether intentional or naive, actions geared toward making the
evaluee appear worse or better (depending on what would benefit the evaluee) would
compromise the integrity of the evaluation. Although the attorneys may wish to pre-
vent disclosure of potentially sensitive or damaging information by their client, they
should comply with a request to remain quiet during the evaluation. Attorneys seek-
ing to shape examinee’s responses interfere with the accuracy of an evaluation;
NAN’s position statement maintained that the negative impact of observer ef-
fects on a valid neuropsychological evaluation militates against the presence of at-
torneys (NAN, 2000). Greenfield (1999) reviewed prosecution presence during an
evaluation. His stance was that opposing attorneys should not be present because
they create an adversarial situation. He pointed out that the opposing attorney’s
nonverbal behavior and simple presence can interfere with the flow of the exami-
nation and be distracting.
 ATTORNEY PRESENCE 57

ATTORNEY PRESENCE, THE APA ETHICAL

GUIDELINES, AND THE FORENSIC SPECIALTY
GUIDELINES

The Ethical Principles of Psychologists and Code of Conduct (APA, 2002) do not
directly address lawyer presence in a forensic evaluation. Because forensic evalua-
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tions are part of court proceedings, all information is discoverable and confidenti-
ality is voided. Still, Lynch and McCaffrey (2004), for example, asserted that the
neuropsychological examiner is ethically obligated to inform parties of the poten-
tial damage of observer effects and to take steps to find a compromise between eth-
ical guidelines and legal permission for the attorney sitting in on the examination.
The manner in which the attorney is present is important. Lynch and McCaffrey
ask if the validity, reliability, or both of the assessment tool being used are compro-
mised. Similarly, use of normative data in test interpretation under unstandardized
conditions may constitute a problem.
We next view attorney presence with respect to the “Specialty Guidelines for
Forensic Psychologists” (SGFP; Committee on Ethical Guidelines for Forensic
Psychologists, 1991) as a backdrop. First, a few comments about the specialty
guidelines are warranted. The SGFP are aspirational in nature. They define foren-
sic practices as “all forms of professional psychological conduct when acting … as
a psychological expert on explicitly psycholegal issues, in direct assistance to
courts” (p. 657). This definition includes forensic evaluations.
SGFP standard IV.G Relationships requires a forensic examiner to notify all rel-
evant parties (e.g., lawyers, judge) of conflicts between ethical standards and the
law and also to take steps to effectively settle such dilemmas. Steps may include
consultation with forensic professionals, another lawyer, or those parties directly
involved. Psychologists thus may seek to educate defense and prosecuting attor-
neys about intrusive observer effects, as well as about standardized administration.

CONCLUSIONS AND PRACTICAL IMPLICATIONS

McCaffrey et al. (1996) stated that “courts examine requests to exclude an observ-
ing attorney on a case-by-case basis” (p. 436). In most cases, early rulings on this
issue have operated from an overarching belief that attorneys should be permitted
to observe (McCaffrey et al., 1996). This belief, however, is couched largely in the
context of early literature on lawyer presence during physical examinations. Mel-
ton et al. (1997) pointed out that contemporary legal consideration of attorney
presence has largely ruled against defendants who desire legal parties in their eval-
uation (e.g., Estelle v. Smith, 1981).
Given the existing literature, we urge a moderate stance on the issue. Because of
the possible advice-giving, antagonism, and tension, the preferred posture is that
opposing attorneys should not be present in person. However, we see no reason
 58 CRAMER AND BRODSKY

they should not be permitted to view a videotaped examination, under the condi-
tions that the videotaping equipment is unobtrusive and out of the direct vision line
of the evaluee.
For retaining attorneys who seek to advise clients against responding to exam-
iner queries, a marked potential for interference with the natural and meaningful
flow of the examination is present. Our proposed compromise is to encourage re-
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taining counsel to advise clients in advance of the assessment, so that clients are
given sound legal perspectives. The examiner, of course, is obligated to inform the
evaluee about the absence of confidentiality and the legal implications of the as-
sessment. We routinely advise evaluees that nothing they will say or do is protected
and they should proceed as if anything they say may make its way into a report or
into court testimony.
A legal argument raised in support of attorney presence pertains to the “pres-
ence-of-counsel” safeguard for defendants during lineups (e.g., Stinson, Deven-
port, & Cutler, 1996). The presence-of-counsel tenet is in place to ensure just pro-
cedures and is based on the idea that attorney presence will ensure fair procedures
during the lineup. This analogy is flawed for two reasons. First, empirical research
has shown the presence-of-counsel safeguard to be ineffective (Stinson et al.,
1996). Second, an attorney’s presence during identification or a lineup is qualita-
tively different from a psychological evaluation. The process for eyewitness identi-
fication varies (i.e., is not standardized) and lacks psychological ethical guidelines,
the attorney is typically in a different room than the client-suspect, and the lineup is
less susceptible to the influence of an opposing attorney. In contrast, the active
presence of defense or prosecution attorney in an evaluation generates potential
ethical dilemmas.
A final comment on the impact of attorney presence during actual expert testi-
mony is about the legal context. Daubert v. Merrell Dow Pharmaceuticals, Inc.
(1993) criteria require scientific evidence to be sound and reliable (Lee, Reynolds,
& Willson, 2003). An intrusive attorney presence may render an evaluation less
valid, perhaps resulting in unsound evidence. This outcome, in turn, makes the ex-
pert witness vulnerable to criticism in cross-examination and in complying with
ethical expectations.
As forensic evaluators, psychologists should strive to take every precaution
necessary to ensure a fair, standardized evaluation, regardless of whether the ex-
aminer is employed by the state, defense, or court. What steps can a forensic psy-
chologist take in the instance in which attorneys persist in their demand to be pres-
ent? We have noted that carefully arranged audiotaping and videotaping will serve
this goal, particularly if the recorders are not front and center.
What else can be done to resolve the problem of intrusive attorney presence?
Greenfield (1999) set forth the following advice: Make your preference about at-
torney presence clear, put your opinions in writing, be cognizant of relevant case
law, and prepare for being “ambushed” by counsel’s request through willingness to
 ATTORNEY PRESENCE 59

delay and resolve the conflict (p. 25). We recommend the following additional
steps to resolve the issue of either attorney’s presence during a forensic evaluation.

Nonintrusive Observations
Forensic professionals should take every precaution to remain as close to standard-
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ized procedure as possible. This may include reaching a compromise as to how any
third party may be present (e.g., technological recording, court reporter, additional
examiner). Use of unobtrusive technological recording presents a reasonable solu-
tion in most cases. Also, as Greenfield (1999) suggested, the forensic clinician
should go about the exam in the usual fashion as if no third party is present.

Develop Relevant Research Foundations

Empirical research on the effects of attorney presence in forensic evaluations is
needed. It will be difficult to design studies given the ethical hurdles already dis-
cussed. However, one suggestion we can offer is to study participants who have al-
ready been adjudicated. This method could offer a viable alternative and address
ethical concerns with ongoing cases. It may also help to survey practicing forensic
clinicians to assess what are common practices concerning attorney presence.

Avoid the Discipline-Centric View

One should seek to discuss the matters in a reasonable and responsible way. The
use of observation mirrors and careful preevaluation guidelines with the attorneys
may go a long way in preventing on-site conflicts with attorneys. Although psy-
chologists should follow the accepted standardized methods of evaluation, the le-
gal context and demands must be respected. Instead of simplistic and closed-
minded responses to attorney requests, a nuanced approach may be able to attend
both to legal rules and disciplinary guidelines.

ACKNOWLEDGMENT

We thank Clayton Shealy of Taylor Hardin Secure Medical Facility (Tuscaloosa,

AL) for his assistance in idea development for the manuscript.

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