Forensic Neuropsychology: are we there yet?

Archives of Clinical Neuropsychology 18 (2003) 827–845 Forensic Neuropsychology: are we there yet?夽 Jim Hom∗ The Neuropsychology Center, 9400 N. Central Expressway, Suite 904, Dallas, TX 75231, USA Accepted 7 May 2003 Abstract Forensic Neuropsychology is a new and rapidly evolving subspecialty of clinical neuropsychology that applies neuropsychological principles and practices to matters that pertain to legal decision-making. Forensic neuropsychologists provide the trier of fact with specialized information regarding brainbehavior relationships. The primary responsibility of the forensic neuropsychologist is to provide information based on scientifically-validated neuropsychological principles and clinical methodology that is pertinent to the Forensic Question at hand—which is not just whether the patient has dysfunction, but whether the dysfunction results from the event under consideration. To best answer the Forensic Question, the neuropsychologist must use a methodology that has been scientifically-validated on brain-impaired individuals, and can distinguish various brain conditions from each other as well as from normal variation. The methodology must be able to determine whether any dysfunction found is, in fact, the result of a neurological condition as opposed to non-neurological, psychological, or even factitious disorders. This paper discusses neuropsychological methodology in the context of forensic application and the requirements of the legal process and illustrates these issues with case examples. © 2003 National Academy of Neuropsychology. Published by Elsevier Ltd. All rights reserved. Keywords: Forensic Neuropsychology; Decision-making; Forensic Question 1. Introduction Forensic Neuropsychology is a subspecialty of clinical neuropsychology that directly applies neuropsychological principles and practices to matters that pertain to legal 夽 This paper is based on the Presidential Address for the National Academy of Neuropsychology delivered on October 10, 2002, at the 22nd Annual Meeting of the National Academy of Neuropsychology, Miami, FL. ∗ Tel.: +1-214-373-3607; fax: +1-214-373-0762. E-mail address: (J. Hom). 0887-6177/$ – see front matter © 2003 National Academy of Neuropsychology. doi:10.1016/S0887-6177(03)00076-3 828 J. Hom / Archives of Clinical Neuropsychology 18 (2003) 827–845 decision-making. Practitioners of forensic neuropsychology are trained as clinical neuropsychologists and subsequently specialize in the forensic application of their knowledge and skills. The field of forensic neuropsychology is quite new and is rapidly evolving. There are, at the present time, no formal training programs, licensure requirements, or professional organizations devoted specifically to forensic neuropsychology. There are relatively few textbooks in the field, and only a single journal devoted solely to the field, the Journal of Forensic Neuropsychology. There is no formal process for assigning the title of “forensic neuropsychologist” upon a practitioner. Rather, this title can be claimed, in most states, by a practitioner who is first qualified as a licensed psychologist, and who possesses the additional training and experience necessary to meet the guidelines for qualifications as a neuropsychologist. One’s training, background, and knowledge must meet, at the minimum, the requirements for licensure in one’s state and the ethical guidelines for practice of the APA. The National Academy of Neuropsychology has proposed a specific definition of a clinical neuropsychologist. One would expect a forensic neuropsychologist to have further training and experience in the legal arena, although to date, the nature and type of this education has not been specified. 1.1. Surveys of forensic practice Although new, the field of forensic neuropsychology has grown significantly in the past 20 years. Several practice surveys have been conducted that illustrate the growth and importance of forensic neuropsychology (Guilmette, Faust, Hart, & Arkes, 1990; Putnam, 1989; Putnam & DeLuca, 1990; Putnam, DeLuca, & Anderson, 1994; Seretny, Dean, Gray, & Hartlage, 1986; Sweet & Moberg, 1990; Sweet, Moberg, & Suchy, 2000a, 2000b; and Sweet, Moberg, & Westergaard, 1996). In general, these surveys indicate: • referrals from attorneys rank equally in frequency with referrals from neurosurgeons, psychologists, general physicians, and rehabilitation specialists; • forensic neuropsychology is one of the most common sources of supplemental income; • legal entities account for almost one-third of private practice referral sources • psychologists engaged in forensic work have higher incomes than those who did not; • practicing psychologists are spending more time in forensic neuropsychological activities; • only neurology and psychiatry are more important referral sources than attorneys; • among private practitioners, attorneys are the top referral source. Other evidence for the growth and importance of forensic neuropsychology is the increasing number of presentations on this topic at national meetings, as well as the increasing numbers of peer-reviewed publications. Recently, the American Board of Professional Neuropsychology (ABPN) added a subspecialty in forensic neuropsychology to its certifying process. Forensic Neuropsychology’s growth is a direct result of the growth in the field of clinical neuropsychology. Over the past 40 years, clinical neuropsychology has established principles of brain-behavior relations and valid and reliable methodologies for measuring these relationships. These principles and methodologies allow clinical neuropsychologists to provide the trier of fact with specialized information for use in the legal decision-making process. J. Hom / Archives of Clinical Neuropsychology 18 (2003) 827–845 829 1.2. Neuropsychological testimony Neuropsychological testimony is well-accepted in the courts. In a review of 200 appellate court cases in the 1980s, Richardson and Adams (1992) found that decisions in all jurisdictions upheld the right of a clinical neuropsychologist to testify about the presence of brain dysfunction. In contrast to the apparent unanimity regarding a neuropsychologist’s ability to testify concerning the presence of brain dysfunction, there has been less acceptance of the clinical neuropsychologist’s ability to testify about the cause of brain dysfunction. Nonetheless, Richardson and Adams found that 9 of 11 jurisdictions allowed neuropsychological testimony regarding causation. Typically, challenges to neuropsychological testimony have been raised on the grounds that psychologists are not medical doctors and that the causal determination of brain damage is a medical issue. 1.3. Case precedent An early case that addressed the question of a neuropsychologist’s ability to provide expert testimony regarding brain impairment was Indianapolis Union Railway v. Walker (1974). In this case, a passenger was injured in an auto collision with a tra (...truncated)