402 Forensic Psychology
and relevant to the case at hand. The Court stressed that the
“overarching subject is the scientific validity” of the research
in question rather than its general acceptance within the rele-
vant scientific community. Thus, trial judges were assigned
the role of gatekeeper, whose task is to decide, in effect,
whether the proposed testimony represents methodologically
sound research or is “junk science.”
InKumho Tire v. Carmichael(1999), the Supreme Court
reaffirmed this aspect of the Daubertdecision, ruling that
trial judges should be granted broad latitude in determining
which factors are applied in assessing the reliability of a
given expert’s testimony. The court also extended Rule 702 to
includeallexpert testimony, whether it is “scientific,” “tech-
nical,” or represents “other specialized knowledge.”
BecauseDaubertwas a federal case rather than a state
case, it has been left up to nonfederal jurisdictions whether to
apply the Daubertstandards or to retain the Frye test as the
arbiter of admissibility. At present it is unclear what effect the
Daubertdecision will have on scientific psychological testi-
mony or on clinical expert testimony. Regarding scientific
testimony, it has been pointed out that, while the decision
may open the door to innovative, valid new evidence that has
not yet received widespread acceptance within the relevant
scientific community, it also potentially opens the door for
testimony based on questionable techniques that are unrecog-
nized by the scientific community for good reasons, reasons
that are not necessarily discernible by persons who are not
trained in scientific methodology. Other observers have wor-
ried about whether the decision may be used to exclude the
testimony of clinical psychologists expressing opinions
about specific issues, especially on such controversial foren-
sic issues as predicting dangerousness, rape, trauma, the pres-
ence of sex stereotyping, and child sexual abuse. Because
interpretations of the Daubertstandards have varied widely
in the years since it was handed down, the question of its
eventual impact remains open (Grove & Barden, 1999; Mark,
1999; Shuman & Sales, 1999).
Ethical and Professional Issues in Expert Testimony
As psychologists have appeared as expert witnesses with in-
creasing frequency in recent years, attention to the ethical is-
sues involved in such testimony has increased as well. When
psychologists work in legal contexts, they may find them-
selves in situations involving unanticipated ethical or legal is-
sues. Indeed, ethics complaints against psychologists who
work in forensic contexts are among the most common made
to licensing boards (Ogloff, 1999, p. 403). The Ethical Code
of the American Psychological Association applies to forensic
psychologists in all of their professional activities. However,
it was not until the 1992 revision of the Ethical Code that
issues pertaining to forensic psychology were directly ad-
dressed (Ethical Standards 7.01–7.06). TheSpecialty Guide-
lines for Forensic Psychologists (Committee on Ethical
Guidelines for Forensic Psychologists, 1991), formulated by
the American Psychology-Law Society, contain a more com-
prehensive analysis of ethical issues that forensic psycholo-
gists may face. However, while psychologists are obligated to
adhere to the APA’s ethical principles (American Psychologi-
cal Association, 1992), theSpecialty Guidelinesdo not repre-
sent an official statement of the APA and are “aspirational in
nature” (Ogloff, 1999, p. 405).
TheSpecialty Guidelinesare meant to apply to all psy-
chologists within any subdiscipline of psychology (e.g., clin-
ical, cognitive, developmental, social, experimental) who are
engaged regularly as forensic psychologists. The guidelines
discuss the issue of competence (i.e., the need to maintain
current knowledge of scientific, professional, and legal de-
velopments within the area of claimed competence), types
of relationships and potential conflicts of interest, and is-
sues regarding confidentiality and privilege. The guidelines
also note: “Forensic psychologists are aware that hearsay
exceptions and other rules governing expert testimony place
special ethical burden upon them” and they should “seek to
minimize sole reliance upon such evidence” (Committee
on Ethical Guidelines for Forensic Psychologists, 1991,
p. 662). Further, the guidelines stress the importance of
ensuring that forensic psychologists’ public statements and
professional testimony are communicated in ways that will
promote understanding and avoid deception. The guidelines
assert: “Forensic psychologists realize that their public role
as ‘expert to the court’ or as ‘expert representing the profes-
sion’ confers upon them a special responsibility for fairness
and accuracy in their public statements.... When testifying,
forensic psychologists have an obligation to all parties to
legal proceeding to present their findings, conclusions, evi-
dence, or other professional products in a fair manner. This
principle does not preclude forceful representation of the data
and reasoning upon which a conclusion or professional prod-
uct is based. It does, however, preclude an attempt, whether
active or passive, to engage in partisan distortion or misrep-
resentation” (p. 664).
As several writers have pointed out (e.g., Keith-Spiegel &
Koocher, 1985; Ogloff, 1999), psychologists working in the
legal system may encounter ethical situations for which their
training has not prepared them. One issue is: Who is the
client? If the psychologist has been hired to examine a job ap-
plicant as part of an employment screening process, for ex-
ample, the employer, not the job applicant, is the client. In
such a case, the employer “owns” the confidentiality, and the