speech). Laboratory research has more or less consis- tently revealed that, despite people’s stereotypes of lying behavior, liars are stiller than truth tellers and able to maintain eye gaze. This indicates that behav- ioral control and cognitive load may be more overpow- ering mechanisms than emotional arousal in the low-stakes liar. One would expect then that in a higher- stakes lying situation, emotions are likely to run higher. Although this might be the case, it would appear that the desire to appear credible (controlling behavior) and the cognitive load associated with telling a higher-stakes lie increase even more so, since research into the behavior of high-stakes liars such as suspects in police interviews reveals similar patterns in behavior to laboratory research subjects, with the addi- tion of a decrease in blinking and an increase in speech pauses. If high-stakes liars behave similarly as low-stakes liars (in that, on the whole, they display signs of increased cognitive load and increased control rather than nervousness), then could their lies be any easier to detect? As mentioned earlier, people expect certain behaviors of a liar, yet these behaviors often fail to be displayed. This is one reason why most people do not score above the level of chance when trying to detect people’s lies in experiments. In contrast, in experi- ments where police officers were shown clips of real-life liars and truth tellers (suspects in police inter- views) and asked to make veracity judgments, the overall accuracy was more than 65%. Why it is higher is unclear. It could be that the situation that observers were being asked to judge was more contextually rel- evant to them than, for example, watching students who have been asked to lie or tell the truth about triv- ial matters. It could be that observers were able to make use of the signs of increased cognitive load that the suspects did reveal (increased pauses in speech, bodily rigidity, etc.) or perhaps that they were able to pick up on something less tangible. Samantha Mann and Aldert Vrij Further Readings DePaulo, B. M., Lindsay, J. L., Malone, B. E., Muhlenbruck, L., Charlton, K., & Cooper, H. (2003). Cues to deception. Psychological Bulletin, 129, 74–118. Mann, S., Vrij, A., & Bull, R. (2002). Suspects, lies and videotape: An analysis of authentic high-stakes liars. Law and Human Behavior, 26, 365–376. Mann, S., Vrij, A., & Bull, R. (2004). Detecting true lies: Police officers’ ability to detect deceit. Journal of Applied Psychology, 89, 137–149. D EVELOPING C OMPREHENSIVE T HEORIES OF E YEWITNESS I DENTIFICATION See WITNESS M ODEL D IMINISHED C APACITY Diminished capacity refers to two distinct doctrines. The first, known as the mens rea variant, refers to the use of evidence of mental abnormality to negate a mens rea—a mental state such as intent, required by the definition of the crime charged (the mens rea vari- ant). The second, known as the partial responsibility variant, refers to the use of mental abnormality evi- dence to establish some type of partial affirmative defense of excuse. Courts have used various other terms, such as diminished responsibility , to refer to one or both of these distinct doctrines, but the term used is unimportant. Confusion arises, however, when the two types of doctrine are not clearly distinguished. Neither entails the other, and distinct legal and policy concerns apply to each. The Mens Rea Variant Mental abnormality can negate mens rea, primarily in cases in which the disorder is quite severe and pro- duces a cognitive mistake. For example, in Clark v. Arizona (2006), a recent case that reached the Supreme Court of the United States, the defendant claimed that he believed that the police officer he killed was really a space alien impersonating a police officer. If this was true, the defendant did not intend to kill a human being with the knowledge that the victim was a police officer. Historically, the legal objection to using mental abnormality to negate mens rea was that traditional doctrine required that mistakes had to be objectively reasonable and a mistake that mental abnormality produces is definitionally unreasonable. Thus, evidence of such mistakes was excluded, even Diminished Capacity ———217 D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 217 though it is logically relevant to whether a requisite mens rea was in fact present. The logic of the mens rea variant is impeccable. Crimes are defined by their elements, and the prosecu- tion must prove all these elements beyond a reasonable doubt. If the prosecution is unable to prove an element, then the defendant should be acquitted of a crime requiring that element. The defendant using the mens rea variant of diminished capacity seeks simply to use evidence of mental abnormality to cast reasonable doubt on the presence of a mental state element that is part of the definition of the crime charged. Such use of mental abnormality evidence is not a full or a partial affirmative defense. It is functionally and doctrinally indistinguishable from the use of any other kind of evi- dence for the same purpose, and it thus does not war- rant a special name as if it were a unique doctrine. Justice or fairness seems to require permitting a criminal defendant to use relevant evidence to cast rea- sonable doubt on the prosecution’s case when criminal punishment and stigma are at stake. Nonetheless, a criminal defendant’s right to introduce relevant evi- dence may be denied for good reason, and the U.S. Supreme Court recently held that the Constitution does not require the admission of most kinds of mental abnormality evidence offered to negate mens rea, even if such evidence is logically relevant and probative. About half the American jurisdictions exclude mental abnormality evidence altogether when it is offered to negate mens rea, and the other half permit its introduc- tion but typically place substantial restrictions on the use of the evidence. T T o o t t a a l l E E x x c c l l u u s s i i o o n n o o f f M M e e n n t t a a l l A A b b n n o o r r m m a a l l i i t t y y E E v v i i d d e e n n c c e e The most common justifications for exclusion of mental abnormality evidence to negate mens rea are that courts and legislatures confuse the mens rea claim with a partial or complete affirmative defense, that mental abnormality evidence is considered particu- larly unreliable in general or for this purpose, and that permitting the use of such evidence would compro- mise public safety. If mens rea negation is wrongly thought to be an affirmative defense, it may appear redundant with the defense of legal insanity or a court might believe that creating a new affirmative defense is the legislature’s prerogative. If mens rea negation were an affirmative defense, these might be good rea- sons to reject the admission of mental abnormality evidence, but these reasons are unpersuasive because they rest on a confused doctrinal foundation. The unreliability rationale for exclusion is stronger in principle because courts are always free to reject unreliable evidence. The difficulty with this rationale is that mental abnormality evidence is routinely con- sidered sufficiently reliable and probative to be admit- ted in a wide array of criminal and civil law contexts, including competence to stand trial, legal insanity, competence to contract, and others. Criminal defen- dants are afforded special protections in our adversary system because the defendant’s liberty and reputation are threatened by the power of the State. For the same reason, there is also a powerful motivation to provide defendants special latitude to admit potentially excul- patory evidence, especially when evidence of the same type is admitted in other contexts where much less is at stake. It seems especially unfair to exclude evidence of mental abnormality, which is rarely, if ever, the defendant’s fault, when most jurisdictions in some circumstances routinely admit evidence of vol- untary intoxication to negate mens rea. The public safety rationale is also sound in principle. If a mentally abnormal and dangerous defendant uses abnormality evidence successfully to negate all mens rea, outright acquittal and release of a dangerous agent will result. Virtually automatic involuntary civil com- mitment follows a successful affirmative defense of legal insanity, but the State has less effective means to preventively confine dangerous defendants acquitted outright. The problem with the public safety rationale is practical rather than theoretical. Mental disorders may cause agents to have profoundly irrational reasons for action, but they seldom prevent people from forming intentions to act, from having the narrow types of knowledge required by legal mens rea, and the like. Moreover, the mens rea termed negligence —unreasonable failure to be aware of an unjustifiable risk that one has created—cannot be negated by mental abnormality because such failure is per se objectively unreasonable. Consequently, very few defendants with mental disor- der will be able to gain outright acquittal by negating all mens rea or will even be able to reduce their con- viction by negating some mens rea. Public safety would not be compromised by the mens rea variant. The only possible exception to the observation that mental abnormality seldom negates mens rea is the mental state of premeditation required by many juris- dictions for conviction for intentional murder in the 218 ———Diminished Capacity D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 218 first degree. On occasion, a person with a disorder may kill on the spur of the moment, motivated by a command hallucination or a delusional belief. Such people are capable of premeditating, but the mental abnormality evidence simply tends to show that they did not premeditate in fact on this occasion. And even if premeditation is negated, the intent to kill is not. L L i i m m i i t t e e d d A A d d m m i i s s s s i i o o n n o o f f M M e e n n t t a a l l A A b b n n o o r r m m a a l l i i t t y y E E v v i i d d e e n n c c e e If the rationale for the mens rea variant is accepted, as a logical matter, the evidence should be admitted to negate any mens rea that might have been negated in fact. Indeed, this is the Model Penal Code position. Nonetheless, virtually all jurisdic- tions that have permitted using mental abnormality evidence to negate mens rea have placed substantial limitations on doing so, largely because they incor- rectly fear large numbers of outright acquittals that could result from following the pure logical rele- vance standard for admission. Limited admission is thus based on a policy compromise between consid- erations of fairness and public safety: A defendant is able to negate some but not all mens rea, which typ- ically results in conviction for a lesser offense. The effect of mental abnormality on culpability is thus considered, albeit partially, and a potentially danger- ous defendant does not go free entirely, albeit the sentence is abbreviated. Partial Responsibility Variant Some criminal defendants who acted with the mens rea required by the definition of the crime charged and who cannot succeed with the insanity defense nonetheless have mental abnormalities that substan- tially compromise their capacity for rationality. The logic of the partial responsibility variant flows from this observation. In general, the capacity for rational- ity, the capacity to grasp and be guided by reason, is the touchstone of moral and legal responsibility. Mental abnormality potentially compromises moral and legal responsibility because in some cases it ren- ders the defendant so irrational that the defendant is not a responsible agent. The capacity for rationality is a continuum, however, and in principle, responsibil- ity should also be a continuum, allowing for a partial defense. Nonetheless, no generic partial excuse for diminished rationality arising from mental abnormality exists in any jurisdiction in the United States or in English law. Thus, for example, a mentally abnormal defendant who killed intentionally and with premed- itation has no doctrinal tool to avoid conviction and punishment for the most culpable degree of crime— first degree murder—even if the killing was highly irrationally motivated as a result of substantial men- tal abnormality. Courts are unwilling to create a generic excuse for many reasons, including the belief that they do not have the power to create new excuses, the fear that they will be inundated with potentially confusing or unjustified cases, and the fear that dangerous defendants might go free too quickly and endanger the public. Furthermore, courts believe that creating a genuine partial excuse is a “legislative act” that exceeds judicial prerogative. In a few jurisdictions, courts tried to develop a partial excuse in the guise of adopting the mens rea variant, but these attempts used extremely problematic mens rea concepts, were confusing, and have largely been aban- doned. Legislatures appear unwilling to enact a generic partial excuse because, in general, legislatures are not responsive to claims that are to the advantage of wrong- doers and because legislators, too, fear the conse- quences for public safety. P P a a r r t t i i a a l l R R e e s s p p o o n n s s i i b b i i l l i i t t y y D D o o c c t t r r i i n n e e s s a a n n d d P P r r a a c c t t i i c c e e s s Despite their reluctance to adopt a generic partial responsibility doctrine, courts and legislatures have adopted various doctrines or practices that are in fact forms of partial excuse. Most prominent are (a) the Model Penal Code’s “extreme emotional disturbance” doctrine (Sec. 210.3.1(b)) and English “diminished responsibility,” both of which reduce a conviction of murder to the lesser crime of manslaughter; (b) one interpretation of the common-law provocation/ passion doctrine, which reduces an intentional killing from murder to voluntary manslaughter; and © the use of mental abnormality evidence as a mitigating factor at sentencing hearings. The extreme emotional disturbance doctrine, pro- mulgated by the Model Penal Code and adopted in a small minority of American states, reduces murder to manslaughter if the killing occurred when the defen- dant was in a state of extreme mental or emotional disturbance for which there was reasonable explana- tion or excuse. Mental abnormality evidence is admis- sible in most jurisdictions to establish that such Diminished Capacity ———219 D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 219 disturbance existed. English diminished responsibility permits the reduction of the charge to manslaughter if the defendant killed in a state of substantially impaired mental responsibility arising from mental abnormality. Neither doctrine negates the lack of intent or conscious awareness of a very great risk of death that is required for the prosecution to prove murder. Both simply reduce the degree of conviction and, thus, punishment and stigma because mental abnormality diminishes culpability. These partial responsibility doctrines exist only within the law of homicide, but in principle, both operate and could be formally treated as generic affir- mative defenses of partial excuse, because nothing in the language of either doctrine entails that it applies only to homicide. Many jurisdictions in the United States and in English law also contain the provocation/passion doctrine, which reduces a murder to manslaughter if the defendant killed subjectively in the “heat of pas- sion” in immediate response to a “legally adequate” or “objective” provocation—that is, a provoking event, such as finding one’s spouse in the act of adul- tery, that would create an inflamed psychological state in a reasonable person. The defendant kills intentionally and is criminally responsible, but the provocation/passion doctrine reduces the degree of blame and punishment. The rationale supporting this mitigating doctrine is controversial, but one interpre- tation is that psychological states such as “heat of passion” diminish rationality and responsibility and the defendant is not fully at fault for being in such a diminished condition because the provocation was sufficient to put even a reasonable person in such a state. In this interpretation, the provocation/passion doctrine is a form of partial excuse related to but nar- rower than extreme emotional disturbance and dimin- ished responsibility. In jurisdictions that give judges unguided or guided sentencing discretion, mental abnormality is a factor traditionally used to argue for a reduced sentence. Many capital sentencing statutes explicitly mention mental abnormality as a mitigating condition, and some even use the language of the insanity defense or the extreme emotional disturbance doctrine as the mit- igation standard. The partial excuse logic of such sen- tencing practices is conceded and is straightforward. A criminally responsible defendant whose behavior sat- isfied all the elements of the offense charged, includ- ing the mens rea, and who has no affirmative defense may nonetheless be less responsible because mental abnormality substantially impaired the defendant’s rationality. Stephen J. Morse See also Criminal Responsibility, Defenses and Standards; Mens Rea and Actus Reus Further Readings American Law Institute. (1962). Model Penal Code. Philadelphia: Author. Arenella, P. (1977). The diminished capacity and diminished responsibility defenses: Two children of a doomed marriage. Columbia Law Review, 77, 827–865. Clark v. Arizona , 548 U.S. ____ 126 S. Ct. 2709 (2006). Fingarette, H., & Hasse, A. F. (1979). Mental disabilities and criminal responsibility . Berkeley: University of California Press. Horder, J. (1992). Provocation and responsibility. Oxford, UK: Clarendon Press. Mackay, R. D. (1995). Mental condition defenses in the criminal law . Oxford, UK: Clarendon Press. Morse, S. J. (1984). Undiminished confusion in diminished capacity. Journal of Criminal Law and Criminology, 75, 1–55. Morse, S. J. (1993). Diminished capacity. In S. Shute, J. Gardner, & J. Horder (Eds.), Action and value in criminal law (pp. 239–278) . Oxford, UK: Clarendon Press. D IPLOMATES IN F ORENSIC P SYCHOLOGY Diplomates in forensic psychology are dually certified by the American Board of Forensic Psychology (ABFP) and its parent organization, the American Board of Professional Psychology (ABPP), as experts in applying the science and profession of psychology to U.S. law and the U.S. legal system. The certification process consists of four distinct phases: initial application, written examination, prac- tice sample review, and oral examination. The appli- cant must possess a doctoral degree in psychology from a program acceptable to the ABPP. A program is automatically deemed acceptable if accredited by the American Psychological Association (APA) or the Canadian Psychological Association or if listed by the Association of State and Provincial Psychology Boards (ASPPB). Acceptability is also presumed if 220 ———Diplomates in Forensic Psychology D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 220 the applicant holds the Certificate of Professional Qualification issued by the ASPPB or if the applicant is registered with the National Register of Health Service Providers in Psychology. The applicant must have accumulated at least 1,000 hours of qualifying experience in forensic psychology over a minimum of 4 years of practice. An earned law degree may be substituted for 2 of these 4 years, and successful completion of a qualifying formal postdoc- toral fellowship may be substituted for 3 of these 4 years, as long as the 1,000-hour experience require- ment has been met. The applicant also must have received 100 hours of qualifying specialized training in forensic psychology. This training may consist of direct supervision by a qualified forensic professional, continuing education attendance, or relevant class- room activities at the graduate or postgraduate level. The written examination consists of 200 multiple- choice questions that focus primarily on the following eight areas of forensic psychological research and practice: (1) ethics, guidelines, and professional issues; (2) law, precedents, court rules, and civil and criminal procedure; (3) testing and assessment, judgment and bias, and examination issues; (4) individual rights and liberties, civil competence; (5) juvenile, parenting, and family/matrimonial matters; (6) personal injury, civil damages, disability, and workers’ compensation; (7) criminal competence; and (8) criminal responsibil- ity. The ABFP provides the applicant with a periodi- cally updated reading list that identifies key legal cases, books, and book chapters for each topic area. The applicant who passes the written examination is admitted to formal candidacy and is invited to sub- mit two practice samples of his or her forensic psychological work. These practice samples must rep- resent two distinct and separate areas of forensic endeavor; for example, one acceptable practice sam- ple could address mental state at the time of the offense, while the other could address trial compe- tency; however, it would not be acceptable for one practice sample to address parenting capacity involv- ing a relocation issue if the other addressed parenting capacity involving allegations of sexual abuse. To ensure a sufficiently current professional review, the forensic work forming the basis of each practice sam- ple must have been generated no more than 2 years prior to the date on which the candidate’s original application was accepted. Typically, practice samples consist primarily of eval- uative reports; however, with prior agreement of the ABFP, and for good cause, an alternative submission, solely authored by the candidate, may be substituted for one of the two practice samples. Examples of potentially acceptable alternative submissions include a forensic psychological book chapter, a forensic psychological article accepted for publication in a peer-reviewed jour- nal, a forensic psychological test manual, or a forensic psychological treatment program or treatment protocol. Practice samples are reviewed by an appointed faculty of Diplomates in Forensic Psychology. The purpose of this review is to ensure that the candidate possesses a high level of professional competence and maturity, with the ability to articulate a coherent rationale for his or her work in forensic psychology. The submission of two acceptable practice samples qualifies the candidate to proceed to the oral examina- tion, which is designed to determine the quality of his or her practice and forensic knowledge in areas exempli- fied by the practice samples as well as to determine the candidate’s understanding and application of ethical standards, in particular the current version of the APA’s Ethical Principles of Psychologists and Code of Conduct and the Specialty Guidelines for Forensic Psychologists , promulgated in part by the American Psychology-Law Society. The oral examination lasts for approximately 3 hours, conducted by a panel of three diplomates in forensic psychology. Panelists are instructed to bear in mind that one implication of their recommendation to award certification is that they would also feel comfortable in referring the candidate to persons soliciting the expertise in question. The panel’s recom- mendation is reviewed and voted on by the ABFP, after which the ABPP informs the candidate of the results. Currently, there are approximately 240 diplomates in forensic psychology, serving in a wide variety of treatment, assessment, teaching, and research settings. All diplomates in forensic psychology are also designated as fellows of the American Academy of Forensic Psychology, a member organization that maintains an online directory and a Listserv on pro- fessional issues, operates a continuing education pro- gram in forensic psychology, and confers awards in recognition of outstanding professional contributions and promising graduate student research. Eric York Drogin See also Doctoral Programs in Psychology and Law; Ethical Guidelines and Principles; Expert Psychological Testimony; Postdoctoral Residencies in Forensic Psychology; Trial Consulting Diplomates in Forensic Psychology ———221 D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 221 Further Readings Dattilio, F. M. (2002). Board certification in psychology: Is it really necessary? Professional Psychology: Research and Practice, 33, 54–57. Dattilio, F. M., & Sadoff, R. L. (2003). Mental health experts: Roles and qualifications. Mechanicsburg, PA: Pennsylvania Bar Institute. Dattilio, F. M., Sadoff, R. L., & Gutheil, T. G. (2003). Board certification in forensic psychiatry and psychology: Separating the chaff from the wheat. Journal of Psychiatry and Law, 31, 5–19. Drogin, E. Y. (in press). Expert qualifications and credibility. In D. Faust & M. Ziskin (Eds.), Coping with psychiatric and psychological testimony (6th ed.). Los Angeles: Law & Psychology Press. Parry, J. W., & Drogin, E. Y. (2007). Mental disability law, evidence, and testimony: A comprehensive reference manual for lawyers, judges, and mental disability professionals. Washington, DC: American Bar Association. D ISABILITY AND W ORKERS ’ C OMPENSATION C LAIMS , A SSESSMENT OF Disability insurance and workers’ compensation both concern illness or injury in the context of work. These terms are sometimes (erroneously) used interchange- ably, but in actuality they refer to very different con- cepts. Disability insurance provides benefits to an eligible claimant whose ability to work is compro- mised by injury or illness. The cause of the injury or illness need not be related directly or indirectly to the work setting. In contrast, workers’ compensation is designed to provide financial relief to an employee who is injured or becomes ill as a direct result of work-related factors. Thus, the key issue in disability evaluations is functional capacity, while the key issue in workers’ compensation evaluations is causality. When assessing disability or workers’ compensa- tion claimants, it is critical for the evaluator to use a variety of data sources. Psychological and/or neu- ropsychological tests are usually considered an inte- gral component of the evaluation, and test selection should be determined by the specific referral ques- tions and the nature of the claimed impairment. Owing to the possibility of secondary gain on the part of the claimant, all disability and workers’ compensa- tion evaluations should include an assessment of symptom validity to rule out exaggeration or other forms of dissimulation. Conclusions expressed by the evaluator should focus on the specific referral ques- tions, and statements regarding ultimate issue deter- minations should be avoided. Disability Claims Disability , used in the context of disability claims, is a legal rather than a psychological or medical term. Its definition is determined by the terms of the policy, con- tract, or entitlement program under which the claimant has applied for benefits. Sources of disability benefits include private disability insurance policies, public and private sector employee benefits, and federal entitle- ment programs (Social Security Disability). Each of these sources of benefits is subject to different federal, state, and local laws. For example, Social Security Disability and private sector employee benefits are reg- ulated by federal law (the Social Security Act and the Employee Retirement Income Security Act of 1974, ERISA). Private disability policies are usually gov- erned by the laws of the state in which the policyholder resides. State and local government employee benefits are exempt from ERISA regulation and are defined by state statutes, local ordinances, and (when applicable) collective-bargaining agreements. Although policies and entitlement programs vary, there are some concepts common among all disability sources. Disability refers to functional capacity, not diagnosis. To be eligible for benefits, the claimant must meet the specific definition of disability determined by the policy or program under which benefits are sought. Regardless of the source, most definitions of disability include two prongs: (1) The claimant must have sus- tained an injury or illness that (2) renders him or her unable to perform the substantial and material duties of his or her occupation (or, in some cases, to be able to perform any work at all). Thus, a valid disability claim requires both the substantiation of the presence of a con- dition as well as proof that this condition creates impair- ment in the claimant’s functional abilities to perform his or her occupation. It also must be established that the absence from work is, in fact, due to the illness or injury and not to circumstantial factors (e.g., being laid off) or choice (e.g., job dissatisfaction, the desire to relocate). When a policyholder files a claim for disability ben- efits, the insurance company initiates an evaluation of 222 ———Disability and Workers’ Compensation Claims, Assessment of D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 222 the claim to determine if the policyholder is entitled to benefits. Mental health claims are particularly difficult to adjudicate as they are based on subjective symptoms. During the course of the claim investigation, psycholo- gists and psychiatrists are often called on to perform independent medical examinations (IMEs) to assist the insurance company in assessing the objective basis of the claim. If the claim is denied or terminated, the claimant may request an appeal of the decision by the company. If this decision is unfavorable to the claimant, the claimant may initiate legal proceedings against the company. In the assessment of disability claims, the key issue is functionality; specifically, has the claimant’s ability to function in his or her occupation been impaired? Thus, in the IME, three questions must be addressed: (1) Does the claimant have a psychiatric condition? (2) Are there functional impairments related to this condition? (3) Do these functional impairments affect work capacity? It is important that the concepts of diagnosis, symptoms, and functional capacity not be confused. Diagnosis refers to the presence of a specific psychi- atric condition (e.g., bipolar disorder, panic disorder with agoraphobia). Symptoms refer to the subjective experience of the condition (e.g., loss of interest, anxi- ety). Functional capacity, however, refers to the ability to perform specific tasks or activities—for example, interacting appropriately with the public, remembering pertinent information, adding a column of numbers. It is the loss of functional capacity that is critical in the evaluation of a disability claim. Thus, it is necessary for the evaluator to draw logical connections between diagnosis, symptoms, and functional impairment, for example, establishing how depression—manifested by symptoms such as insomnia, diminished concentration, and feelings of fatigue—leads to a reduced capacity to stay alert and focused over the course of an 8-hour workday, compromising the claimant’s ability to do his or her job. Workers’ Compensation Claims Workers’ compensation is essentially a no-fault sys- tem of compensating employees for losses due to accidental injury or illness sustained in the course of employment. Whether the injury is due to the employer’s negligence or the employee’s, the com- pensation is the same. This reduces the need for pro- tracted litigation, allowing employers to contain costs and employees to obtain the needed benefits in a timely manner. The benefits provided by workers’ compensation include both lost wages and medical care to treat the injury or illness. The laws governing workers’ compensation differ in each state. In all states, employees are compensated for physical injuries, such as a knee injury caused by lift- ing a heavy piece of equipment. Employees in most states are also compensated for physical injuries origi- nating out of mental stimuli (e.g., ulcers attributed to job stress) and mental injuries that accompany a physi- cal injury (e.g., posttraumatic stress disorder following the loss of an eye). In only a few states are employees compensated for purely mental injuries, such as panic attacks resulting from a stressful work environment. Unlike disability, in workers’ compensation, the key issue is causality. To be compensable, the claimant’s injury or illness must be the result of his or her employment. From the standpoint of assessment, this requires both establishing the existence of an illness or injury and ruling out non-work-related causes of the employee’s difficulties. In the workers’ compensation system, independent evaluations are referred to as qualified medical examinations (QMEs). The ques- tions the QME is typically asked to address include the following: 1. Did work cause or contribute to the illness or injury? 2. Are there preexisting conditions contributing to the disability? 3. Is there a need for current or future medical care? 4. Is the condition stable and not likely to improve? 5. Is there permanent impairment? 6. Can the claimant return to his or her regular job? Evaluation of Disability and Workers’ Compensation Claims Given the subjective nature of psychological condi- tions, it is critical for the evaluator, when assessing dis- ability or workers’ compensation claimants, to use a variety of data sources in forming opinions. These sources may include (a) a review of relevant medical, psychological, educational, and occupational records; (b) collateral information obtained directly from third parties, such as treating providers, family members, or coworkers; © information obtained from the claimant Disability and Workers’ Compensation Claims, Assessment of ———223 D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 223 during the clinical interview; (d) information obtained during the claim investigation; and (e) psychological and/or neuropsychological test data. It is important that the evaluator not rely solely on the claimant’s self- report but view it as one, among many, of the sources of evaluation data. Psychological and/or neuropsychological tests are usually considered an integral component of a disabil- ity or workers’ compensation evaluation. Test selec- tion should be determined by the specific referral questions and the nature of the claimed impairment. Although most disability and/or workers’ compensa- tion disputes are resolved without litigation, as with any forensic evaluation admissibility issues should be a consideration in test selection. Depending on the jurisdiction, Frye (general acceptance) or Daubert (testable, peer-reviewed, known error rate, and gen- eral acceptance) standards should be taken into account. Therefore, the best practice is to use tests that are standardized, objective, valid, and reliable. Evaluators are typically asked to rule in or rule out symptom exaggeration or malingering, as claims for disability and workers’ compensation benefits present the possibility of secondary gain in terms of financial remuneration and/or avoidance of work. Although base rates are difficult to establish, it has been esti- mated that malingering occurs in 7.5% to 33% of all disability claims. Methods for assessing symptom validity include using multiple sources of data, ana- lyzing patterns of psychological and neuropsycholog- ical test performance, employing the validity scales included in standardized psychological tests (e.g., the F scale on the Minnesota Multiphasic Personality Inventory–2 [MMPI–2]), administering specifically designed measures of symptom validity (e.g., the Test of Memory Malingering, Validity Indicator Profile), and using structured interviews (e.g., Structured Inventory of Reported Symptoms, Miller Forensic Assessment of Symptoms Test). The use of multiple methods is preferable. It is important to fully respond to the referral ques- tions and not add information that is unrelated to or goes beyond the scope of these questions. Ultimate issue decisions—such as whether the claimant meets the policy definition of disability or has a compensable workers’ compensation claim—should not to be made by the evaluator. The evaluator’s role is to provide the referral source with information related to the func- tional capacity of the claimant or the causality of the claimant’s condition. Conclusive statements such as “The claimant is disabled” or “This is a compensable claim” should be avoided in favor of statements such as “The claimant’s inability to follow multistep direc- tions would significantly limit her ability to perform complex surgical procedures” or “The claimant’s acute distress disorder was likely precipitated by the armed robbery that occurred in the workplace.” At the conclusion of the evaluation, a written report should be provided to the referral source. This report should be well organized with data sources clearly identified. It is helpful to have separate sections sum- marizing the materials reviewed, the self-reported his- tory provided by the claimant, information obtained from collateral sources, behavioral observations, psy- chological test data, and any other data used by the evaluator. This should be followed by a discussion of the evaluator’s impressions and interpretation of the data. Inconsistencies and gaps in the data should be noted. Finally, the evaluator should explicitly respond to each referral question. It is important to keep in mind that the consumers of the IME or QME report are insurance company person- nel and attorneys, not mental health professionals. Professional jargon, acronyms, and undefined scientific or medical terms should be avoided. Clear, concise lan- guage should be used, so that the report is useful to the reader and not subject to misinterpretation. Lisa D. Piechowski See also Detection of Deception in Adults; Expert Psychological Testimony, Admissibility Standards; Forensic Assessment; Malingering Further Readings Hadjistavropoulos, T., & Bieling, P. (2001). File review consultation in the adjudication of mental health and chronic pain disability claims. Consulting Psychology Journal: Practice and Research, 53 (1), 52–63. Piechowski, L. D. (2006). Forensic consultation in disability insurance matters. Journal of Psychiatry & Law, 34 (2), 151–167. Samuel, R., & Mittenberg, W. (2005). Determination of malingering in disability evaluations. Primary Psychiatry, 12 (12), 60–68. Vore, D. A. (2007). The disability psychological independent medical evaluation: Case law, ethical issues, and procedures. In A. M. Goldstein (Ed.), Forensic psychology: Emerging topics and expanding roles (pp. 489–510). Hoboken, NJ: Wiley. 224 ———Disability and Workers’ Compensation Claims, Assessment of D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 224 D ISPARATE T REATMENT AND D ISPARATE IMPACT E VALUATIONS Disparate treatment and disparate impact cases involve actions on the part of an employer that a plaintiff worker claims are based on the worker’s race, gender, color, national origin, religion, disability, or age. Determining damages in these cases should follow the same practices as those used in tort, sexual harassment, or ADA (Americans with Disabilities Act, 1990) cases, with special focus on the employee’s work history. In civil rights cases, forensic psychologists’ con- cern is most often focused on emotional damages in lawsuits brought in relation to claims of sexual harass- ment or work environments made hostile by racial prejudice or sexual bias. This entry, however, focuses on how forensic psychologists may function in cases involving an employer’s work policies that affect indi- viduals of a particular class. That is, these are cases involving the psychological impact of decisions that employers make about hiring or firing employees or setting the conditions, terms, compensation, or privi- leges that employees enjoy. For these decisions to trigger a lawsuit, they must have differential effects on individuals of distinct protected classes. The policy or decision must place one group at a relative advantage or disadvantage as compared with the other groups. This entry first provides a context for understanding how and why these issues may be brought to court. Next, it considers disparate treatment and disparate impact as patterns of employer activities. The entry concludes with a discussion of evaluation issues for forensic psychologists in these cases. Historical and Legal Context Dating back to the Reconstruction period immediately following the Civil War, the Fourteenth Amendment to the U.S. Constitution provided for due process and equal protection under the law for all individuals. Although this amendment was intended to provide civil rights protection to African Americans, a series of subsequent Supreme Court decisions prevented this amendment from providing substantive change in civil rights protection for people of color. It was not until the passage of the Civil Rights Act of 1964 that race and color, along with national origin, sex, and religion, became truly protected classes. Although other sections of the act provide for civil rights protec- tion in arenas such as voting and public accommoda- tions, Title VII applies to employment and forbids employers having more than 15 employees from dis- criminating on the basis of race, color, national origin, religion, or sex. The relevant portion of the act reads as follows: Sec. 2000e-2. Unlawful employment practices (a) Employer practices It shall be an unlawful employment practice for an employer– (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or, (2) to limit, segregate, or classify his employ- ees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such indi- vidual’s race, color, religion, sex, or national origin. Title VII prohibits retaliation against an employee for engaging in protected conduct, such as filing a complaint with the Equal Employment Opportunities Commission or a lawsuit. It also provides for protec- tion against discrimination. This protection is best conceptualized as a conjunction between two things: (1) membership of the plaintiff in a protected class, as indicated by that person’s race, color, sex, national origin, or religion, and (2) actions of the employer to hire, fire, or alter the conditions, terms, compensation, or privileges of the worker’s employment. That is, dis- crimination occurs when the employer does some- thing to a worker because the employee is, for example, a woman, an African American, a Sikh, or of Mauritanian ethnicity. Other federal laws, including the Age Discrimination in Employment Act of 1967 (ADEA) (8 U.S.C. § 1324) and the ADA (42 U.S.C. § 12101) include similar pro- visions. These laws provide protection against discrimi- nation based on age and disability, respectively. Disparate Treatment An employer may make decisions that directly disad- vantage individuals from a particular protected class. Disparate Treatment and Disparate Impact Evaluations ———225 D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 225 This is intentional discrimination based on the employer’s belief, perhaps based on prejudice, that one group of workers will not perform well in a particular job. For example, for many years, employers would not con- sider women for many hazardous or physically ardu- ous tasks, such as firefighting, police work, or working as roustabouts on oil rigs. People of color were not considered by some employers to embody the “front- office look,” which would allow them to work as receptionists or in public relations jobs. In these set- tings, employees possessing particular characteristics were not hired or promoted into particular jobs. In disparate treatment cases, the plaintiff must establish two elements: (1) that the employee has suf- fered adverse action by the employer in the form of being fired, not being hired, or not being promoted and (2) a similarly situated employee not in that class was treated more favorably. An alternative legal theory may be proven by evidence indicating employer conduct revealing bias against employees of a particular class. For example, if an employer used a derogatory epithet in relation to employees of a particular race, a pre- sumption of disparate treatment may be made. However, employers have an opportunity to prove that the employment actions were decided on a legiti- mate, nondiscriminatory basis. That is, there may be a valid reason for individuals of a particular class to be excluded from a job. For example, religious organiza- tions may exclude individuals not of that faith from a particular job. People of one gender may not be cho- sen for a specific job, such as bathroom attendant or undergarment fitter. In situations in which the employer is claiming that there is a legitimate reason for excluding a particular group of employees from a job, the employee filing suit must prove that the supposed legitimate basis offered by the employer is in fact a pretext for dis- crimination. That is, although the employer claims a real-life justification for excluding employees from a position, the real reason is that the excluded employ- ees are, for example, male, Jewish, or Korean. Disparate Impact In other situations, employers may not clearly intend to discriminate against a class of employees. Employees may be placed at a disadvantage because of an employer policy that, on the face of it, should have no differential effect on individuals in particular groups. For example, an employer may have a minimum height requirement for employees working in an auto parts depot. Although this requirement would be considered facially neutral , it would eliminate more women than men from consideration for the job because women are typically shorter than men. In another example, a posi- tion may require individuals to work on Friday nights. Again, although this job requirement may appear to be fair, it would disadvantage observant Jews and would constitute discrimination on the basis of religion. Disparate impact claims have been brought in cases in which written tests, such as the Minnesota Multiphasic Personality Inventory–2 (MMPI–2), or subjective inter- views were used as a basis for employee selection. Employers may defend these cases by claiming “business necessity.” That is, the employer may claim that the practice is “job-related for the position in ques- tion and consistent with business necessity” (42 U.S.C. § 2000e-2(k)(1)(A)(i)). Courts have been friendly to these defenses, especially in cases involving the ADEA, because in age discrimination cases, salary level often correlates highly with the age of employees. Psychological Consultation In cases of disparate treatment or disparate impact, the effects of job actions resulting from the alleged discrimination are the focus of the forensic psychol- ogist’s attention. For example, if an employee is fired from a job because of disparate treatment, the psychologist would focus on the emotional impact of forcible unemployment. Research indicates that being fired may have an impact beyond the eco- nomic implications. One’s job is often considered the same as one’s identity, and a fired worker may feel as though not only a source of income has been lost but also a source of self-esteem. In losing the job, the employee may suffer the loss of a social net- work, which may have been based on relationships with coworkers. Work provides structure for time, and the loss of that structure may leave a worker with little to do with his or her day. Unemployment brings with it a host of changes on the home front, some- times necessitating the spouse to go to work, or changes in the family dynamics because of the loss of one parent’s bread-winning role. Similar changes may be expected in situations involving failure to promote or failure to hire. In all these cases, the psychologist may employ evaluation techniques commonly used in evaluations of individuals who have suffered other losses. A review 226 ———Disparate Treatment and Disparate Impact Evaluations D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 226 of the plaintiff’s vocational history is particularly important, along with an assessment of the place of the job in the person’s life. Collateral interviews are espe- cially important in these evaluations because family members and friends may provide information con- cerning changes in self-esteem and lifestyle that may not be obvious to the plaintiff. William E. Foote See also Americans with Disabilities Act (ADA); Forensic Assessment; Personal Injury and Emotional Distress; Sexual Harassment Further Readings Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2. Retrieved June 18, 2007, from http://www.eeoc.gov/policy/vii.html Foote, W. E. (2003). Forensic evaluation in Americans with Disabilities Act cases. In I. B. Weiner (Series Ed.) & A. D. Goldstein (Vol. Ed.), Handbook of Psychology: Vol. 11. Forensic Psychology (pp. 279–300). New York: Wiley. Foote, W. E., & Goodman-Delahunty, J. (2005). Evaluating sexual harassment: Psychological, social, and legal considerations in forensic examinations . Washington, DC: American Psychological Association Press. Parry, J. W. (1996). Regulation, litigation and dispute resolution under the Americans with Disabilities Act: A practitioner’s guide to implementation. Washington, DC: American Bar Association Commission on Mental and Physical Disability Law. D ISSOCIATIVE IDENTITY D ISORDER Dissociative identity disorder (DID), formerly known as multiple-personality disorder, is one of the more controversial diagnoses in the Diagnostic and Statistical Manual of Mental Disorders (fourth edi- tion; DSM-IV), with there being considerable dis- agreement over the validity and etiology of the disorder. Amnesia between identities is central to a diagnosis of DID. While explicit memory tests often result in amnesic responding in DID patients, more objective memory tests often fail to corroborate self- reports of amnesia between identities. Two perspec- tives dominate the debate on the cause of DID, with the traditional view proposing that DID manifests as a mechanism for coping with childhood trauma and an alternative sociocognitive perspective suggesting that DID is a response to social demands, with an iatrogenic etiology. The rise in prevalence rates of DID has led to the increased importance of this diag- nosis in the court of law. Given the controversy sur- rounding the validity of the disorder, care should be taken when considering subjective claims of amnesia, as these self-reports are not guaranteed to be substan- tiated by objective laboratory evidence. The Diagnosis of DID To meet the criteria for a DSM-IV diagnosis of DID, two or more distinct identities must be present who recurrently take control of an individual’s behavior. These alter identities may have distinct personal his- tories, names, and abilities (e.g., computer profi- ciency, literacy) and can even vary in professed sex and age. This fractionation of identity must also be accompanied by an inability to recall important personal information, beyond that of ordinary forgetfulness. This memory loss, termed inter-identity amnesia, is thought to result from the compartmental- ization of memory within identities and can manifest in many ways, such as gaps in time or the discovery of unfamiliar items in one’s possession. The properties of inter-identity amnesia can vary. In a one-way amnesia, communication is asymmetri- cal, as one identity may be omniscient for the experi- ences of the other but not vice versa. In a two-way amnesia, both identities are unaware of each other’s experiences, memories, and sometimes even exis- tence. A diagnosis of DID cannot be made if the symptoms are due to substance use or a general med- ical condition. DID is diagnosed more commonly in females than males (from three to nine times more often) and is often diagnosed in individuals with a his- tory of other psychiatric diagnoses. Symptom onset varies, although many individuals report dissociative symptoms dating back to as early as childhood. As with most other diagnoses, clinicians rely on the self-report of patients when diagnosing DID. This is typically done using either unstructured questioning or a structured interview such as the Structured Clinical Interview for DSM-IV Dissociative Disorders (SCID–D). The Dissociative Experiences Scale (DES) is another common self-report measure of dissociative symptoms, which requires individuals to rate their symptoms on a Likert-type scale, although the DES cannot confirm the diagnosis of DID. Dissociative Identity Disorder ———227 D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 227 Given the centrality of amnesia to DID, evidence of inter-identity amnesia is essential to a diagnosis. Caution is warranted when interpreting self-reported symptoms of amnesia, however, as research using objective measures of memory reveals an inconsistent picture that does not consistently corroborate the sub- jective symptoms reported by patients. Studies that have examined memory transfer across identities have provided mixed results, typically finding that some memories are shared between reportedly amnesic iden- tities while other memories are not. It has been pro- posed that these differences in memory transfer depend on whether the memories are explicit versus implicit. Explicit memory tests require conscious recollection and typically produce amnesia between identities. For example, an amnesic identity may deny any memory of words presented to another identity when asked to recall them. In contrast, implicit memory tasks rely on the premise that prior experiences can influence subse- quent behavior independent of conscious awareness— such tasks often show memory transfer. Although the amnesic identity may claim to not recognize the words, given an implicit test, such as a word-stem completion task, he or she may perform in a manner that suggests memory of the words on some level, typically assumed to be implicit and unconscious. This pattern of amnesia on explicit but not implicit tasks is not unlike that found in organic amnesia. This pattern has alternatively been interpreted as a response to situational expectations, where individu- als modify their response patterns in conformance with their expectations about how a person with inter- identity amnesia should respond. Explicit memory tests, unlike implicit tests, are typically obvious assessments of memory, and amnesic responding on explicit tests could result from motivated compliance with expectations. Implicit memory tests, in contrast, tend to be less transparent measures of memory and are less susceptible to manipulation. Given the inconsistent findings of memory transfer, and also the controversy surrounding the disorder, inter-identity amnesia should ideally be verified by objective tests of inter-identity amnesia that do not rely solely on self-report. Some investigators have attempted to objectively assess memory by using psy- chophysiological measures such as brain electrical recordings or by creating paradigms where amnesia is difficult to simulate. These methods have typically demonstrated that memories transfer across identities despite self-reports of amnesia. Moreover, one study has suggested that this memory transfer is conscious and explicit. Therefore, although a phenomenological experience of memory loss may be reported by DID patients, this amnesia cannot always be verified by objective memory tests. Given the centrality of inter- identity amnesia to a DID diagnosis and the current reliance on uncorroborated self-report measures, increasing importance needs to be placed on using objective tests of memory to make an accurate diagno- sis of DID. The Controversy Controversy surrounds DID, as many skeptics question the validity of the disorder. Research on the properties of inter-identity amnesia has led to conflicting find- ings, as detailed above. In addition, critics of the disor- der highlight the many changes that have occurred in prevalence rates and symptom presentation over time. Historically, DID has been an infrequently diagnosed disorder, with only a handful of cases being reported until the 1900s. However, rates of diagnosis skyrock- eted in the 1980s, with prevalence rates numbering in the thousands. DID was popularized in the media around this same time by movies such as The Three Faces of Eve and Sybil. It has been suggested that this exponential increase in diagnoses is mostly circum- scribed to specific cultures such as North America, with the majority of diagnoses believed to be attribut- able to a small percentage of psychologists. In addition to the increasing prevalence rates, the nature of symptoms has evolved. Earlier DID patients commonly reported only a few identities and often needed a period of transient sleep to switch between identities. In contrast, present-day DID patients typi- cally report approximately 15 alters and the ability to voluntarily switch among identities. These diagnostic, cultural, and symptomatological inconsistencies have incited an ongoing debate about the validity of reported symptoms, resulting in two competing etio- logical interpretations. Perspectives on Causal Mechanisms Two perspectives dominate the debate on the cause of DID. The posttraumatic interpretation of DID, also termed the disease model, conceptualizes the disorder as a posttraumatic condition resulting from childhood abuse, as the majority of DID patients report a history of child abuse. This perspective suggests that the 228 ———Dissociative Identity Disorder D-Cutler (Encyc)-45463.qxd 11/18/2007 12:42 PM Page 228 generation and compartmentalization of multiple iden- tities is manifested as an adaptive strategy that allows the individual to cope with trauma. Consonant with this theory, some DID patients report symptoms simi- lar to those found in posttraumatic stress disorder, such as nightmares, flashbacks, and increased startle responses. The disease theory attributes the rise in prevalence of DID to more accurate diagnoses by clin- icians as a result of increased awareness of childhood abuse and its psychiatric sequelae, greater acceptance of the disorder, and a more in-depth focus on previ- ously overlooked symptoms. According to this expla- nation, certain physicians in specific cultures are becoming sufficiently familiar with the disease to accurately diagnose those symptoms of DID that pre- viously went undiagnosed or misdiagnosed. Critics of this disease model question the fidelity of memories of abuse reported by DID patients. Such reports are almost exclusively retrospective, and it has been firmly established that childhood memories are susceptible to distortion. In addition, critics suggest that a belief in the disease model may lead clinicians to specifically search for dissociative symptoms in clients with a known history of abuse or for memories of abuse in a client presenting dissociative symptoms, inflating the correlation between DID and memories of abuse. Techniques known to facilitate memory dis- tortion, such as hypnosis, have been used by some clinicians, resulting in questions about the validity of uncovered memories of abuse and the existence of alter identities. Often, memories of abuse are uncov- ered in therapy, leading many to challenge the veridi- cality of these memories and point to a theory of a therapist-induced iatrogenic etiology. An alternative perspective to the disease model, termed the sociocognitive model, proposes that DID is a socially influenced construction that is legitimized and maintained through social interactions. According to this theory, as the disorder has become more widely accepted, DID patients have learned how to present themselves as having multiple identities. Patients form a belief as to how others expect them to act and behave accordingly. This theory suggests that therapists play a large role in the generation and maintenance of this disorder through the use of suggestive questioning, the provision of information about how patients with the disorder should act, and the legitimization of the disor- der. This sociocognitive perspective suggests an iatro- genic etiology, proposing that the diso
