Ethical Considerations for Demands for Evidence in Forensic Examinations

Due process of law involves matters of fundamental fairness to litigants in civil and criminal proceedings. Due process rights include the opportunity to develop, obtain, inspect, present, and challenge evidence in legal proceedings. Psychologists’ opinions often depend upon information that is sensitive and should not be publicly disclosed in a manner that would undercut the utility of psychological tests. There have been strident discussion and policy statements opposing nonpsychologists’ access to sensitive test information by providing them with copies of test materials or by video recording examinations that include psychological tests. Notably absent from these statements has been any discussion of the legal system’s demand for due process and its corresponding requirement for access to facts and data, including opinion testimony of experts. We argue that the Ethical Principles of Psychologists and Code of Conduct and the Specialty Guidelines for Forensic Psychology are congruent with due process requirements for reasonable judicial scrutiny and adequate discovery by all parties, and we believe that a judge’s protective order is an acceptable remedy for the disclosure of sensitive test information in a litigated matter.