Psychological Test Results
Finally, there is the formal privilege of qualified psychologists (and some other professionals) to bring testing results into the courtroom. While those administering a test might not be required to report on the results (retaining the right of confidentiality), they might be allowed to share the results of their tests if they voluntarily chose to do so—and if the trial concerns serious crimes. In some ways, this is a variant on Tarasoff. The confidentiality rights of a person standing trial for murder or some other dangerous crime are waived. The right of refusal regarding psychological testing is also waived, though, of course, this person can never be required to provide honest answers or perform at an optimal level on a specific test. They also can not demand that test results NOT be reported.
Given the inability to force honesty or hard effort on a psychological test, the administrator of tests for forensic purposes will often use a test that somehow “hides” its purpose. Projective tests (such as the Rorschach or TAT) are often used—leaving open the validity of results from these “soft” tests. There is a legendary use of the Szondi test for many years in criminal trials. This test consisted of 48 photos taken of mental patients with various disorders related to such “illnesses” as sadism, hysteria, and homosexuality. The person on trial was asked to select the two most favorable and the two least favorable pictures. Supposedly, the accused person will “project” their own pathology on these pictures. They will admire the person who has an “illness” related to the criminal behavior for which they are being tried. It is remarkable how widely the Szondi test was used in courtrooms for many years. The validity of this test (and damage done on behalf of this invalid test) approaches that of the 16th and 17th Century Witch trials, where women bound up in ropes were thrown into a body of water to see if they could float (witches apparently could float). If the accused drowned, then they were declared innocent.
Informal Privileges
Several informal privileges are provided to psychologists and other human service professionals in a court of law in addition to the formal privileges that have been assigned. The most important of these privileges concerns credibility. While “shrinks” might be engaged in a profession that is filled with ambiguity, inconsistency, and an abundance of anxiety, they are at least familiar with the elusive dynamics of violence, inhumanity, and greed. They purport to know something about the internal life of those charged with committing a crime. In the land of the blind, the one-eyed prophet is king. Similarly, in the land of those who are blind regarding the motives of evil people, those who have some understanding of an evil person’s inner psyche deserve the attention of those who are asked to judge the actions of the evil (or “insane”) defendant.
The second informal privilege relates closely to the first. If a psychologist knows something about what makes a criminal act as they do, then the psychologist might have some valid ideas to share about how this convicted criminal should be “treated.” It is not just that a psychologist might informally recommend medication given to a patient being treated by a primary care physician. They might informally also be asked by a sentencing judge to suggest what would be the most appropriate and constructive sentence to be meted out to someone convicted of a crime. Should they be sent to the psychiatric ward in a prison? How will their withdrawal from an addictive drug be handled? What about visitations by family members? Is there much hope for this person’s rehabilitation? Most importantly, should this person be sentenced to death if they are truly “insane”? The psychologist doesn’t play a formal, legally mandated role regarding these difficult forensic decisions. However, the role that they do play can be critical (even lifesaving).
