Through A Glass, Darkly: Memory in Forensic Practice - MA AFCC

Through A Glass, Darkly: Memory in Forensic Practice - MA AFCC

Through A Glass, Darkly:

Memory in Forensic Practice

Massachusetts AFCC

Memory, Distortion and Deception in

Family Law Cases

May 4, 2012

Through A Glass, Darkly

When I was a child, I spake as a child, I

understood as a child, I thought as a child; but

when I became a man, I put away childish


For now we see through a glass, darkly, but then

face to face: now, I know in part, but then shall I

know even as also I am known.

From: First Epistle of Paul the Apostle to the Corinthians, 13

Through A Glass, Darkly

• Traditionally, interpreted as peering through a

clouded window pane or looking glass, with a

focus upon the distortion of what was

observed or received.

• But, at time of the Saint James Bible, “glass”

was a term for a mirror—which were made

like ours with a glass with a sliver coating.

• Greek text was dia spektrou—a mirror of

polished brass but with a weak and distorting


Dr. Schacter’s Seven Deadly Sins

• Transience

• Absent‐Mindedness

• Blocking

• Suggestibility

• Bias

• Persistence

• Misattribution

An Unpleasant Challenge

• “Although the rules of evidence govern the

presentation of expert testimony in child custody

cases, as reflected in reported opinions and informal

surveys of experts, child custody cases have been

largely unaffected in the legal rules addressing

threshold scrutiny of expert testimony that has

transformed other legal arenas such as toxic tort and

products liability litigation….It is striking that one of the

most important categories of cases, the future of our

children, has ignored the call for trial judges to address

threshold scrutiny of the reliability and relevance of

expert testimony.” D Shuman, 2003

A Simple Tale

B has been involved as a GAL in divorce child

custody cases for almost 20 years and is very

well regarded. B receives a phone call from C,

an attorney with which B has often interacted in

such cases although B’s practice is almost always

to only be involved in divorce child custody as a

court‐appointed GAL. C says that “I am looking

for someone to propose to the Court for a GAL

case and thought you might be helpful in this

case and I know you are respected by the other

attorney. Frankly, I am not certain why it has

A Simple Tale

gotten to the point where the case needs a GAL.

My client has been pretty reasonable but the

client for the other side has been rigid and has

made some dubious but serious allegations

against my client. Obviously, you will have to

come to your own conclusions but I would like

to put your name to the other attorney and the

Court as a possible GAL. Interested?” B is

interested and agrees to be proposed as a GAL

in the matter.

A Simple Tale

B later hears that the Court has ordered the GAL appointment. B

decides to meet with C’s client (P1) and then meets with

Attorney D’s (P2) client. B learns that P2 is a veteran with a

diagnosis of PTSD and acknowledged substance abuse issues.

Lists of potential collateral contacts are devised with P1 and P2

respectively. B starts to contact collaterals with a broad inquiry

regarding parenting functioning and potentials for co‐parenting

after divorce.

A Simple Tale

Before that process can be completed, allegations of

sexual impropriety with their two year old child are

made by C’s client (P1) against P2. The basis of the

allegations are that the child has suddenly become

anxious, have difficulty with sleep, and engage in

“frequent” and “compulsive” genital touching—

especially around periods of visitation with P2.

A Simple Tale

In the course of the evaluation, B reviews past

records from DCF, and records from an

outpatient assessment of the child arranged by

P1 after becoming concerned about the

behaviors. B also arranges psych testing for P1

and P2, later noting with interest that the new

testing showed an FSIQ drop from 120 to 101

since a psych testing of P2 three years ago.

Extensive collateral contacts result in extensive

phone interview and voluminous notes.

A Simple Tale

As a result of the complexity of the case and the

need for multiple parent interviews, parent‐child

observations, collateral contacts, psych testing,

completion of DCF investigation, and document

review, the evaluation process takes almost ten

months and yields a fifty‐two page GAL report.

Sources and nature of potential evaluator error

arising from evaluator vulnerabilities or

characteristics of sources of information?

Three Optimal Conditions for Judgment

• The demands of the clinical or other judgments

to be made fall beneath the level of skill of the

clinical decision‐maker. The decisions to be

made are actually easy ones.

• If clinicians were diligent in checking for errors

and/or the practice environment offered

prompt and reliable feedback about the

reliability of decisions made

Three Optimal Conditions for Judgment

• The practice environment offers sufficient

safeguards to minimize the impact of error so

that when errors occur incentives to attribute

the source of errors to others or to factors

outside of decision‐maker control are


In Practice Environments

(DA Redemeier, at al, 2001)

• Problem 1: In reality, decision‐making demands

challenge clinical skills and decision‐making


– Tendency to increase confidence in the absence of

indications of clear error

– Limitations in the ability to reliably identify, process,

recall, weight and incorporate key information when

there is a lot of information and/or when

information is complex or contradictory

In Practice Environments

(DA Redemeier, at al, 2001)

• Problem 1: In reality, decision‐making demands

challenge clinical skills and decision‐making


– Over‐attribution to own skills events that occur

randomly, would have occurred anyway, or are selflimiting

In Practice Environments

(DA Redemeier, at al, 2001)

• Problem 2: In reality, clinicians do not diligently

seek out evidence of error or misjudgment

(especially when it is not brought to their

attention) and practice environments lack

capacities for rapid detection of error, corrective


– Reluctance to change initial opinions

– Uncritical regard for skills and competencies

– Unawareness of failures, esp. subtle ones

In Practice Environments

(DA Redemeier, at al, 2001)

• Problem 3: In reality, practice environments

often lack sufficient safeguards to minimize the

impact of error (so that when errors occur

incentives to assign the source of errors to

others or to factors outside of decision‐maker

control are minimized)

– Often impractical to look for errors

– Furtherance of decisions based upon prior errors of

self or others

– Unawareness of own limits of skill, judgment

Sources of Memory Inaccuracies, Information Distortion or

Error In Professional Judgment or Decision‐making

• Implicit reliance on “prototype” heuristics

• Implicit reliance on “associative” heuristics

• Impact of “affective” heuristics

• Implicit over‐confidence in own judgments

• Over‐attribution to self of (+) random events

• “Hardening” of initial perspectives/opinions

• Confirmation bias

• Decisions about how far to rely upon preceding

or collateral sources of information or judgment

Improving Clinical Judgment and Decision‐Making in Forensic


(Borum, et al 1993)

• Inaccuracy from Overreliance on Memory

– Decreases in information relied upon

– Distortions in information relied upon

– Introduction of sources of judgment bias

• Differential recollection of cued memory

• Differential recollection of confirmatory information

• Differential recollection of vivid/salient information

• Errors in estimates of co‐variation of factors

• Greater risk of illusory correlations

• Note: Borum, et al call for electronic recording of all

interviews in forensic assessment context

Improving Clinical Judgment and Decision‐

Making in Forensic Evaluation

(Borum, et al 1993)

• Inaccuracy from Underutilization of Base Rates

– Making predictions or classifications (e.g., diagnosis)

is a function of correct “assignment” of the target

behavior or sign, taking into account false +/‐ rates

and the prevalence in the population where tool is

being utilized or judgment is being made

– Without utilization of a base rate, risk of errors of

assigning weight to factors in “clinical” judgment,

especially false‐positive ratings in low base rate

events (e.g., violence risk) or long‐term trajectories

Improving Clinical Judgment and Decision‐

Making in Forensic Evaluation

(Borum, et al 1993)

• Operation of Confirmatory Bias

– Tendency to pursue information that supports

perspective/hypothesis and to fail to seek, or to

ignore, potentially disconfirming information or to

assign it less weight in drawing inferences

• Operation of “anchoring” or “primacy” effect

– Tendency to persist with early perceptions or

impressions even in the face of subsequent

contradictory information—easier to create a first

impression than to modify it later

Improving Clinical Judgment and Decision‐

Making in Forensic Evaluation

(Borum, et al 1993)

• Errors in estimating co‐variation (the likelihood

that two or more variables are related), such as

the likelihood of a cluster of signs/symptoms are

related in an individual case to child sexual abuse

or exposure to domestic violence

• Four possible options in co‐variation

– A: Both signs and target (dx, condition) are present

– B: Signs are present but target is not present

– C: Signs are not present but the target is present

– D: Neither signs nor the target are present

Improving Clinical Judgment and Decision‐

Making in Forensic Evaluation

(Borum, et al 1993)

• Problems with assessing co‐variation include:

– Tendency to base conclusions on co‐variation on

selective recall of Box A with inadequate or no

recollection , recognition or systematic analysis of

potential for Boxes B, C, D.

– Closely related phenomenon of “illusory correlation”

– Both of these often the basis of “received clinical lore

or wisdom” perpetuated in clinical decision‐making

but ultimately demonstrated as erroneous.

Improving Clinical Judgment and Decision‐

Making in Forensic Evaluation

(Borum, et al 1993)

• Hindsight bias

– Bias arising from post‐event estimate of the

probability of the outcome of that event WHEN the

actual outcome is known

Improving Clinical Judgment and Decision‐

Making in Forensic Evaluation

(Borum, et al 1993)

• Evaluator Over‐Confidence

– Degree of evaluator confidence may influence legal

finder of fact

– High evaluator confidence may lead to confirmation

bias—failure to pursue disconfirming information or

to insufficiently take it into account in judgments

Improving Clinical Judgment and Decision‐

Making in Forensic Evaluation

(Borum, et al 1993)

• Over‐Reliance on Unique Data—the tendency to

give undue attention to case factors that are

exotic, highly unusual or personally interesting

– Risk that unique data will be have differential salience

and/or given undue weight in judgments

– Risk that presence of unique data with serve to

distract from more familiar and reliable methods of

data‐gathering , inference, analysis and/or judgment

• Clinician Overconfidence

Potential Strategies

– Prompt, accurate feedback re: outcomes

– Inquire attributions re: skills => decisions=> outcomes

• Finite capacities for information processing/inquiry

– Using simplifying research‐based heuristics

– Information management systems

– Distinguishing incremental v. redundant information

– Structured means to consider alternative hypotheses

Potential Strategies

• Misattributions of random/self‐limiting events

– Knowledge of relevant research

– Training in clinical application of probability theory

• Checking for error/misattributions

– Awareness of heuristics: prototype, association, affective

– Aware of implicit theories (e.g., parenting, child dev, DV)

– Active search for contrary/disconfirming data

– Specific articulation of confidence level of info relied upon

– Maintaining stance of clinical humility

– Peer review of performance

– Structuring decision‐making aligned with data

Potential Strategies

• Misattributions of random/self‐limiting events

– Specific articulation of basis for attribution and active

consideration of plausible alternative hypotheses

• Active inquiry as to base rates and mindful

incorporation when available. Use of relevant

actuarial tools when appropriate.

• Active inquiry when faced with “co‐variation”

decisions and articulation of potential relationships

among data‐points prior to drawing inferences

A Note on Detecting Deception

• There is no research indicating that mental health

professionals are particularly adept at detecting

willful deception or reliability making

determinations of credibility.

• Research on detecting deception suggests it is very

difficult to do

– Most “common beliefs” about signs or lying are

incorrect (e.g, fidgeting, gaze aversion)

– Problem of the “honest liar” who believes the

inaccurate information at the time or subsequently

– Ekman lab studies on micro‐facial movements, trained

MHPs better but still modest and with wide range

A Note on Detecting Deception

• Some approaches show promise but lie in the area

of “interrogation” rather than “interview” and

require capacities for independent fact‐checking

through investigation

– “Level of detail” interrogation techniques that push for

unexpected levels of detail

– Withholding verified information until a detailed

narrative is elicited from the subject

– Increasing “cognitive load” on the subject by eliciting a

detailed narrative and then asking for reporting of the

events of the narrative in reverse order

A Note on Detecting Deception

• In any event, implicit or explicit decisions

regarding deception by a subject or the credibility

of a subject are vulnerable to operating

heuristics, biasing processes, reaching beyond the

limits of current behavioral science


• In legal proceedings gravely risk usurping the role

of the legal finder of fact either overtly or


The Future of Deception Detection?

The Forensic Application of “Brain

Fingerprinting:” Why Scientists Should

Encourage the Use of P300 Memory

Detection Methods

Our Response?

“This use of court‐appointed mental health experts in family

law cases without threshold scrutiny of their methods and

procedures has transformed the authority of experts and

their role in custody cases….Subtly, without fanfare or

hoopla, the role of mental health professionals in custody

litigation is being transformed from expert as expert to expert

as judge…..Court’s failure to grapple with the scientific

critique of the methods and procedures mental health

practitioners utilize in child custody evaluations and to

fashion carefully crafted rules of admissibility that

discriminate against irrelevant and unreliable expert

testimony are powerful evidence that the have not given

serious consideration to whether this evidence qualitatively

adds to decisions.”

Daniel Shuman, 2002

γνῶθι σεαυτόν

(gnōthi seauton)

Conclusion of Corinthians 13

• And now abideth faith, hope, charity, these

three; but the greatest of these is charity.

References of Interest

• HN Garb. Clinical Judgment and Decision‐

Making. Annual Review of Clinical Psychology,


• D Shuman. The Role of Mental Health Experts

in Custody Decisions: Science, Psychological

Tests, and Clinical Judgment. Family Law

Quarterly, Spring 2002 (36 Fam LQ 135)

• E Loftus. Intelligence Gathering Post 9/11.

American Psychologist, September 2011

References of Interest

• DA Redelmeier, LE Ferris, et al. Problems for

Clinical Judgment: Introducing Cognitive

Psychology as One More Basic Science.

Canadian Medical Association Journal, 6

February 2001.

• PM Spengler, MJ White, et al. The Meta‐

Analysis of Clinical Judgment Project: Effects

of Experience on Judgment Accuracy. The

Counseling Psychologist, 2009 37:350

References of Interest

• U Neisser. John Dean’s Memory: A Case

Study. Cognition, v. 9 (1981)

• R Borum, R Otto, Golding. "Improving clinical

judgment and decision making in forensic

evaluation" Journal of Psychiatry and Law 21


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