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Video recording preserves evidence of all variations, errors, omissions, and misbehavior on the psychologist, should they occur.

 

Although there are legitimate and important reasons for any psychologist to maintain the protection of test items, test questions, and stimulus materials from public access, the need for security must not prevent preservation of evidence of potential errors and misconstructions that form the basis for the evaluation psychologist’s conclusions.

 

It is noteworthy that the state of Illinois recently (August 2014) enacted an amendment to Public Act 98-1025 that requires videotaping of forensic mental health examinations.

 

Part (d) of Illinois Public Act 98-1025 now states: “In addition to the report, a person retained or appointed by the State or the defense to conduct an examination shall, upon written request, make his or her notes, other evaluations reviewed or relied upon by the testifying witness, and any videotaped interviews available to another examiner of the defendant. All forensic interviews conducted by a person retained or appointed by the State or the defense shall be videotaped unless doing so would be impractical. In the event that the interview is not videotaped, the examiner may still testify as to the person's fitness and the court may only consider the lack of compliance in according the weight and not the admissibility of the expert testimony. An examiner may use these materials as part of his or her diagnosis and explanation but shall not otherwise disclose the contents, including at a hearing before the court, except as otherwise provided in Section 104-14 of this Code.” Video recording preserves evidence.

 

“Reasonable efforts” to maintain security of test materials does not require that evaluating psychologists work to prevent the recording of their assessments. Consulting psychologists must have free and unfettered access to video recordings of assessments to provide a full and useful analysis of the reliability and validity of assessments offered as evidence in a disputed manner. Attorneys must be able to examine specific instances of variations, errors, omissions, or misbehavior to allow for cross-examination of opinions offered by evaluating psychologists.

 

The 2014 edition of the Standards for Educational and Psychological Testing, anticipates the need to produce documents and secure test information in the resolution of disputed matters. Standard 6.7 of the Standards states “Test users must balance test security with the rights of all test takers and test users. When sensitive test documents are at issue in court or in administrative agency challenges, it is important to identify security and privacy concerns and needed protections at the outset. Parties should ensure that the release and exposure of such documents (including specific sections of those documents that may warrant redaction) to third parties, experts, and the courts/agencies themselves are consistent with the conditions (often reflected in protective orders) that do not result in inappropriate disclosure and that do not risk unwarranted release beyond the particular setting in which the challenge has occurred.”

 

There is no part of Standard 6.7 that can be read to mean that an evaluation cannot be recorded or that the recording cannot be reviewed by those who are obligated to protect test security. There is no part of Standard 6.7 that can be read to mean that an evaluation cannot be recorded to identify which parts should be reviewed by “third parties” or “courts/agencies” to determine if opinions or conclusions have valid and reliable bases. Instead, current standards of testing require that psychologists anticipate how to “release and expose” such documents to third parties that protect the security issues.