Abstract
Collateral interviews can be an integral source of third-party information used in a range of forensic mental health assessments. Although family members and spouses often have the most knowledge about the evaluee, research suggests that they may also experience distress related to the legal proceedings. This article discusses the nature and purpose of collateral interviewing with close collateral contacts, comparing collateral interviews with direct interviews with evaluees. The secondary consequences of having a justice-involved family member are considered, including the possibility of vicarious trauma. Finally, the responsibilities of evaluators are considered, especially in the context of trauma-informed principles applied to collateral interviewing. Recommendations regarding consent, the use of empathy, and feedback to collateral are provided.
- collateral interviewing
- forensic mental health assessment
- trauma-informed forensic practice
- vicarious trauma
Forensic evaluations are distinct in context and purpose from other mental health services. Unlike clinical practice in which services are centered on the needs of the person being assessed or treated, the goal of forensic evaluations is to provide an impartial opinion to assist the trier of fact. Evaluators frequently rely on multiple sources of data, including third-party information. Such third-party information may include records (e.g., hospital, mental health, medical, correctional, police) and collateral interviewing, to triangulate information and to increase the accuracy of the evaluation.1,–,3 Ethics considerations and the effects of routine procedures in collateral interviewing have been minimally developed in the literature.
In collateral interviewing, family members with the greatest contact with the person being evaluated often have useful information, and these sources may be substantially affected by the evaluee’s circumstances. Jeffrey Dahmer’s father, Lionel Dahmer, described his horror and disbelief regarding his son’s behavior in a book titled A Father’s Story.4 In his analysis of this book, Carlin5 identified grief, shame, and regret as the essential themes. Although few cases receive such sensationalized coverage, forensic mental health evaluators (FMHEs) often conduct collateral interviews with parties who are profoundly emotionally involved. Indeed, some literature suggests that family members of criminal justice–involved individuals experience a number of adverse psychological consequences.6,–,8 Similarly, family members of civil litigants can be affected by both the stress of litigation9 and the potentially traumatic circumstances of the events at claim.10
The existing literature on collateral interviewing tends to cover potential collateral sources, general procedural matters, and the quality of this type of third-party information, including considerations of bias.2,11 What has received less attention is the FMHE’s duty to the collateral interviewee, and how to manage these interviews in a manner that is appropriate to the forensic context but also respects the interviewee’s experience.
The importance of delivering trauma-informed services in mental health12 as well as legal representation13 has been increasingly recognized in recent decades. This term refers to the use of trauma-related knowledge with the aim of adopting procedures that promote optimal engagement of the service user and reducing the likelihood of retraumatization.12 Lately, there has been growing interest as well in trauma-informed forensic mental health assessment (FMHA).14 This belated interest could be attributable to a reluctance to apply procedures originating from the psychotherapeutic treatment literature to forensic assessment and to avoid conflating clinical and forensic roles. Indeed, FMHA requires the evaluator to consider the intersection between psychology and the law.15 As noted by Bailey and Rocchio, “functioning effectively in the psycholegal world requires one to maintain a bicultural stance that navigates systems that are not always compatible” (Ref. 16, p 106).
Forensic Assessment Practices
Good forensic practice requires the FMHE to be familiar with relevant law and legal concepts but also to attend to standards in psychology and psychiatry that are not always aligned. One set of standards relates specifically to forensic mental health practices, and the other relates to psychological and psychiatric practices more broadly. In psychology, the Specialty Guidelines for Forensic Psychology of the American Psychological Association (SGFP)17 assert that an expert’s primary duty is to assist the trier of fact, a duty that requires striving for impartiality. Similar guidelines are set forth by the American Academy of Psychiatry and the Law (AAPL).18
Although forensic evaluations are clearly distinct in context and purpose from clinical assessments, FMHEs are also guided by broader professional standards that emphasize beneficence and nonmaleficence, as well as respect for people’s rights, dignity, and safety.19,20 Attention to these principles and their associated standards can be particularly relevant when assessing evaluees who have significant trauma histories, considering their potential for distress and retraumatization.21
Although impartiality is very important in FMHA, there appears to be a gradual shift toward greater consideration of the basic human rights of legally involved persons.22,23 The therapeutic jurisprudence literature addresses this shift and addresses how professionals working in legal environments (including FMHEs) can adjust their practices to avoid retraumatizing justice-involved individuals without compromising due process or impartiality.14,24 It might be time to reconsider some basic aspects of FMHA practice.25 The application of trauma-informed principles in assessments of criminal justice–involved individuals has been discussed.14 In this article, we expand this discussion by considering the complexities and responsibilities involved in interviewing collateral contacts who might be directly or vicariously affected by their justice-involved family member’s actions, experiences, and legal circumstances. This article has three primary objectives: summarizing the literature on collateral interviewing in forensic contexts, including the nature, roles, and responsibilities in collateral interviews; describing the possible secondary psychological consequences for collateral sources of legally involved persons; and considering how trauma-informed principles may be meaningfully applied when interviewing these collateral sources.
Collateral Interviews in Forensic Contexts
Assessments for forensic purposes can have important life consequences. In criminal matters, this risk could involve psycholegal opinions leading in part to an acquittal, conviction of a lesser-included offense, or receipt of a less severe sentence. In the civil arena, plaintiffs seek remedies by way of awards for damages. In the family arena, legal decisions can affect parents’ access to their children.
The demands of psycholegal involvement can lead examinees to respond unreliably during the assessment; this style of responding can be volitional or used with less than full awareness. An evaluee’s self-report might also be unreliable owing to cognitive impairment. More specifically, evaluees can be poor historians of their lives because of the influence of various disorders that can adversely affect the encoding, retrieval, organization, or communication of memories.26
Heilbrun et al.2 describe one aspect of forensic evaluation as forming and testing hypotheses about an evaluee through the use of multiple methods (interviews, file reviews, psychological testing) as well as through the collection of data from multiple sources. This process allows a comparison of the consistency of the data, ideally improving the validity of the overall assessment.1 Third-party data are sought in both criminal and civil realms. In the criminal realm third-party data can be used to help inform appraisals of mental state, functional-legal capacities, adaptive behavior, and risk of violence. In the civil realm, FMHEs assess the extent and nature of psychological damages as well as their proximate causes. In both, collateral sources can assist in offering supplemental information and determining a chronology of the litigant’s functioning before and after the alleged wrongdoing or injury. AAPL guidelines suggest that although there are no rules about which collateral contacts are necessary in any given assessment, generally “the closer an individual is to the evaluee and the closer he was to the evaluee during the time frame of the incident, the more useful this information will be in helping to understand the context” (Ref. 18, p 9). These sources typically include family, friends, partners, coworkers, and sometimes witnesses. Of course, the case-specific details determine which collateral informants might be most valuable. For example, in a civil case of an adult alleging childhood sexual abuse by a teacher or coach, a plaintiff’s parents or siblings might be asked about any changes in the plaintiff’s behaviors, mental health, and functioning following the historical abuse. A spouse or partner might be best able to describe current intimacy difficulties or long-term functional sequelae that can result from sexual abuse.
In contrast to this description in the AAPL guidelines, the SGFP are remarkably vague. Guideline 8.03, titled Acquiring Collateral and Third-Party Information, reads in its entirety: “Forensic practitioners strive to access information or records from collateral sources with the consent of the relevant attorney or the relevant party, or when otherwise authorized by law or court order” (Ref. 17, p 14). In addition, guideline 9.02 adds that forensic evaluations ordinarily rely on more than one source of data.17
As with evaluees, collateral contacts can be invested in the legal outcome and may select or otherwise distort the information that they share. Interviewing close contacts may be considered a double-edged sword, accordingly. Although these sources are often best suited to provide breadth and depth of information spanning the evaluee’s life, these sources might also be affected by bias of different kinds. This duality often requires the evaluator to pay keen attention to the dynamics and context of collateral interviewees in relation to the legally involved evaluee; it also requires the evaluator to understand and weigh information gleaned through collateral interviewing in the context of other assessment data and trends across sources.2
In contrast to the substantial literature on conducting assessments of evaluees, there is minimal formal guidance about how to conduct collateral interviews. There are clearly certain differences between interviews conducted with evaluees and interviews conducted with collateral sources. For example, there may be differences in the time involved, the consent process, and the scope of the interview. Table 1 summarizes some of these differences.
Comparison of Forensic and Collateral Interviewing
Practical Considerations
Collateral interviewing may be influenced by a variety of factors. Four of these seem particularly important.
The Interviewer
Psychological or psychiatric assistants, mitigation specialists, or other professionals may do the interviewing. In the case of capital murder assessments, mitigation specialists or expert assessors themselves sometimes conduct many interviews with parties who have known, worked with, or played a role in the life of the defendant. For the purposes of this article, we are referring to forensic mental health professionals conducting civil or criminal evaluations and who are experienced in interviewing and assessment. The practices and considerations discussed would appear to apply to any person engaged in collateral interviewing.
Format of the Collateral Interview
In instances such as evaluation of intellectual development disorder for Atkins27 cases, the interviewing may involve asking standardized questions with a restricted range of possible responses. In other cases, the interviewing might be more open-ended, broad-ranging, and probing. Often the examiner is seeking information in domains already explored with the evaluee and the evaluator seeks a collateral source to appraise the consistency of this information across diverse sources.
Medium of the Interview
Telephone interviews are common but may be less informative than in-person or remotely conducted videoconference interviews, considering that interviewees’ nonverbal behaviors cannot be assessed without visual observation. These nonverbal behaviors can be important in terms of appraising attention and commitment to the interview, giving cues if an interviewee is distressed, and assessing the credibility of information. If interviews are conducted in person, there are considerations about where the interview should be conducted. The medium and location could affect the experience of the interviewee and the behaviors of the examiner.
Personal Impact of the Legal Circumstances
The matter being litigated may be unremarkable in its impact on the collateral interviewee; alternatively, it may be intense, profoundly disturbing, and difficult to discuss. Interviewees, as well, vary greatly. We have interviewed family members who one would think would be highly emotional but who instead appear detached or disinterested. Occasionally, collateral parties are unexpectedly distressed by events that normally do not elicit such feelings.
Collateral Consequences for Interviewees
Family members and people with close personal relationships to the evaluee are among those frequently interviewed because many can speak in depth about an examinee’s developmental history, mental health, and general functioning. Some literature has suggested that for such individuals, having a relative or spouse involved in the justice system can be highly distressing and sometimes traumatizing.6,8
Family of Justice-Involved Individuals
Having a justice-involved family member is often a significant psychosocial stressor. In fact, having an incarcerated family member is one of 10 adverse childhood experiences recognized in the seminal Adverse Childhood Experiences (ACE) study.28 Kavanagh and Levenson7 described the phenomenon of secondary stigma or guilt by association, in which the shame and blame for criminal convictions extend to family members. They highlighted how parents can be blamed for poor parenting leading to the crimes of their offspring, adding that siblings of children are sometimes thought to have a similar “crime gene.” They emphasized that household members can be doubted when they say they did not know about the offending behavior, and that partners or spouses can be shunned for staying with someone accused of committing sexual offenses.
Parents have been found to experience multiple hardships as a consequence of having a criminal justice–involved offspring.29,30 These difficulties include emotional, psychological, and health problems.8,29,30 A qualitative metasynthesis on the experience of prisoners’ parents identified grief as an emergent theme: “it’s like you’re grieving for somebody that’s not dead, but it’s like they are dead” (Ref. 6, p 936). This process has been characterized as disenfranchised grief, defined as grief that is not acknowledged as legitimate by society.31,32
Not only are parents of justice-involved individuals frequently denied empathy and social support, but they often must grapple with a new understanding of and relationship with their offspring, such as “He’s a murderer but he’s still my son” (Ref. 6, p 69). Studies also reveal negative changes to parental identity, with parents feeling blamed or being “soiled” and “dirty” by association (Ref. 6, p 68). Finally, experiences of social isolation, alienation, and ostracization were frequent; some parents felt criminalized and as if they were serving a parallel sentence.
Partners or spouses can be particularly affected, especially when they have chosen to stay with a person accused of having committed a sexual offense. Some of the spouses of those accused of sexual offending experienced a “psychosocial death” (Ref. 31, p 662) because of their partners’ charges. They had to grieve for the spouse they thought they had, with limited social support because of the stigmatizing nature of the crime.
Family Members of Civil Litigants
There is limited literature related to the experiences of close contacts of civil litigants; however, the scholarship on litigation stress and vicarious trauma is relevant. The process of litigation is often lengthy, highly adversarial, and distressing, even when litigants eventually obtain the desired outcome. For plaintiffs as well as individual defendants, the stress of litigation can be substantial, and for plaintiffs it is often superimposed on psychological injuries that were the basis for the original lawsuit.33 Litigation stress, which has also been called “critogenic harms,”9 has been found to manifest psychologically and socially and can include anxiety, emotional difficulties, and relationship difficulties. These stressors are applicable both to plaintiffs and defendants and, by extension, to their families. The legal process can put a strain on the litigant’s relationships and cause burnout in the litigant’s support system.10 In personal injury cases, hearing about the traumatic event itself, along with frequent discussions about the physical and psychological consequences, has the potential to take a toll on plaintiffs and family members.
Many circumstances can serve as the basis for a civil suit. These allegations can include noninterpersonal trauma (e.g., car accidents, disasters, workplace injuries) or interpersonal trauma stemming from assault, harassment, toxic workplaces, or early life abuse. The effects of litigation on family members that can result from plaintiffs’ alleging these harms from traumatic experiences creates the potential for trauma of different kinds to be experienced by family members.
The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition,34 added trauma that is indirectly experienced as a subset of the exposure criterion for posttraumatic stress disorder (PTSD; Criterion A). This addition, remaining in the most recent edition of the DSM,35 emerged from research on vicarious traumatization, which involves changes in cognitive schemas36 and sometimes the expression of trauma-related symptoms (e.g., symptoms of intrusion, avoidance, negative alterations in mood, or alterations in arousal and reactivity).37,38 These cognitive changes and trauma-related symptoms are thought to result from empathic engagement with traumatic content; that is, “listening to descriptions of horrific events, bearing witness to people’s cruelty to one another, and witnessing and participating in traumatic reenactments” (Ref. 39, p 558). Changes to cognitive schemas caused by vicarious traumatization can affect a person’s sense of trust in others, personal safety, intimacy, sense of control, and self-esteem.38
Much of the early research on vicarious trauma centered around therapists and other service providers who experienced repeated exposure to traumatic material in their professional lives.40 More recently, scholarly attention has been devoted to the experiences of laypersons exposed to the traumatic experiences of family and friends.41,42 Several studies have estimated the prevalence of posttraumatic responses in family members of trauma survivors. In one, the estimated prevalence of PTSD among family and partners of sexual assault survivors was approximately 25 percent.43 Other research suggests that family members’ PTSD was positively associated with the trauma survivor’s PTSD severity and suicidal ideation.42
Russin and Stein42 conducted a review of qualitative and quantitative research spanning nearly four decades that examined experiences of family members who had been supporting adult trauma and abuse survivors. They reported that having a high level of affective empathy and having one’s own trauma history were associated with the expression of PTSD symptoms among family members who were burdened at individual, interpersonal, and social levels. At an individual level, family members often experienced anger, guilt, self-blame, powerlessness or helplessness, depressed mood, suicidality, and lower life satisfaction. Interpersonally, family members reported relationship problems resulting from their loved one’s trauma-related experiences; for example, partners supporting sexual assault survivors often reported challenges with intimacy and sexual functioning. Finally, on a social level, themes emerged of strained relationships with extended family, loneliness, isolation, and disconnection from wider networks.
Trauma-Informed Collateral Interviewing
Family members and spouses of individuals engaged in legal proceedings can experience a range of psychosocial consequences, including vicarious traumatization and related sequelae. Whether or not collateral sources meet the threshold for a trauma-related or other mental health disorder is outside our present scope. What is central is the question of how the evaluator can function in an impartial manner that is also sensitive to the vulnerabilities of the interviewee.
According to the Substance Abuse and Mental Health Services Administration (SAMSHA),44 a trauma-informed approach refers to the delivery of behavioral health services that includes an understanding of trauma and an awareness of the impact it can have across settings, services, and populations. Although FMHEs are typically retained by attorneys and are not providing direct service to evaluees, trauma-informed principles may nonetheless be relevant to FMHA. Some of the authors of this article considered the potential impact of trauma on the evaluee and FMHA and suggested that principles such as transparency, providing choice, and the judicious use of empathy can contribute to creating assessment conditions that respect the experiences of the evaluee and lead to more accurate results and opinions.14 In a parallel way, some of these principles might translate into both the evaluator’s procedures and deportment when conducting collateral interviewing.
Informed Consent
Although informed consent and notification of purpose are important in FMHA, minimal formal guidance has appeared regarding the information that should be provided to collateral interviewees about the nature, purpose, and intended use of the information gathered from the interview. A salient feature of experiences that are traumatic is a loss of agency or control. Associated feelings of helplessness and a lack of control have been described in research related to the secondary stress of having a legally involved family member or spouse.41 A core principle of trauma-informed practice relates to empowering people with information and a road map of what can be expected.45 From the outset, evaluators might ensure that they are transparent about their role, the nature and purpose of the interview, what the interviewee can expect, and limits to confidentiality. Notification of purpose might address the following: the voluntary nature of participation in the collateral interview; a description of the legal question(s) that triggered the evaluation; the referral source requesting the evaluation; the rationale for why the interviewee was selected as a collateral source of information; and how this information will be used in the report and testimony. It is also important to be explicit about the limits of confidentiality and the duty to report or warn. A number of circumstances trigger such duties among forensic mental health professionals, including, but not limited to, suspected harm to a child or imminent threat or danger to an identifiable victim or group.
Evaluators might wish to explain, in simple terms, that they want to get as accurate a picture of the evaluee as possible and that they are neither seeking to assist nor undermine the evaluee and the evaluee’s case. As part of informed consent or notification of purpose, evaluators might also provide an estimated amount of time that the interview will take. Evaluators may wish to acknowledge that some questions might be challenging and that the interviewee may decline to answer questions. To manage expectations, evaluators might explain that the interview is generally a one-way sharing of information, and that they are not at liberty to discuss findings or opinions related to their assessment of the evaluee beyond the description of how the information will be used.
Collateral sources might be reluctant to provide information out of concern that the sharing of such information could harm their relative’s defense or adversely affect their relationship with the evaluee. This concern should be respected.2 The benefit of professional transparency is that it provides the interviewee with sufficient information to make an informed choice, which is not only consistent with trauma-informed principles but also with general ethics guidance provided for psychiatrists and psychologists.
Interpersonal Considerations
Engaging in a collateral interview about a family member in either criminal or civil matters is unlikely to be a neutral event. Observations from practice suggest that some collateral interviewees might experience relief in finally sharing their experience. In other cases, though, interviewees may feel the burden of stigma, grief, additional stressors of criminal or civil proceedings, and in some cases, strong psychological reactions, including trauma-related symptoms.
Forensic mental health professionals conducting collateral interviews often ask specific questions about the evaluee’s history and upbringing, mental health, relationship functioning, and behaviors. These questions can be emotionally evocative and can elicit defensiveness, sadness, anger, or shame. The possibility of having such strong emotions experienced by collateral interviewees underscores the importance of examiner sensitivity and clinical savvy to develop the rapport to access desired information while demonstrating sufficient respect for the interviewee. Some common questions could be experienced as very personal or private. These might include, for example: “Did your son witness any arguing or physical fights between you and your partner?” or “Since the incident, have there been changes to intimacy between you and your wife?” These often-necessary questions can be tempered by examiner tone and the judicious expression of empathy.
In an article titled “Compassion at the Core of Forensic Ethics,”46 Norko summarized the evolving perspectives of ethics, respect, truth-telling, and compassion in forensic assessments. Although Norko identified empathic recognition of pain and suffering specifically for examinees, it is not a long reach to extend the same behaviors to collateral interviewees.
Examiners may differ in the degree of empathy they experience and reflect. Examiners may also differ in how they consider a collateral source’s emotions relevant to their overall assessment and integrate them with other information gathered. For example, some examiners might consider the emotional state of an evaluee’s close support relevant to their evaluation. By contrast, others might observe such distress, anxiety, and discouragement without explicitly addressing the interviewee’s affective state.
The use of empathy in forensic evaluations has been debated. Shuman47 posited that a forensic evaluator’s use of empathy is contrary to the stance required and could imply a therapeutic alliance that could mislead evaluees. More recently, it has been suggested that empathy is not a unitary construct18 and that “different components in the experience and expression of empathy require definition and independent consideration; for example, empathy can be a cognitive or an affective experience, and it can be conveyed verbally or behaviorally” (Ref. 14, p 229). Glancy et al. discussed the concept of “detached concern” (Ref. 18, p 246), which they describe as a type of cognitive empathy. They posited that such a stance could enable the forensic practitioner to balance sufficient sensitivity toward evaluees with the required measure of emotional distance. Although there is general agreement in the literature that unfettered experiences and reflection of affective empathy could cloud an evaluator’s judgment and could conflate clinical and forensic roles,14 a case has been made that reflecting modest amounts of empathy can build rapport by demonstrating respect for the examinee.48,49 In a parallel sense for collateral interviews, judicious use of reflective empathy (e.g., “I realize some of these questions might bring up painful feelings for you,” or “thank you for your response; I know this cannot be easy”) may help in building rapport, reducing feelings of shame, and facilitating the interview process.
Evaluator Feedback and Disclosures
One largely overlooked topic is the provision of feedback in FMHA25 and how this practice fits within a trauma-informed framework. Although collateral interviewing is distinct from FMHA in nature and purpose, both examinees and collateral interviewees are often invested in the outcome of the legal case and may ask forensic mental health professionals about information gleaned from their overall assessment. Certain considerations regarding feedback given to evaluees could also be relevant when considering what information to provide collateral interviewees. Brodsky and Goldenson25 distinguished between feedback that is solicited by the examinee and feedback offered voluntarily by the examiner. They also differentiated between feedback that is likely to be either innocuous or overreaching. Parlaying this understanding into collateral interviewing, an interviewee might ask general questions, such as, “Are you really a doctor?” or, “Have you met with my son yet?” Brodsky and Goldenson suggested considering the scope of what is being asked and the impact on rapport of withholding readily available information from the examinee. Few evaluators would struggle to answer questions about their qualifications. In fact, transparency about their role is part of the informed consent process. Some evaluators might feel comfortable providing general feedback, such as “Yes, I have had the opportunity to meet with your son.” In contrast, feedback related to probative matters has the potential to be overreaching and problematic.25 Certainly, feedback about an examiner’s assessment findings or opinions would be inappropriate. General questions require professional judgment, and answers will be based on the FMHE’s clinical sense and the interviewee’s interpersonal style. For example, an interviewer might feel more inclined to answer questions from an interviewee when these questions are reasonable and infrequent.
Collateral interviewees can have problems remembering what happened at specific times. These difficulties can be particularly relevant for collateral interviewees who are asked to recall events from decades ago, as is often the case when adult litigants are seeking remedy for abuses that occurred in childhood. Extreme stress can limit the accuracy of an account that may have already been based on fairly brief observation.2 Although it is imperative for the FMHE to avoid disclosing details that could affect the interviewee’s account, Heilbrun and colleagues suggested that there might be some situations when it could be useful to provide nonsensitive but relevant details (e.g., date, location) to elicit a focused recollection.2
Feedback to collateral interviewees and FMHE’s use of disclosure are complex considerations. No single guideline fits these widely variable circumstances; decisions about the provision of feedback require the FMHE’s professional judgment. In keeping with suggestions regarding the provision of feedback to examinees,25 whether or not FMHEs choose to answer directly an interviewee’s question, examiners should approach an interviewee’s request for feedback with consideration and respect.
Conclusion
Collateral interviewing is often an integral part of FMHA, yet only minimal guidance is currently available for many aspects of this process. Existing literature supports the common-sense proposition that frequently sought collateral sources such as parents, siblings, and spouses can be emotionally affected by both the legal case and precipitating circumstances. FMHEs must strive to remain impartial while seeking meaningful psycholegal data. These duties are not incompatible with being compassionate and adopting trauma-informed principles, including fostering transparency, providing choice, judiciously using empathy, and demonstrating respect for the experiences of the interviewee. Using such principles may help to minimize the potential adverse impact of the collateral interview on persons related to those individuals involved in legal proceedings.
Footnotes
Disclosures of financial or other potential conflicts of interest: None.
- © 2023 American Academy of Psychiatry and the Law
