empathy in forensic evaluations: a systematic reconsideration

Behavioral Sciences and the LawBehav. Sci. Law 31: 192–202 (2013)Published online 27 November 2012 in Wiley Online Library(wileyonlinelibrary.com) DOI: 10.1002/bsl.2042

Empathy in Forensic Evaluations: a SystematicReconsideration

Stanley L. Brodsky, Ph.D.* and Jennifer Kelly Wilson, M.A.

This paper reexamines the Shuman seminal paper arguing against empathic behaviors inforensic evaluations. Shuman concluded that empathy by examiners seduces evalueesinto believing a therapeutic relationship exists. We reconsider empathy as an element ofrapport and a helpful supplement in a successful assessment. Actively avoiding empathycould lead to cold and callous examiner self-presentation, which may in turn producebiased and negative results. In this paper we assert that ethical forensic professionalsmay use moderate empathy during an assessment. Examiners should consider it not asa component of subjectivity and pseudotherapy, but rather as a potentially useful toolfor effective assessments. Copyright # 2012 John Wiley & Sons, Ltd.

INTRODUCTION

Some published opinions among forensic professionals warn against the use of empathy inforensic evaluations. The present paper addresses the usefulness of empathy in forensicexaminations. Many authors conceptualize empathy as if it is a single, unitary construct.Quite to the contrary, empathy is a multifaceted and complex construct, and the issueof its use cannot be simply relegated to dichotomous judgments of empathic versusnon-empathic behaviors. For example, Andrew, Cooke, and Muncer (2008) reportedthree empathy factors in their confirmatory factor analysis: emotional reactivity, socialskills, and cognitive empathy. deWied et al. (2007) reported a factor analysis of the BryantIndex of Empathy for Children and Adolescents. They found twomajor factors: empathicsadness and empathic attitudes. In her dissertation on empathy, Daly (2005) reported sixmajor factors were found in her factor analysis. She offered the overall perspective thatempathy is best viewed in the context of dispositional, situational, and biophilial issues.Biophilia is usually understood as the attraction to animals, objects, and others in ournatural environment.

In a study closer to the present concerns, Munro, Bore, and Powis (2005) studiedempathy and its mirror image, narcissism, in large samples of New Zealand medicalstudents and Scottish medical school applicants. In the authors’ factor analysis, theyreported that there were, in fact, four significant resulting factors: narcissism, aloofness,empathy, and confidence. The factor of aloofness raises the issue of whether the Shuman(1993) endorsed approach of non-empathic forensic interviews actually involves thebehavioral component of interpersonal distance.

Correspondence to: Stanley L. Brodsky, Ph.D., Department of Psychology, The University of Alabama,ox 870348, Tuscaloosa, AL 35487-0348, U.S.A. E-mail: [email protected]

*B

Copyright # 2012 John Wiley & Sons, Ltd.

The role of empathy in forensic evaluations 193

Exploration of the construct of empathy has filled the pages of numerous expositivearticles. Adding to such complexity are the numerous ways in which writers have definedtypes of empathy, usually in the context of where empathy is appropriate or inappropriatein specific therapeutic or evaluative contexts. Our discussion re-examines types ofempathy as they have been presented by other writers, including the receptive andreflective empathy of Shuman (1993) and the therapeutic empathy and empathy bias ofShuman and Zervopoulos (2010). To Shuman’s proposed dualities, we propose to addcognitive, affective, expressive, and behavioral empathy. Table 1 presents benefits andrisks of these proposed categories of empathy. Cognitive empathymay be seen as amentalexercise of taking the perspective of another, while affective empathy includes not onlyseeing the world from another’s point of view, but also sharing the same feelings withanother. Expressive empathy refers to the outward expression of empathy for anotherperson. Behavioral empathy denotes a concern and respect for the rights and feelings ofanother person as demonstrated through behavior. We now move to Shuman’s types, aswell as other views regarding empathy in forensic contexts.

THE SHUMAN PERSPECTIVE: A CRITICAL VIEW

The seminal article on empathy in forensic examinations was written by Daniel Shuman(1993). Shuman reasonably asserted that the serious and ethical responsibilities of theforensic examiners call for insuring that evaluees fully know and appreciate that theircommunications are neither privileged nor confidential in any sense. Furthermore, hemade the equally reasonable case that therapeutic and diagnostic involvement on the partof examiners should not be mixed. Therapists should not conduct assessments of their

Table 1. Proposed risks and benefits of forms of empathy in the forensic examination

Affective empathyRisks. Likely to introduce bias for the evaluee and is akin to sympathy.Benefits. Evaluee could be more open and confiding toward the evaluator and lesslikely to malinger symptoms. The greater openness could include disclosure ofincriminating information with the potential to harm the evaluee.

Behavioral empathyRisks. May give the impression that the evaluator is helping and is “for”the evaluee.Benefits. An acceptable form of this might include referring the evaluee for therapyand immediate assistance due to suicidal statements made during the evaluation,behavior that is ethically appropriate. The evaluator may reschedule anevaluation due to the subject’s current mental state. Handing the evaluee tissuesfor crying may also be acceptable.

Cognitive empathyRisks. Small risk of feeling an emotional identification with the evaluee based onthe increased understanding of his or her situation.Benefits. Evaluator may consider all sides of an issue, including dispositional andsituational factors. Likely to reduce the influence of cognitive heuristics and biasbased on egocentrism.

Expressive empathyRisks. May give the impression that the evaluator cares for the evaluee in apseudotherapeutic manner.Benefits. Likely to build rapport during an interview. In limited amounts, it conveysrespect, consideration for others’ feelings, politeness, and appropriate level ofconcern (e.g., in response to “My mother just died. . .”).

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194 S. L. Brodsky and J. K. Wilson

clients for the court. Diagnosticians should not assess people they are seeing in therapy.Furthermore, the assessor should not be engaged in the eager uncovering of reports ofcrimes not otherwise known. So far, we are in agreement with Shuman. Shuman alsoasserted that one path for protection of evaluees is to have a lawyer present or to haveevaluations videotaped. Elsewhere we have argued for the acceptability of such practices(Brodsky, 2004; Cramer & Brodsky, 2007). Now we shift to points of departure.

Shuman (1993) addressed the use of therapeutic relationship-building skills asinappropriate. Indeed, he equated the term empathy with the phrase “therapeuticrelationship-building” skills. We differ. Therapeutic relationship-building skills areways of relating to another person for the explicit aim of promoting insight, providingtherapeutic support, giving directed feedback, or expanding coping repertoires. Thesegoals are beyond the explicit, and, we argue, implicit reach of the examiner. Therapeuticrelationship building is never a part of forensic examinations and represents an extremeend of the spectrum of empathy, approaching the emotional states of identificationand sympathy. At a minimum, however, conveying respect for the other person andbehaving in a polite and professional manner remains as a necessary aspect ofevaluation behavior, routinely described in training for cultural competency andethical practices.

A conflation of terms occurs again in a later article by Shuman and Zervopoulos(2010), in which the writers discussed empathy as if it were equal in meaning to bias.Bias is clearly to be avoided in clinical and forensic evaluations, while the use ofempathy is not definitively unethical (and, in fact, some apparently empathic behaviorsare decidedly ethical). Shuman and Zervopoulos lamented the flexible legal standardsand lack of bright line definitions that invite all manner of bias into many forensicdecisions. When these authors addressed the ills of what they inaccurately termed“empathy bias,” they rightly condemned bias as a result of “partisan allegiance” andpolitical opinions (p. 586).

Shuman (1993) asserted that empathy on the part of the examiner will promoteunprotected disclosures of crimes.Much as in research with human participants, in whichparticipants may opt out at any time, evaluees should be reminded of the absence ofprivilege and allowed to opt out knowingly from any imminent disclosure of criminal acts.The initial warning of confidentiality limits often does not suffice. Are elaborated andrefreshed warnings enough to protect the evaluee? Shuman held that “An embellishedwarning is not enough in that empathetic techniques are intended to break downresistance and to encourage self-disclosure without censorship” (pp. 293–294). It isapparent that Shuman construed the diagnostician as pursuing a potential extension ofthe investigation already conducted by law enforcement personnel.

There is another way of understanding empathy in forensic assessments. Shuman (1993)sought to resolve the issue by distinguishing between receptive and reflective empathy.Receptive empathy is the awareness of what another person thinks or feels, and Shumanargued that this is controversial. However, from our view, such awareness represents adegree of emotional intelligence, a clearly desirable social skill. Shuman came outunequivocally against reflective empathy, in which the examiner openly reflects or restatesthe affective or cognitive experience of the evaluee, because it implies a therapeuticrelation or increases the comfort level of the evaluee. We propose that this issue berevisited in terms of the role of the forensic examiner, and whether the verbal expressionof empathy may make a difference. We begin with the view that it makes no differencewhether the examiner shows reflective empathy.

Copyright # 2012 John Wiley & Sons, Ltd. Behav. Sci. Law 31: 192–202 (2013)

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It Makes No Difference

Ever since the early work of Mehrabian (Mehrabian, 1981; Mehrabian & Ferris, 1967), ithas been a given in the study of nonverbal communication that most emotional messagesare communicated nonverbally. Mehrabian asserted that 93% of emotional communica-tion is nonverbal.Whether or not the examiner says aloud “You have had a difficult time”,the message may become communicated in many subtle and nonobvious pathways,through changes in pitch and inflection of voice, facial expression, eye contact, posture,hand movements, and spatial orientation. Indeed, one can make a case for the reflectivestatement: it makes the nonobvious visible and explicit. While the evaluator’s sense ofconcern or respect for the evaluee may be communicated nonverbally, we hold that ameasured degree of expressed empathy may be acceptable and even socially normativein many instances during an evaluation.

The Task of the Examiner is to Identify Disorder not Criminality

Shuman constructed a case for protecting the evaluee from inadvertent and soliciteddisclosure about offenses. The examiner certainly should not seek to identify unknownoffenses through the course of the evaluation. Rather, the task is to gather psychologicalinformation about the psycholegal issue at hand. Consider an assessment of competencyto stand trial. The goal of such an evaluation is to learn about the cognitive ability andemotional stability of the evaluee for a future trial process. If the evaluee is able to respondappropriately to the empathic and substantive communications of the examiner, it may beconsidered part of a possible competency to aid and assist in his/her own defense.Furthermore, Domino (2010) has written this of her experiences in conducting forensicevaluations: “. . .after 7 years of doing 100+ evaluations per year, rarely has it happenedthat a defendant has revealed another criminal act”.1

Empathy is Implicit in Expressions of Concern andExplanation ofRights

From the earliest stages of forensic assessments, the conscientious and committed examinerthoughtfully explains to the evaluees their rights. That explanation includes assuring thatthe evaluees are able to appreciate the right to terminate the assessment at any time if upset,insuring that time out may be taken if the evaluees need to compose themselves, and thatthe evaluee may have options to proceeding. Foote and Shuman (2006) put it this way intheir prototypical consent form for forensic evaluees: “When we go through the tests andinterview, you may be asked questions about things that happened to you in the past thatwere upsetting. I am not asking these questions to upset you, but because it is importantfor me to know how different events in your life have affected you. If you need time tocompose yourself during this evaluation, please tell me, and we will take time out fromthe questions or testing. If you are concerned that our discussion of these upsetting eventswill be too much for you, please arrange for a chance to talk with someone you trust aboutthese things after we finish our work” (p. 445). These statements of concern for the well-being of evaluees are easily understood and readily perceived as empathic, the Shumanassertions in his earlier article notwithstanding.

1 Marla Domino, personal communication, 1 March 2010.


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THE EMPATHIC EXAMINER AS SOCIALLY SKILLEDAND ETHICAL?

Could empathy be viewed as a beneficial trait characteristic in a forensic examiner,humanizing the examiner to the evaluee? Kohut (1978) wrote that our world growsfurther inhuman by our own actions, but perhaps greater empathy can produce more“wholesome social effects” (p. 707). Personality research has drawn relevant parallelsbetween empathy, emotional intelligence, and social skills. Johnson, Cheek, and Smither(1983) studied still four more factors in the personality construct of empathy: social self-confidence, even-temperedness, sensitivity, and non-conformity. Empathy was related intheir research to improved social skills and desired personality traits. As Feshbach (1997)noted in her child development research, empathy is intrinsically related to sources ofchildhood socialization experiences and to future effects in improved communicationand social interactions. Munro et al. (2005) clarified further that empathy is positivelycorrelated to the construct of emotional intelligence.

An empathic examiner may also be a more ethical examiner, upturning the idea thatempathic behaviors exist as a potential tool for manipulation in forensic contexts. In fact,the case may be made that being too affectively empathic may result in emotional biastoward the evaluee, and not result in manipulation and bias against the evaluee. Bias ineither direction is a problem. Nevertheless, empathy appears to be associated with avariety of positive personality traits. Hoffman (1990) found that empathy contributedtowards an individual’s development of morals. Perhaps this development occurred bytaking another’s perspective. In this regard, an empathic interviewer may in fact be moreethical than one who is non-empathic, and possibly cold and distant. Munro et al. (2005)foundmore ethical behaviors in empathic professionals than in those who were character-istically narcissistic, although this was a comparison of extreme groups. A non-empathic(and perhaps narcissistic) evaluator could be less conscientious, more focused on the self,and consequently more open to being manipulative toward others.

GUARDING AGAINST EMPATHY’S POLAR OPPOSITE

As we engage in questioning whether a forensic assessor may be too empathic, we mustalso question whether an assessor may be not empathic enough. Parmegiani (2004) notedthat there are not as many complaints of a manipulative “seduction” in forensic evalua-tions as there are of evaluators’ bias, rudeness, uncooperativeness, and disinterest. Mightthese behaviors represent the polar opposite of empathy? There are competing argumentsabout what traits compose the other end of this dimension. For example, when Munroet al. (2005) investigated whether narcissism is the converse of empathy, they foundnarcissists to be consistently more aloof and less capable of insight into themselvesand others. Similarly, Emmons (1987) linked narcissism to exploitation, arrogance, andself-absorption/self-admiration. In their reference to forensic contexts, Gutheil andSimon (2004, p. 266) refer to the “narcissistic failure of empathy” as “the inability to placeoneself in the other’s ‘shoes’”.

The construct of Machiavellianism has also been posited as opposite to empathy.Machiavellianism refers to self-serving behaviors and assumptions that the ends justifythe means. Andrew et al. (2008) found evidence for a dichotomy of empathy and


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Machiavellianism as cognitive styles, and other researchers have found high negativecorrelations between empathy/emotional intelligence and Machiavellianism (Austin,Farrelly, Black, & Moore, 2007; Barnett & Thompson, 1985; Wastell & Booth, 2003;Watson, Biderman, & Sawrie, 1994). In relation to emotion in particular, theMachiavellian personality has been found to lack interpersonal warmth (Geis, 1978)and to be emotionally distant in interpersonal interactions (Christie & Geis, 1970). Sucha person tends to view people as objects due to lack of an emotional connection (Wastell &Booth, 2003). A forensic examiner who is high onMachiavellian traits could bemotivatedby concerns other than accuracy and ethical standards. Individuals high in Machiavellianpersonality traits are more likely to endorse emotionally manipulative and deceptivebehaviors to get what they want from people (Austin et al., 2007; Christie & Geis, 1970;Wilson, Near, & Miller, 1996). Perhaps callous, unemotional evaluators who tend tomanipulate others should displace the empathic evaluator as a heightened focus of ethicalconcern in forensic evaluations. We see relatively few such forensic evaluators. Still, wepropose putting the constructs of narcissism andMachiavellianism on the table as subjectsof study and attention in forensic evaluators.

Jourard (1971) has written that excessive pursuit of professionalism in health practiceand research leads to a malevolent transformation. Researchers and clinicians alike whokeep at a substantial interpersonal distance from their participants and clients are likelyto receive truncated information. Jourard put it this way, “. . .the subject may then expresshis distrust and lack of ease by various withdrawal and self-concealing maneuvers”(p. 150). He went on to write “I look to the time when psychologists will not be detachedspectators and manipulators [but their task] will be to disclose in words and by livingexamples how to live freely, responsibly, and creatively in social systems that tend toprevent authentic existence” (p. 188). Jourard went further than we do. However, hisperspective, written over 40 years ago, offers an alternative frame of reference forcritiquing the forensic clinician as an overly detached and non-empathic assessor offorensic evaluees.

EMPATHY AND ACCURACY IN FORENSIC EVALUATIONS

The Specialty guidelines for forensic psychology (Committee for the Revision of the SpecialtyGuidelines for Forensic Psychology, 2011) enjoin forensic professionals to “maintainintegrity by examining the issue or problem at hand from all reasonable perspectivesand seek information that will differentially test plausible rival hypotheses” (section 9.01).The forensic examiner has increased accountability for accuracy compared to the non-forensic clinician, due to the legal ramifications of assessment results (Melton, Petrila,Poythress, & Slobogin, 2007). The use of empathic questioning may be able to assist inthe gathering of accurate information during a forensic evaluation. At the explicit risk ofoversimplifying the choices, we assert our preference for empathic questioning overthe possible perception of a “brusque confrontation” (Melton et al., 2007, p. 92) thatcould negatively impact the quality of information gathered. Research in the non-forensicclinical context supports the idea that clinical empathy helps to promote patient self-disclosure during history taking (Dawson, Schirmer, & Beck, 1984).

One value in forensic empathy could be its close relation to emotional intelligence.Shlien (1997) cites empathy as one form of intelligence necessary for survival. Emotionalintelligence as the ability to decode emotional cues and attune to nonverbal


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communication has been the focus of research on empathic accuracy and personperception (Losoya & Eisenberg, 2001). Research conducted on empathic accuracy (Hall&Mast, 2007) raised the question of whether an empathetic observer is more accurate ininferring thoughts and feelings of others, an important issue in the forensic context.Shuman (1993) also saw information about evaluees’ thoughts and feelings as valuableto the courts, because such feelings and cognitions may relate to evaluees’ motivationsgoverning their actions. In their exploration of the clinical functions of empathy, Kohut(1984) and Buie (1981) described empathy as being in part an observational skill andan essential tool for fact-finding.

There is a general trend in clinical practice towards rational objectivity, at the expenseof empathy and emotion, a trend described inMichael Bennett’s bookThe empathic healer:An endangered species? (2001). In the search for accuracy in a clinical evaluation, however,some writers suggest that empathic feelings may be closely related to intuitive processesfor decision-making. Hall (1987), in discussing methods for violence prediction, reported“prediction by empathy” as one of several prediction modes for understanding, at a lessthan conscious level, the motivations of a criminal offender. Hall described this methodof violence prediction as “attempting to place yourself in one’s perspective so that datacan be yielded in regards to the predictee’s intentions and thoughts” (p. 8). An evaluator’sability to recognize the evaluee’s point of view is a widely accepted aspect of the evaluationprocess. For example, a forensic clinician conducting an “insanity” evaluation should gaina deep understanding of the defendant’s mental framework at the time of the offense.

Empathy Does Not Preclude Objectivity

The American Academy of Psychiatry and Law (AAPL), in its ethical code for forensicpractice (American Academy of Psychiatry and Law, 2005), exhorts professionals to beobjective and honest in their work. Some forensic observers are concerned aboutempathy in the examination because they think it could impact the ability to be objective.Shuman and Zervopoulos (2010), in referring to the “empathy–objectivity conundrum”(p. 585), posit the two concepts as polar opposites. However, one can conceptualizeempathy as a separate and somewhat unrelated construct from objectivity, while biasmay be seen as opposite to objectivity. Critics of forensic empathy opt for an ideal ofobjective and non-empathic behaviors. Bias can enter in, however, even when notshowing empathy. Indeed, Sherman and Zervopoulos focus their admonitions more onbias as a result of allegiance effects than they do on actual empathy. In a more commonscenario, assessors are not biased through some sort of affective empathy but neverthelessbring in some subjective processing of evaluee content. Empathy and objectivity can beunderstood as separate issues.

What may be not clear is the extent to which some skilled and experienced examinersare actively empathic in the course of an evaluation. For individuals who are intrinsicallyand routinely empathic within reasonable limits, empathy may be naturally interwovenwithin ordinary assessment interviews. We consider good practice to include personalunderstanding of the nature and impact of empathic statements. Examiners whoconsciously and responsibly employ moderate levels of empathy may have met theirethical obligations.

A goal of the objective forensic evaluator should be the consideration of all sides of anissue. However, research on cognitive biases shows that all individuals can fall prey tobiases and heuristics. A moderately empathic forensic professional may be equipped to


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address such cognitive biases. For example, while many people may exhibit an “actor–observer bias,” where an observer attributes others’ actions to stable dispositions oversituational factors (Jones & Nisbett, 1971), an observer having cognitive empathy maybe more able to appreciate situational factors in the perspective of the actor. Cognitiveempathy includes the ability to appreciate others’ motives (Munro et al., 2005) and acapacity for perspective-taking (de Wied et al., 2007), making it an attractive quality forthe information-seeking forensic professional. In the case of mitigation evaluations, forexample, situational variables could be important factors to lessen sentencing severity(situational factors such as duress, self-defense, influence of alcohol or drugs, or adissociative state).

WHEN IT’S INAPPROPRIATE: EMPATHY OF THEWRONG KIND

Perrin and Sales (1994) noted that the ethical codes provide no specific direction aboutempathy in forensic evaluations. Ethical principles and guidelines entreat forensicexaminers to value information gathered in a humane way. A manipulative empathyintended to break down the defenses of the evaluee, seducing him or her to revealincriminating information, is a version of psychological trickery that contradicts theethical principle of “do no harm.” As an example of the polar opposite of empathy, amanipulative, self-serving forensic assessor might act prejudicially “against” an evalueeas much as an assessor can behave inappropriately “for” an evaluee. Neither approach isin the best interests of the court, the fact-finders, or justice.

One relevant issue for the forensic evaluator is “Who is the client?”. Forensic evalua-tions are usually ordered by the court or by attorneys, and the third parties are the clients.The inappropriate use of empathy during evaluations indeed could confuse evaluees intothinking the forensic psychologist is on their side or is behaving in the role of a therapist.As such, a defendant might divulge sensitive or incriminating information.

One way of conceptualizing the risk to the forensic evaluee is to consider that theassessor could use empathy for the goal of persuading the person into disclosing morethan he or she would otherwise choose (Pridmore & Wagg, 2004). Parmegiani (2004)called this process low-level dishonesty, and he identified as an example an implicitpromise of a favorable report in civil lawsuits. He wrote, “It is not uncommon to findan angry and distressed claimant, who thought he or she was going to receive a supportingreport. When exploring the reason for the anger, one finds that empathy was usedinappropriately to lead the claimant away from his or her defences” (p. 188). Shumanexpressed similar cautions. It is an empirical question whether empathy by examinersdoes lead to inaccurate conclusions by evaluees and to less carefully vetted disclosures.If perceptions by evaluees are accurate conclusions about the nature and role of theforensic assessment, then a reasonable case can be made that disclosure-promotingempathy is fully within the range of appropriate professional behaviors.

Evaluator behaviors that stand out inappropriately “for” the evaluee may be deemedsympathy, rather than empathy. Any promise to “help” the examinee, for example,represents an inappropriate display of sympathy. Olinick (1984) differentiated betweenempathy and sympathy by comparing empathy’s relatively neutral nature to sympathy’ssubjective nature and call for advocacy. Blumgart (1964) noted that it is not possible to


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be sympathetic and objective at the same time, but a clinical professional can at once beobjective and neutrally empathic. Blumgart advocated for “compassionate detachment”(p. 451), the ability to appreciate another person’s feelings without sharing those feelings.Cognitive empathy is differentiated from affective empathy, which is the “vicariousexperience of emotions consistent with those of others, that is, feeling with others”(de Wied et al., 2007, p. 99). Given that greater emotional distance is demanded inforensic contexts (Melton et al., 2007), most forensic professionals would agree withMunro et al. (2005) that too much affective empathy may bias clinical judgment.

Another category of inappropriate empathy is slipping into the “healer role,” whetherintentional or not. Shuman and Zervopoulos (2010) employ the term “therapeuticempathy” for the inappropriate utilization of the healer role. One could make theargument that career paths in psychology on the whole self-select individuals who aremore empathic. Indeed, much time in clinical training is spent on learning therapy andapplying the “helping ethic” to patients who struggle with psychological issues. Forensicassessment, however, demands a different focus; legal ramifications take precedence,and “forensic examinees should never be perceived as ‘patients’” (Melton et al., 2007).Gutheil and Simon (2004) denoted the empathic subjectivity of the treater role as a majorbiasing factor in forensic work. They recounted an episode in which a forensic assessorcontinually referred to the examinee as the “patient” in courtroom testimony. Someexaminers could incorrectly perceive the evaluee as a type of patient to be treated andhelped, especially in evaluating for mental illness or intellectual disability. New evaluatorscould make such mistakes with good intentions, only to find them backfire later.

Run-of-the-Mill versus Over-the-Top Expressive Empathy

We started this paper with a summary of empathy factors and noted that it is a complex,multifaceted phenomenon. In revisiting the Shuman empathy types, we propose a furtherdifferentiation of empathy by the forensic evaluator. Run-of-the-mill expressive empathymay be understood as a routine, modest response of understanding that conveys respectand recognition of the evaluee’s emotional reality. An example that might follow anevaluee’s report of how he suffered during repeated beatings and sexual coercion by hisfather would be “Uh-huh, a tough time for you”. An “over-the-top” empathic replymightbe “Oh, my goodness, what a disturbing thing for you to go through!”. To the extentShuman was addressing the over-the-top expressive empathy, we are in agreement withhis cautions. However, the modest acknowledgement of the emotion and difficulty seemsto be within the range of reasonable and socially acceptable components of ordinaryconversation and not a simulated therapeutic response. In addition, different evaluationsappear to demand different styles of interviewing. Most competency to stand trial evalua-tions are straightforward assessments of factual and rational knowledge, with little use forempathy. However, evaluations for mitigation for a capital sentencing hearing, delvingdeeply into the personal history of a defendant, might be better facilitated by selectiveempathic statements.

Could evaluator empathy impair the detection of malingering? Having significantemotional feelings of empathy for an evaluee perhaps could cloud an evaluator’sjudgment, if it led to siding with the evaluee. Excessive empathy could erode the perceivedadversarial nature of the legal process. At the same time, behavioral empathy in the formof humanity and respect could significantly add to the evaluee’s notions of fairness in legalprocedures and in the courts.


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CONCLUSIONS

We propose that use of empathy in forensic evaluations becomes the basis of empiricalstudy and academic exploration, rather than mostly matters of personal opinion andindividual differences. Empirical study could look at, for example, how evaluees actuallyperceive the role of the forensic evaluator. Like the divergence between clients’ andtherapists’ perceptions of therapeutic empathy (Free, Green, Grace, Chernus, &Whitman,1985), are forensic evaluators accurately aware of the degree of empathy perceived byevaluees? In addition, research might study whether refreshed warnings of the limits ofconfidentiality can assist an evaluee’s understanding of the forensic evaluation. Surveysof forensic professionals might help answer questions about evaluators’ of seductiveempathy during evaluations.

For the purposes of exploring empathy in forensic evaluations, we have adoptedthe Shuman perspective of empathy either being present or being absent. What thisdichotomy fails to take into account is that there are many behaviors within assessmentsthat are not so easily labeled. Consider the basic communication skills of politeness,respectfulness, consideration, and encouragement. They are a routine part of manyassessments. Yet, are they indications of rapport or of empathy? That query bringsus to the nuances of empathy versus good clinical practice. For now we are onlyaddressing empathy, which may overlap with politeness and encouragement, but isnot the same thing. If we do consider empathy as an element of rapport, it serves asgrease for the gears of social interaction. Similar to our views on empathy, Rogersand Payne (2006) described rapport to be a “necessary precondition to all professionalrelationships” (p. 647), citing specific examples from forensic work in compensationevaluations. They went on to emphasize the value of empathic rapport-buildingin properly defining the boundaries of time-limited assessment relationships andfacilitating open discussions about the matters at hand. In this way, may see empathyduring an assessment not as a purveyor of error, bias, and subjectivity, but as a toolfor effective human interactions.

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DOI: 10.1002/bsl

empathy in forensic evaluations: a systematic reconsideration

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