Applying the DSM-V to Court Cases: Don’t Take the Diagnostic Bible Too Literally

| July 24, 2013

imageIf you’re a practicing psychologist or psychiatrist, then you probably don’t rely on DSM-V  criteria too heavily when you’re making a diagnosis or constructing a treatment plan. The DSM-V is a guide, but with that guide you likely mix your experience and other scholarly research.

The DSM has been cited in court opinions over 5,500 times. Attorneys often express frustration about judges and their reliance on DSM diagnostic criteria when, in reality, judges often possess limited expertise regarding psychological and psychiatric disorders. In other words, they don’t have the knowledge or the experience to question a DSM diagnosis or to think critically about diagnostic criteria.

If you want to experience this firsthand, then get some forensic psychology degree information here. Like many forensic psychologists, when you find yourself working as an expert witness, you’ll realize the headaches that develop as attorneys, judges and jurors take a fundamentalist approach to the DSM-V. Three particular areas of difficulty include PTSD, personality disorders and unspecified disorders. Concern also arises when courts are determining whether criminals are intellectually fit to incur the death penalty.


The DSM-V now includes four symptom clusters for post-traumatic stress disorder (PTSD) instead of three. These are:

  • Re-experiencing the event. Re-experiencing events can include psychological distress, recurrent dreams, flashbacks or spontaneous memories associated with a traumatic event.
  • Heightened arousal. These behaviors can include sleeplessness, recklessness, self-destructiveness, hyper-vigilance or aggressive behaviors.
  • Avoidance. Avoidance includes evading external reminders, thoughts, feelings or memories about the event.
  • Negative thoughts, moods or feelings. These effects can include estrangement, diminished interest in activities, self-blame, externalized blame or memory loss.

Criminal behavior can be linked to PTSD, and some offenses can be connected directly to the trauma someone may have experienced. For example, victims of PTSD may engage in a lifestyle that places them adjacent to criminal activity or they may recreate trauma when committing a crime. Often, their violent behavior is out of proportion to the perceived threat.

While the changes won’t affect psychologists or psychiatrists too much, they will require changes to certain psychometric tests for PTSD that courts will use. Pay special attention to specifiers, like three-month time periods versus six-month time periods.

Personality Disorders

Personality disorders took a real beating in the DSM-V. About half of them were eliminated or placed on a dimensional spectrum. Regarding antisocial personality disorder, field trials give the diagnosis a kappa of 0.2. To put this into perspective, a kappa of 0.4 or below is considered poor, meaning that most clinicians won’t be able to agree on a diagnosis.

Because of the inconsistency, you may notice more attorneys focusing on intermittent explosive disorder. According to DSM-V, patients no longer have to be just physically aggressive. Verbal aggression, which is subjective, also applies. For example, some people consider profanities to be “verbally aggressive,” although they certainly don’t preclude a proclivity toward criminal behavior.

Unspecified Disorders

DSM-V desires to give “maximum flexibility for diagnosis.” This flexibility was originally intended for settings like the emergency department, where professionals can diagnose “other” or “unspecified” disorders when they have little time and limited background information. Unfortunately, this flexibility also gives unscrupulous attorneys and unethical paid expert witnesses an enormous loophole to assert nonexistent disorders. These diagnoses are legal, but they aren’t always ethical.

Fit for the Death Penalty

With DSM-V, courts no longer have the magical IQ score of 70 that determines “mental retardation.” The disorder has been renamed “intellectual developmental disorder,” and the criteria involve how well the patient functions in society. DSM authors say that they’re giving courts the ability to consider adaptive functioning over simple IQ tests. However, anytime you give attorneys and judges a gray area, you open the door for more arguments about capital punishment.

A 1996 law called the Antiterrorism and Effective Death Penalty Act (AEDPA) doesn’t allow a second habeas corpus (a writ ordering a person in custody to be brought before a court). In other words, if a psychologist makes an incorrect diagnosis regarding mental capacity, then courts may not allow the same psychologist to recant his or her diagnosis. In other words, when you’re dealing with this very important decision about a prisoner’s life, make your diagnosis with great care.

About the Author: Katy Stokes has provided expert witness testimony in a variety of court cases. She writes blog posts and articles for a number of legal publications as well as publications related to forensic psychology.


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