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Malingering
Exposed Self-Defense as a Mental Defense Tarasoff Revisited Arguing Future Dangerousness Confession Law in Washington,
and the Psychologist's Role in Assessing the Validity of Confessions. Psychologists’ Roles in Evaluating
Child Witnesses Interrogative Suggestibility in a U.S.
Context: Some Preliminary Data on Normal and FAS/FAE Subjects US Supreme Court Finds Execution of
the Mentally Retarded “Cruel and Unusual”; Suggestibility and Confessions Child Abuse: The Fundamental Issue in
Forensic Clinical Practice Victim Issues Key to Effective Sex Offender
Treatment Medicating Incompetent Defendants against
Their Will to Restore Competency: Psychologists’ Testimony About Line-Ups
and Photo-Spreads The Admissibility of Expert Testimony in
Washington on Post Traumatic Stress Disorder and Related Trauma Syndromes:
Avoiding the Battle of the Experts by Restoring the Use of Objective Psychological
Testimony in the Courtroom Age and Recidivism: How Accurate are Our
Predictions? Some Problems Inherent in Neuropsychological
Testing Can Mental Health Professionals Accurately
Determine whether a Child has been Sexually Abused? Can Mental Health Professionals Accurately
Determine whether a Child has been Sexually Abused? Results of a Recent
Literature Review
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Informed
Consent for Psychologists and Counselors in Washington The Child Incapacity Defense
in Washington The New Diminished Capacity
Defense in Washington Admissibility of Expert Testimony
Concerning Eyewitness Evidence in Washington Evolving Standards for Admissibility
of Expert and Lay Opinions in Mental Defense Cases in Washington Psychologists’ Roles
in Cases Involving Disputed Wills, Contracts, Deeds, Accounts, Powers
of Attorney and Marriages in Washington. What to Do if a Criminal Defendant Seems
Incompetent What Have We Learned From 30 Years of
Research on Families in Divorce Conflict? Divorce:The Care of the Children Psychologists’ Roles in Decline Hearings
in Washington Forensic Practice: Pride
and Prejudices Recent U.S. Supreme Court Decision Holds
that Children Must Testify in Child Sex Abuse Prosecutions Dissociative Identity Disorder Does Court-Mandated By Brett Trowbridge, Ph.D., J.D. Waiting List and Recent Cases Give Advantages
to Defendants Court-Ordered for State Hospital Evaluations |
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Malingering
Exposed "Malingering Exposed", describes new types of scientifically derived and validated tests now available to detect malingering. Specifically, the Structured Interview of Reported Symptoms, the Test of Memory Malingering, and the Victoria Symptom Validity Test are discussed. The article also addresses the issue of keeping separate the roles of the forensic expert and the treating clinician. Informed
Consent for Psychologists and Counselors in Washington This article covers the historical background of the doctrine of informed consent, the tort of failure to obtain informed consent, possible licensing board disciplinary actions which can result from failure to make proper disclosures, and addresses what disclosures must be made to a client by a therapist in training. The issues of competency to consent to treatment, what to do if your client is not competent to give informed consent, and what to do about informed consent if your client is a child are reviewed. Finally, the question of whether informed consent forms are required for forensic psychological evaluations is analyzed. Self-Defense
as a Mental Defense This article explains how recent advances in self-defense law are causing the standard question of "What would a reasonable person have done in this situation?" to become, "What would a reasonable person with this defendant's mental status and history have done in this situation?" Many self-defense cases seem to involve some psychological reason why the defendant acted more fearfully than otherwise would appear to have been "reasonable" under the circumstances. Information is presented as to when a mental health expert's opinion about a defendant's fear would be admissible in a trial involving self-defense. The
Child Incapacity Defense in Washington This article addresses a legal defense available only for children between the ages of eight and twelve; children younger than eight cannot be prosecuted at all. The cases defining this defense are discussed, and the role of a psychologist or other mental health professional in doing an evaluation of a young child charged with a crime is analyzed. Miranda issues as related to this defense are also discussed. Tarasoff
Revisited This paper explains how the famous California case, and the associated doctrine of "duty to warn" others who might be hurt by our patients, exist in Washington law, not only for hospitalized patients who are then released, but also for patients undergoing outpatient treatment. The
New Diminished Capacity Defense in Washington The author explains how a recent Washington Supreme Court case has changed the rules concerning admissibility of expert opinions about diminished capacity. The Frye test for admissibility of expert opinion evidence is discussed in the context of diminished capacity, as is Evidence Rule 702. The diagnoses that might qualify for a diminished capacity defense are reviewed, as well as, whether the expert must hold his opinion with "reasonable certainty". Also presented are the discovery rules for diminished capacity cases. Arguing
Future Dangerousness This article presents some of the actuarial approaches that have recently been developed to make predictions about future risk. It describes how these methods have been shown to be superior to risk predictions based on clinical judgment. The review includes the Spousal Assault Risk Appraisal Guide, for assessing the risk of spousal assault, the SVR-20 and the Sex Offender Risk Appraisal Guide, for assessing the risk of sexual violence and the Variable Risk. Admissibility
of Expert Testimony Concerning Eyewitness Evidence in Washington This paper does not detail or analyze the extensive research on the fallibility of eyewitness identifications. It, instead, sets forth a number of cases that give guidance as to when expert eyewitness testimony should be admitted in a criminal trial. Washington cases, federal cases, and cases from other states are analyzed, and suggestions made as to which types of cases are more likely to allow such testimony. Evolving
Standards for Admissibility of Expert and Lay Opinions in Mental Defense
Cases in Washington This paper examines the changing rules governing which opinions are admitted into court as evidence. Traditionally Washington has followed the "Frye" test for admissibility of scientific evidence through opinions of experts. Frye v. U.S., 293 F. 1013 (D.C Cir. 1923). Under this standard, scientific opinion evidence is to be admitted only if the scientific principles from which the opinions are deduced are sufficiently established to have gained general acceptance in the relevant scientific community. Evidence Rule 702, under which the expert evidence must be "helpful to the trier of fact" is also analyzed. Confession
Law in Washington, and the Psychologist's Role in Assessing the Validity
of Confessions. Prior to Miranda, most decisions concerning the admissibility of confessions had to do with the "voluntariness" of confessions, which involved whether the confessions had been obtained through coercion, and whether the suspect had any disability which caused him to be less able to resist coercion. Miranda established the additional rule that in order for his confession to be admissible the suspect had to have waived his rights "voluntarily, knowingly, and intelligently". This paper discusses how a psychologist might evaluate confessions, and how a psychologist might present evidence on these issues. Special issues relating to confessions made by juveniles are discussed. Psychological tests often used by psychologists to assess Miranda waivers are presented. Also reviewed are unusual cases that involve the "reliability" of confessions. Psychologists’
Roles in Cases Involving Disputed Wills, Contracts, Deeds, Accounts, Powers
of Attorney and Marriages in Washington. This article presents the legal standards in Washington State for competency (“capacity”) to execute wills, enter into contracts, become married, start lawsuits, transfer real-estate, assign powers of attorney, and put others’ names on bank accounts. Elderly persons often enter into such transactions, but later (often after their death) their heirs dispute whether they were competent (or had “capacity”) to make such decisions, or whether they were subjected to “undue influence” by those who ended up benefiting from the transactions. Psychologists may then be consulted to try to determine whether at the time of the transaction the elderly person was “competent”, or whether “undue influence” occurred. The article discusses how such “retrospective” evaluations should be conducted in cases where the person in question is deceased and thus cannot be evaluated in person. Psychologists'
Roles in Evaluating Child Witnesses Although different words are used, most tests of child witness competency stress three basic concepts: perception, memory, and ability to communicate. The ability to distinguish truth from falsehood and the capacity to carry out the obligation to speak the truth are additional requirements. Psychologists assist courts in helping to determine whether child witnesses are competent, and/or whether they were competent when they made earlier out-of-court statements. Psychologists also assist courts in determining whether children’s hearsay statements are “reliable”, and whether there is corroboration of accusations children make. Finally, psychologists assist courts in determining when a child witness is unable to testify as long as that child is in view of the defendant. Interrogative
Suggestibility in a U.S. Context: Some Preliminary Data on Normal and
FAS/FAE Subjects The United States Supreme Court Miranda Ruling of 1966 established the ‘Right to Remain Silent’ of a suspect during police interrogation. Despite this ruling, very few subjects apparently exercise their ‘right’ – only between 4–16% according to a review by Gudjonsson (Gudjonsson, 1992); on the other hand, between 42–76% make admissions of guilt or a full confession. Moreover, the confession of the suspect is often the major piece of evidence in the case and can be the only piece of evidence. The suspect’s confession – oral, written or both – can be the basis for the prosecution of the individual and the main reason for a guilty verdict. US
Supreme Court Finds Execution of the Mentally Retarded “Cruel and Unusual”;
The US Supreme Court reversed its own 1989 decision in deciding that it is now unconstitutional to execute the mentally retarded. The court stated that retarded persons are less likely to be deterred by the prospect of capital punishment, and that principles of retribution do not apply to the retarded, as they are less culpable. The court also stated that mentally retarded persons are more likely to make false confessions, and have less ability to assist their lawyers, and thus as a group face a higher chance of false execution. What
to Do if a Criminal Defendant Seems Incompetent Criminal defense attorneys are often at odds with their mentally ill defendants, especially if attorneys want them evaluated for competency and/or other mental defenses. Such clients often become upset when their lawyers want them to be evaluated at state hospitals, especially since hospital commitments often postpone their trials. Time needed for court-ordered evaluations by state hospitals does not count for speedy trial purposes, although after conviction that time should be included as part of the sentence (see RCW 10.77.090(2)). Suggestibility
and Confessions False confessions do occur, and can cause people to be wrongfully convicted; various types of confessions are discussed. Research shows trickery by interrogators can lead to large numbers of false confessions even among high-functioning subjects. The Gudjonsson Suggestibility Scales (GSS) are used to determine how suggestible subjects are in response to leading questions and/or negative feedback. Research with the GSS shows that adolescents, those with low IQs, and those who are acquiescent or anxious are especially suggestible. Suggestions are made as to how to evaluate defendants who have retracted confessions, and are now claiming they made false confessions. What
Have We Learned from 30 Years of Research on Families in Divorce Conflict? Asummary of highlights of the text, Divorce Wars, Interventions with Families in Conflict, (APA Books, 2000). The text is a review of research in a number of key areas and is intended as a reference work and manual for psychological experts in the courtroom and the attorney who wishes to be knowledgeable regarding the scientific literature in this field. The book also contains case studies, guidelines for clinicians, charts and data tables, as well as a complete bibliography. (The last two chapters, on ethical dilemmas and future trends in the area of divorce and family law, have not been reviewed here). This summary is organized in a list of pertinent questions and brief responses to these questions. For the full text please order a copy from APA Books, 1-800-374-2721, or view the entire series of books on Law and Psychology online at 222.apa.org/books/ Divorce:
The Care of the Children In the long-past history of Roman law (30 B.C. – 500 A.D.) children were considered the property of the husband (father) and with that came the presumption of paternal preference for the placement of children. The father had absolute power over the children and he was allowed to place them into slavery or sell them for profit. The mother had no legal rights in determining the care of the children (Gould, 1998). Child
Abuse: The Fundamental Issue in Forensic Clinical Practice The practice of forensic psychology and psychiatry has made tremendous advances in the past 20 years. We have moved from a field based solely on vague, subjective opinion, devoid of any support in objective research, to a plethora of well-established research instruments and a vast body of well-founded research studies. Recently, however, some of our colleagues have begun to question whether we have possibly embraced our research findings with too much confidence and enthusiasm. Our field has become almost exclusively devoted to assessment, offering little help to those of us who are charged with the treatment of forensic clients in settings such as prisons, forensic state hospitals, parole outpatient clinics and conditional release programs. Many clinicians in forensic settings tend to throw up their hands and feel that they can’t really be expected to provide meaningful or effective therapy for their clients. Psychologists’
Roles in Decline Hearings in Washington Mental health experts routinely testify at hearings to determine whether to transfer juveniles from juvenile court to superior court or adult court. In Washington these hearings are usually referred to as “decline” hearings, because the juvenile court must decide whether to “decline” the case and send it to superior court. In other states these hearings are called “waiver”, “transfer”, or “bindover” hearings. Trial as an adult has serious consequences for juveniles, as juvenile proceedings are confidential but adult proceedings are not, a juvenile adjudication is not a “conviction” and thus can usually not be used against the juvenile in the future (except in some cases for criminal history), and in Washington juveniles can only be committed to juvenile institutions until they have reached their twenty-first birthday. Adult convictions result in loss of voting privileges, loss of the right to serve in the military, loss of the right to own a firearm, and the requirement to report the conviction on employment applications. Victim
Issues Key to Effective Sex Offender Treatment The recent passage of Sexually Violent Predator laws in several states has increased interest in identifying those sex offenders most likely to re-offend and changeable or “dynamic” factors that can be most effectively addressed in treatment in order to reduce sex offender recidivism. Hanson and his colleagues have identified the following as promising stable dynamic factors: intimacy deficits, negative peer influences, attitudes tolerant of sexual offending, problems with emotional/sexual self-regulation, and general self-regulation. On the basis of 25 years’ experience treating sex offenders, the author explores the relationships between these factors and the long-term effects of child abuse as well as the growing literature on the effects of early trauma on the development of the brain. Forensic
Practice: Pride and Prejudices The field of forensic psychology and psychiatry has evolved rapidly and our research instruments and experts command growing respect among both the scientific community and lay audiences. We have, however, focused almost exclusively on assessment rather than treatment and, in doing this, have fostered the perception that most forensic clients are not amenable to treatment. The author discusses the role of child abuse in the backgrounds of many forensic clients and suggests how the literature on adult survivors of abuse could be applied to the treatment of forensic populations. Medicating
Incompetent Defendants against Their Will to Restore Competency: When I began working at the forensic unit at Western State Hospital in the late 1970s, defendants committed to the hospital for 15-day evaluations for assessment of their competency to stand trial were routinely medicated with anti-psychotic drugs involuntarily even before a judicial determination was made as to their competency to stand trial. Indeed, when notified by a jail that a psychotic patient was being transported to the hospital, Western State Hospital staff was routinely instructed to meet the new patient at the door with a loaded syringe. Decisions by the U. S. Supreme Court have clarified that such practices are unconstitutional. Indeed, in a very recent decision the supreme court has imposed important new requirements. This case, Sell v. United States, represents a sea-change for how the question of involuntary medication of defendants must be handled in Washington courts. The
Washington Supreme Court Holds that the Fact Finder in Sexually Violent
Predator (SVP) Cases does not need to Make a Separate Finding that the
Alleged exual Predator has “Serious Difficulty Controlling Behavior”,
Rules that Less Restrictive Alternatives cannot be Considered at the Commitment
Hearing, and Decides that Both Actuarial and Clinical Approaches to Predicting
Dangerousness are Admissible from Experts in SVP Cases The U.S. Supreme Court seemingly held in Kansas v. Crane, 534 U.S. 407 (2002), that in SVP cases the fact finder must make a separate finding that the person facing commitment “has serious difficulty controlling behavior” as a result of his mental condition. The U.S. Supreme Court required proof “sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case,” rejecting Kansas’ position that it need not prove any lack of control. Indeed, the U.S. Supreme Court held that a person may not be committed as an SVP “without any lack of control determination”, and reversed a SVP commitment because there was no finding the respondent could not control his dangerous behavior. Psychologists’
Testimony About Line-Ups and Photo-Spreads In a previous edition of The Trowbridge Report (Admissibility of Expert Testimony Concerning Eyewitness Evidence in Washington, Volume II, Issue I, Winter 2001), we discussed how psychologists can provide expert testimony about the accuracy of eyewitness memories laid down at the time of crimes, and we also discussed the criteria generally used in Washington by courts to decide if such expert eyewitness opinions will be admitted at trial. This article will address a related set of issues, namely how psychologists can provide expert testimony about the accuracy of identifications made from show-ups, photo-spreads and line-ups, and how Washington courts decide if identifications from show-ups, line-ups and photo-spreads, will be admitted at trial, as well as whether expert opinions about the accuracy of show-ups, line-ups and photo-spreads will be admitted at trial. The Admissibility
of Expert Testimony in Washington on Post Traumatic Stress Disorder and
Related Trauma Syndromes: Avoiding the Battle of the Experts by Restoring
the Use of Objective Psychological Testimony in the Courtroom There is considerable controversy regarding the use of syndrome testimony in Washington and other state courts. Consider an expert witness’s testimony during a criminal case, in which an expert asserted that it appeared likely that the alleged victim had truly been raped because she showed symptoms of “rape trauma syndrome.” Specifically, the expert testified: “[I]n every rape victim I have seen they exhibit consistent symptoms . . . . For example, body soreness, guilt, shame, feelings about the trial, nightmares, and flashbacks are all common symptoms that rape victims experience. There is a profile for rape victims and [she] fits it.” Suppose this testimony was allowed despite an objection from defense counsel. Recent
U.S. Supreme Court Decision Holds that Children Must Testify in Child
Sex Abuse Prosecutions A recent U.S. Supreme Court Decision, Crawford v. Washington, 2004 WL 413301 (March 8, 2004), has revised years of decisional law on the admissibility of child hearsay when the child does not testify in child sex abuse prosecutions. The unanimous decision (two justices concurring) reduces the likelihood that child hearsay can be introduced into evidence if the child does not testify. Dissociative
Identity Disorder Can be the Basis for Insanity or Diminished Capacity
in Washington In a previous edition of The Trowbridge Foundation Report (Volume II, Issue III, Fall 2001) we reported that the Washington Supreme Court had ruled in State v. Green, [139 Wn 2d 64 (1999)] that testimony about dissociative identity disorder (DID, a.k.a. multiple personality disorder) was inadmissible in criminal cases as the basis for either insanity or diminished capacity [see also 36 Gonzaga Law Review 497 (2001), and Washington Criminal Defense, Vol. 15, No. 1 (Feb 2001)]. However, the Ninth Circuit of the United States Court of Appeals has overturned Greene’s conviction in Greene v. Lambert, [288 F. 3d 1081 (9th cir. 2002)] by affirming the District Court’s decision to grant a writ of habeas corpus. As a result, Greene was given a new trial last fall in Snohomish County Superior Court. Expert testimony was presented by witnesses for both the prosecution and the defense. Greene himself was allowed to testify about his DID, and the victim, Greene’s former therapist, was also allowed to testify to her opinion that Greene had suffered from DID, and that a seven-year-old alter, “Tyrone”, had committed the offenses. Despite the fact that such testimony was allowed, a Snohomish County jury convicted him after the re-trial. Age
and Recidivism: How Accurate are Our Predictions? Most crime is perpetrated by males in their late adolescence and early adulthood. After that most offenders commit fewer crimes or stop offending altogether. Many have argued that although most offenders “burn out” and quit offending as they get older, especially violent psychopaths would not “burn out”, but instead would continue to re-offend. The best-accepted measure of psychopathy is the Psychopathy Checklist-Revised (PCL-R), on which a score of 30 or above (out of a possible 40) is recommended as the appropriate cut-off for diagnostic purposes. Some Problems Inherent in Neuropsychological Testing Neuropsychological tests are used to determine whether an individual has brain damage (brain dysfunction) and if so, the extent and cause of that brain damage. Neuropsychological tests use samples of the individual’s behavior (test performance) to make inferences about brain functioning. In order for neuropsychological testing to be of use, the practitioner must be qualified, must use standardized tests with official norms, must be able to address basic statistical issues regarding testing, and must be able to address threats to test validity, including inappropriate norms, limited English proficiency on the part of the patient, and possible malingering. Can Mental Health Professionals Accurately Determine whether a Child has been Sexually Abused? Steve Herman, in a recent article entitled “Improving Decision Making in Forensic Child Sexual Abuse Evaluations,” 29 Law and Human Behavior 87 (February 2005), reviews the literature and concludes that mental health professionals are unable to make accurate determinations of whether to substantiate unconfirmed child sexual abuse allegations, as there is widespread consensus that decisions by clinicians about such abuse allegations currently lack a firm scientific foundation. His analysis of empirical research findings leads to the conclusion that at least 24 percent of these decisions are either false positive or false negative errors, so such opinions lack acceptable reliability and validity. Does Court-Mandated Domestic Violence Treatment Work? Before the 1980’s little interest was shown in treating perpetrators of domestic violence, as it was thought that domestic violence was a family issue that should not be addressed by the police or the courts. With the development of mandatory arrest policies and court-mandated treatment of spousal abusers, interventions have become a combination of punishment and rehabilitation. Does
Sex Offender Treatment Work? Waiting List and Recent Cases Give Advantages to Defendants Court-Ordered for State Hospital Evaluations Western State Hospital’s waiting list for both jail evaluations and evaluations at the hospital is now so long that it often takes many months for an evaluation to be completed and the report to arrive. In many recent cases this has worked to the advantage of defendants who decline to waive their speedy trial rights. Although the state hospital evaluations for insanity and diminished capacity are supposed to be neutral, many defense attorneys view them as prosecution oriented, and it is often the prosecution who requests them. Therefore many defense attorneys believe there is an advantage in avoiding the state hospital evaluation if possible. Can Mental Health Professionals Accurately Determine whether a Child has been Sexually Abused? Results of a Recent Literature Review Steve Herman, in a recent article entitled “Improving Decision Making in Forensic Child Sexual Abuse Evaluations,” 29 Law and Human Behavior 87 (February 2005), reviews the literature and concludes that mental health professionals are unable to make accurate determinations of whether to substantiate unconfirmed child sexual abuse allegations, as there is widespread consensus that decisions by clinicians about such abuse allegations currently lack a firm scientific foundation. His analysis of empirical research findings leads to the conclusion that at least 24 percent of these decisions are either false positive or false negative errors, so such opinions lack acceptable reliability and validity.
Noteworthy Forensic Conferences | Links |
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