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Terms in this set (93)
-supposed to be objective
-the expert opinion of psychologists or psychiatrists on the issue of competency are highly valued
-provide services when they are court ordered
-when they are retained by the or prosecution
-in areas of specialized knowledge or experience
-Forensic Psychology is the "professional practice by any psychologist working within a sub discipline of psychology (e.g., clinical, developmental, social, cognitive) when applying the scientific, technical, or specialized knowledge of psychology to the law to assist in addressing legal, contractual, and administrative matters."
Court cases that created the basis for forensic psychology
-practiced since early 1900s but APA recognized it as a specialty in 2001
-brown v. board of education (1954) where the supreme court relied on psychological research concerning the effects of segregation on school children
-jenkins v. united states (1962) where the court of appeals for the district of columbia indicated that a psychologist could serve as an expert regarding diagnosing mental health issues something that was previously limited to physicians
Competency to Stand Trial CST (chapter 1)
-Cited as an issue since 1736 in England
Due process rights
-right to a fair and speedy trial
5 competency standards
Competency to Waive Rights (attorney, confess, etc.)
Competency to be Executed
Competency to Testify
Competency to be Sentenced
Competency to Stand Trial
Competency vs Sanity
-competency refers only to a defendant's present ability to function
Forensic psychologists have an obligation to help the side (prosecution or defense) who hired them
The Insanity Defense is raised in 1% of cases and is successful in 25% of the 1%
An expert witness may offer his or her opinion on a substantive (essential or key) issue related to the facts of the case
he Ultimate Issue refers to the final opinion presented by the forensic psychologist based on his or her evaluation of the evidence
Andrea Yates was the first forensic psychiatrist in England 1738 who began illustrating the complicated issue of incarcerating and executing mentally ill or intellectually challenged individuals
Forensic psychology provide services...
• Only when they are court ordered
• Only when they are retained by the defense or prosecution
• Only in areas of specialized knowledge or experience
• ALL OF THE ABOVE
Four areas of consultation for forensic psychologist include the following:
• Jury selection, expert witness, intellectual disability and the death penalty, and criminal mitigation
LRA stands for...
• Least restrictive alternative
Dr. Martha Smith is seeing an 11-year old child in therapy when the child's parents decide to divorce. The child's father asks Dr. Smith to conduct a child custody evaluation...
• This is a bad idea and an ethical violation because it creates a dual relationship between Dr. Smith and the child
A peremptory challenge is when...
• Attorney dismiss a prospective juror without giving a reason
Who has the final say in determining an expert witness' admissibility?
• The judge
Which decision or law states that a judge must determine if expert testimony is relevant, reliable, and likely to assist the Trier of Fact?
• Daubert vs. Merrell Dow Pharmaceuticals (1993)
CSI effect is the following...
• What contributed to the outcome of the Casey Anthony trial
• When the jury thinks scientific evidence has to be present and clear
• Moves the burden of proof to beyond all doubt
An ethical conflict between the legal system and psychology is that the legal system takes...
• An adversarial approach
Which of the following is permitted to present opinions as part of testimony?
• Expert witness
A distinction between ethical principles for psychologist and ethical principles for lawyers...
• Lawyers serve as an advocate and psychologists should be objective
Process of victim /offender mediation programs...
• Victim or offender referred, assigned an unbiased mediator, joint meeting follow up
-regarded as the historical origin of the insanity defense
-he shot and killed the british prime minister's secretary
-the jury found him to be insane at the time he committed the offense and acquitted him of the charges
-the first official test to determine a defendants insanity was developed out of these proceedings
Federal Rule of Evidence 703
-indicates that that evidence presented by mental health professionals in the legal setting must be reasonably relied upon by professionals in the field
Federal Rule of Evidence 701
warning victim of threat
-requires therapists to take preventative measures if any reasonable therapist would believe that their client is likely to harm an identifiable victim in the near future
What are the five competency standards mentioned during lecture?
• 1. Competency to waive rights
• 2. Competency to be executed
• 3. Competency to testify
• 4. Competency to stand trial
• 5. Competency to be sentenced
What are the five steps to an NGRI evaluation?
• 1. Mental disease/defect
• 2. Offensive conduct
• 3. Collateral data from time of the offense
• 4. Collateral data from subsequent proceedings
• 5. Create timelines, maps, pictures of the offense conduct
"The criminal justice system is not fair, only just"
o Not everyone will receive the same outcome for their case, but everyone has the right to receive a just trial
o Exaggerating or fabricating symptoms of mental illness for the purpose of some secondary gain
o Used in criminal cases to avoid prosecution or lengthy sentences
• Ultimate Issue
o The ultimate legal question that must be decided by the court
o Ex: whether or not the defendant's mental state at the time of the offense would reach the level of impairment necessary to qualify for a successful NGRI verdict
• Trier of Fact
o Person/people who ultimately decides on the ultimate issue
o Depending on the case, it is either the judge or the jury
• Informed consent
o Does the defendant understand the pros/cons of what happened?
o Can he/she paraphrase it back to you?
• Challenge for cause
o A potential juror can be challenged for cause based on the following five criteria:
• They don't meet minimal juror requirements
• They are incapable of being impartial
• They have a mental or physical disability that leaves them incapable of serving
• They adhere to beliefs preventing them to find the defendant guilty
• They've had a previous interaction with the defendant or are related to either an attorney or the defendant
o Must present an ability to consult with ones attorney with a reasonable degree of rational understanding
o Must have a rational and factual understanding of the proceedings against him/her
o Psychologists must not accept cases where previous relationships could make them bias, such as dual relationships
• Adversarial system
o A legal system used where two advocates represent their parties' positions before a jury or judge, who attempt to determine the truth of the case
o Guilty but Mentally Ill
o Offers an alternative to NGRI verdicts
o With a GBMI verdict, an individual is found guilty but their treatment must be taken into account
-go to hospital inside prison
Competency to be Executed
Must be able to comprehend
Nature and Purpose
The retributive goal of criminal law is satisfied only when the defendants know the connection between their crime and punishment.
Defendants can only prepare for death if they are aware that it is pending shortly.
-Dusky v. United States, 362 U.S. 402 (1960), was a landmark United States Supreme Court case in which the Court affirmed a defendant's right to have a competency evaluation before proceeding to trial. In this case, the court outlined the basic standards for determining competency.
-Milton Dusky, a 33 year old man, was charged with assisting in the kidnapping and rape of an underage female. He was clearly suffering from schizophrenia but was found Competent to Stand Trial and received a sentence of 45 years. On petition of writ of certiorari to the United States Supreme Court, the petitioner requested that his conviction be reversed on the grounds that he was not competent to stand trial at the time of the proceeding.
Dusky Standard (Dusky v. United States, 1960)
-Whether the defendant has:
-Sufficient present ability to consult with his attorney with a reasonable degree of rational understanding.
-A rational as well as factual understanding of proceedings against him.
-Caution -unqualified evaluator might
mislead the trier of fact
If incompetent; various options:
-Can the defendant be brought to competence within a reasonable amount of time (Jackson v. Indiana, 1972)
-Defendants can only be confined for mental health treatment for a reasonable period of time to determine whether the individual can be restored to competence or whether a substantial probability exists that competency can be restored (e.g. mental retardation versus a psychotic episode).
Competency to Stand Trial Evaluation Texas
-Section 46B Criminal Code of Procedure State of Texas
-Federal Rule of Evidence 704 allows mental health experts to testify to the ultimate issue of the defendant's pretrial status (competence to stand trial).
Competency to Stand Trial Evaluation
Examiner should inform defendant about the
-Purpose of the evaluation
-Potential uses of disclosed information (i.e. goes into the report)
- Forensic Warning-limits of confidentiality and the conditions under which the defense counsel, prosecutor and court will have access to the evaluation.
-Consequences of refusal to cooperate
-Typically have defendant paraphrase confidentiality limits.
-Videotaping or audio taping, with permission; provides evidentiary record.
Forensic Instruments used in CST
-Competency Screening Test
-Competency to Stand Trial Assessment Instrument (CAI)
-Interdisciplinary Fitness Interview
-Fitness Interview Test
-Georgia Court Competency Test
-MacArthur Competence Assessment Tool- Criminal Adjudication
Importance of Ethical Standards in the Practice of Psychology, Forensic Psychology and Law
-Whores of the Court: The Fraud of Psychiatric Testimony and the Rape of American Justice (Hagen, 1997). (Attack on Forensic Psychology)
-Margaret Hagen, an experimental psychologist, is critical of psychologists, psychiatrists and social workers who "mislead" judges and juries chasing the "almighty dollar."
Specialty Guidelines for Forensic Psychologists
-Developed by Division 41 of APA and American Psychology-Law Society and are endorsed by the American Academy of Forensic psychology
-"The primary goal of the SGFP is to improve the quality of forensic psychological services by providing guidance to psychologists delivering services to courts, members of the bar, litigants, and persons housed in forensic, delinquency, or correctional facilities." (Otto & Heilbrun, 2002, p.7).
APA Guidelines for Particular Activities
-Guidelines are described as aspirational, neither mandatory or exhaustive: psychologists are strongly encouraged - but not required - to abide by them.
-However, with "good faith" immunity laws in certain states psychologists may recognize the value of adhering to the guidelines
Rule 1.3 Diligence and Zeal
-A lawyer shall represent a client zealously and diligently within the bounds of the law.
Law: An Adversarial System based on Precedence
-Lawyers argue their case before the judge, citing previously decided cases to confirm precedence. Most convincing wins!
Relationships (Dual or Multiple)
Confidentiality and Privilege (Miranda)
Estelle v. Smith 451 USA 454 (1981)
Methods and Procedures
Barefoot v. Estelle 463 US 880 (1983)
Impartiality and Fairness
-Scope of Competence
-Gaining and Maintaining Competence
-Knowledge of the Legal system and Legal Rights of Individuals
-Knowledge of Scientific Foundation for Opinions and Testimony
- Knowledge of the Scientific Foundation for Teaching and Research
-Impact of Personal Beliefs and Experience
-Appreciate Individual Differences
-Appropriate Use of Services and Products
Provision of Services
Termination of Services
-Responsibilities to Retaining Parties
-Multiple (dual) Relationships
-Therapeutic-Forensic Role Conflicts
-Expert Testimony by Practitioners Therapeutic Services
-Provisions of Forensic Therapeutic Services
-Provisions of Emergency Mental Health Services
Informed Consent, Notificationand Assent
Persons Not Ordered or Mandated
Persons Ordered or Mandated
Persons Lacking Capacity to Provide Consent
Privacy, Confidentiality, and Privilege
Release of Information
Access to Information
Acquiring Collateral 3rd Party Information
Methods and Procedures
Use Appropriate Methods
Use Multiple sources
Opinions of Persons not Examined
Two Types of Witnesses
Admissibility of Expert Testimony
Although a low standard to be qualified as an expert, the admissibility of expert testimony is different and must meet certain standards.
Judges have discretion in deciding what is the proper subject for expert testimony.
Judges have case law as guidance in making these decisions.
A review of case law regarding expert testimony follows.
Frye v. United States (1923)
Federal Rule 702 (1975)
Federal Rule 703 (1975)
Daubert V. Merrill Dow Pharmaceuticals (1993)
Federal Rule 701 (1975)
Frye v. United States (1923) District of Columbia Court of Appeals
Established a general acceptance test for the admissibility of scientific testimony ... general acceptance rule - expert's testimony must be based on scientific techniques that have reached a general acceptance in the scientific field
Federal Rules of Evidence (1975)
Rule 702 also established that the Judge is the "gatekeeper" for assuring that scientific testimony truly proceeds from "scientific knowledge.
" The judge must determine if the scientific evidence is
likely to assist the Trier of fact (FRE 702)
Witness Opinion and Testimony
Federal Rule of Evidence 702 (Expert Witness)
If scientific, technical, or other specialized knowledge will assist the trier of fact, an expert may testify in the form of an opinion:
(a) if the testimony is based on sufficient facts or data.
(b) the testimony is the product of reliable principles and methods reliably to the facts of the case.
(c) the witness applied the principles and methods reliably to the case.
Witness Opinion and Testimony
Federal Rule of Evidence 703 (Hearsay)
An Expert Witness may use hearsay. Facts or data in a case upon which an expert basis an opinion may be those perceived by or made known to the expert prior to or during the hearing.
A Fact Witness can only testify to things he/she knows through first hand knowledge. Hearsay is not allowed.
Daubert v. Merrell Dow Pharmaceuticals (1993)
Trial judges may, but are not required to, consider the following factors in deciding whether to admit expert testimony with a purported scientific basis
If the theory or technique is scientific knowledge that will assist the Trier of Fact will be whether is can be or has been tested
If theory or technique has been subjected to peer review and publication
The court should consider the known or potential error rate
General acceptance - relevance and reliability: The Trial Judge must ensure the expert's testimony is relevant to the task at hand and is based on reliable information.
Two additional cases related to expert testimony
Kumbo Tire Co. v. Carmichael (1999)
Extended the Daubert ruling to nonscientific expert witnesses who claimed a specialized knowledge
General Electric Co. v. Joiner (1997)
U.S. Supreme Court ruled that a trial judge's decision to allow or reject expert testimony under Rule 702 may not be overturned on appeal unless the judges ruling constituted a clear abuse of discretion - a very difficult standard to meet
Ultimate Issue Testimony
the final question that must be decided by the court (e.g. insane at the time of the crime, or, was the individual raped.. as in cases of testifying regarding rape trauma syndrome)
Duty of the trier of fact
judge and/or jury to decide the ultimate issue
Pros and Cons Regarding Ultimate Issue Testimony
-Concerns about the accuracy of the opinion
Expert's opinion on ultimate issue may have too much influence on trier of fact
-Research suggests that juries are not overwhelmed by expert's opinion
-Though does influence judge's decision in pretrial competency hearing
-Judges and prosecutors depend on it and request it
Can be controlled through cross-examination
APA does not take a position on whether psychologists should give ultimate issue testimony
can give there own opinion
Insanity is a legal concept and not simply "mentally ill" or "psychotic"
Black's Law Dictionary-"any mental disorder severe enough that it prevents one from having legal capacity and excuses one from criminal or civil responsibility"
Insanity does not allow for Mens Rea (guilty mind=criminal intent)
McNaughton-Hx origin of insanity defense (affirmative defense)-shot and killed a British Prime minister in 1843-insane does not have mens rea only actus reus- then irresistible impulse test!
ALI (American Law and Institute) test
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the [wrongfulness] of his conduct or to conform his conduct to the requirements of the law
This is offered as an alternative to NGRI since the 1970s -Person is found guilty but the individual's treatment needs is taken into account
14 states has attempted to use this verdict to reduce NGRI but has multiple problems:
Did not require mitigation of sentence
This conviction does not ensure them better mental health treatment than a regular conviction
Montana eliminated the Insanity defense completely!!
A certain number is allowed each side and this enables the attorney to dismiss a juror without explaining a reason (cannot be race or gender)
Not regulated-no license
Two types of deterrence:
Intellectual Disability-Capital Offenses
Qualification of person doing the assessment 16 states have no restrictions
Adaptive functioning issues (interview with officers, criminal behavior suggestive of functioning, standardized measure not intended to use criminal behavior or be administered in a prison setting, stereotypes of what you can or cannot do with MR)
IQ testing (Malingering-VIP, Standard error of measurement, Flynn effect, and practice effect)
Mitigating factors-anything to decrease the defendants culpability
Hx of victimization or emotional fragility hint at future risk
"Catchall"-anything else about the person to attempt to mitigate the penalty
Criminal Mitigation (or aggravation)
Experts most frequently asked:
Does the person have a mental disorder?
Is the person's criminal behavior caused by the mental disorder and not a free choice?
How will the person act in the future, future risk? This can be both a mitigating or an aggravating factor
Example pg. 95
Wiggins v. Smith, 2003 contributed to increased demand for mitigating evidence, please review
Parts of the evaluation:
Review of records
Convergence of data
The Ultimate Issue
is related to the legal question at had, for example whether or not a defendant's mental state at the time of the offense would reach the level of impairment necessary to qualify for a successful Not Guilty by Reason of Insanity verdict or if a defendant should be adjudicated as Incompetent to Stand Trial
an opinion about whether or not the defendant is CST
when they excuse the juror without giving a reason
a system of criminal justice that focuses on the rehabilitation of offenders through reconciliation with victims and the community at large
-anyone who is 18 can civilly commit someone or try to
-when we put people in the mental hospital when dangerous to self or others
Death qualified jury
all the jury is ok with the death penalty