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Personality-Guided Forensic Psychology PDF

275 Pages·2005·14.09 MB·English
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1 INTRODUCTION TO FORENSIC PSYCHOLOGICAL PRACTICE Forensic psychology may be defined as the interface between psychology and law. The word forensic is a Latin derivative of the word meaning forum, a place where trials were held in ancient Rome. The purview of forensic psychology continues to expand, demonstrating the breadth and differentiat- ing scope of practice in this specialty field. Although initially practitioners in forensic psychology were generally clinical psychologists, now many forensic psychologists receive training and practical experience in this spe- cialty as graduate students and in postgraduate fellowships in forensic set- tings. Today, more than 2,000 psychologists are members of the American Psychological Association's Division 41, the American Psychology-Law Society. Hugo Munsterberg (1908) is generally credited with developing the field of forensic psychology. In a seminal book called On the Witness Stand, he reported, largely on the basis of his own experiences, how the knowledge base of psychology can be used to help the court in several defined areas (e.g., witness memory, the value of hypnosis in crime detection, and witness interrogation). The book contains no reference citations, and his claims were largely exaggerated and were not based on empirical evidence, but Munsterberg's book served as a beginning point for the empirical study of law and psychology. Forensic psychology has two broad areas of application: research and practice. The research boundaries are porous and continue to expand. Some forensic research crosses over into other areas of psychological research, particularly social psychology. Research activities of forensic psychologists include the study of eyewitness memory and the conditions under which it deteriorates or maintains reliability, jury decision-making processes, whether the presence of an attorney is truly a safeguard for the defendant's rights at a lineup, legal definitions such as reasonableness in the "reasonable person" standard, criminal behavior, the variability of jury awards in sentences by race of defendant and by jury instructions, and privacy rights. Most of forensic practice has occurred in one of three main functions: (a) friend of the court (amicus curiae) activities, (b) consultation, and (c) acting as an expert witness (Blau, 1998). Some areas of forensic practice overlap with areas of clinical psychology, particularly those pertaining to psychological evaluations necessitating psychological tests. Some of the activities that constitute forensic psychological practice include (but are not limited to) • providing child custody evaluations, • screening police applicants, • screening applicants for public safety jobs, such as access to nuclear power plants, • evaluating sex offenders, • evaluating various insanity pleas, • evaluating defendants in capital cases, • providing services (treatment, intervention, prevention) to offenders and correctional staff, and • providing courtroom testimony. This book addresses only professional forensic practice and does not deal with forensic psychological research, except to describe the research that underpins this practice. This book also concentrates on the assessment of adults and on adult offenders, although material on the assessment of juvenile offenders is occasionally included as well. PREPARATION FOR FORENSIC PSYCHOLOGICAL PRACTICE Forensic psychological practice inevitably involves depositions and courtroom testimony. To best serve their clients, forensic psychologists normally require the following preparation: 1. A doctoral degree from a school of psychology accredited by the American Psychological Association must be completed. PERSONALITY-GUIDED FORENSIC PSYCHOLOGY 2. State licensure or registration is required by all. 3. Direct and relevant experience in the matters before the court is mandatory. For example, if substance abuse is an issue in the court proceeding, then the psychologist must be able to demonstrate expertise in alcohol and drug abuse screening, evaluations, and treatment. If posttraumatic stress disorder (PTSD) is an issue, the psychologist must be able to demon- strate competence and knowledge in the full range of the disorder. Demonstrating that one has evaluated and treated a sufficient number of PTSD cases so as to be able to render a believable conclusion on demand might reflect this competence. 4. Attendance at continuing education workshops, seminars, symposia, and the like is evidence of continuing involvement in an area of expertise and is further evidence of competence. 5. Attainment of advanced specializations and certifications of competency, such as diplomate status (clinical or forensic) or fellow status granted by external bodies is additional evidence of expertise. For example, if the psychologist testifies as an expert in psychological testing, then fellow status in APA Division 5 (Evaluation, Measurement, and Statistics) or fellow status in the Society for Personality Assessment would be a recognized credential. Normally, fellow status in serious profes- sional organizations requires that one have a national reputa- tion in a body of knowledge, have significantly contributed to the advancement of that knowledge and skill, or have demonstrated competency in practice applications as attested to by one's peers. 6. Membership in relevant professional organizations (Otto & Heilbrun, 2002) is helpful as well as publication of relevant material, preferably in peer-reviewed journals, that adds to scientific discovery. To function within the best practice parameters of the psychology profession, forensic psychologists must be aware of and knowledgeable about legal issues, legal standards, legal definitions and terms, and legal procedures. They must also be aware of the unique ethical issues that affect forensic practice. Various sources of information about applicable statutes and procedures are available (Van Der Velde, 1999), and a code of ethics for forensic practice has been developed (Committee on Ethical Guidelines for Forensic Psychologists, 1991). Also, there are journals that are specifically devoted to forensic issues; among the more frequently cited are the following: INTRODUCTION • American Journal of Forensic Psychology, • Behavioral Sciences and the Law, • Criminal Justice and Behavior, • Law and Human Behavior, • Journal of Forensic Psychology Practice, • Psychology, Public Policy, and the Law, • Journal of Psychiatry and Law, • Journal of Threat Assessment, • American Journal of Forensic Psychiatry, • Journal of the American Academy of Psychiatry and Law, • Journal of Forensic Psychiatry and Psychology, and • Rules of Evidence. In Jenkins v. United States (1962), the court ruled that psychologists may testify as expert witnesses on mental disorders as long as they have appropriate training and expertise. Three psychologists had testified pertain- ing to a defendant's mental disease. The trial judge instructed the jury to disregard the testimony of the psychologists because they were not physicians. On appeal, both the American Psychological Association and the American Psychiatric Association filed amicus curiae briefs. The psychology association argued that psychologists were professionally qualified to diagnose mental illness, whereas the psychiatry association argued that although psychologists may be good testers, they function only as assistants to psychiatrists and are not qualified to diagnose or treat mental illness. Judge David Bazelon ruled that it was not a medical degree that conferred expertise on the question of mental disease, but rather a person's training, skills, and knowledge. He ruled that psychologists did have these necessary requirements and therefore could serve as expert witnesses in the case, as long as they become familiar with rules of evidence that allow certain kinds of testimony to be admissible (or inadmissible) in court proceedings. Rules of evidence vary across jurisdictions. State courts rely on either codified rules of evidence or extensive case law, and some use the federal rules of evidence as a model. In federal courts, the admissibility of scientific evidence may rely on one of three legal standards: 1. In the Federal Rules of Evidence (FRE, 1992), the evidence is admissible if it is relevant and helpful. 2. In the Frye standard (United States v. Frye, 1923), the court ruled that if a test, methodology, or procedure has general acceptance in the field to which it belongs (e.g., scientific community), then it can be admitted in court. 3. In 1993 the Supreme Court clarified that the FRE should be used in federal courts and then outlined the standards that the courts could use. In Daubert v. Merrell Dow Pharmaceuticals PERSONALITY-GUIDED FORENSIC PSYCHOLOGY (1993), the court ruled that the trier of fact (judge or jury) must make a preliminary assessment as to whether the expert's reasoning and methodology are scientifically valid and can be properly applied to the facts at issue in the court. This new standard now compels the forensic psychologist to pay far more attention to issues of reliability and validity and to other technical matters (e.g., operating characteristics and diagnostic power) of the psychometric instruments on which the testimony is based. The U.S. Supreme Court has subsequently clarified and elaborated on the interpretation of the Daubert standard in General Electric v. Joiner (1997) and Kumho Tire Company Ltd. et al. v. Carmichael et al. (1999). In General Electric, the court ruled that a judge's determination on Daubert admissibility may not be overturned unless the judge has abused the discretionary author- ity. In Kumho, the court ruled that the requirements of Daubert do not have to be met in every case and that judges have wide discretion in determining a method's reliability. No doubt there will be increasing refinement, interpre- tation, and application of the FRE and Daubert in subsequent court reviews. The FRE was modified as of December 1, 2000 but continues to rely on Daubert. This revision requires that the testimony be based on scientific facts or data and be the product of reliable principles and methods and that the expert witness have applied the principles and methods reliably to the facts of the case. These conditions continue to be modified by case law and subject to interpretation. Daubert relies on scientific philosopher Karl Popper's criteria for the falsifiability of scientific theories. Popper's theorem states that a scientific theory should be so operationally (and concretely) defined that it can be tested and found false. The court also suggested additional criteria: Has the theory or technique been subjected to peer review and published in scientific journals? Is there general acceptance of the theory or technique in the scientific community? Does the theory or technique have a known error rate, and are there standards to control for this error rate? The court stated that these criteria were not meant to be exhaustive, but it did not rule that a test or theory had to meet all four elements of the criteria in order for the testimony to be admissible in court. Professional standards also apply to this stricture. Psychologists practice according to specialty guidelines (American Psychological Association, 1981) and the American Psychological Association (2002a) Ethical Principles of Psychologists and Code of Conduct (Ethics Code), which prescribe general ethical psychological practices and address assessment practice. Heilbrun (1992) published recommended criteria to use in judging the adequacy of a psychological test for purposes of court testimony. Heilbrun's guidelines, INTRODUCTION which are increasingly being referenced in the professional literature and may become the standard in the future, are as follows: • Is the test commercially available, with a manual and at least one independent review? • Is the test's reliability (interrater and test-retest) at least .80? • Is the test relevant to the legal issue or to a psychological construct underlying the legal issue? • Does the test have a standard method of administration, and should it be administered as close as possible to this standard? • Is the test applicable to the population and purpose for which it is being used? • Does the test have objective scoring criteria, and does it have actuarial data that can combine scores, which is preferable? • Does the test measure response styles? It is advisable for the forensic psychologist to apply these criteria, as well as the Daubert standard, to each method used on which there may be court testimony. Forensic psychologists should also expect cross-examination on each of these criteria and on the methods used, and they should prepare rebuttal arguments to these challenges. Consultation with a competent attorney should be quite helpful with this rebuttal process, especially in depositions where an attorney's line of attack is revealed, thereby allowing the psychologist to prepare rebuttal arguments during actual court testimony. The FRE governs the admissibility of expert testimony in federal courts. State courts have individual determinations for admissibility of evidence, although most rely on some or all aspects of the FRE, Frye, and Daubert. It is advisable for the psychologist to consult with an attorney to ascertain what may or may not be introduced into evidence on the basis of state law. TESTIMONY ON THE ULTIMATE ISSUE Controversy exists concerning the issue of testifying as to the ultimate (legal) issue in the case (e.g., Was the person legally insane? Was he or she able to maintain mens rea?). Some jurisdictions permit such testimony by experts, whereas others prohibit it, deferring such judgments to the triers of fact. Some psychologists argue that they should reject pressure to testify as to the ultimate issue, that their training generally does not provide sufficient competence training and development to offer conclusions in matters of law. However, there is some evidence that judges want expert opinion on ultimate issues (Melton, Petrila, Poythress, & Slobogin, 1997). PERSONALITY-GUIDED FORENSIC PSYCHOLOGY Psychologists should consult with the hiring attorney about the limits of their testimony. CRIMINAL DEFENSES Most criminal statutes include elements pertaining to conduct and mental state in terms of mens rea, or level of intent to commit a specific act, which includes knowledge and purpose. Some states also include the specific circumstance or result of the criminal act in their statutes. Defendants have a limited number of possible pleas that can be entered in a criminal case, other than guilty. Psychologists working in the courts should have a rudimentary knowledge of these pleas and a more thorough knowledge regarding insanity pleas, if they conduct insanity evaluations. The reader is urged to consult more exhaustive sources for a thorough explanation of these defenses (e.g., Goldstein, Morse, & Shapiro, 2003). The following are the most common defenses entered into the court: 1. Duress: With a duress plea the defendant argues that he or she was threatened with death or serious bodily harm unless he or she engaged in the criminal behavior. 2. Extreme mental or emotional disturbance: With this plea, duress and extreme provocation result in the criminal act. Battered wife syndrome, addressed in chapter 8, is a good example of this type of plea. 3. Involuntary intoxication: Most statutes that allow involuntary intoxication as a plea (and excuse for the criminal act) also stipulate that it must have caused a mental abnormality that meets the legal definition of insanity for the defendant to avoid culpability. 4. Provocation or pressure: In this plea it is argued that the criminal behavior was the result of provocation that was so compelling that a reasonable person would act in a similar manner under similar circumstances. 5. "Twinkle" defense: The California Supreme Court allowed some mitigation of criminal responsibility after evidence was introduced that ingesting an excessive amount of junk food with high sugar content caused the defendant's behavior. (The California legislature later repealed this as a defense.) 6. XYY defense: This plea involves a chromosomal abnormality in men. The legal theory holds that the extra Y chromosome produces abnormal aggression with poor impulse control. It INTRODUCTION is then argued that as a consequence of this defect, the accused is legally insane. Psychologists rarely become in- volved in this type of defense. 7. M'Naughton rule (insanity plea): The M'Naughton rule holds that "The party accused was lacking under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know, that he did not know what he was doing was wrong" (M'Naughton, 1843, p. 722). This rule is strictly a cognitive standard of insanity and is called a "right and wrong" test. It does not take into account the emotional aspects of behav- ior and affective states. 8. Irresistible impulse (insanity plea): The irresistible impulse plea means that the "reasoning powers [of the accused] were so far dethroned by his diseased mental condition as to deprive him of will power to resist the insane impulse to perpetuate the deed, though knowing it would be wrong" (Smith v. United States, 1929, pp. 548, 549). This plea adds a volitional component to the cognitive component of the M'Naughton standard. Irresistible impulse is extremely difficult to prove. How does one differentiate between an irresistible impulse and an unresisted impulse? At what point does a person distinguish between choosing not to exert control versus being unable to exert control? The courts have ruled that the behavior falls under the definition of irresistible impulse if the presence of a police officer would not be sufficient to stop the behavior. 9. Durham rule (insanity plea): Durham v. United States (1954) established that the accused is not criminally responsible if his or her criminal activity was the product of a mental disease or defect. Initially the word product was excessively vague. Psychodynamic theory can argue that virtually any- thing can cause anything else, and mental disease and defect was also undefined and left up to the practitioner to define. Subsequently, mental disease and defect was defined as "any abnormal condition of the mind which substantially affects mental and emotional processes or substantially impairs be- havior controls" (McDonald v. United States, 1962). (This standard has now been replaced by the American Law Insti- tute standard—see below.) 10. Diminished capacity (insanity plea): Culpability requires one to deliberate, premeditate, maturely and meaningfully reflect upon one's act, harbor malice, and be able to form the neces- 10 PERSONALITY-GUIDED FORENSIC PSYCHOLOGY sary intent (mens rea) to commit the crime. The diminished capacity standard exculpates a defendant if, as a result of mental disease or defect, a person lacks the requisite specific intent to commit the alleged crime. 11. American Law Institute (ALl; insanity plea, articulated in the Model Penal Code; ALl, 1962): "As a result of mental disease or defect [the accused] lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of law" (Sect. 4.01, p. 23). This standard excludes antisocial and psycho- pathic abnormalities. 12. Federal Insanity Defense Reform Act (1984) (insanity plea): "The defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality of the wrong- fulness of the act" (as cited in American Bar Association, 1989, p. 20). Mental disease or defect and cognitive incapac- ity are components of insanity standards across all juris- dictions. Volitional incapacity and exclusion of antisocial personality disorders vary in each state's insanity standard. In most jurisdictions, personality disorders, substance abuse, and disorders of impulse control (e.g., pyromania, gambling) do not exculpate defendants. 13. Guilty but mentally ill (insanity plea): In this plea, defendants are committed to a psychiatric hospital for treatment until their mental illness is in remission. They are then transferred from the hospital to a correctional facility to complete their sentence. Their time in the hospital is credited toward their prison sentence. LEVELS OF PROOF Psychologists have been trained to rely on probability theory to ascribe a degree of certainty to a hypothesis. If the level of probability is .01, then it is 99% probable that the results can be attributed to the variables under investigation. In court, different standards of proof apply, depending on the jurisdiction and the legal issue in question. These levels of proof are "beyond a reasonable doubt," "clear and convincing evidence," and "preponderance of evidence." The psychologist will be asked to render an opinion "to a reasonable degree of certainty." This phrase does not apply to statistical probability or to legal definitions of proof; it means that the psychologist has ruled out other possible explanations and is reasonably confident that the explanation given is the most likely one. INTRODUCTION 11 DIFFERENCES BETWEEN CLINICAL AND FORENSIC PRACTICE Forensic interviews differ from traditional clinical interviews in a num- ber of significant ways. In treatment, psychologists usually adopt a supportive, accepting, and empathic stance toward the patient, but the forensic psychol- ogist must adopt a more investigative role while searching for truth. In doing so, the forensic psychologist may act in a neutral, objective, and detached manner (Greenberg & Shuman, 1997). There is sufficient evidence to support the notion that litigating patients are prone to malinger, to overreport symptoms, and to answer questions in ways that affect psychologi- cal test scores. For example, patients injured in industrial accidents tend to heal at certain rates, but compensation-seeking patients with the same injuries may take longer to heal (see Williams, Lees-Haley, & Djanogly, 1999). Workplace injuries are more fully discussed in chapter 5. The clinical psychologist's main goal is to help the client; the forensic psychologist's main goal is to help the court. Clinical psychologists often are required to make a psychiatric diagnosis, but the forensic psychologist makes only those diagnoses that are incidental to the main issue in the case. To the extent that the diagnosis is helpful to the court (i.e., psychotic disorders in insanity pleas), forensic psychologists make such diagnoses. In other cases (e.g., child custody evaluations, screening of law enforcement applicants), diagnoses may not be warranted. Whereas clinical psychologists may see the patient for multiple sessions over an extended period of time and in less structured formats, the forensic psychologist may see the patient only for a few sessions and, in some cases, only once or twice and in highly structured formats. These different interview conditions require a different way of thinking by the psychologist. For example, if a patient has been deposed on several occasions about PTSD, then prior exposure to the evaluation and questioning may help the patient present a more realistic picture of the disorder to the next forensic psycholo- gist at the next evaluation. Clinical psychologists rarely consider this, but a forensic psychologist would have to explore for this possibility. As a standard of proof for the veracity of a conclusion, clinical psychologists tend to trust their clinical judgment, research psychologists rely on alpha levels, and the forensic psychologist must follow the court dictates that require "beyond a reasonable doubt," a "preponderance of evidence," or "clear and convincing evidence." Privilege is the right to protection of information given in the context of a professional relationship from discovery in evidentiary proceedings. Most work of the clinical psychologist is privileged information (unless the client waives his or her right of privilege), whereas most forensic evaluations have no such protection. In fact, forensic psychologists are ethically required 12 PERSONALITY-GUIDED FORENSIC PSYCHOLOGY

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