John Wiley & Sons, Inc.

Transcription

1 FORENSIC PSYCHOLOGY Emerging Topics and Expanding Roles Edited by ALAN M. GOLDSTEIN, PhD, ABPP John Wiley & Sons, Inc.

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3 FORENSIC PSYCHOLOGY

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5 FORENSIC PSYCHOLOGY Emerging Topics and Expanding Roles Edited by ALAN M. GOLDSTEIN, PhD, ABPP John Wiley & Sons, Inc.

6 This book is printed on acid-free paper. Copyright 2007 by John Wiley & Sons, Inc. All rights reserved. Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) , fax (978) , or on the web at Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) , fax (201) , or online at Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You should consult with a professional where appropriate. Neither the publisher nor author shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. For general information on our other products and services or for technical support, please contact our Customer Care Department within the United States at (800) , outside the United States at (317) or fax (317) Wiley also publishes its books in a variety of electronic formats. Some content that appears in print may not be available in electronic books. For more information about Wiley products, visit our web site at Library of Congress Cataloging-in-Publication Data: Forensic psychology : emerging topics and expanding roles / edited by Alan M. Goldstein. p. cm. ISBN-13: (cloth) ISBN-10: (cloth) 1. Forensic psychology. I. Goldstein, Alan M. RA1148.F dc Printed in the United States of America ➇

7 To my family with love, admiration, and appreciation: Paula Naomi and Josh Marion and Jon

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9 Contents Foreword xi Preface xiii Contributors xvii PART I Expanding Roles and Emerging Areas of Practice 1 Forensic Psychology: Toward a Standard of Care 3 Alan M. Goldstein PART II Forensic Assessment Methodology 2 A Principles-Based Approach to Forensic Mental Health Assessment: Utility and Update 45 Kirk Heilbrun, Geoffrey Marczyk, David DeMatteo, and Jenette Mack-Allen 3 Forensic Applications of the Minnesota Multiphasic Personality Inventory-2 73 Roger L. Greene 4 The Personality Assessment Inventory: Issues in Legal and Forensic Settings 97 Leslie C. Morey, Megan B. Warner, and Christopher J. Hopwood 5 Rorschach Assessment in Forensic Cases 127 Irving B. Weiner 6 Neuropsychology for the Forensic Psychologist 154 Wilfred G. van Gorp vii

10 viii Contents PART III Ethical Issues in Forensic Practice 7 Ethics and Forensic Psychological Practice 171 Paul D. Lipsitt 8 Legal and Ethical Issues in Accessing and Utilizing Third-Party Information 190 Randy K. Otto, Christopher Slobogin, and Stuart A. Greenberg PART IV Civil Forensic Psychology 9 Recent Civil Decisions: Implications for Forensic Mental Health Experts 209 John Petrila 10 The Role of the Psychologist in Civil Commitment 232 David F. Mrad and Erik Nabors 11 Evaluating Capacity to Consent to Treatment 260 Jennifer Moye, Michele J. Karel, and Jorge C. Armesto 12 Termination of Parental Rights 294 Lois Oberlander Condie and Don Condie PART V Criminal Forensic Psychology 13 Recent Criminal Legal Decisions: Implications for Forensic Mental Health Experts 333 Michael L. Perlin 14 The Role of Forensic Mental Health Experts in Federal Sentencing Proceedings 359 Daniel A. Krauss and Alan M. Goldstein 15 Postconviction Assessment 385 Eric Y. Drogin PART VI Forensic Mental Health Experts in the Courtroom 16 Expert Witness Testimony: Law, Ethics, and Practice 421 Steven C. Bank and Ira K. Packer 17 Lessons for Forensic Practice Drawn from the Law of Malpractice 446 Stuart A. Greenberg, Daniel W. Shuman, Stephen R. Feldman, Collin Middleton, and Charles Patrick Ewing

11 Contents ix PART VII Forensic Psychological Consultation Off the Witness Stand: The Forensic Psychologist as Consultant 465 Eric Y. Drogin and Curtis L. Barrett The Disability Psychological Independent Medical Evaluation: Case Law, Ethical Issues, and Procedures 489 David A. Vore Workplace Violence: Advances in Consultation and Assessment 511 Harley V. Stock PART VIII Special Populations 21 Developmental Considerations for Forensic Assessment in Delinquency Cases 553 Randy Borum and Thomas Grisso 22 Psychological Evaluation and Testimony in Cases of Clergy and Teacher Sex Abuse 571 William E. Foote 23 Correctional Psychology: Law, Ethics, and Practice 605 Joel A. Dvoskin, Erin M. Spiers, and Stanley L. Brodsky 24 Evaluating the Psychological Sequelae of Elder Abuse 633 Beth N. Rom-Rymer 25 Forensic Issues at the End of Life 661 Barry Rosenfeld and Colleen McClain Jacobson 26 PART IX Special Topics in Forensic Practice Judicial Decision Making about Forensic Mental Health Evidence 683 Richard E. Redding and Daniel C. Murrie 27 Psychopathology of Homicide 708 Louis B. Schlesinger 28 Forensic Hypnosis 734 Susan C. Knight and Robert G. Meyer Author Index 765 Subject Index 787

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13 Foreword SO, YOU REALLY WANT TO PRACTICE FORENSIC PSYCHOLOGY? Forensic psychologists are by nature an argumentative bunch, with abundant selfconfidence and strongly held opinions. Why else would they readily subject themselves to the high degree of scrutiny and challenge that goes along with presenting oneself as an expert in the legal system (e.g., challenging cross-examination, withering criticism of peers consulting to the opposing side, and increased risk of ethical complaints)? I believe that one answer lies at the intersection of their strong commitment to both behavioral science and the public interest. Forensic psychology at its best brings well-founded scientific methods and behavioral research to bear on important social and legal questions, shedding important light on cases in which triers of fact must render critical judgments. As Alan Goldstein describes in his opening chapter, the half-century since the Jenkins decision (Jenkins v. U.S., 1962) has seen a growing acceptance of behavioral science expertise in the courtroom. Reaching back even further, social advocates called on behavioral science experts to address matters of juvenile and mentally disordered offenders. As respect for the so-called mental sciences and public acceptance of psychology have grown, our legal system has increasingly welcomed behavioral science experts. The downside of this welcome parallels the rapid evolution of other forensic sciences in several respects, not the least of which involves emerging standards of care. How do we discriminate between valid and junk science (Daubert v. Merrell Dow Pharmaceuticals, 1993)? What constitutes adequate training and credentials to provide expertise? How do we integrate the different cultures, ethics, and modes of inquiry that clash when behavioral scientists and attorneys interact? How can we assure that the opinions we offer flow from sound scientific principles, appropriately collected and interpreted data, and the most current research? Such questions will continue to provide fodder for professional debate and consensus seeking; however, it has become increasingly clear that mental health professionals cannot expect to wander into forensic work without specialized education, training, and credentials and remain unchallenged. Alas, the lure of forensic work can prove seductive to the self-absorbed or naive practitioner. A client in need or earnest attorney calls the office seeking your expertise, posing a question seemingly easy to resolve (i.e., I need someone to evaluate xi

14 xii Foreword me and tell them I m a really good mother or My wrongly convicted client had a miserable childhood. Don t you think that ought to mitigate his sentence? ). The fact that the work will not involve dealing with a managed care case reviewer also seems a definite plus. In a moment of superficial insight, it seems unimportant that you really do not know the relevant state laws, legal procedures, or current state of case law on such matters. You do, after all, have a license, you know how to do testing as well as any other psychologist, and you have years of clinical experience; plus, you can count on your client s lawyer to fill you in. The courtroom seems very impressive. As you walk to the witness stand, all the attention focuses on you. You swear to tell the truth. Your curriculum vitae is presented and the judge declares you an expert. Under friendly questioning by the client s attorney you expound on your findings and opinions. All the while a court reporter diligently records your every word. The sequence and trappings that brought you to this point are all very seductive. Will you be prepared, however, for the withering cross-examination informed by experts consulting to the opposing counsel? Will you be surprised by the complaint to the ethics committee or licensing board that you practiced beyond your area of competence or gave opinions unsupported by data or expertise? Will a malpractice lawsuit follow? Will your words, so carefully recorded, come back to embarrass you or betray your ignorance on some key points? Aside from sexual intimacies with clients, incompetent entanglements with the legal system form the most frequent basis of ethics and licensing board complaints against psychologists. I hope to have illustrated how some of these situations come to pass. More important, I hope to have demonstrated that psychologists increasingly find themselves held to a standard of care and competence when practicing in the forensic arena. This book will help both to teach and elaborate on that standard. Alan Goldstein has gathered together an impressive array of experts to focus not only on established areas of forensic practice, but also on emerging and rapidly evolving areas. The topics cover material from the traditional civil and criminal content to the content that seems drawn from today s headlines: abuse of children by teachers and clergy, abuse of the elderly, forensic issues at the end of life, and workplace violence. The contributors have provided a current snapshot with finegrained detail in subspecialty areas of forensic practice. In addition, readers will come away with a comprehensive view of the field that affords a sense both of the past and of the future potential of the field, grounded (as it should be) in rigorous behavioral science and professional integrity. Boston, Massachusetts GERALD P. KOOCHER, PHD, ABPP REFERENCES Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S., 579 (1993). Jenkins v. U.S., 307 F.2d 637 U.S. App. D.C. (1962).

15 Preface FORENSIC PSYCHOLOGY: EMERGING TOPICS AND EXPANDING ROLES Four years ago, I shipped a carton containing the manuscript of Forensic Psychology, the 11th volume of the Handbook of Psychology, to the publisher, John Wiley & Sons (Goldstein, 2003). In that carton were twenty-eight chapters, addressing such topics as forensic ethics, the nature of expert testimony, methodological approaches to forensic assessment, and those psycholegal issues that most frequently serve as sources of assessment referrals for forensic mental health professionals. Topics that are covered in that book represent the mainstream of forensic psychology and psychiatry practice and research. They include chapters focusing on jury selection, eyewitness memory, child custody, personal injury, employment discrimination, trial competence, criminal responsibility, juvenile offenders, child sexual abuse, sexual predators, and violence risk assessment. As the editor of that volume, among the most difficult tasks was limiting the topics that were to be addressed there. Initially, the plan called for 25 chapters, but when the outline of the book was presented to Irving Weiner, the editor-in-chief of the 12-volume series, he spared me the pain of eliminating three topics. As a board certified forensic psychologist, he, too, recognized that describing the state of knowledge of the field of forensic psychology at that time required the inclusion of all the proposed topics. Even with 28 chapters and more than 600 pages, I recognized that a number of topics reflective of the field of forensic psychology research and practice were not included. Some represented what many would consider to fall within the mainstream of forensic psychology and psychiatry: civil commitment, termination of parental rights, and federal sentencing evaluations. Others, though not frequent sources of referrals, nonetheless occasionally generate requests for assessments and had a published knowledge base: postconviction evaluations, psychological independent medical evaluations (IMEs), and workplace violence. Over the past decade, a number of other psycholegal topics have emerged and have begun to serve as the source of referrals to forensic mental health experts; they are psycholegal topics about which very little has been published integrating their broad knowledge base: clergy and teacher sexual abuse, abuse of the elderly, and end-of-life issues such as physician-assisted suicide and the legal capacity of terminally ill patients to initiate do-not-resuscitate orders. In addition, few publications have addressed the appropriate application of instruments frequently used in clinical psychology to xiii