Fundamentals of FORENSIC PRACTICE MENTAL HEALTH AND CRIMINAL LAW RICHARD ROGERS DANIEL W. SHUMAN

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2 Fundamentals of FORENSIC PRACTICE MENTAL HEALTH AND CRIMINAL LAW RICHARD ROGERS DANIEL W. SHUMAN

3 Fundamentals of Forensic Practice Mental Health and Criminal Law

4 Fundamentals of Forensic Practice Mental Health and Criminal Law Richard Rogers, Ph.D., ABPP University of North Texas, Denton, TX and Daniel W. Shuman, J.D. Southern Methodist University, Dallas, TX

5 Richard Rogers Department of Psychology University of North Texas Denton, TX USA Daniel W. Shuman School of Law Southern Methodist University Dallas, TX USA Library of Congress Control Number: ISBN 10: e-isbn ISBN 13: Printed on acid-free paper. C 2005 Springer Science+Business Media, Inc. All rights reserved. This work may not be translated or copied in whole or in part without the written permission of the publisher (Springer Science+Business Media, Inc., 233 Spring Street, New York, NY 10013, USA), except for brief excerpts in connection with reviews or scholarly analysis. Use in connection with any form of information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed is forbidden. The use in this publication of trade names, trademarks, service marks, and similar terms, even if they are not identified as such, is not to be taken as an expression of opinion as to whether or not they are subject to proprietary rights. Printed in the United States of America. (TB/MVY) springeronline.com

6 Contents SECTION I Foundations of Practice... 1 Chapter 1: Clinical and Legal Framework... 3 Historical Perspective on Forensic Psychology and Psychiatry... 4 Conceptual Models of Forensic Psychology and Psychiatry... 5 Conceptual Models of Attorneys and Mental Health Issues... 9 Scientific Status of Forensic Psychology and Psychiatry Legal Status of Forensic Psychology and Psychiatry Looking Forward at the Chapters and Their Goals Chapter 2: Malingering and Deception in Criminal Evaluations Fundamental Issues with Response Styles Detection Strategies for Feigned Presentations Standardized Assessment of Malingering Summary Chapter 3: The Nature of Experts and Their Testimony The Nature of Experts Expert Testimony v

7 vi CONTENTS Expert Qualifications Direct Examination An Overview of Direct Examination Redirect Examination Summary SECTION II Specific Criminal Issues Chapter 4: Forensic Determinations of Diversion and Bail Relevant Legal Standards Clinical Operationalization of Diversion and Bail Determinations Clinical Methods and Forensic Considerations Potential Trial Issues Summary Chapter 5: Miranda and Beyond: Competencies Related to Police Investigations Relevant Legal Standards Clinical Operationalization of Waiver Decisions Clinical Methods and Forensic Considerations General Cross-Examination Issues Summary Chapter 6: Competency to Stand Trial Relevant Legal Standards Clinical Operationalization of the Competency Standard Forensic Assessment Methods General Cross-Examination Issues Summary Chapter 7: The Insanity Defense Relevant Legal Standards Clinical Operationalization of the Insanity Standards Specialized Methods for Assessing Insanity General Cross-Examination Issues Summary Chapter 8: Beyond Insanity: Other Issues of Criminal Responsibility Relevant Legal Standards Clinical Operationalization of Criminal Culpability Standards

8 CONTENTS vii Clinical Methods Relevant to Assessments of Criminal Responsibility Summary Chapter 9: Sentencing Recommendations and Capital Issues Relevant Legal Standards Overview of Clinical Methods and Sentencing Determinations Clinical Applications to Noncapital Cases Clinical Applications to Capital Cases General Cross-Examination Issues in Non-Capital Sentencing Trial Strategies and Cross-Examination Issues in Capital Sentencing Summary Chapter 10: Competency to Be Executed and Other Post-Conviction Relief Issues Relevant Legal Standards Clinical and Forensic Applications to Competency to Be Executed Clinical and Forensic Applications to Competence to Waive Appeals General Cross-Examination Issues Summary Chapter 11: Sexual Predator Determinations Relevant Legal Standards Clinical Operationalization and Forensic Methods for SVP Determinations General Cross-Examination Issues Summary Chapter 12: Integration: Themes in Criminal Forensic Practice Science and Skill in Clinical Forensic Practice Forensic Predictions and Classifications Scrutiny and Skepticism as Watchwords for Criminal Attorneys The Interdependence of Law and Forensic Practice Concluding Remarks Appendix A: The Accuracy of DSM Indices of Malingering Specifically for use as court exhibits, copies of Appendices A through I are permitted for this explicit purpose.

9 viii CONTENTS Appendix B: Systematic Review of Standardized Measures for Feigned Mental Disorders and Their Detection Strategies Appendix C: Systematic Review of Standardized Measures for Feigned Cognitive Impairment and Their Detection Strategies Appendix D: MMPI-2 Meta-Analysis and Feigned Mental Disorders: A Summary of Rogers et al. (2003) Appendix E: Ultimate Opinions: Bans and Questionable Practices Appendix F: Summary of the Grisso s (1998) Miranda Instruments for Use with Adult Offenders Appendix G: The MMPI-2 and Insanity Evaluations: A Descriptive Analysis Appendix H: Analysis of Risk Assessment Measures: Are They Relevant to Sexually Violent Predator (SVP) Standards? Appendix I: Standards for Diagnoses in Forensic Practice: A Comparison of Unstandardized, Standardized, and Extrapolated Diagnoses References Name Index Subject Index Specifically for use as court exhibits, copies of Appendices A through I are permitted for this explicit purpose.

10 I Foundations of Practice

11 1 Clinical and Legal Framework Mental health and legal professionals face formidable challenges in applying their knowledge and expertise to the criminal justice system. This book addresses psycholegal issues from both law (e.g., statutes, case law, and legal theory) and clinical-forensic (e.g., empirically based knowledge and specialized methods) perspectives. Within the criminal justice system, it considers the major legal, empirical, and forensic issues found in the law mental health interface. Psycholegal issues arise at each major phase (i.e., pretrial, trial, sentencing, and postconviction) of the criminal trial process. Pretrial issues include (1) the initial processing of defendants, such as their diversion from the criminal justice system; (2) psychological factors affecting the determination of bail; and (3) competencies as they relate to Miranda warnings and warrantless searches. Trial issues address several psycholegal standards most familiar to forensic clinicians, specifically competency to stand trial and insanity. Less common issues involve other matters of criminal responsibility, such as mens rea and guilty-but-mentally ill. Sentencing issues consider both noncapital and capital domains. In noncapital cases, sentencing examines psychological issues as they relate to rehabilitation and incapacitation. In capital cases, aggravating and mitigating 3

12 4 CHAPTER 1 factors plus other constitutionally required issues (e.g., Estelle warnings and Atkins exclusion of the mentally retarded) must be considered. Postconviction issues address such capacities as the competency to waive appeals and competency to be executed. As a matter of convenience, standards for sexually violent predators are also considered at this point because civil issues are raised in the postconviction, postpunishment phase. HISTORICAL PERSPECTIVE ON FORENSIC PSYCHOLOGY AND PSYCHIATRY Modern forensic psychiatry and psychology can be traced to several crucial developments during the 1960s that shaped and refined these closely related specialties. Early forensic practice provided a colorful, if unscientific, chronicle of infamous cases and notorious trials that often centered on the sanity of a criminal defendant (Prosono, 2003; Quen, 1981). Developments starting in the 1960s involve (a) early efforts at standardizing forensic evaluations, (b) judicial decisions on admissibility that opened the door to forensic psychology with an equivalent expert status to forensic psychiatry (Jenkins v. United States, 1962), and (c) a widespread acknowledgment of law as the general framework for forensic practice. The growing stature of these specialties was marked by the formation of prominent professional societies, the American Academy of Psychiatry and Law in 1968 and the American Board of Forensic Psychology in The maturation of these forensic specialties is noted by the development of sophisticated training programs at the doctoral and postdoctoral levels (Brigham & Grisso, 2003). Modern forensic psychology and psychiatry are distinguished by their sophisticated understanding of legal issues and the empirical underpinnings of their practice. Robey s (1965) seminal research on competency to stand trial provides a simple yet elegant demarcation between early and modern practice. Robey observed that early practitioners routinely applied their customary clinical skills without appearing cognizant of the specific forensic issues. His straightforward analysis has far-reaching implications. It suggested that traditional insularity be replaced by professional accountability. In presaging empirical validation, it recommended that idiosyncratic approaches be replaced by standardized methods. Though largely unheralded, Robey (1965) easily could be considered the beginning of modern forensic practice.

13 CLINICAL AND LEGAL FRAMEWORK 5 CONCEPTUAL MODELS OF FORENSIC PSYCHOLOGY AND PSYCHIATRY Overview of the Models Conceptual models of forensic practice have evolved from the early clinical-only perspective to incorporate legal underpinnings and empirical validation. As a major departure from the clinical-only tradition, Melton, Petrila, Poythress, and Slobogin (1987) emphasized the legal clinical model with statutes, case law, and legal theory providing the primary framework for forensic practice. In contrast, clinical skills were considered of secondary importance, often de-emphasized and occasionally denigrated (see Rogers & Ewing, 2003). In standardizing insanity evaluations, Rogers (1984, 1986) exemplified the current model of forensic practice: the legalempirical-forensic perspective that balances the legal framework with empirical validation. Grisso (1986, 2002) has championed this legal-empiricalforensic model and is largely responsible for its widespread acceptance. The foundational paradigm for this book is the legal-empirical-forensic perspective. It provides the core structure implicitly in Part I, Foundations of Practice, and explicitly in Part II, Specific Criminal Issues. Its integral elements are the following: The legal framework provides the essential template in generally defining legal standards and broadly addressing their interpretations. The law also attempts to determine the parameters of expert knowledge. However, the legal framework cannot establish the underlying science and theory of forensic psychology and psychiatry. Empirical validation is equally essential to forensic specialties. With rare exception, the law provides only nonspecific constructs. Specialties, such as forensic psychology and psychiatry, bear the responsibility of operationalizing these constructs and developing empirically validated methods for their assessment. Such methods should be theoretically driven and consonant with scientific principles. The Supreme Court in Daubert and its progeny demand evidentiary reliability grounded in more than self-proclamation (i.e., ipse dixitism of the expert). The legal and empirical components are insufficient by themselves for forensic practice. While providing broad conceptualizations, tested theory, and nomothetic knowledge, these components do not capture the singular challenges found in evaluations of individual defendants. The final component, forensic, is the application of legal

14 6 CHAPTER 1 interpretation and specialized methods to a particular case. Forensic expertise requires more than customary clinical practice in its rigorous implementation of forensic principles, ethics, and decisionmaking. Relevance to Forensic Practice Many criminal attorneys may begin to question the relevance of the foregoing discussion to their practices. Why does it matter that forensic psychology and psychiatry embrace the legal-empirical-forensic paradigm? It matters because more than a few forensic experts lack the requisite understanding of one or more these essential components for forensic competence. The basis for their expertise is sciolism, a smattering of superficial knowledge. For each component, Box 1-1 illustrates general avenues for cross-examination. These components will be examined closely in subsequent chapters as they relate to specific legal standards. It is surprising that cross-examining attorneys routinely allow unprepared experts to testify without rigorously questioning their competence. The illustrative questions in Box 1-1 are not intended to be antagonistic or demeaning. Rather, the expertise of experts should be calmly explored in criminal trials. For example, cross-examinations about legal understanding may uncover a substantive misconstrual of the relevant criteria. Nearly all experts will be able to recall the gist of legal standard. Of greater relevance is their understanding of the standard and their ability to articulate its meaning in their own words. Although the rules of evidence permit experts to offer non-opinion testimony (i.e., scientific or technical data), most often it is the expert s opinion that is offered. To be helpful, the expert s opinion must be based on a firm and accurate understanding of the relevant standard. This understanding provides the necessary framework for subsequent opinions. The expert s expertise (i.e., both qualifications and the accuracy of the methods employed), and the relevance of the resulting opinion to the pertinent legal issue in the case are central issues for cross as well as direct examination. Expert opinions require more than a superficial understanding of the relevant legal standard. In addition their expert application to the facts of the case necessitates empirically grounded methods and procedures. A substantial minority of experts is unknowledgeable of the science and theory undergirding their opinions. For the criminal attorney, the essential question to be asked of experts is simply, How do you know what you claim to know? Consider for a moment three illustrative examples of knowledge that should be possessed by forensic clinicians involved in criminal cases:

15 CLINICAL AND LEGAL FRAMEWORK 7 Box 1-1 Are Experts Adequately Prepared? Illustrative Cross-Examination Questions Legal Understanding 1. Doctor, you were retained in this case to address (i.e., a specific legal standard), is that correct? 2. Why is it important to correctly understand (i.e., a specific legal standard), before rendering an opinion? 3. What sources of information did you use to ensure a correct understanding? [Look for limited or potentially biased sources] 4. You just testified about (i.e., a specific legal standard). Please tell us in your own words what that means to you.... [If hesitates or stumbles] Doctor, you appear to be unsure of yourself, wouldn t you agree? 5. You mentioned (i.e., a component of the standard), please tell us what that means to you.... [If incomplete] Anything else you would like to add?... [If inaccurate] How confident are you in this description? 6. [#5 can be repeated for each major component of the standard] Empirically Validated Knowledge and Methods 1. Please define forensic (select: psychology/psychiatry). Is this a legitimate specialty with its own empirically validated knowledge and assessment methods? 2. Are you qualified to describe yourself as a forensic (select: psychologist/ psychiatrist)? 3. Regarding (i.e., a specific legal standard), does forensic psychology and psychiatry have any empirically validated knowledge?... [if unclear] Any specialized knowledge base in scientific research that would qualify you as an expert? 4. Are you competent to describe this empirically validated knowledge of (i.e., a specific legal standard)? [If no, pursue further the obvious limits of expertise] 5. Who are the most prominent researchers in establishing this empirically validated knowledge? 6. You mentioned (i.e., a prominent researcher), tell us about his or her research methodology?... [If the answer addresses the major findings] Please don t duck my question, I asked about the research methodology. 7. [#6 can be repeated for other prominent researchers] Forensic Practice 1. Does forensic (select: psychology/psychiatry) have its own ethical guidelines? 2. Please be specific, which ethical guidelines are particularly relevant to this case?... [If uncertain] Doctor, how many months, or even years, has it been since you carefully reviewed the forensic ethical guidelines? 3. Doctor, did you have your mind made up before you saw the defendant is this case?...please tell the court why it is important to have an open mind and consider different hypotheses. 4. What were the competing hypotheses in this case?...where in your report did you discuss the competing hypotheses? (Continued)