Tài liệu Fundamentals of Forensic Practice Mental Health and Criminal Law pdf

Fundamentals of

Forensic Practice

Mental Health and

Criminal Law

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

Richard Rogers

Department of Psychology

University of North Texas

Denton, TX 76203-1280

USA

rogers@unt.edu.

Daniel W. Shuman

School of Law

Southern Methodist University

Dallas, TX 75275

USA

dshuman@mail.smu.edu

Library of Congress Control Number: 2005923617

ISBN 10: 0-387-25226-6 e-ISBN 0-38725227-4

ISBN 13: 978-0387-25226-1

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

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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 ......... 10

Legal Status of Forensic Psychology and Psychiatry ............ 16

Looking Forward at the Chapters and Their Goals ............. 17

Chapter 2: Malingering and Deception in Criminal Evaluations ... 21

Fundamental Issues with Response Styles ................... 22

Detection Strategies for Feigned Presentations ................ 31

Standardized Assessment of Malingering .................... 39

Summary .............................................. 55

Chapter 3: The Nature of Experts and Their Testimony .......... 57

The Nature of Experts .................................... 57

Expert Testimony ....................................... 68

v

vi CONTENTS

Expert Qualifications .................................... 68

Direct Examination ...................................... 73

An Overview of Direct Examination ........................ 76

Redirect Examination .................................... 80

Summary .............................................. 81

SECTION II Specific Criminal Issues ........................ 83

Chapter 4: Forensic Determinations of Diversion and Bail ....... 85

Relevant Legal Standards ................................. 86

Clinical Operationalization of Diversion and Bail

Determinations ....................................... 92

Clinical Methods and Forensic Considerations ................ 97

Potential Trial Issues ..................................... 105

Summary .............................................. 110

Chapter 5: Miranda and Beyond: Competencies Related to

Police Investigations ....................................... 113

Relevant Legal Standards ................................. 115

Clinical Operationalization of Waiver Decisions ............... 125

Clinical Methods and Forensic Considerations ................ 130

General Cross-Examination Issues .......................... 146

Summary .............................................. 149

Chapter 6: Competency to Stand Trial ....................... 151

Relevant Legal Standards ................................. 152

Clinical Operationalization of the Competency Standard ........ 161

Forensic Assessment Methods ............................. 168

General Cross-Examination Issues .......................... 176

Summary .............................................. 180

Chapter 7: The Insanity Defense ............................ 181

Relevant Legal Standards ................................. 182

Clinical Operationalization of the Insanity Standards .......... 193

Specialized Methods for Assessing Insanity .................. 205

General Cross-Examination Issues .......................... 207

Summary .............................................. 214

Chapter 8: Beyond Insanity: Other Issues of Criminal

Responsibility ............................................ 215

Relevant Legal Standards ................................. 216

Clinical Operationalization of Criminal Culpability Standards ... 229

CONTENTS vii

Clinical Methods Relevant to Assessments of Criminal

Responsibility ........................................ 238

Summary .............................................. 258

Chapter 9: Sentencing Recommendations and Capital Issues ..... 259

Relevant Legal Standards ................................. 261

Overview of Clinical Methods and Sentencing Determinations ... 269

Clinical Applications to Noncapital Cases .................... 270

Clinical Applications to Capital Cases ....................... 282

General Cross-Examination Issues in Non-Capital Sentencing ... 295

Trial Strategies and Cross-Examination Issues in Capital

Sentencing ........................................... 299

Summary .............................................. 308

Chapter 10: Competency to Be Executed and Other Post-Conviction

Relief Issues ............................................. 311

Relevant Legal Standards ................................. 312

Clinical and Forensic Applications to Competency

to Be Executed ........................................ 320

Clinical and Forensic Applications to Competence to Waive

Appeals ............................................. 325

General Cross-Examination Issues .......................... 329

Summary .............................................. 333

Chapter 11: Sexual Predator Determinations .................. 335

Relevant Legal Standards ................................. 336

Clinical Operationalization and Forensic Methods for SVP

Determinations ....................................... 342

General Cross-Examination Issues .......................... 352

Summary .............................................. 364

Chapter 12: Integration: Themes in Criminal Forensic Practice .... 367

Science and Skill in Clinical Forensic Practice ................. 367

Forensic Predictions and Classifications ..................... 377

Scrutiny and Skepticism as Watchwords for Criminal

Attorneys ............................................ 382

The Interdependence of Law and Forensic Practice ............ 385

Concluding Remarks .................................... 386

Appendix A: The Accuracy of DSM Indices of Malingering∗ ...... 389

∗Specifically for use as court exhibits, copies of Appendices A through I are permitted for this

explicit purpose.

viii CONTENTS

Appendix B: Systematic Review of Standardized Measures for

Feigned Mental Disorders and Their Detection Strategies∗ ........ 391

Appendix C: Systematic Review of Standardized Measures for

Feigned Cognitive Impairment and Their Detection Strategies∗ .... 393

Appendix D: MMPI-2 Meta-Analysis and Feigned Mental

Disorders: A Summary of Rogers et al. (2003)∗ .................. 395

Appendix E: Ultimate Opinions: Bans and Questionable

Practices∗ ............................................... 397

Appendix F: Summary of the Grisso’s (1998) Miranda Instruments

for Use with Adult Offenders∗ .............................. 399

Appendix G: The MMPI-2 and Insanity Evaluations: A Descriptive

Analysis∗ ............................................... 401

Appendix H: Analysis of Risk Assessment Measures: Are They

Relevant to Sexually Violent Predator (SVP) Standards?∗ ......... 403

Appendix I: Standards for Diagnoses in Forensic Practice:

A Comparison of Unstandardized, Standardized, and

Extrapolated Diagnoses∗ ................................... 405

References ............................................... 407

Name Index ............................................. 435

Subject Index ............................................ 439

∗Specifically for use as court exhibits, copies of Appendices A through I are permitted for this

explicit purpose.

I

Foundations of Practice

1

Clinical and Legal Framework

Mental health and legal professionals face formidable challenges in ap￾plying 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, sen￾tencing, 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 psychole￾gal 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. Sen￾tencing issues consider both noncapital and capital domains. In noncapi￾tal cases, sentencing examines psychological issues as they relate to reha￾bilitation and incapacitation. In capital cases, aggravating and mitigating

3

4 CHAPTER 1

factors plus other constitutionally required issues (e.g., Estelle warnings

and Atkins exclusion of the mentally retarded) must be considered. Post￾conviction issues address such capacities as the competency to waive ap￾peals and competency to be executed. As a matter of convenience, stan￾dards 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 sev￾eral 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 admissibil￾ity that opened the door to forensic psychology with an equivalent ex￾pert status to forensic psychiatry (Jenkins v. United States, 1962), and (c) a

widespread acknowledgment of law as the general framework for foren￾sic 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 Foren￾sic Psychology in 1969. The maturation of these forensic specialties is

noted by the development of sophisticated training programs at the doc￾toral and postdoctoral levels (Brigham & Grisso, 2003). Modern foren￾sic 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 pro￾vides a simple yet elegant demarcation between early and modern prac￾tice. Robey observed that early practitioners routinely applied their cus￾tomary clinical skills without appearing cognizant of the specific forensic

issues. His straightforward analysis has far-reaching implications. It sug￾gested that traditional insularity be replaced by professional accountabil￾ity. In presaging empirical validation, it recommended that idiosyncratic

approaches be replaced by standardized methods. Though largely unher￾alded, Robey (1965) easily could be considered the beginning of modern

forensic practice.

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 frame￾work 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 legal￾empirical-forensic perspective that balances the legal framework with em￾pirical validation. Grisso (1986, 2002) has championed this legal-empirical￾forensic 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 interpreta￾tions. The law also attempts to determine the parameters of expert

knowledge. However, the legal framework cannot establish the un￾derlying 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. Special￾ties, such as forensic psychology and psychiatry, bear the responsi￾bility of operationalizing these constructs and developing empiri￾cally 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 reli￾ability 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

6 CHAPTER 1

interpretation and specialized methods to a particular case. Forensic

expertise requires more than customary clinical practice in its rig￾orous implementation of forensic principles, ethics, and decision￾making.

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 un￾derstanding of one or more these essential components for forensic compe￾tence. 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 subse￾quent chapters as they relate to specific legal standards.

It is surprising that cross-examining attorneys routinely allow unpre￾pared 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 understand￾ing may uncover a substantive misconstrual of the relevant criteria. Nearly

all experts will be able to recall the gist of legal standard. Of greater rele￾vance is their understanding of the standard and their ability to articulate

its meaning in their own words. Although the rules of evidence permit ex￾perts 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 rele￾vant 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 ap￾plication 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: